Tameka Y. Simpson-Mitchell v. Danny R. Mitchell, Jr.
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Opinion
Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,653-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
TAMEKA Y. SIMPSON- Plaintiff-Appellant MITCHELL
versus
DANNY R. MITCHELL, JR. Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 619,868
Honorable Katherine Clark Dorroh, Judge
THE LAW OFFICES OF WILLIAMS & WILLIAMS, PLC Counsel for Appellant By: Sandra M. Williams David S. Williams
RONALD J. MICIOTTO Counsel for Appellee
Before PITMAN, COX, and MARCOTTE, JJ. MARCOTTE, J.
This appeal arises from the First Judicial District Court, Parish of
Caddo, the Honorable Katherine Dorroh presiding. Appellant Tameka Y.
Simpson-Mitchell appeals the trial court’s ruling denying her request to
relocate the parties’ child and awarding joint custody of the child with the
father-appellee named as domiciliary parent. For the following reasons, we
affirm the trial court’s ruling.
FACTS AND PROCEDURAL HISTORY
Tameka Simpson-Mitchell (“Tameka”) and Danny R. Mitchell
(“Danny”) were married on September 30, 2012, in Shreveport, Louisiana.
One child was born of the marriage, Makenzie Mitchell (“Makenzie”), on
February 3, 2017. On October 10, 2019, Tameka filed for divorce; she
asked for joint custody and that she be named domiciliary parent. Danny
answered the petition and claimed that Tameka traveled extensively for her
job as a bank auditor and would leave Makenzie with a “non-certified child
care person.” He also stated that Tameka denied him visitation with
Makenzie and would not tell him where she was. He claimed that Tameka
took Makenzie to Kansas with her without his consent. Danny alleged that
there was tension between his mother and Tameka, and Tameka “attempted
to interfere with church members” at the church where he worked, trying to
“turn them against” him. He asked for joint custody and that he be named
domiciliary parent. Danny also filed an exception of prematurity claiming
that he and Tameka had not lived separate and apart for the requisite period
of time to obtain a divorce. On December 23, 2019, the trial court issued an interim order. The
trial court appointed Leigh Ann O’Brien (“Ms. O’Brien”), a mental health
evaluator, to perform an evaluation of the parties and Makenzie. The court
ordered Tameka to pay for the evaluations. The trial court provided that the
parties would have shared custody of Makenzie on a week on/week off
basis.
On October 12, 2021, Tameka filed a rule requesting joint custody,
that she be named domiciliary parent, and that she be allowed to reside with
Makenzie in Kansas City, Missouri. On March 29, 2022, Danny filed an
exception of no cause of action stating that he had repeatedly opposed
relocation of Makenzie. He stated that he did not receive timely written
notice from Tameka of a proposed relocation of herself and Makenzie and
that Tameka did not seek the court’s permission to relocate the child before
doing so. The trial court denied the exception and ordered Tameka to return
Makenzie to Shreveport by June 1, 2022. The court ordered that Danny
would have custody of Makenzie until the parties returned to court on June
23, 2022, with Tameka allowed FaceTime/telephone contact with Makenzie
three times per week.
On June 22, 2022, Danny filed a motion for a continuance, a motion
to appoint an alternate mental health professional, and a motion for
Makenzie to remain in Louisiana pending a hearing. Danny stated that he
received notification from Ms. O’Brien that she would be unable to testify
on June 23, 2022, due to allegations made by Tameka to the state board.
Danny alleged that Tameka did so in an attempt to prevent Ms. O’Brien
2 from testifying, because she did not agree with Ms. O’Brien’s
recommendation.
On June 23, 2022, the trial court orally granted the parties a divorce
and appointed Shelley Booker (“Ms. Booker”) as the court’s mental health
professional to evaluate the parties and Makenzie and make a
recommendation about custody and visitation. The court ordered that
Tameka was to have custody of Makenzie until July 22, 2022, with Danny
getting custody thereafter until the court gave further orders. The court
ordered Danny to enroll Makenzie in a Shreveport elementary school. The
case was reset for trial. On July 28, 2022, the trial court signed a written
judgment.
On October 28, 2022, a trial was held. Prior to taking testimony, the
parties stipulated that they wanted Ms. O’Brien’s two evaluation reports
admitted as joint exhibits, which the trial court allowed. In Ms. O’Brien’s
first report, dated September 1, 2021, she recommended that Makenzie be
allowed to relocate with her mother. She found that Makenzie would thrive
emotionally and developmentally with her mother in Kansas City, because
Tameka would encourage her to have a relationship with her father. Ms.
O’Brien stated that she did not believe Danny would do the same for
Tameka. She said his anger about Tameka relocating would be a barrier to
healthy communication. She said that both parents loved Makenzie very
much and she had adapted to her parents living apart. She said Tameka was
committed to adhering to the week on/week off custody schedule and had
driven Makenzie every week from Kansas City to Shreveport, without
Danny meeting her halfway.
3 In her second report, dated March 9, 2022, Ms. O’Brien changed her
recommendation, stating that Makenzie should not be allowed to relocate,
but should remain in Shreveport with her father. She said that Danny had
provided additional information to her including: his phone records, 2018
bankruptcy filings on behalf of Tameka, UCC filings on behalf of Tameka,
Tameka’s criminal records related to traffic violations, and a shoebox full of
financial information that included payday loans that Tameka received. Ms.
O’Brien said that Tameka had been dishonest with her throughout the entire
evaluation and had also been dishonest about moving to Kansas City.
Ms. O’Brien said that Danny informed her that Tameka gave him
“mixed messages” about their relationship from 2017 to 2019, which began
when she lied that she first moved out of their home in 2017. He said he
attempted to contact Tameka when she moved out, because he was
concerned about the whereabouts of his daughter; he eventually contacted
child protective services for advice about what to do. Danny discussed his
relationship with Makenzie and how he saw her every day of 2018. He said
that Tameka did not inform him she wanted a divorce until January 2019,
and from then until June 2019 she refused to discuss a joint custody plan.
