Miller v. Miller

799 So. 2d 753, 2001 WL 1337574
CourtLouisiana Court of Appeal
DecidedOctober 31, 2001
Docket01-0356
StatusPublished
Cited by25 cases

This text of 799 So. 2d 753 (Miller v. Miller) 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
Miller v. Miller, 799 So. 2d 753, 2001 WL 1337574 (La. Ct. App. 2001).

Opinion

799 So.2d 753 (2001)

Peggy D. MILLER
v.
David L. MILLER.

No. 01-0356.

Court of Appeal of Louisiana, Third Circuit.

October 31, 2001.

*754 Kathleen Kay, Kathleen Kay, APLC, Lake Charles, LA, Counsel for Plaintiff/Appellant Peggy D. Miller.

Kenneth Badon, Badon Law Firm, Lake Charles, LA, Counsel for Defendant/Appellee David L. Miller.

Michael R. Garber, Lake Charles, LA, Counsel for Defendant/Appellee David L. Miller.

Court composed of ULYSSES GENE THIBODEAUX, JIMMIE C. PETERS and MICHAEL G. SULLIVAN, Judges.

THIBODEAUX, Judge.

Peggy D. Miller appeals a judgment of the trial court disallowing her to relocate with her minor children to another state; awarding joint custody of the children with alternating six-week physical custody periods between her and her former husband, David Miller, failing to name specifically a domiciliary parent; and finding her in contempt of court due to her failure to allow David access to the children. For the reasons set out below, we affirm the trial court's judgment denying Peggy's relocation with the children to Maryland, awarding joint custody of the children to Peggy and David and finding Peggy in contempt of court for failing to allow David to have physical custody of the children from May, 2000 through August, 2000 pursuant to a previously rendered court order to do so. However, we reverse the trial court's judgment *755 that the parents should have physical custody of the children on alternating six-week intervals. We amend the trial court's judgment by designating Peggy as the domiciliary, custodial parent with David, the non-custodial parent, having substantial, rather than equal, time with the children. We remand this matter to the trial court for the purpose of setting specific visitation dates in accordance with this court's opinion.

I.

ISSUES

We will consider whether: (1) the trial court incorrectly concluded that relocation was not in the best interests of the children, (2) the trial court abused its discretion in changing the joint custody plan from alternating one-week periods to alternating six-week periods, (3) the trial court erred in holding Peggy in contempt of court, and (4) the trial court erred in failing to hold David in contempt of court for perjury.

II.

FACTS

Peggy and David married in 1991 and have lived in Lake Charles since that time. They separated in January 1998, and Peggy filed suit for divorce.

On July 23, 1999, Peggy and David entered into a stipulated judgment which granted them joint custody of their three minor children, Karen, Jasmine and David, Jr. The 1999 custody order provided that each parent would have physical custody of the children on alternating weeks. On August 17, 1999, Peggy mailed a certified letter to David notifying him of her intention to relocate to the State of Maryland with the children. Peggy's letter stated that her reason for relocating to Maryland was because she had family who lived there who would give her assistance with the children, which would make it easier to obtain her registered nursing degree. In response to Peggy's intention to relocate to Maryland, David filed a petition objecting to moving his minor children out of Louisiana. He also sought custody of the children. In response to David's filing, Peggy filed a "Rule to Accumulate Arrearages, Contempt of Court, Attorney's Fees and for Income Assignment" and a motion to dismiss David's objection to her relocation to Maryland.

The trial judge stated that he "heard some witnesses but felt that psychological evaluations of the parents and children would be beneficial to the court in determining if relocation would be proper for [the] children." On April 19, 2000, Peggy and David were granted a divorce. After being told by her oldest daughter Karen that David had beaten her and left bruises on her legs, in May, 2000 Peggy did not allow David to visit with the children. In June of 2000, the psychological reports of the experts were completed and the testimonies of two clinical social workers and one psychologist were taken.

The trial court concluded that Peggy's reasons for wanting to relocate to Maryland were more for her interest as opposed to the children's interests. The trial court further found that each parent would be designated the primary custodial parent but modified the original physical custody agreement to alternating six-week intervals. With respect to Peggy's contempt of court, the trial court concluded that Peggy violated the court's order by not allowing David access to the children.

III.

LAW AND DISCUSSION

Appellate Review

A trial court's determination regarding child custody is to be afforded *756 great deference on appeal and will not be disturbed absent a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365. Every child custody case must be decided based only on its own particular facts and circumstances. Lindner v. Lindner, 569 So.2d 173 (La.App. 1 Cir.1990).

Consideration of the Factors of La.R.S. 9:355.12 and La.Civ.Code art. 134

Peggy asserts that the trial court committed legal error in failing to consider all of the relocation factors of La.R.S. 9:355.12 and the best-interest-of-the-child factors of La.Civ.Code art. 134 and, therefore, this court should review her case de novo. We disagree. Additionally, Peggy asserts that the trial court's findings with regard to the factors it did consider were manifestly erroneous. To support her argument that the trial court committed a legal error, Peggy cites this court's opinion in Johnson v. Johnson, 99-1933 (La.App. 3 Cir. 4/19/00); 759 So.2d 257, writ denied, 00-1425 (La.5/31/00); 762 So.2d 635.

In Johnson, we reversed the judgment of the trial court that relocation was not in the best interest of the child and awarded custody to the mother, who had relocated to the state of Missouri. We further ordered that the child's mother be named domiciliary parent with the father having physical custody of the child for a minimum of one hundred days. Louisiana Revised Statutes 9:355.12 provides as follows:

In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.

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Bluebook (online)
799 So. 2d 753, 2001 WL 1337574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-miller-lactapp-2001.