Perez v. Perez

85 So. 3d 273, 11 La.App. 3 Cir. 537, 2012 WL 630216, 2012 La. App. LEXIS 233
CourtLouisiana Court of Appeal
DecidedFebruary 29, 2012
DocketNo. 11-537
StatusPublished
Cited by2 cases

This text of 85 So. 3d 273 (Perez v. Perez) 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
Perez v. Perez, 85 So. 3d 273, 11 La.App. 3 Cir. 537, 2012 WL 630216, 2012 La. App. LEXIS 233 (La. Ct. App. 2012).

Opinions

GENOVESE, Judge.

Ijn this domestic matter, the mother appeals the trial court’s designation of the father, her former husband, as the domiciliary parent of their two sons and permitting him to relocate the minor children’s residence to Texas. For the following reasons, we affirm the judgment of the trial court in its entirety.

FACTS

Dawn Cheryl Petersen married Oscar Guevara Perez on May 22, 1999. Two children were born of the marriage, Oscar Guevara Perez, Jr. (born April 2, 2000), and Sebastian Chong Perez (born May 28, 2001). The parties were divorced on June 25, 2007. No custody orders were issued by the trial court. Rather, by agreement of the parties, the children lived with Dawn in Leesville, Louisiana, while Oscar continued his employment in Iraq.1

In March of 2007, the two children began living with their paternal grandmother in Oscar’s home, also located in Leesville, Louisiana. When Oscar returned from Iraq in November 2007, his mother moved out of his house, and Oscar moved back into his home along with his two children. The children have continued to reside with Oscar since his return from Iraq.

In 2008, Dawn sought employment in Iraq. Her employment began in November of 2008, and was expected to continue through November of 2010.2

During 2008, Oscar met Marie Perez. In February of 2008, Marie and one of her sons3 moved into Oscar’s home along with Oscar and his children. Oscar and Marie got married at the end of April, 2008. In 2009, Oscar moved to Conroe, Texas. For the remainder of the school year, Marie and the children moved into |2Oscar’s mother’s home, and Marie and the children commuted to Conroe on the weekends to be with Oscar.

In December of 2009, while Dawn was in Iraq, Oscar sent her notice of his intention to relocate the residence of the children to Texas. Dawn filed an objection to the relocation on January 8, 2010. The trial court issued a temporary restraining order prohibiting the relocation, set a hearing date for the injunction, and appointed Dr. John Simoneaux to perform psychological evaluations. On May 20, 2010, the trial court dismissed the injunction. Oscar then relocated the children to Texas.

Trial in this matter began on September 28, 2010, and resumed on October 7, 2010, for the taking of Dr. Simoneaux’s testimony. After taking the matter under advisement, the trial court issued Written Reasons and signed a Judgment on Rule and Implementation Plan for Joint Custody granting the parties joint custody, designating Oscar as the domiciliary parent, and permitting the relocation of the children to Texas. Dawn appeals.

ASSIGNMENTS OF ERROR

On appeal, Dawn asserts that “[t]he trial court erred in making Oscar Perez the domiciliary parent of the minor children.” Additionally, she contends that “[t]he trial court erred in permitting Oscar Perez to [276]*276relocate the minor children’s residence to Texas.” The trial court’s ruling on joint custody was not appealed.

LAW AND DISCUSSION

Domiciliary Status

In designating the domiciliary parent for purposes of a joint custody determination, the best interest of the children is paramount. In making this determination, a trial court is guided by La.Civ. Code art. 134, which provides as follows:

| oThe court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

After hearing the evidence in this case, the trial court issued Written Reasons wherein he concluded that “[i]n carefully considering all of the factors of Article 134 and the testimony of the parties, it appears that the best interest of these children would be served by allowing them to stay in the environment that they are now enjoying.” The trial court noted that the children have been in Texas, where they are enrolled in school and doing well. “Both are making good grades and are |4happy with their situation.” They reside, along with their father, step-mother, and her son, in a four-bedroom home. The children also “have a very good relationship with their step-mother.” The family attends church and both children have been baptized.

On the other hand, Dawn’s future, including her employment and her living arrangements, are much more uncertain. She is currently living with her sister’s family and, while she is a student at Northwestern State University, she is not employed. Additionally, the trial court noted that Dawn was in a relationship and testified that she will probably marry a man who lives in Lufkin, Texas. Although she testified that she hoped to remain in Louisiana, that was dependent on job opportunities.

We also note the trial court’s decision not to adopt the opinion of Dr. Simoneaux. Dr. Simoneaux testified in detail at trial, being questioned by both counsel as well as the trial court judge. The trial court’s [277]*277Written Reasons confirm that Dr. Simo-neaux’s opinion was carefully considered. However, the trial court expressly noted that it did “not feel that Dr. Simoneaux was apprised of some important facts that may have changed his opinions and cannot follow his recommendations.”

Although relevant, a trial court has much discretion in determining the weight to be given expert testimony, and it is free to accept or reject the opinion expressed by any expert. See Dooley v. Dooley, 10-785 (La.App. 3 Cir. 2/2/11), 55 So.3d 985. This is particularly true when, as in the instant matter, the expert is not apprised of all the relevant facts. In this case, it is noteworthy that although he expressed the opinion that the children should remain in Vernon Parish, Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
85 So. 3d 273, 11 La.App. 3 Cir. 537, 2012 WL 630216, 2012 La. App. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-perez-lactapp-2012.