He was staying at Tameka’s apartment at that time; Tameka asked him to
leave in May 2019. He left and did not return.
In her second evaluation, Ms. O’Brien said that Danny informed her
that Tameka was on temporary assignment from June 2019 to December
2019, and she was traveling back and forth each week with Makenzie. She
did not communicate with him about how long her assignment would last
and lied, stating the assignment had been cancelled. In June 2020, in a
4 session with Ms. O’Brien, Tameka admitted that the assignment would
Free access — add to your briefcase to read the full text and ask questions with AI
Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,653-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
TAMEKA Y. SIMPSON- Plaintiff-Appellant MITCHELL
versus
DANNY R. MITCHELL, JR. Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 619,868
Honorable Katherine Clark Dorroh, Judge
THE LAW OFFICES OF WILLIAMS & WILLIAMS, PLC Counsel for Appellant By: Sandra M. Williams David S. Williams
RONALD J. MICIOTTO Counsel for Appellee
Before PITMAN, COX, and MARCOTTE, JJ. MARCOTTE, J.
This appeal arises from the First Judicial District Court, Parish of
Caddo, the Honorable Katherine Dorroh presiding. Appellant Tameka Y.
Simpson-Mitchell appeals the trial court’s ruling denying her request to
relocate the parties’ child and awarding joint custody of the child with the
father-appellee named as domiciliary parent. For the following reasons, we
affirm the trial court’s ruling.
FACTS AND PROCEDURAL HISTORY
Tameka Simpson-Mitchell (“Tameka”) and Danny R. Mitchell
(“Danny”) were married on September 30, 2012, in Shreveport, Louisiana.
One child was born of the marriage, Makenzie Mitchell (“Makenzie”), on
February 3, 2017. On October 10, 2019, Tameka filed for divorce; she
asked for joint custody and that she be named domiciliary parent. Danny
answered the petition and claimed that Tameka traveled extensively for her
job as a bank auditor and would leave Makenzie with a “non-certified child
care person.” He also stated that Tameka denied him visitation with
Makenzie and would not tell him where she was. He claimed that Tameka
took Makenzie to Kansas with her without his consent. Danny alleged that
there was tension between his mother and Tameka, and Tameka “attempted
to interfere with church members” at the church where he worked, trying to
“turn them against” him. He asked for joint custody and that he be named
domiciliary parent. Danny also filed an exception of prematurity claiming
that he and Tameka had not lived separate and apart for the requisite period
of time to obtain a divorce. On December 23, 2019, the trial court issued an interim order. The
trial court appointed Leigh Ann O’Brien (“Ms. O’Brien”), a mental health
evaluator, to perform an evaluation of the parties and Makenzie. The court
ordered Tameka to pay for the evaluations. The trial court provided that the
parties would have shared custody of Makenzie on a week on/week off
basis.
On October 12, 2021, Tameka filed a rule requesting joint custody,
that she be named domiciliary parent, and that she be allowed to reside with
Makenzie in Kansas City, Missouri. On March 29, 2022, Danny filed an
exception of no cause of action stating that he had repeatedly opposed
relocation of Makenzie. He stated that he did not receive timely written
notice from Tameka of a proposed relocation of herself and Makenzie and
that Tameka did not seek the court’s permission to relocate the child before
doing so. The trial court denied the exception and ordered Tameka to return
Makenzie to Shreveport by June 1, 2022. The court ordered that Danny
would have custody of Makenzie until the parties returned to court on June
23, 2022, with Tameka allowed FaceTime/telephone contact with Makenzie
three times per week.
On June 22, 2022, Danny filed a motion for a continuance, a motion
to appoint an alternate mental health professional, and a motion for
Makenzie to remain in Louisiana pending a hearing. Danny stated that he
received notification from Ms. O’Brien that she would be unable to testify
on June 23, 2022, due to allegations made by Tameka to the state board.
Danny alleged that Tameka did so in an attempt to prevent Ms. O’Brien
2 from testifying, because she did not agree with Ms. O’Brien’s
recommendation.
On June 23, 2022, the trial court orally granted the parties a divorce
and appointed Shelley Booker (“Ms. Booker”) as the court’s mental health
professional to evaluate the parties and Makenzie and make a
recommendation about custody and visitation. The court ordered that
Tameka was to have custody of Makenzie until July 22, 2022, with Danny
getting custody thereafter until the court gave further orders. The court
ordered Danny to enroll Makenzie in a Shreveport elementary school. The
case was reset for trial. On July 28, 2022, the trial court signed a written
judgment.
On October 28, 2022, a trial was held. Prior to taking testimony, the
parties stipulated that they wanted Ms. O’Brien’s two evaluation reports
admitted as joint exhibits, which the trial court allowed. In Ms. O’Brien’s
first report, dated September 1, 2021, she recommended that Makenzie be
allowed to relocate with her mother. She found that Makenzie would thrive
emotionally and developmentally with her mother in Kansas City, because
Tameka would encourage her to have a relationship with her father. Ms.
O’Brien stated that she did not believe Danny would do the same for
Tameka. She said his anger about Tameka relocating would be a barrier to
healthy communication. She said that both parents loved Makenzie very
much and she had adapted to her parents living apart. She said Tameka was
committed to adhering to the week on/week off custody schedule and had
driven Makenzie every week from Kansas City to Shreveport, without
Danny meeting her halfway.
3 In her second report, dated March 9, 2022, Ms. O’Brien changed her
recommendation, stating that Makenzie should not be allowed to relocate,
but should remain in Shreveport with her father. She said that Danny had
provided additional information to her including: his phone records, 2018
bankruptcy filings on behalf of Tameka, UCC filings on behalf of Tameka,
Tameka’s criminal records related to traffic violations, and a shoebox full of
financial information that included payday loans that Tameka received. Ms.
O’Brien said that Tameka had been dishonest with her throughout the entire
evaluation and had also been dishonest about moving to Kansas City.
