Lowe v. Lowe

244 So. 3d 670
CourtLouisiana Court of Appeal
DecidedSeptember 27, 2017
DocketNo. 51,588–CA
StatusPublished
Cited by4 cases

This text of 244 So. 3d 670 (Lowe v. Lowe) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowe v. Lowe, 244 So. 3d 670 (La. Ct. App. 2017).

Opinion

COX, J.

*672In 2016, Appellant, Yadaira Lowe ("Yadaira"), appealed a judgment from the trial court granting her and Appellee, Brian Lowe ("Brian"), joint custody of their two minor children, with Brian being designated as the domiciliary parent. In the parties' first appeal of Lowe v. Lowe , 50,856 (La. App. 2 Cir. 5/18/16), 196 So.3d 672 (" Lowe I "), this Court was concerned with Brian's capacity to provide the minor children with their basic material needs, independent of his father, and remanded the matter to the trial court for an evidentiary hearing to determine which party should be awarded domiciliary status of the children. On remand, the trial court again awarded Brian domiciliary status. For the following reasons, we respectfully reverse the ruling of the trial court.

FACTS

In Lowe I , the pertinent facts were as follows:

The plaintiff, Brian Lowe ("Brian"), and the defendant, Yadaira Lowe ("Yadaira"), were married on September 3, 2005 in Orlando, Florida. They had two children, L.E.L., who was born on July 18, 2009, and L.G.L, who was born on November 23, 2011.
In 2013, Brian was terminated from an administrative position in Memphis, Tennessee. Having no financial resources, in February 2014, the parties and their young children moved to Farmerville, Louisiana, to live with Brian's father. At the time of the move, Brian was hoping to gain employment as the athletic director at Grambling State University ("GSU").
On July 15, 2014, a domestic dispute ensued between Brian and Yadaira, which resulted in Yadaira calling the Farmerville Police Department.... Yadaira left Farmerville after the incident involving the police. Because she did not have anywhere to live in Farmerville, she went to live with Brian's mother in Monroe. Yadaira testified that she remained in Monroe for approximately two weeks. Thereafter, Brian's mother informed her that she could no longer live with her. Having no place to live in Louisiana, Yadaira returned to Kissimmee, Florida, where the home she owned before she married Brian is located.
On November 24, 2014, Brian filed a petition for divorce. He requested to be designated as the primary domiciliary parent of the minor children... A hearing was conducted on March 9, 2015. The testimony at the hearing revealed Brian was unemployed and financially dependent on his father, a 67-year-old retiree.
At the conclusion of the hearing, the trial court granted domiciliary custody to Brian... The court also expressed its concerns with regard to Brian's unemployed status and financial dependence on his father. The court stated:
I'm somewhat skeptical about his job prospects if he's going to continue to pursue a job as [Athletic Director] at Grambling State University, and if you can't show to the Court that you can support your own family, then I'm going to reconsider this because apparently, Ms. Lowe is able to provide for her children without the assistance of-without the type of assistance, total dependency that you have right now. For that reason, we have agreed that we will have a hearing on this to look at the situation on June the 19th.
The second hearing was held as scheduled. Brian testified that he had been hired as the physical education instructor at the New Vision Learning Academy, an elementary charter school in *673Monroe. On cross-examination, Brian testified that he had been working at New Vision for approximately two weeks... He admitted that he had known the director "for several years." He testified that he told the director that he needed a job, and she hired him immediately without interviewing him for the position. Brian further admitted that he did not tell the director the reason he was terminated from his job in Memphis and he admitted that he did not believe he would be able to maintain his position at New Vision if the administration discovered the reason he was terminated in Memphis. Further, Brian admitted that he had not been hired for the position at GSU. He stated that, although he had been pursuing the position for more than a year, he had not told the university officials about the embezzlement allegation.
Brian further testified on cross-examination as follows: ... he had not earned any income since the prior hearing; he had not received a paycheck from New Vision; and, his father continued to provide for the children.
On redirect examination, Brian testified that since the March hearing, he had conducted a week-long football camp and earned $1,500. He also stated that he conducted a three-day consulting project at a charter high school in Monroe, after which he earned $300.
Yadaira testified first on cross-examination. She testified as follows: she was employed as a clerk in a school nutrition department for the Osceola School District in Kissimmee; she sent Brian $300 in child support in April; her mother is willing to move to Kissimmee to assist her with the children; she has an aunt and a cousin in Kissimmee.
When questioned about the status of her ability to co-parent with Brian, Yadaira admitted that she does not believe Brian will foster a relationship between the children and her if he is awarded domiciliary custody. She testified that Brian hangs up during her phone calls to the children.
At the conclusion of the hearing, the trial court awarded joint custody and designated Brian as the primary domiciliary parent, stating:
It basically all comes down to the fact [that] the children are here in Louisiana[.] [T]hey have a fairly stable home. [Mr. Lowe has] the possibility of a good job at Grambling, and [he has] a pretty good support system here from everything I've heard. The children are here. And, Ms. Lowe, I can appreciate your feeling that you are trapped if you stay here in Louisiana and you probably had no choice but to move to Florida; but the fact is they are here in Louisiana and if I allow you to take them to Florida, then by your moving to Florida, you're taking the children away from their dad. And for that reason, I will name Mr. Lowe as the primary domiciliary parent.

On the first appeal, this Court found that the trial court erred in designating Brian as domiciliary parent. The Court stated that Brian did not meet his burden of proving he is capable of providing the children with their basic material needs, independent of his father's generosity. The matter was reversed and remanded to the trial court for a determination of custody based upon a current presentation of the facts, particularly regarding Brian's capacity to provide the minor children with their basic material needs, "independent of his aging father."

On remand, the parties agreed that the only evidence to be considered by the trial *674court was the current employment and economic situation with regard to Brian.

Adriel Hilton, Ph.D., Chief of Staff and Executive Assistant to the President of Grambling State University ("GSU"), was the first to testify.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
244 So. 3d 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-lowe-lactapp-2017.