STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 09-541
SHERILL SMITH BARES
VERSUS
WARREN OVERTON BARES
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20040741 HONORABLE DAVID BLANCHET, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter, Judges.
AFFIRMED.
Ronald D. Cox P. O. Box 2105 Lafayette, LA 70502-2105 (337) 269-5729 Counsel for Plaintiff/Appellant: Sherill Smith Bares Philip Collins Kobetz P. O. Box 80275 Lafayette, LA 70598 (337) 291-1990 Counsel for Defendant/Appellee: Warren Overton Bares
Walter Marshall Sanchez Sanchez Law Firm 901 Lakeshore Drive, Suite 1050 Lake Charles, LA 70601 (337) 433-4405 Counsel for Defendant/Appellee: Warren Overton Bares
Jane Carolyn Ettinger Booth & Booth 138 North Cortez Street New Orleans, LA 70119 (504) 482-5292 Counsel for Defendant/Appellee: Warren Overton Bares
Charles G. Fitzgerald Cox Fitzgerald, L.L.C. 113 West Convent Street Lafayette, LA 70501 (337) 233-9743 Counsel for Plaintiff/Appellant: Sherill Smith Bares
Margaret A. Lalande Preis & Roy P. O. Drawer 94-C Lafayette, LA 70509 (334) 237-6062 Counsel for Defendant/Appellee: Warren Overton Bares EZELL, JUDGE.
Sherrill Smith Bares appeals a trial court judgment denying her request to
relocate to Sugar Land, Texas from Lafayette, Louisiana. After applying the twelve
factors listed in La.R.S. 9:355.12, the trial court denied Sherrill’s motion to relocate.
Sherrill appeals the trial court judgment claiming that it erred in its application of the
law in denying her motion to relocate. She also claims that the trial court erred in
denying her motion to appoint a mental health expert under La.R.S. 9:355.8.
FACTS
Warren and Sherrill were married on February 27, 1993. During the marriage,
they had one child, Madeline, who was born on September 24, 1997. On February
11, 2004, Sherrill filed a petition for divorce. Apparently, this petition was
abandoned as Sherrill filed another petition for divorce on December 27, 2006.
Warren also filed a petition for divorce on February 6, 2007. On August 9, 2007, a
judgment of divorce was rendered. On November 13, 2007, a consent judgment of
joint custody was signed. Sherrill was named as domiciliary parent.
Shortly thereafter, on May 28, 2008, Sherrill gave notice to Warren that she
intended to relocate to Sugar Land, Texas with their soon to be, eleven-year-old
daughter. Warren filed an objection to the relocation on June 16, 2008. A hearing
on the relocation issue was held on September 11 and 17, 2008. After reviewing the
factors listed in La.R.S. 9:355.12, the trial court denied Sherrill’s motion to relocate.
Sherrill appealed the decision to this court.
MENTAL HEALTH EXPERT
Sherrill first argues that the trial court erred in denying her motion to appoint
a mental health expert pursuant to La.R.S. 9:355.8. Sherrill argues that the trial court
abused its discretion in denying her request because the trial court obviously believed
1 the mental conditions of both parties were at issue since it had previously ordered
mental health evaluations on both occasions when the divorce actions were filed.
Louisiana Revised Statues 9:355.8 provides that “[t]he court may promptly
appoint an independent mental health expert to render a determination as to whether
the proposed relocation is in the best interest of the child.” In Jarnagin v. Jarnagin,
09-903, p. 8 (La.App. 3 Cir. 12/9/09), 25 So.3d 1028, 1034, this court recognized that
the statute was “‘unquestionably permissive.’” This court held that the spouse seeking
the testimony of an independent mental health expert regarding the proposed
relocation request could have obtained the testimony of a mental health expert
without a court order.
In support of her position, Sherrill has cited Leaf v Leaf, 01-1417 (La.App. 4
Cir. 8/15/01), 796 So.2d 42, which held that a trial court erred in failing to order a
mental evaluation in a child custody case under La.Code Civ.P. art. 1464 when the
court had previously ordered mental health evaluations of the parties. The fourth
circuit found that a prima facie case had been established that the mental conditions
of the parties were at issue and good cause had been shown by the prior order of a
mental health evaluation as required by Williamson v Haynes Best Western of
Alexandria, 595 So.2d 1201 (La.App. 4 Cir. 1992), writ denied, 598 So.2d 376
(La.1992).
In the present case, the parents and child were evaluated by Dr. Kenneth
Bouillion, a clinical child psychologist, in 2004 and 2007 following the filing of the
petitions for divorce. Each time, Dr. Bouillion evaluated the parents and child
separately several times. He also had co-parenting sessions with the parents. Dr.