Ms. O’Brien said that Danny informed her that Tameka gave him
“mixed messages” about their relationship from 2017 to 2019, which began
when she lied that she first moved out of their home in 2017. He said he
attempted to contact Tameka when she moved out, because he was
concerned about the whereabouts of his daughter; he eventually contacted
child protective services for advice about what to do. Danny discussed his
relationship with Makenzie and how he saw her every day of 2018. He said
that Tameka did not inform him she wanted a divorce until January 2019,
and from then until June 2019 she refused to discuss a joint custody plan.
He was staying at Tameka’s apartment at that time; Tameka asked him to
leave in May 2019. He left and did not return.
In her second evaluation, Ms. O’Brien said that Danny informed her
that Tameka was on temporary assignment from June 2019 to December
2019, and she was traveling back and forth each week with Makenzie. She
did not communicate with him about how long her assignment would last
and lied, stating the assignment had been cancelled. In June 2020, in a
4 session with Ms. O’Brien, Tameka admitted that the assignment would
likely be permanent, and Ms. O’Brien said that the custody case became a
relocation case, which was not what Tameka had presented prior to then.
Tameka moved to Kansas City permanently in August 2020. Danny told
Ms. O’Brien that he had no idea Tameka was in Kansas City from July 2020
to February 2021; he believed Tameka and Makenzie were in Shreveport
due to phone calls, text messages, and pictures of them doing things locally.
Danny showed Ms. O’Brien documentation of the “significant
amount” of payday loans Tameka acquired from 2014 to 2019. The loans
were sent to a P.O. Box, of which he was unaware. He was also unaware of
her bankruptcy proceedings. Danny told Ms. O’Brien that Tameka had a
“sneaky and manipulative side.”
Ms. O’Brien said that the information Danny provided “told a very
different case than what Tameka presented during the evaluation.” She said
Tameka had numerous opportunities to inform Danny of her permanent
position, but chose not to and chose not to abide by the notice requirements
in La. R.S. 9:355.5. Ms. O’Brien said that Tameka told her that she left
Danny in 2017, and wanted a divorce, which she communicated to him. Ms.
O’Brien said that Tameka continued to see Danny until May 2019, and led
him to believe that she was moving back in with him. Ms. O’Brien said she
was also dishonest about her relocation and only sent a registered letter
when, on February 2, 2021, Danny confronted her by phone about
relocating.
Ms. O’Brien’s final recommendation, found in her second evaluation,
was that Makenzie reside with Danny in Shreveport and attend school there.
5 She recommended joint custody with Danny designated as the domiciliary
parent. She also recommended a detailed visitation schedule.
At trial, Tameka gave the following testimony. She moved into
Danny’s house when they married. She claimed Danny kicked her out of the
house in 2014, at which point she got an apartment with her friend and
coworker, Karen Showers (“Showers”). Danny asked her to move back in
and they attended marriage counseling; she did so, believing the marriage
could be saved. She got pregnant in June 2016. Her pregnancy was high
risk, so she was in the hospital for three months on strict bed rest.
During that period, the couple’s residence was being renovated, but it
was not finished by the time Makenzie was born in February 2017. Tameka
and Makenzie moved into the home of Danny’s mother, Tommie Fay
Mitchell (“Tommie”). Danny would not stay there with his wife and
daughter, but would eat and shower there and then leave. Tameka purchased
a plane ticket for Tommie to go to California to care for her sister; during the
three-month period of Tommie’s absence from her home, Danny lived in his
mother’s house with his wife and child. He moved out when his mother
returned. Tameka and Makenzie lived at Tommie’s house from February
2017 until December 16, 2017, when Tameka and Makenzie moved into an
apartment with her friend Showers.
Tameka stated that she worked for the Federal Deposit Insurance
Company (“FDIC”) for approximately 14 years as a bank auditor, which
required that she travel regionally for her work. Tameka said that she would
mostly commute to and from her assignments daily in order to care for
Makenzie. The only exception was when she had two training sessions in
6 Baton Rouge; it was then that Danny stayed at her apartment to care for their
child. Tameka received per diem travel reimbursement from her employer.
Tameka was offered a temporary position with the FDIC in Kansas
City, Missouri, for six months from August 2019 to February 2020, and it
was during that period that the trial court ordered week on/week off
visitation. The assignment was later extended to July 2020. Tameka had
admitted into evidence a temporary work assignment notification from the
FDIC. She informed Danny in a joint session with Ms. O’Brien that the
position could become permanent. Tameka filed her official notice to
relocate with the FDIC in January 2021 and sent a notice to Danny by
certified mail that she would be relocating Makenzie on February 3, 2021.
On February 9, 2021, Danny responded, saying he objected to the relocation.
Tameka said that Ms. O’Brien did not contact her about the
allegations that Danny made, which were the subject of her second
evaluation. Ms. O’Brien also did not contact Stephanie Womack (“Ms.
Womack”), a licensed professional counselor in Missouri and Kansas who
conducted 11 sessions with Makenzie. Tameka said that she paid Ms.
O’Brien’s initial fee of $2,500 for Ms. O’Brien’s first evaluation. She stated
that Danny told her he paid Ms. O’Brien another fee for the second
evaluation.
Tameka said that she was Makenzie’s primary caretaker and paid for
everything, including her health insurance, extracurricular activities
(summer camp and swim lessons), child care, and birthday parties. Danny
paid part of the birthday party expenses, but he was not present at
Makenzie’s third birthday party. When Makenzie was born, she slept in a
7 bassinet in the same room as her mother. When Tameka was on temporary
assignment in Kansas City, she and Makenzie slept on a king-size bed in a
hotel suite.
Tameka stated that she never missed a visitation. She said that Danny
never offered to meet her halfway between Kansas City and Shreveport until
a court ordered him to do so. She said that Danny came to Makenzie’s first
doctor’s appointment, but did not attend any after that. Tameka said that
Danny paid for seven weeks of childcare in 2018, but she paid all the rest.
Makenzie’s childcare consisted of a private sitter until they went to Kansas
City, and then she was enrolled in pre-K at two years old.
