Tara Coates Senousy v. Saeed Hassan Senousy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 05-198

TARA COATES SENOUSY

VERSUS

SAEED HASSAN SENOUSY

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 203,502
HONORABLE GEORGE CLARENCE METOYER JR., DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

REVERSED.

Thomas Overton Wells
Attorney at Law
1254 Dorchester Drive
Alexandria, LA 71315
(318) 445-4500
Counsel for Plaintiff/Appellant:
Tara Coates Senousy

Thomas D. Davenport, Jr.
Attorney at Law
1239 Jackson St.
Alexandria, LA 71301
(318) 767-1161
Counsel for Defendant/Appellee:
Saeed Hassan Senousy

SAUNDERS, J.

This matter comes before us on appeal from the trial court’s judgment granting

Saeed Senousy’s Motion for Leave to Bring Children Abroad. Appellant argues that

the motion should have been dismissed because Appellee was not present at the

hearing and that the judgment should be reversed because the Bergeron standard was

not satisfied. Appellee argues that the trial court acted properly in refusing to dismiss

the motion. We reverse.

FACTS AND PROCEDURAL HISTORY

Saeed Senousy (hereinafter referred to as “Appellee”), a citizen of Egypt,

traveled to this country where he eventually wed Tara Coates Patton Senousy Blood

(hereinafter referred to as “Appellant”). The couple subsequently divorced. In

conjunction with the divorce proceeding, a considered child custody decree was

rendered awarding joint custody, naming Appellant the domiciliary parent and

providing that neither party could remove the children from the country “without

prior Court approval.”

In August 2004, Appellee filed a Motion for Leave to Bring Children Abroad

seeking “perpetual permission” to bring the children out of the country. The matter

was heard on October 25, 2004 but Appellee was not present at the hearing.

Appellant requested dismissal of the motion due to Appellee’s absence. When that

request was denied, Appellant asked the court to issue an instanter subpoena

commanding Appellee’s presence. Likewise, that request was denied. The trial court

proceeded to question Appellant then turned the questioning over to the attorneys

present at the hearing. Following her testimony, Appellant moved for a dismissal

arguing that Appellee failed to satisfy the Bergeron standard and was again denied.

The trial court then granted Appellee’s motion and issued a written judgment

providing that Appellee could take the children abroad “provided that [he] notifies

[Appellant] by certified mail of the appropriate times and dates of departure thirty

(30) days in advance.” Appellant then appealed that judgment.

ASSIGNMENTS OF ERROR

1) The trial court erred when it denied respondents oral motion to dismiss
for movant’s failure to appear at the hearing.

2) The trial court erred when it refused to grant an instanter subpoena or to
continue the hearing to allow respondent to compel mover’s attendance.

3) The trial court erred when it denied respondent’s motion to dismiss for
failing to state a cause of action under Bergeron.

STANDARD OF REVIEW

The standard of review for findings of the trial court has been clearly

established in this circuit. A court of appeal may not set aside a judge’s factual

finding unless that finding was manifestly erroneous or clearly wrong. Stobart v.

State, through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest

error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not

be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111

(La.1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate

courts are to determine if the trial court’s ruling was legally correct or not. Cleland

v. City of Lake Charles, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied,

03-1380, 03-1385 (La. 9/19/03), 853 So.2d 644.

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DISCUSSION

Because we find merit in Appellant’s third assignment of error and reverse the

trial court on that basis, assignments of error one and two are rendered moot and are

not discussed herein. In Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986), the

supreme court articulated the standard to be used when a modification of a considered

custody decree is sought. The court stated that:

[w]hen a trial court has made a considered decree of
permanent custody the party seeking a change bears a
heavy burden of proving that the continuation of the
present custody is so deleterious to the child as to justify a
modification of the custody decree, or of proving by clear
and convincing evidence that the harm likely to be caused
by a change of environment is substantially outweighed by
its advantages to the child.

Id. It is undisputed that the original custody decree rendered in this matter was a

considered decree; therefore, the Bergeron standard is applicable.

Next, we find that Appellee sought and obtained a change in that decree. As

previously noted, the original decree provided that “prior court approval” was

required before the children could be taken out of the country. This language

indicates that permission from the court had to be obtained each time the children

were taken abroad. Appellee’s Motion for Leave to Bring Children Abroad, however,

sought to change that requirement by seeking “perpetual permission” from the court

to take the children out of the country. This change was obtained as evidenced by the

language of the judgment on Appellee’s Motion for Leave to Bring Children Abroad

and that used by the trial judge when speaking from the bench at the hearing on that

motion.

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First, the written judgment on the Motion for Leave states that notice must be

given before the children may be taken from this country. Notice is not court

approval. This distinction is also evident in the trial judge’s comments at the hearing.

He stated that Appellee could travel “with the children with thirty (30) days advance

notice, that would give any person who has a concern a right to come back into

court[.]” While the new judgment does provide Appellant the opportunity to

challenge the travel in court, it does not require Appellee to go to court first to get

permission. In fact, counsel for Appellee noted at the hearing on the motion that

“when [Appellee] desires to bring his children abroad, he’s having to come and get

locked up in the court system” and that he “want[s] permission in advance before we

make these provisions to have all these, this trip planned to Egypt.” By replacing the

requirement in the original decree to an opportunity in the subsequent judgment, the

trial judge changed the original considered custody decree; therefore, we must

determine whether the Bergeron standard was satisfied. We find that it was not.

Appellant was not present at the hearing so no testimony was offered indicating

why the prior regime was “so deleterious” that a change was appropriate. Bergeron,

492 So.2d at 1200. Appellee’s brief also offers nothing indicating why the

considered decree should have been changed. After reviewing the record, it is

evident that Appellee merely wants blanket permission to take his children to visit

family in Egypt. This desire does not show how the “heavy burden” imposed by

Bergeron has been satisfied. In order to obtain the change sought, Appellee had to

show that:

the continuation of the present custody is so deleterious to
the child as to justify a modification of the custody decree,

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or of proving by clear and convincing evidence that the
harm likely to be caused by a change of environment is
substantially outweighed by its advantages to the child.

Id. No such showing has been made. Appellee cites the inconvenience of the prior

regime; however, mere inconvenience is not sufficient to satisfy Bergeron.

CONCLUSION

The trial court’s judgment granting Appellee’s Motion for Leave to Bring

Children Abroad is reversed. Costs of this appeal are assessed against Appellee.

REVERSED.

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