Bouillion testified at the hearing on the relocation issue regarding these sessions.
2 While Dr. Bouillon did not evaluate the family regarding the relocation issue
specifically, he was obviously well versed with this family and the issues involved.
Since the trial court had the benefit of Dr. Bouillion’s testimony, we cannot say that
the trial court abused its discretion in failing to appoint an additional expert on the
issue of relocation.
RELOCATION
Sherrill’s next assignments of error concern the trial court’s review of the
evidence before it in denying her motion to relocate. She argues that the trial court
committed legal error when it did not make a finding of good faith or best interest of
the child as required by La.R.S. 9:355.13. Sherrill also claims that the trial court
erred in disregarding Dr. Bouillion’s testimony and in its consideration of the factors
regarding relocation in La.R.S. 9:355.12.
Good Faith and Best Interest
Louisiana Revised Statues 9:355.13 places the burden of proof on the
relocating parent to show that the proposed relocation is made in good faith and is in
the child’s best interest. While the trial court did not specifically use this language
in its extensive oral reasons for judgment, a review of its reasons clearly reveals that
the trial court considered the child’s best interest and whether the relocation was
sought in good faith. The trial court recognized that Sherrill was seeking a move to
Sugar Land as a solution to problems she perceived she had in Lafayette and that she
wanted to be closer to her family. The trial court specifically stated that it did not
believe that Sherrill had orchestrated the move. Furthermore, throughout its oral
reasons, the trial court continually referred to the benefits to Madeline in considering
the relocation to Sugar Land as opposed to continuing to live in Lafayette. We find
no merit to this assignment of error.
3 The last two assignments of error concern the trial court’s consideration of the
evidence before it: whether it considered Dr. Bouillion’s testimony and whether it
properly applied the twelve factors listed in La.R.S. 9:355.12. The “trial court’s
decision in a relocation matter is entitled to great weight and will not be overturned
absent a clear showing of abuse of discretion.” Jarnagin, 25 So.3d at 1030 (citing
Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094).
Dr. Kenneth Bouillion’s Testimony
Sherrill argues that the trial court erred in disregarding the expert testimony of
Dr. Bouillion.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 09-541
SHERILL SMITH BARES
VERSUS
WARREN OVERTON BARES
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20040741 HONORABLE DAVID BLANCHET, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter, Judges.
AFFIRMED.
Ronald D. Cox P. O. Box 2105 Lafayette, LA 70502-2105 (337) 269-5729 Counsel for Plaintiff/Appellant: Sherill Smith Bares Philip Collins Kobetz P. O. Box 80275 Lafayette, LA 70598 (337) 291-1990 Counsel for Defendant/Appellee: Warren Overton Bares
Walter Marshall Sanchez Sanchez Law Firm 901 Lakeshore Drive, Suite 1050 Lake Charles, LA 70601 (337) 433-4405 Counsel for Defendant/Appellee: Warren Overton Bares
Jane Carolyn Ettinger Booth & Booth 138 North Cortez Street New Orleans, LA 70119 (504) 482-5292 Counsel for Defendant/Appellee: Warren Overton Bares
Charles G. Fitzgerald Cox Fitzgerald, L.L.C. 113 West Convent Street Lafayette, LA 70501 (337) 233-9743 Counsel for Plaintiff/Appellant: Sherill Smith Bares
Margaret A. Lalande Preis & Roy P. O. Drawer 94-C Lafayette, LA 70509 (334) 237-6062 Counsel for Defendant/Appellee: Warren Overton Bares EZELL, JUDGE.
Sherrill Smith Bares appeals a trial court judgment denying her request to
relocate to Sugar Land, Texas from Lafayette, Louisiana. After applying the twelve
factors listed in La.R.S. 9:355.12, the trial court denied Sherrill’s motion to relocate.
Sherrill appeals the trial court judgment claiming that it erred in its application of the
law in denying her motion to relocate. She also claims that the trial court erred in
denying her motion to appoint a mental health expert under La.R.S. 9:355.8.
FACTS
Warren and Sherrill were married on February 27, 1993. During the marriage,
they had one child, Madeline, who was born on September 24, 1997. On February
11, 2004, Sherrill filed a petition for divorce. Apparently, this petition was
abandoned as Sherrill filed another petition for divorce on December 27, 2006.
Warren also filed a petition for divorce on February 6, 2007. On August 9, 2007, a
judgment of divorce was rendered. On November 13, 2007, a consent judgment of
joint custody was signed. Sherrill was named as domiciliary parent.
Shortly thereafter, on May 28, 2008, Sherrill gave notice to Warren that she
intended to relocate to Sugar Land, Texas with their soon to be, eleven-year-old
daughter. Warren filed an objection to the relocation on June 16, 2008. A hearing
on the relocation issue was held on September 11 and 17, 2008. After reviewing the
factors listed in La.R.S. 9:355.12, the trial court denied Sherrill’s motion to relocate.