When the couple first discussed divorce in 2018, Tameka moved into
an apartment and gave Danny a key so that he could periodically stay the
night. Tameka claimed that Danny did not have a place for Makenzie to stay
prior to the week on/week off order; he did not complete the renovations to
his home or have furniture in the home until 2019. In 2018, Tameka had
mandatory training in Baton Rouge, so Danny stayed in her apartment with
Makenzie while she was out of town. She stated that during her out-of-town
training sessions, Danny would not let her speak to Makenzie on the phone,
so she got her key back from him when she returned.
Tameka stated that she has no criminal record. She acknowledged
that Danny gave Ms. O’Brien her documents related to parking tickets and
UCC filings regarding a lien against movable property she owned. Tameka
believed that Danny interfered with her communication with Makenzie by
giving her an incorrect phone number and hanging up on her when she was
speaking with Makenzie. When Makenzie asked her if she was going to call
8 the next day, Tameka testified that she told her daughter that Danny only let
her speak to Makenzie on Mondays, Wednesdays, and Fridays. The trial
court admonished Tameka for telling Makenzie that and said that it was the
court that ordered the phone call schedule. Tameka stated that Danny had
not facilitated additional visitation with Makenzie beyond what the court
ordered.
Tameka said that she bought a cell phone for Makenzie so that Danny
could call her whenever he wanted. Tameka said that Danny told her he was
considering moving to Kansas City and she offered to buy him a plane
ticket. She alleged that Danny told Makenzie that she was getting a new
mom. She said that she has never told their child that she is getting a new
dad.
The following testimony was elicited from Tameka on cross-
examination. Tameka said that she has another daughter, named Mia, who is
25 years old. Mia grew up in Mississippi. When Mia was 10 years old,
Tameka had a job opportunity with the FDIC, which required extensive
travel, so she left Mia with her grandmother in Mississippi. Tameka would
visit Mia when she could. With Makenzie, she commuted so that she could
be with her every evening. Tameka stated that she works remotely, but the
FDIC requires that she reside in her duty station, which is Kansas City.
Defense counsel then had admitted into evidence several text message
conversations between Tameka and Danny. There were several times in
which Danny asked Tameka where Makenzie was, but she either did not
respond or she said that she was in training, Makenzie was in child care, and
to leave her alone. There were text messages where Danny said he was
9 coming to pick Makenzie up, and Tameka said, “You are not picking her
up.” Tameka stated that she informed Danny verbally through phone calls
that she had taken Makenzie to Kansas City, and that his repeated text
messages asking where she was constituted “harassment.”
On redirect, Tameka said that Danny would not text much after work
hours, but was only interested in knowing about Makenzie during the day.
In May 2019, Danny texted Tameka about coming over, she said that he
could do so, but it had been a week since he had seen Makenzie. Tameka
said that she has a three-bedroom house that she rents in Kansas City and
that Mia lives with her there. She said she is willing to transport Makenzie
every weekend so that she can see her father, and she is willing to let Danny
have school breaks and alternate holidays.
Ms. Womack testified that Tameka sought counseling for Makenzie,
because she was concerned about her behavior when she went to visit
Danny; she would cry and not want to go, exhibiting separation anxiety.
Ms. Womack stated that her anxiety got better, but she was still anxious
about leaving one parent to visit another. Ms. Womack testified that
Makenzie told her that she missed her mom and wanted to live with her
mom; she would cry because she missed her mom. Makenzie stated that her
father locked her in her room and told her to stay there until dinner.
Makenzie told Ms. Womack that her father poked her with toothpicks and he
plays rough. Ms. Womack reported that on February 17, 2022, Makenzie
said that she wanted to stay with her mom forever. Ms. Womack’s treatment
summary was admitted into the record over defense’s objection.
10 On cross-examination, Ms. Womack stated that she never contacted
Danny. She said that Tameka gave her Kansas City address as her home
address to Ms. Womack.
Showers testified that she lives in Kansas City and is Tameka’s friend
and coworker. When Tameka had her temporary assignment in Kansas City,
Tameka stayed with her, and Makenzie would be there during her week
on/week off visitation schedule, from around August 2020 to January 2021.
Showers was aware Tameka had another child and that she “signed her
over” to her mother to raise. Mia did not live with Tameka and Showers
when they shared an apartment in Shreveport. Showers said that she was
unaware if, during the time that Tameka stayed with her in Kansas City, she
was also living in hotels. Showers said that she went back and forth to
Dallas, Texas, during that period, so she was not fully aware of everything
Tameka did. She had a two-bedroom house in Kansas City, and Tameka and
Makenzie slept together in the same bed in the spare bedroom. Showers
denied a sexual relationship with Tameka, stating that she (Showers) has a
fiancé. Showers testified that she had not been to Tameka’s house in Kansas
City.
Danny provided the following testimony. At the time of trial, he had
been a church pastor for 10 years. He said that his mother lives in
Shreveport and his father is deceased; he also has an aunt living in the area.
He works from 10:00 a.m. to 2:00 p.m. Monday through Friday, and his
busiest days are Saturday and Sunday. Makenzie goes to church with him,
and she is in kindergarten at a public magnet school in Shreveport. Danny
drops Makenzie off at school and picks her up every day. A copy of
11 Makenzie’s report card was admitted, showing that she performed
satisfactorily in all her classes and had an “A” in conduct. Makenzie had
perfect attendance except for one sick day for which she had a doctor’s note.
Danny stated that Tameka had not attended back-to-school night, but he
admitted that he did not share Makenzie’s teachers’ contact information with
her. Danny presented the trial court with information about the various local
activities Makenzie could participate in.
He had admitted photos of his home depicting Makenzie’s room; the
photos showed that there was no lock on the door to Makenzie’s room.
Danny said that he did not pay any medical bills that were not covered by
insurance. Tameka offered no child support, even though she makes double
what he earns. During their week on/week off visitation, Danny personally
took care of Makenzie; he did not rely on child care. He has a vehicle for
transportation.
Danny testified that Tameka filed for bankruptcy in 2018, a fact she
did not share with him. Danny said that he found out that Tameka was
moving to Kansas City through friends and not from her. He said Tameka
was involved in payday lending and had a warrant for her arrest for driving
with a suspended license. Danny said he was charged in 2000 for driving
under a suspended license, but he now has a valid driver’s license.
