Owens v. Owens

140 So. 3d 865, 14 La.App. 3 Cir. 165, 2014 WL 2515259, 2014 La. App. LEXIS 1488
CourtLouisiana Court of Appeal
DecidedJune 4, 2014
DocketNo. 14-165
StatusPublished
Cited by2 cases

This text of 140 So. 3d 865 (Owens v. Owens) 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
Owens v. Owens, 140 So. 3d 865, 14 La.App. 3 Cir. 165, 2014 WL 2515259, 2014 La. App. LEXIS 1488 (La. Ct. App. 2014).

Opinion

THIBODEAUX, Chief Judge.

hThe defendant, Kevin R. Owens, appeals the judgment granting the request of the plaintiff, Melinda L. Cardenas Owens Spears, to relocate the parties’ daughter to Johnson City, Tennessee. Finding no abuse of discretion in this relocation dis[866]*866pute, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court abused its discretion or manifestly erred in granting the mother’s request to relocate the minor child to Tennessee and in modifying the father’s visitation accordingly.

II.

FACTS AND PROCEDURAL HISTORY

Kallee Owens is the daughter of Kevin Owens and Melinda Owens Spears. After their divorce, Melinda married Dr. Thomas Spears and sought relocation of Kallee to Johnson City, Tennessee from Hornbeck, Louisiana. The trial court granted the request.

We adopt the well-written reasons of the trial court in our discussion below of the further particulars of the case.

III.

STANDARD OF REVIEW

A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. [Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094], Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson, 09-609 (La. App. 3 Cir. 11/18/09), 25 So.3d 203, citing Mart v. Hill, 505 So.2d 1120 (La.1987). On review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.

Perez v. Perez, 11-537, p. 6 (La.App. 3 Cir. 2/29/12), 85 So.3d 273, 278, writ denied, 12-743 (La.5/18/12), 89 So.3d 1195.

The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

IV.

LAW AND DISCUSSION

Mr. Owens contends that the trial court manifestly erred in granting the relocation request of Mrs. Spears. We disagree. Mrs. Spears met her burdens of proving by a preponderance of the evidence that the relocation is being done in good faith and is in the best interest of the parties’ daughter. Additionally, the modification of the visitation/custody arrangement is in the best interest of the child.

|sThe Title 9 child relocation statutes are La.R.S. 9:355.1 to 9:355.19. “The person proposing relocation has the burden of proof that the proposed relocation is [1] made in good faith and is [2] in the best interest of the child.” La.R.S. 9:355.10. “Although the person proposing relocation has the burden to prove that the relocation [867]*867attempt is made both in good faith and in the best interest of the child, there is no presumption in favor of or against relocation of the child’s residence.” La.R.S. 9:355.10, Comment (a) — 2012 Revision. “If an objection to the relocation is made in accordance with R.S. 9:355.7, the person wishing to relocate must prove by a preponderance of the evidence, on contradictory hearing, that relocation meets the good faith and best interest standards.” Id.

Under La.R.S. 9:355.14, the court is given twelve factors to consider in determining whether the requested relocation is in the best interest of the child:

A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, 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.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
|4(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons of each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

As with the factors in the custody statute, La.Civ.Code art. 134,1 the court “need [868]*868not make a factual finding on every factor.” La.R.S. 9:355.14, | .^Comment (a)-2012 Revision. Nor does the relocation statute “direct the court to give preferential consideration to certain factors.” Curole, 828 So.2d at 1097.

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Bluebook (online)
140 So. 3d 865, 14 La.App. 3 Cir. 165, 2014 WL 2515259, 2014 La. App. LEXIS 1488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-owens-lactapp-2014.