Trahan v. Kingrey

98 So. 3d 347, 2011 La.App. 1 Cir. 1900, 2012 La. App. LEXIS 609, 2012 WL 1564333
CourtLouisiana Court of Appeal
DecidedMay 4, 2012
DocketNo. 2011 CU 1900
StatusPublished
Cited by2 cases

This text of 98 So. 3d 347 (Trahan v. Kingrey) 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
Trahan v. Kingrey, 98 So. 3d 347, 2011 La.App. 1 Cir. 1900, 2012 La. App. LEXIS 609, 2012 WL 1564333 (La. Ct. App. 2012).

Opinions

HUGHES, J.

12This is an appeal from a judgment of the Thirty-Second Judicial District Court. The judgment awarded the parties, Elizabeth Donald Kingrey Romero (Elizabeth) and Douglas Anthony Trahan (Doug), joint custody of their minor child. The judgment further designated Elizabeth as the domiciliary parent and allowed Elizabeth to relocate the minor child to West Virgi[349]*349nia. Doug has appealed. For the following reasons, we reverse and render.

FACTS AND PROCEDURAL HISTORY

Elizabeth and Doug had a somewhat tumultuous relationship that lasted approximately a year and a half. They never married. Close to the end of the relationship, Elizabeth became pregnant with their son, Devon Bryce Trahan. The two were no longer together when Devon was born on January 3, 2005 in Lafayette, Louisiana, where Elizabeth lived throughout her pregnancy and at the time of Devon’s birth. While there was initially some question as to the issue of paternity due to Elizabeth’s admission that at least five other men could have fathered Devon, it was determined through DNA testing shortly after Devon’s birth that Doug was the father. At that time, Doug fully accepted the obligations and responsibilities of parenthood. Around the time that Devon was five weeks old, on March 3, 2005, Doug and Elizabeth entered into a consent judgment wherein they shared equal joint custody of Devon on a one-week rotating basis, with Elizabeth designated as the domiciliary parent.

Elizabeth married her current husband, Timothy Romero (Tim), on July 21, 2005. In 2009 Tim was transferred to West Virginia and the Romeros moved there with Devon. Elizabeth did not file a Notice of Relocation, as required by LSA-R.S. 9:355, et seq. Instead, the record |3reflects that Elizabeth filed a “Rule for Custody” on July 15, 2009, wherein she stated that her husband’s employer, The Wood Group, was shutting down its facilities in Louisiana and that Tim “has been offered a promotion to stay with the company, but a transfer and move to Fairmont, Virginia, [sic] is required to keep that employment.” Elizabeth alleged that due to the move to West Virginia, the shared custody arrangement in effect for Devon should be changed. In response, Doug filed a “Rule for Change of Custody” wherein he opposed Elizabeth’s request to relocate Devon out-of-state and alleged that it was in Devon’s best interest that he be designated domiciliary custodial parent. Specifically, Doug alleged that Elizabeth had informed him that she intended to relocate with Devon to West Virginia, that she had attempted to alienate and estrange Devon from him, had shown an inability to facilitate and encourage a close and continuing relationship between him and Devon, had failed to properly care for Devon, and had endangered Devon. In a subsequent pleading, Doug alleged that Elizabeth failed to follow the statutory requirements of LSA-R.S. 9:355, et seq. by failing to give him notice of the proposed relocation and failed to provide the address, telephone number, date of move, proposed revised schedule of visitation, and a statement informing him that an objection of the proposed relocation should be filed within thirty days of the receipt of the notice (which he did not get.)

Thereafter, the parties entered into an interim consent judgment on September 4, 2009, wherein they agreed, pending litigation, to temporarily share custody of Devon on a twenty-eight day rotating basis, and that the parent who did not have the child be allowed to call the child once every other day between 4:00 p.m. and 5:00 p.m.

|4A hearing was held on July 14, July 16, August 6, and September 9, 2010. At the conclusion of the hearing, the trial court rendered judgment, granting the parties joint custody of Devon with Elizabeth designated as the domiciliary parent, subject to visitation in favor of Doug, pursuant to a Joint Custody Plan confected by the trial court. The judgment also held that Devon [350]*350would reside with Elizabeth in West Virginia. In written reasons for judgment, the court stated that, because all prior judgments issued in conjunction with this matter were by consent of the parties, and that there had never been a “considered decree” rendered in the case, “[e]ach party need only prove a change in circumstances materially affecting the welfare of Devon and that any proposed changes to the previous child custody decree are in the best interest of Devon.” The court stated further that “[t]he court has reviewed Louisiana Civil Code article 134 which sets forth factors the Louisiana Legislature deems important in determining the best interest of a child for custody purposes. Based on the court’s consideration of those factors the court finds that it is in Devon’s best interest that the parties have joint custody of Devon and that Ms. Kingrey [Elizabeth] remain as the domiciliary parent with a requirement that Devon reside with her in West Virginia.”

Doug filed a motion for new trial, which was denied by the trial court, and this appeal followed. In his appeal, Doug makes the following assignments of error:

1. The trial court erred in designating the mother, Elizabeth Donald Kingrey, the domiciliary custodial parent, subject to visitation in favor of the father, Doug Anthony Trahan.
2. The trial court erred in allowing the mother, Elizabeth Donald Kingrey, to relocate the minor child to West Virginia.
3. The trial court erred in failing to consider the factors as provided in Louisiana Revised Statute LSA R.S. 9:355 et seq.
|b4. The trial court erred in failing to require the mother, Elizabeth Donald Kingrey, to provide for the transportation and/or the cost of the transportation of the minor child from the State of West Virginia to the State of Louisiana and back to the State of West Virginia.
5. The trial court erred in determining that the mother, Elizabeth Donald Kin-grey’s schedule allowed her to be available for Devon Bryce Trahan essentially all of the time.
6. The trial court erred in determining that the father, Doug Anthony Trahan’s schedule does not allow him to be available for Devon Bryce Trahan essentially all of the time.
7. The trial court erred in determining that the father, Doug Anthony Trahan, should only be allowed 35 days of summer visitation when the child is out of school.
8. The trial court erred in determining that the father, Doug Anthony Trahan, should lose days of visitation with the minor child while traveling to and from West Virginia and Louisiana.
9. The trial court erred in determining that the father, Doug Anthony Trahan, should not have more holiday visitation as a result of the relocation of the minor child to the State of West Virginia.

LAW AND ANALYSIS

I. Standard of Review

Doug’s second and third assignments of error allege legal error on the part of the trial court, specifically that the trial court erred in failing to consider the enumerated factors set forth in LSA-R.S. 9:355, et seq., relating to the determination of a child’s best interest in relocation cases. The written reasons for judgment of the trial court clearly demonstrate, and we must conclude, that the trial court failed to consider the relocation statutes and instead relied solely on the “best interest” factors for awarding custody set forth in LSA-C.C. art. 134.

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Cite This Page — Counsel Stack

Bluebook (online)
98 So. 3d 347, 2011 La.App. 1 Cir. 1900, 2012 La. App. LEXIS 609, 2012 WL 1564333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trahan-v-kingrey-lactapp-2012.