Danny stated that when Tameka was living in Shreveport with
Showers, he believed they were getting back together. He said that Tameka
moved out of his mother’s house without telling him, so he contacted child
protective services, because Tameka would not answer her phone.
12 Danny said that he never hurt Makenzie and he never left her alone.
He stated that he did not lock the door to her room. Danny tried to facilitate
a relationship between Makenzie and Tameka and to communicate with
Tameka. Danny said that if the trial court ordered that Makenzie remain in
Shreveport, he suggested visitation that accommodated Tameka. Danny said
that he wants to do what is right for their child, and he does not discuss what
occurs in court with Makenzie. He said that he wants to let her be a child.
Danny testified that Makenzie is close with her maternal grandmother
in Mississippi and will be closer to her if she resides in Shreveport, rather
than in Kansas City. Danny agreed that Tameka traveled a lot less after
Makenzie was born, and she only had to stay out of town twice. He stayed
in her apartment during those periods to care for their child. Danny said that
he can’t move to Kansas City, because his church is here.
Danny said that Tameka told him about her temporary assignment in
Kansas City, and that if he wanted to see Makenzie, he would need to fly.
Danny then told Tameka that they needed to figure out custody and
visitation in court, but then “she was gone.” Tameka initially told him that
her assignment in Kansas City was postponed, but then she never said that it
was back on again and that she was taking their child there.
On cross-examination, Danny acknowledged that he did not pay for
any extracurriculars for Makenzie before their week on/week off custody
schedule. Danny testified that he did not give any money to Tameka for
medical expenses and that Tameka paid for the house renovations for his
home.
13 Tommie testified that she is Makenzie’s paternal grandmother. She
said that Tameka and Makenzie lived with her for a year after Makenzie was
born. She said that she built a relationship with Makenzie while she lived
with her. She said that Tameka and a group of women started some trouble
at Danny’s church and, on one occasion, Tameka “yanked” Makenzie out of
Tommie’s arms. She did the same another time at a restaurant. Tommie
stated that she started seeing Makenzie again after the week on/week off
custody began. She stated that she got to see Makenzie often and she has a
good relationship with her. She said that Danny has a good relationship with
his daughter and interacts with her well. Tommie said that she did not
believe that she would see Makenzie if she lived in Kansas City.
On cross-examination, Tommie said that when Tameka and Makenzie
lived with her, Danny would not stay there, because he would go back to his
house to watch over it, due to people having stolen things from his home
while it was being renovated. She said that there was an outburst at church
one time, Tameka was not involved, but rather got up and left. Tommie
stated that she was unaware that Tameka planned to move out of her house.
Tommie said that one day Tameka called the church and asked to
speak with Danny. Tommie had Makenzie with her, which Tameka could
hear in the background of the phone conversation. Tameka “ordered”
Tommie to get Danny, because “I don’t want you to have anything to do
with my child.” Tommie said that she has not seen Makenzie cry or be
anxious around Danny or ask for her mother. Tommie observed that Danny
cares for Makenzie’s needs and they are affectionate with each other.
14 Tameka provided rebuttal testimony, saying that she spent thousands
on materials for renovations to Danny’s house. She said that when she lived
with Tommie, she saw her improperly feeding Makenzie. Makenzie had
problems with acid reflux and needed different formula. Tameka said that
Tommie was aware of the problem and allowed Danny to feed Makenzie the
wrong formula. She said she went to Tommie’s house and observed that
Danny was feeding Makenzie the wrong formula and that their child was
crying and was wet. She testified that she also observed Makenzie crying
whenever Tommie would hold her, so she did not feel comfortable having
Makenzie around her grandmother. The trial court noted that throughout her
testimony, Tameka referred to Makenzie as “my child” or “my baby” and
not “our child.”
On January 10, 2023, the trial court stated in its written reasons for
judgment that it was not in Makenzie’s best interest to relocate and was in
her best interest that her parents be awarded joint custody with Danny
designated as domiciliary parent. The trial court stated that it considered
Ms. O’Brien’s reports and again noted that Tameka testified about Makenzie
in a very possessive manner. The trial court provided the following reasons
for its determination, reviewing first the factors from La. C.C. art. 134:
1. The court did not receive any evidence at trial that indicated that Makenzie would be abused by either parent.
2. Both parents showed love and affection toward their child and were capable of doing so in the future.
3. Both parents had the capacity and disposition to give Makenzie love, affection, and spiritual guidance, and to continue her education.
4. Both parents provided food, clothing, and shelter to Makenzie, and both had done so since her birth.
15 5. The court found that Makenzie lived in a stable, adequate environment equally between both parents, because they shared equal custody of her.
6. The court determined that Danny was able to provide “permanence, as a family unit, of the existing or proposed family home,” because he has always lived in Shreveport. The court noted that Makenzie always lived in Shreveport, and Tameka had lived in Kansas City for a short period.
7. There was no evidence presented at trial that either parent was morally unfit. The court found that Tameka was not entirely honest with Danny about her assignment in Kansas City, and she did not notify him of her intent to relocate Makenzie permanently until she was stationed there for three months. Danny attempted to figure out where Makenzie was during Tameka’s custodial periods, and she was “extremely evasive” in responding to his requests for information.
8. There was no evidence presented that either parent had a history of substance abuse.
9. There was no evidence presented indicating that either parent had mental or physical health issues. The trial court stated that it considered Ms. O’Brien’s reports, which initially recommended 50/50 custody, but that Tameka’s intent to relocate Makenzie made that recommendation unworkable.
10. The trial court found that the factor regarding Makenzie’s home, school, and community history was equal between the parents, because they had been sharing 50/50 custody.
11. The trial court stated that Makenzie was not asked to state a preference concerning which parent she lived with.
12. The trial court expressed concerns about the parents’ willingness and ability to facilitate and encourage a close and continuing relationship between Makenzie and the other parent. The court said that the history between Danny and Tameka was “very contentious” and the two were “bitter toward one another and appear to harbor ill feelings toward the other.” The trial court said it was “cautiously optimistic” that they could put the past behind them and work together to rear Makenzie.