Sherrill appealed the decision to this court.
MENTAL HEALTH EXPERT
Sherrill first argues that the trial court erred in denying her motion to appoint
a mental health expert pursuant to La.R.S. 9:355.8. Sherrill argues that the trial court
abused its discretion in denying her request because the trial court obviously believed
1 the mental conditions of both parties were at issue since it had previously ordered
mental health evaluations on both occasions when the divorce actions were filed.
Louisiana Revised Statues 9:355.8 provides that “[t]he court may promptly
appoint an independent mental health expert to render a determination as to whether
the proposed relocation is in the best interest of the child.” In Jarnagin v. Jarnagin,
09-903, p. 8 (La.App. 3 Cir. 12/9/09), 25 So.3d 1028, 1034, this court recognized that
the statute was “‘unquestionably permissive.’” This court held that the spouse seeking
the testimony of an independent mental health expert regarding the proposed
relocation request could have obtained the testimony of a mental health expert
without a court order.
In support of her position, Sherrill has cited Leaf v Leaf, 01-1417 (La.App. 4
Cir. 8/15/01), 796 So.2d 42, which held that a trial court erred in failing to order a
mental evaluation in a child custody case under La.Code Civ.P. art. 1464 when the
court had previously ordered mental health evaluations of the parties. The fourth
circuit found that a prima facie case had been established that the mental conditions
of the parties were at issue and good cause had been shown by the prior order of a
mental health evaluation as required by Williamson v Haynes Best Western of
Alexandria, 595 So.2d 1201 (La.App. 4 Cir. 1992), writ denied, 598 So.2d 376
(La.1992).
In the present case, the parents and child were evaluated by Dr. Kenneth
Bouillion, a clinical child psychologist, in 2004 and 2007 following the filing of the
petitions for divorce. Each time, Dr. Bouillion evaluated the parents and child
separately several times. He also had co-parenting sessions with the parents. Dr.
Bouillion testified at the hearing on the relocation issue regarding these sessions.
2 While Dr. Bouillon did not evaluate the family regarding the relocation issue
specifically, he was obviously well versed with this family and the issues involved.
Since the trial court had the benefit of Dr. Bouillion’s testimony, we cannot say that
the trial court abused its discretion in failing to appoint an additional expert on the
issue of relocation.
RELOCATION
Sherrill’s next assignments of error concern the trial court’s review of the
evidence before it in denying her motion to relocate. She argues that the trial court
committed legal error when it did not make a finding of good faith or best interest of
the child as required by La.R.S. 9:355.13. Sherrill also claims that the trial court
erred in disregarding Dr. Bouillion’s testimony and in its consideration of the factors
regarding relocation in La.R.S. 9:355.12.
Good Faith and Best Interest
Louisiana Revised Statues 9:355.13 places the burden of proof on the
relocating parent to show that the proposed relocation is made in good faith and is in
the child’s best interest. While the trial court did not specifically use this language
in its extensive oral reasons for judgment, a review of its reasons clearly reveals that
the trial court considered the child’s best interest and whether the relocation was
sought in good faith. The trial court recognized that Sherrill was seeking a move to
Sugar Land as a solution to problems she perceived she had in Lafayette and that she
wanted to be closer to her family. The trial court specifically stated that it did not
believe that Sherrill had orchestrated the move. Furthermore, throughout its oral
reasons, the trial court continually referred to the benefits to Madeline in considering
the relocation to Sugar Land as opposed to continuing to live in Lafayette. We find
no merit to this assignment of error.
3 The last two assignments of error concern the trial court’s consideration of the
evidence before it: whether it considered Dr. Bouillion’s testimony and whether it
properly applied the twelve factors listed in La.R.S. 9:355.12. The “trial court’s
decision in a relocation matter is entitled to great weight and will not be overturned
absent a clear showing of abuse of discretion.” Jarnagin, 25 So.3d at 1030 (citing
Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094).
Dr. Kenneth Bouillion’s Testimony
Sherrill argues that the trial court erred in disregarding the expert testimony of
Dr. Bouillion. Sherrill argues that Dr. Bouillion’s testimony establishes that Warren
constantly pushed for more time with Madeline creating problems for the child.
Apparently, Sherrill feels that a move to Sugar Land would be best for Madeline so
that her father will not continue to push for more time with Madeline.
A review of the trial court’s oral reasons for judgment reveals that, while it may
have not continually mentioned Dr. Bouillion’s testimony, it considered Dr.
