Sherill Smith Bares v. Warren Overton Bares

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-541

SHERILL SMITH BARES

VERSUS

WARREN OVERTON BARES

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20040741
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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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

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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.

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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.

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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.

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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

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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

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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

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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

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