13. The trial court indicated that the distance between Shreveport and Kansas City is significant and would make exchange of Makenzie complicated.
16 14. The trial court found that both parents exercised their responsibility in caring for and rearing Makenzie, because they shared the task between them for nearly three years. The trial court found that Tameka’s testimony that she cared for Makenzie 100% of the time prior to the December 2019 order from the court to be overstated.
The trial court next considered the following “noteworthy” factors
from the relocation statute, La. R.S. 9:355.14:
1. The court stated that Makenzie had a relationship with both parents, because they had shared equal custody since December 2019, so that factor was equal between the two parties.
2. The court stated that Tameka provided the court with information about what school Makenzie would attend in Kansas City, but nothing about any activities available for a child in the city. Danny provided both about Shreveport.
3. The trial court found that it was not feasible for Danny to travel frequently to Kansas City to see Makenzie on a regular basis. The court stated that Makenzie not having daily contact with her father would not be in her best interest.
4. The trial court stated that no evidence was presented suggesting that either parent would attempt to thwart the relationship between Makenzie and the other parent.
5. The court found that Tameka failed to present evidence, “other than her limited testimony” to show how Makenzie’s quality of life would improve in Kansas City.
6. The court examined the reasons each party had in seeking or objecting to relocation. Tameka relocated because of her employment, which the court found to be legitimate and sincere. The court said that Danny opposed relocation because Makenzie would not have daily contact with him.
7. The court found that the factor regarding the current employment and economic circumstances of each parent was equal between the two. But the court was concerned about the how the proposed relocation would affect Makenzie. The court said that there was very little evidence presented about what Makenzie’s life or routine would be like in Kansas City, and there was no evidence offered other than Tameka’s testimony about the proposed school Makenzie would attend if she was allowed to relocate.
17 8. The court noted that no child support had been ordered, but that each parent supported Makenzie while she was in their custody.
9. The court stated that Danny cannot relocate, because he has employment and responsibilities in Shreveport.
On February 13, 2023, the trial court signed a written judgment
denying relocation and awarding joint custody with Danny designated as the
domiciliary parent. The court then provided a detailed custody schedule for
holidays, school breaks, and when Tameka is in Shreveport and desires to
visit Makenzie. The court ordered “free and open communication” with
Makenzie when she is in the custody of the other parent and ordered that the
parents exchange her in Fort Smith, Arkansas. Costs were assessed to both
parties, including the costs of the mental health evaluation. Child support
was to be determined at a later date and each parent will claim the child for
tax purposes in alternate years. Tameka now appeals.
DISCUSSION
Ms. O’Brien’s Second Evaluation
In her first assignment of error, Tameka argues that the trial court
should not have considered Ms. O’Brien’s second evaluation report. She
states that she paid 100% of the costs for the first evaluation, and she
informed Ms. O’Brien that she would not be able to pay her fee for testifying
at trial by the time of trial, to which Ms. O’Brien did not respond. A few
months later, Danny paid Ms. O’Brien a substantial fee for the second
evaluation, in which she said that Makenzie should not be allowed to
relocate. Tameka then filed a complaint with Ms. O’Brien’s board, the
Louisiana Association of Social Workers.
18 Tameka claims that there were discrepancies between Ms. O’Brien’s
first and second evaluations. She claimed in her first evaluation that she
spoke with Makenzie and found that she would adjust well to relocation, so
the child discussed the move with Ms. O’Brien. In her second evaluation,
Ms. O’Brien said that Makenzie was “very guarded” about moving to
Kansas City and was not comfortable disclosing information. Tameka avers
that there is no indication that Makenzie met with Ms. O’Brien for the
second evaluation.
Danny argues that the trial court did not err in considering Ms.
O’Brien’s second evaluation, because both parties stipulated to it being
entered into evidence, and the court should consider all the evidence
presented at trial. Danny claims that Tameka failed to preserve her first
assignment of error for appeal when she stipulated to the evidence being
admitted.
In her reply brief, Tameka argues the trial court should not have
considered Ms. O’Brien’s second evaluation because it was not fairly or
properly performed. Tameka states that Danny made several incorrect
statements in his brief to this court. She states that Danny’s assertion that
she did not preserve for appeal her assignment of error about Ms. O’Brien’s
second evaluation was a misstatement of her argument. She did not state
that the trial court erred in admitting the second evaluation, but rather erred
in considering it.
Failure to make a contemporaneous objection to the admission of the
evidence waives the right to contest it on appeal. La. C.E. art. 103; Pratt v.
Culpepper, 49,627 (La. App. 2 Cir. 2/27/15), 162 So. 3d 616.
19 Whether Tameka frames her argument as an admissibility error or a
consideration error, it seems illogical to this court. She offered Ms.
O’Brien’s two evaluation reports as a joint exhibit, essentially asking the
trial court to consider them. She cannot now complain on appeal that the
trial court did just that. If Tameka did not want the trial court to consider
one or either of Ms. O’Brien’s evaluation reports, she should not have
offered them as a joint exhibit, but rather contemporaneously objected to
their admission. We do not find that the trial court erred in considering
either of Ms. O’Brien’s evaluation reports.
Relocation
In her second assignment of error, Tameka contends that the trial
court erred in denying relocation and finding that it was in Makenzie’s best
interest to reside in Shreveport with Danny as her domiciliary parent. She
states that Makenzie lived with her for her entire life until December 2019,
when the trial court ordered week on/week off custody. She claims that
prior to then, she supported Makenzie and was the primary caretaker for her.
She claims that Danny only visited Makenzie, “sometimes only once a
week,” and did not financially support her.