Bouillion’s testimony when making its decision. Dr. Bouillion testified that Madeline
is closer to her mom. However, her dad wants to spend equal time with Madeline and
has made efforts to do so. Dr. Bouillion recognized that there were also times that
Sherrill would visit with Madeline during Warren’s set time, such as helping
Madeline with her hair before school. During its oral reasons, the trial court
recognized that the parties were adjusting to the consent custody agreement and how
to approach it. It recognized that they still needed to time to figure out the best way
to handle the custody arrangement. The trial court recognized that this was giving
Sherrill some anxiety and also creating pressure on Madeline because of the conflicts
between the parents. However, it obviously did not feel that this was a sufficient
basis to grant Sherrill’s relocation request.
4 Twelve Factors of La.R.S. 9:355.12
Sherrill’s final argument is that the trial court erred in failing to individually
consider the twelve factors in La.R.S. 9:355.12 and in denying her request to relocate.
The trial court’s oral reasons make it very clear that it considered each of the twelve
factors listed in 9:355.12. It specifically addressed each factor and its considerations
regarding that factor. Therefore, we will consider the evidence and whether the trial
court abused its discretion in denying Sherrill’s motion to relocate to Sugar Land.
The twelve factors to be considered in determining whether to grant a motion
to relocate are:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating 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 a good relationship between the nonrelocating 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 nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to
5 improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
La.R.S. 9:355.12(A).
Sherrill sought relocation to Sugar Land asserting that there were better job
opportunities for her as a dental hygienist. She claimed that after working many years
as a hygienist she suffers with shoulder pain. She testified that she has been offered
a job in Sugar Land with a pediatric dentist and that working on children is easier
than adults. She has tried to find work in Lafayette with pediatric dentists but has
been unable to do so. She was fired from her last position as a hygienist after she
informed the office of her intent to move to Sugar Land and was unable to commit to
giving them three-months’ notice if she planned on leaving.
The trial court acknowledged Sherrill’s testimony regarding her employment
situation but observed that Sherrill introduced no medical testimony or evidence that
employment as a hygienist had caused her problems or that working on children
would aid in helping her situation. While Sherrill testified that she could not find
employment in Lafayette, the trial court believed that she could given the number of
dentists in the area.
Sherrill also wants to move to Sugar Land for the educational opportunities it
offers Madeline and because there are nice, family-friendly neighborhoods. Her sister
and family live there and have children that Madeline is close to. Sherrill’s mother
6 lives in Houston, and Madeline’s half-brothers, twins born to Sherrill during her first
marriage, go to college at SMU and Texas A & M. Sherrill also has two brothers that
live in Dallas and another sister that lives in Houston.
The trial court recognized that Sherrill has a family-support system in Sugar
Land. However, only one sister and her family live in Sugar Land. The trial court
also felt that Madeline’s brothers would have to drive to visit their mother and sister
anyway and would drive wherever they lived. Madeline has lived all her life in
Lafayette, and both boys also went to school in Lafayette before college.
Furthermore, Warren’s family, including his father and a brother and family, live in
Lafayette.
The trial court agreed that Sugar Land offered very nice schools and
neighborhoods. While the building and grounds of the school that Madeline attends
in Lafayette is not as nice as the newer facility in Sugar Land, the trial court believed
that Madeline was getting just as good an education since she was in the gifted
program at LJ Alleman Middle School.
The trial court also recognized that Sherrill and Madeline presently live in a
nice home in a nice neighborhood in Lafayette. This home is close to Warren’s home.
In the trial court’s opinion, Lafayette offers nice neighborhoods similar to those in
Sugar Land.
While the trial court recognized that the move to Sugar Land would enhance
Madeline’s relationship with her mother’s family, the trial court was also concerned
that Madeline was under the impression she would see her father just as much as she
does now if she moved to Sugar Land. The trial court recognized that Warren is very
involved in Madeline’s life and sees Madeline on a consistent basis, which will not
happen if Madeline moves to Sugar Land. The trial court felt it was important that
7 Madeline have meaningful contact with both parents.
While Sherrill thought it would be feasible for Warren to move his business to
Sugar Land, Warren testified that it would not be. Warren works for the family-
owned business, J. Maxim Roy, a property and casualty insurance business. He
testified that when they were still married, he looked at the possibility of moving the
business to Sugar Land but determined it would not work. He explained that the
business is a Louisiana licensed business. He would have to hire new people in
addition to the fact that most of his business is east of Lafayette.
Reviewing the record and the trial court’s reasons for judgment, we cannot say
the trial court abused its discretion in failing to grant Sherrill’s motion to relocate to
Sugar Land, Texas. Therefore, we affirm the judgment of the trial court. Costs of
this appeal are assessed to Sherrill Smith Bares.
AFFIRMED