Richardson v. RICHARDSON (BLACKMAR)

802 So. 2d 726, 2001 WL 1150315
CourtLouisiana Court of Appeal
DecidedSeptember 28, 2001
Docket2001 CU 0777
StatusPublished
Cited by12 cases

This text of 802 So. 2d 726 (Richardson v. RICHARDSON (BLACKMAR)) 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
Richardson v. RICHARDSON (BLACKMAR), 802 So. 2d 726, 2001 WL 1150315 (La. Ct. App. 2001).

Opinion

802 So.2d 726 (2001)

George Gregory RICHARDSON
v.
Terri Lynn Peterson RICHARDSON (BLACKMAR).

No. 2001 CU 0777.

Court of Appeal of Louisiana, First Circuit.

September 28, 2001.
Writ Denied November 16, 2001.

*727 Charlotte A. Pugh, Denham Springs, Counsel for Plaintiff/Appellee George Gregory Richardson.

Deborah P. Gibbs, Baton Rouge, Counsel for Defendant/Appellant Terri Lynn Peterson Richardson Blackmar.

Before: FOGG, GUIDRY, and SHORTESS, JJ.[1]

GUIDRY, Judge.

In this custody dispute, which has a long and protracted history, the family court rendered a judgment resulting in the split custody of two brothers. The defendant/mother (Ms. Blackmar) appeals the family court's judgment allowing her requested relocation from Baton Rouge to Illinois with one child, Aaron, but awarding a change in the "domiciliary parent status" over the older child, Pete, to the plaintiff/father (Mr. Richardson), who resides in Columbia, Louisiana. The family court's judgment regarding Ms. Blackmar's request for relocation has been before us previously, at which time we vacated the judgment based on the court's legal error in allowing the expert testimony of Dr. Alan Taylor to be heard in chambers, outside of the presence of the parties, and further, in issuing a gag order preventing the disclosure of that testimony to any of the parties. We remanded the matter to the family court for the taking of the testimony of Dr. Alan Taylor in the presence of the parties and for a re-determination of the best interests of the two children. On remand, the testimony of Dr. Taylor was taken, after which the family court, again, allowed Ms. Blackmar to relocate and found that it is in the best interest of the younger child, Aaron, to relocate with his mother and her new husband to Naperville, Illinois, but if Ms. Blackmar chose to relocate, it would be in the best interest of the older child, Pete, to live with his father in Columbia, Louisiana.[2]

BACKGROUND FACTS AND PROCEDURAL HISTORY

Mr. Richardson and Ms. Blackmar were married in February, 1987, in Tucker, Georgia. They established their matrimonial domicile in East Baton Rouge Parish and subsequently, two children were born of the marriage: Pete, born in September, 1987, and Aaron, born in November, 1994. The parties separated in April, 1996, and entered into a consent judgment wherein *728 they agreed to share the joint custody of the children, with Ms. Blackmar being designated as the domiciliary parent; support and visitation were also agreed upon by the parties. The parties were granted a divorce in October, 1996. Shortly thereafter, Mr. Richardson, who is self-employed and owns an engineering consulting firm, moved to Atlanta, Georgia. During this time, he enjoyed visitation with the children in Columbia, Louisiana, and neither party indicated any problems with the visitation arrangement.

Subsequently, and out of concern about the educational needs and falling grades of the older child, Peter, Ms. Blackmar voluntarily agreed to allow Peter to live with his paternal grandmother, who could provide tutorial aid, and attend school in Columbia, Louisiana, for the fourth-grade school term. Mr. Richardson moved his business to Columbia, to be near Peter and Mr. Richardson's mother. At the end of the school year, Peter returned to Baton Rouge to live with his mother and brother, and the parties resumed the visitation schedule.

In May, 1997, Ms. Blackmar remarried. Shortly thereafter, Mr. Richardson filed a petition to change custody, which was denied by the family court who maintained Ms. Blackmar as the domiciliary parent. In July, 1999, Mr. Richardson filed another petition to change custody during the school year. Again, the family court found that Mr. Richardson could not meet the required burden of proof for a change in custody.

On November 8, 1999, Ms. Blackmar notified Mr. Richardson, by certified mail in compliance with Louisiana's relocation statute, particularly La. R.S. 9:355.4, of her intent to relocate with the children from Baton Rouge, Louisiana to Naperville, Illinois, due to the demands of her new husband's job promotion and transfer. Mr. Richardson responded with a petition opposing the relocation. A hearing was held on May 1, 2000, following which the family court judge rendered the judgment allowing Ms. Blackmar to relocate with the younger child, Aaron, but providing that if Ms. Blackmar relocated, custody of the older child, Pete, would be awarded to Mr. Richardson in Columbia, Louisiana.

As noted earlier, that judgment was vacated by this court on an earlier appeal based on a finding of legal error concerning the testimony of Dr. Alan Taylor. See Richardson v. Blackmar, XXXX-XXXX (La. App. 1 Cir. 12/22/00), 774 So.2d 1264. The matter was remanded to the family court, at which time, the testimony of Dr. Taylor was heard in the presence of the parties. Again, the family court found that it was in the best interest of the younger child, Aaron, to relocate with this mother, but that it was in the best interest of the older child, Peter, not to relocate to Illinois with his mother and brother, but to live with his father in Columbia, Louisiana. It is this judgment which is the subject of this appeal.

On appeal, Ms. Blackmar raises certain issues pertaining to the family court's actions on remand from this court. Specifically, Ms. Blackmar asserts that the family court erroneously interpreted the purpose of the remand to be solely to take the testimony of Dr. Taylor in the presence of the parties. To this extent, Ms. Blackmar assigns error to the family court's denial of her motion to dismiss or continue the rule, and in limiting the testimony elicited on remand. Also, as in the previous appeal, Ms. Blackmar assigns error to the family court's failure to apply the Daubert test and exclude Dr. Taylor's testimony. Because we find the family court manifestly erred in determining the best interests of the children, even with the benefit of Dr. Taylor's testimony, we pretermit discussion *729 of these issues, and reverse the family court judgment.

RELOCATION

In 1997, the Louisiana legislature added new provisions to Title 9 of the Revised Statutes to govern custody matters involving the relocation of a parent. Acts 1997, No. 1173, § 1, consisting of La. R.S. 9:355.1—9:355.17.

Pursuant to La. R.S. 9:355.13, the relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. La. R.S. 9:355.13; Johnson v. Johnson, 99-1933, p. 4 (La.App. 3 Cir. 4/19/00), 759 So.2d 257, 259, writ denied, XXXX-XXXX (La.5/31/00), 762 So.2d 635. Louisiana Revised Statute 9:355.12 sets forth the factors a court shall consider when determining a relocation issue, as follows:

(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.

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Bluebook (online)
802 So. 2d 726, 2001 WL 1150315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-richardson-blackmar-lactapp-2001.