Tameka also takes issue with the trial court stating that she was not
entirely honest with Danny about her initial temporary assignment in Kansas
City, that she did not notify him about her intent to relocate Makenzie to the
city, and that at times when she had custody, she was evasive about
informing him of Makenzie’s location. Tameka states that the admitted text
conversations between her and Danny show that she informed him about
20 relocation and that the two had discussed it. Tameka states that she is
willing to facilitate a relationship between Danny and Makenzie, which is
shown by the fact that the she drove from Kansas City to Shreveport every
weekend for more than a year and was always timely in taking Makenzie to
see her father. She points out that Danny was not willing to meet halfway to
exchange Makenzie. Tameka argues Danny was absent for days at a time
from Makenzie’s life prior to her move to Kansas City and missed her
birthday party. She states that she has been more involved in Makenzie’s
life than Danny.
Tameka states that in Ms. O’Brien’s first evaluation, she stated that
because of Makenzie’s young age, she relies more on her mother than her
father and that it is in her best interest to reside with the same sex parent
who can provide for her emotional, physical, and financial needs. Tameka
states that she works from home four days a week and does not work Friday
through Sunday, so she is able to take Makenzie to school and pick her up
every day, and she has time for weekend activities with her. She said that
Makenzie’s half-sister lives with her, and she can provide more
opportunities for Makenzie, because her job is secure and she earns a
substantial income. Tameka states that evidence was presented that Danny
plays too roughly with Makenzie, which he described as “joyful playing.”
However, Tameka states, Ms. Womack was concerned enough about it to
report it to child protective services. Tameka asks this court to reverse the
trial court’s ruling and allow her to relocate Makenzie.
Danny argues that Tameka presented little evidence to the trial court
addressing the factors found in La. C.C. art. 134 and La. R.S. 9:355.14.
21 Danny states that Tameka’s allegations about him not being fully involved in
Makenzie’s life stem from two text messages in 2019 and 2020, focusing on
a time period more than four years ago. Danny says that Tameka did not
present evidence about the quality of schools or extracurricular activities
found in Kansas City, proving how Makenzie would benefit from relocating
there. Danny presented the court with evidence about the school Makenzie
currently attends, her report card, the quality of medical care, what her home
life and bedroom were like, and the other activities available to her in
Shreveport. Danny states that he is also able to provide Makenzie with a
strong religious background.
Danny claims that if Makenzie relocates, it will prove difficult for him
to be able to participate in special events in her life, because he cannot travel
to Kansas City on a regular basis. Tameka failed to present any physical
evidence of her increase in salary with her promotion and of the financial,
emotional, and/or educational benefits of attending school in Kansas City.
Danny says that Tameka desires to relocate, because moving will benefit her
and she wants Makenzie with her. Tameka wanted to relocate for
employment opportunities and Danny opposed relocation because it would
negatively impact his relationship with his daughter. Danny states that it
appeared from the record that Tameka has not managed her finances
properly, having a history of declaring bankruptcy and receiving
delinquency notices and receipts for payday loans. Danny asks this court to
First, we note that the trial court was correct in analyzing this case
under both La. C.C. art. 134 and La. R.S. 9:355.12 based upon the fact that
22 Tameka made an out-of-state move with the parties’ child that was opposed
by Danny during their divorce proceedings and before any custody issues
were determined or settled. See Atkins v. Atkins, 47,563 (La. App. 2 Cir.
9/26/12), 106 So. 3d 614.
The paramount consideration in any child custody case is the best
interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.
2/6/98), 708 So. 2d 731; Langston v. Langston, 54,611 (La. App. 2 Cir.
5/25/22), 340 So. 3d 1272. A parent seeking to relocate the principal
residence of a minor child has the burden of proving that the proposed
relocation is in good faith and that the proposed relocation is in the best
interest of the child. La. R.S. 9:355.10; Hernandez v. Jenkins, 12-2756 (La.
6/21/13), 122 So. 3d 524; Langston v. Langston, supra; Wylie v. Wylie,
52,800 (La. App. 2 Cir. 5/22/19), 273 So. 3d 1256.
La. R.S. 9:355.14 provides that 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 12 factors enumerated therein. While La. R.S. 9:355.14 requires
consideration of all 12 factors, the court is not required to give preferential
consideration to any certain factor or factors. Gathen v. Gathen, 10-2312
(La. 5/10/11), 66 So. 3d 1; Langston v. Langston, supra. The district court
has great discretion in child custody cases, and an award of child custody
will be disturbed only on a showing of abuse of that discretion. Id.
This court will now consider the relevant factors from La. C.C. art.
134.
1. La. C.C. art. 134(A)(1): The potential for the child to be abused, as defined by Children’s Code Article 603. The trial
23 court was correct that there was no evidence presented at trial that Makenzie was or would be abused by either party. While Tameka attempts to cast doubt on Danny with regard to this factor, the trial court did not find, and we agree, that Makenzie has been abused by either parent. This factor does not favor either party.
2. La. C.C. art. 134(A)(2): The love, affection, and other emotional ties between each party and the child. The trial court found that both parents show love and affection toward Makenzie and were capable of doing so in the future. This factor favors both parties.
3. La. C.C. art. 134(A)(3): 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. The trial court correctly found that both parents had the capacity and disposition to give Makenzie love, affection, and spiritual guidance, and to continue her education. Both provided evidence of the schools Makenzie would attend in their respective cities. Danny testified about his work as a pastor at his church and bringing Makenzie to his church, and Tameka testified that she had taken Makenzie to church previously. This factor favors both parties.
4. La. C.C. art. 134(A)(4): The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs. The trial court determined that both parents provided food, clothing, and shelter to Makenzie, and both had done so since her birth. We agree that this factor favors both parents.
5. La. C.C. art. 134(A)(5): The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment. The trial court stated that Makenzie lived in a stable adequate environment equally between both parents, because they shared equal custody of her. We find this to be true.
6. La. C.C. art. 134(A)(6): The permanence, as a family unit, of the existing or proposed custodial home or homes. The trial court determined that Danny was able to provide permanence, as a family unit, of the existing or proposed family home, because he has always lived in Shreveport. The court noted that Makenzie always lived in Shreveport, and Tameka had lived in Kansas City for a short period. We agree with the court’s assessment.
