State ex rel. Department of Social Services v. Whittington

193 So. 3d 1234, 2016 WL 2912301
CourtLouisiana Court of Appeal
DecidedMay 18, 2016
DocketNos. 2015-CA-1118, 2015-CA-1119
StatusPublished
Cited by11 cases

This text of 193 So. 3d 1234 (State ex rel. Department of Social Services v. Whittington) 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
State ex rel. Department of Social Services v. Whittington, 193 So. 3d 1234, 2016 WL 2912301 (La. Ct. App. 2016).

Opinion

JOY COSSICH LOBRANO, Judge.

11 This domestic matter is a relocation case. Appellant, Daniel Whittington (“Father”), appeals the district court’s judgment allowing the minor son of Father and Appellee, Monica Hookfin (“Mother”), to relocate from the New Orleans area to Texas with Mother.

FACTUAL AND PROCEDURAL HISTORY

Father and Mother were never married, but are the biological parents of one minor child (“Child”), ten years old at the time of trial. Since Child’s birth, he has resided in Louisiana with Mother. Father did not live with Mother except for a brief period following Hurricane Katrina. Father has enjoyed joint custody of Child since Child was about two years old. Pursuant to the parties’ custody agreement, during that [1237]*1237period Father has enjoyed physical custody of Child every other weekend, half of all holidays, and part of the summer (although in 2014 Child spent the majority of the summer with Father and in 2015 Child spent the majority of the summer with Mother).

|2On May 18, 2015, Mother sent Father a “Notice of Intent to Relocate” the minor child to League City, Texas (“Notice”). Father did not retrieve the letter containing the Notice until June 1, 2015. The Notice stated, inter alia, that Mother intended to relocate from New Orleans, Louisiana, to League City, Texas with Child, and included Mother’s intended new residence and mailing address. It listed Mother’s intended move date as August 20, 2015.

On or around May 21, 2015, Mother graduated with her associate’s degree in nursing from the Charity Hospital School of Nursing/Delgado. Mother had held a student position as a Patient Care Technician, which she relinquished a week before graduation because she became ineligible for it upon completing her studies. She planned to take the nursing board examination and then to enroll in a Nurse Anesthetist program offered by University of Texas Medical Branch (“UTMB”). Accordingly, on June 1, 2015, Mother went to League City, Texas to begin studying for the exam, bringing Child with her.

Father filed an Objection to Relocation on June 26, 2015, and the matter was set for show cause hearing on August 5, 2015. At the hearing, the district court heard extensive testimony from Father, Mother, Mother’s mother (“Grandmother”), and Mother’s fiancé.

Immediately following the August 5, 2015 hearing, the district court issued oral reasons from the bench overruling Father’s Objection and granting Mother permission to relocate to Texas with Child. A subsequent judgment was entered on | ¡(August 17, 2015. Father filed a motion for new trial, which the district court denied on August 20,2015.

Father filed the instant appeal, making six assignments of error: (1) the district court erred by improperly placing the burden of proof on Father instead of Mother, the relocating parent; (2) the district court erred by failing to find that Mother’s request for relocation was made in good faith; (3) the district court erred in reaching the “best interest” prong of the relocation statute’s test, without first finding the relocation request was made in good faith; (4) the district court erred by failing to consider all the relocation factors in determining whether relocation was in Child’s best interest; (5) the district court erred by denying Father’s motion for new trial because the overruling of Father’s Objection to Relocation was contrary to law and evidence; and (6) the district court erred by denying Father’s motion for new trial based upon ineffective assistance of counsel.

DISCUSSION

The district court’s determination in a relocation case is entitled to great weight and may only be overturned upon a clear showing of abuse of discretion. Curole v. Curole, 02-1891, p. 4 (La.10/15/02), 828 So.2d 1094, 1096. In conducting our review to determine whether the district court abused its discretion, we must accept each factual finding the district court made in arriving at its conclusion, unless a particular factual finding is manifestly erroneous. LaGraize v. Filson, 2014-1353, p. 15 (La.App. 4 Cir. 6/3/15), 171 So.3d 1047, 1054. However, when an “error of law skews the trial court’s finding of a material issue Lof fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de [1238]*1238novo.” Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. If “the legal error does not affect all the [fact-finder’s] findings,, the appellate court should confíne its de novo review to only those findings that have been interdicted by the error.” Banks v. Children’s Hosp., 2013-1481, p. 13 (La.App. 4 Cir. 12/17/14); 156 So.3d 1263, 1272, citing Picou v. Ferrara, 483 So.2d 915, 918 (La.1986); Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co., 2005—1139, p. 3 (La.11/29/06), 946 So.2d 133, 135-36.

“‘Relocation’ means a change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence. La. R.S. 9:355.1(2); ‘The person proposing relocation 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. 9:355.10; see also, Bonnette v. Bonnette, 2015-0239, p. 18 (La.App. 4 Cir. 2/17/16), 185 So.3d 321, 332. Accordingly, a parent seeking relocation bears a two-part burden to show: (1) that the proposed relocation is made in good faith; and (2) that the proposed relocation is in the. best -interest of' the child.” Curole, 2002-1891 at p. 5, 828 So.2d at 1097. “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.” La.Rev.Stat. Ann. §. 9:355.10 cmt. a.

1 rJ. Burden of Proof

On appeal, Father’s first assignment of error is that the district court erroneously placed the burden of proof upon him, the non-relocating parent, in violation of the clear directive of La. R;S. 9:355.10, requiring that “[t]he person proposing relocation has the burden of proof....”'

The hearing transcript reflects that that the district court did hot misallocate the burden of proof.' While the district court judge misspoke at one point, referring to a “burden to deny relocation,” she immediately corrected herself, stating “the burden is on her [i.e. Mother],” and again “she has the burden to prove- [that it’s in Child’s best interest];” and a third time “Has she met her burden? I believe that she has.” On this record, we find that the record is clear that the district court did not misallo-cate the burden of proof to Father, and therefore the first assignment of error is without merit.

2. Good Faith Requirement

In his second and third assignments of error, Father contends that the district-court erred in failing to find that Mother’s relocation request was made in good faith, and erred in reaching the best interest prong of the relocation test without a finding of good faith. It is true that the district court did not make any finding regarding good faith.1. We therefore consider the question of Mother’s good faith de novo based on our review of the record.2

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Cite This Page — Counsel Stack

Bluebook (online)
193 So. 3d 1234, 2016 WL 2912301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-social-services-v-whittington-lactapp-2016.