7. La. C.C. art. 134(A)(7): The moral fitness of each party, insofar as it affects the welfare of the child. The trial court
24 observed and this court agrees that Tameka was not entirely honest with Danny about relocating to work in Kansas City and she did not notify him of her intent to relocate Makenzie permanently until she was situated there for several months. Danny tried to discover where Makenzie was during Tameka’s custodial periods, and she was “extremely evasive” in responding to his requests for information. This court finds those facts troubling, showing Tameka’s unwillingness to fully communicate with Danny, which could have adverse effects on Makenzie.
8. La. C. C. art. 134(A)(9): The mental and physical health of each party. There was no evidence presented indicating that either parent has mental or physical health issues. The trial court considered Ms. O’Brien’s reports, which initially recommended 50/50 custody, but Tameka’s intent to relocate Makenzie made that recommendation unworkable. We agree, as the distance between Shreveport and Kansas City makes a 50/50 custody arrangement impossible for a school-aged child. This factor favors Danny.
9. La. C.C. art. 134(A)(10): The home, school, and community history of the child. The trial court found this factor equal between Makenzie’s parents, because they had been sharing 50/50 custody. We agree.
10. La. C.C. art. 134(A)(12): The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. The trial court expressed concerns regarding this factor. The court described Danny and Tameka’s relationship as “very contentious” and that the two were “bitter toward one another and appear to harbor ill feelings toward the other.” However, the court expressed optimism towards the pair reconciling their differences to raise their daughter. This court does not find the trial court’s determination about this factor to be in error.
11. La. C.C. art. 134(A)(13): The trial court pointed out that the distance between Shreveport and Kansas City is substantial and would make exchanging Makenzie difficult. We agree.
12. La. C.C. art. 134(A)(14): The responsibility for the care and rearing of the child previously exercised by each party. The trial court found that both parents exercised their responsibility in caring for and rearing Makenzie because they shared the task between them for nearly three years. The trial court did not agree with Tameka’s testimony that she cared for Makenzie 100% of the time prior to the week on/week off custody order from the court. We agree with the trial court.
25 We will next examine the relevant factors found in the relocation
statute, La. R.S. 9:355.14.
1. La. R.S. 9:355.14(A)(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. The trial court found that Makenzie had a relationship with both parents, because they had shared equal custody since December 2019, so that factor was equal between the two parties. We also note that Danny and his mother testified about their family that resides in Shreveport. Likewise, Tameka stated that her adult daughter, Makenzie’s sister, lives with her in Kansas City.
2. La. R.S. 9:355.14(A)(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. The court stated that Tameka provided the court with information about what school Makenzie would attend in Kansas City, but nothing about any activities available for a child in the city. Danny provided both about Shreveport. Danny provided photographs depicting Makenzie’s room and testified about what her home life is like. Tameka provided little information about the same.
3. La. R.S. 9:355.14(A)(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. The trial court found that it was not practicable for Danny to travel regularly to Kansas City to see Makenzie, and that Makenzie not having daily contact with her father would not be in her best interest. Danny works as a pastor and his busiest time at work is on the weekends, making it difficult to travel to Kansas City. Tameka testified that she is off from work Friday through Sunday, when Makenzie is not at school, making it more practical for her to travel to Shreveport if she desires to see her daughter at times that she is not attending school.
4. La. R.S. 9:355.14(A)(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. The trial court determined that neither parent had or would attempt to thwart the relationship between Makenzie and the other parent. We do not agree with that finding. Tameka testified that she told Makenzie that her father would not allow her to talk to her except on certain days of the week. The trial court admonished
26 Tameka for telling her daughter that and said that it was the court that ordered the communication arrangement and not Danny. Tameka also did not fully communicate with Danny about Makenzie’s whereabouts during their 50/50 custody arrangement, as discussed above. We find that Tameka has shown a willingness in the past to interfere with Danny’s relationship with Makenzie.
5. La. R.S. 9:355.14(A)(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. The court found that Tameka neglected to present evidence, other than her “limited” testimony to show how it is in Makenzie’s best interest to relocate with her to Kansas City. Danny, conversely, provided photographs, information about activities in Shreveport, and his testimony about what Makenzie’s life would be like if she remained in Shreveport with him named as domiciliary parent.
6. La. R.S. 9:355.14(A)(7): The reasons of each person for seeking or opposing the relocation. Tameka relocated because of her employment, which the court found to be legitimate and sincere. The court said that Danny opposed relocation because Makenzie would not have daily contact with him. We agree with the trial court that both are valid reasons for the parties to want or oppose relocation.
7. La. R.S. 9:355.14 (A)(8): The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child. The court found this factor to be equal between the two parents. We agree.
8. La. R.S. 9:355.14(A)(9): The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation. The court noted that no child support had been ordered in this case, but that each parent supported Makenzie while she was in their custody. We also find this factor to be equal between the parties.
9. La. R.S. 9:355.14(A)(10): The feasibility of a relocation by the objecting person. The court stated that Danny cannot relocate, because he has employment and responsibilities in Shreveport. We agree and again state that Tameka testified about her work schedule which allows for more flexibility on the weekends for her to see her child when Makenzie is not in school.
27 The consideration on appeal regarding the ruling of the trial court in a
relocation case is whether it abused its great discretion in arriving at that
conclusion. It is clear here that both parties love and care for Makenzie.
However, Tameka provided little information about how it is in Makenzie’s
best interest to relocate to Kansas City. Having examined the evidence
presented and the trial court’s ruling, we cannot say that the court abused its
discretion in denying relocation, awarding joint custody, and naming Danny
as the domiciliary parent. This assignment of error is without merit and the
trial court’s ruling should be affirmed.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is affirmed. Costs of
the appeal are assessed to appellant.
AFFIRMED.
Related
Cite This Page — Counsel Stack
Tameka Y. Simpson-Mitchell v. Danny R. Mitchell, Jr., Counsel Stack Legal Research, https://law.counselstack.com/opinion/tameka-y-simpson-mitchell-v-danny-r-mitchell-jr-lactapp-2024.