Chanda Prather Richardson v. Steven Todd Richardson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-609

CHANDA PRATHER RICHARDSON

VERSUS

STEVEN TODD RICHARDSON

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 71,071, DIVISION A
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

AFFIRMED.

Clay Williams
Williams & Nelson
P. O. Drawer 1810
Leesville, LA 71496
Telephone: (337) 238-4704
COUNSEL FOR:
Defendant/Appellee - Steven Todd Richardson

Terry W. Lambright
100 S. Third Street - Suite A
Leesville, LA 71446
Telephone: (337) 239-6557
COUNSEL FOR:
Plaintiff/Appellant - Chanda Prather Richardson

THIBODEAUX, Chief Judge.

This case involves custody and relocation disputes between the

appellant, Chanda Richardson Lalonde, and her former husband, Steven Richardson.

After initially stipulating to joint custody and visitation, with Chanda as the

domiciliary parent of the parties’ two minor children, Steven sought, and was

eventually awarded, primary custodial parent status. Subsequently, as a member of

the military, Steven sought to relocate to Fort Carson, Colorado, pursuant to Army

transfer orders. The trial court approved the relocation, and Chanda filed this appeal.

For the following reasons, we affirm the trial court’s judgment approving the

relocation of the minor children to Colorado with Steven.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in assessing
the minor children’s testimony; and,

(2) whether the trial court erred in approving the
relocation and thereby maintaining the children’s
custody in the relocating parent.

II.

FACTS AND PROCEDURAL HISTORY

Chanda and Steven were married for eight years and divorced on

November 12, 2003, when one child was seven years old, and the other was four

years old. Steven initially stipulated to joint custody, with Chanda as the domiciliary

parent. Over the next several years of this fractious relationship, several contentious

legal proceedings resulted in psychological evaluations, civil warrants, and

implementation of a modified plan for joint custody.

In February 2008, following a hearing on Steven’s rule to modify

custody, the trial court considered the psychological evaluations of the parties, the

significant documentary evidence, depositions, reports, and live testimony, as well

as the “best interest” factors of La.Civ.Code art. 134. In March 2008, finding that the

mother’s own disorder had a profound effect on her ability to parent, and finding that

she was unwilling to facilitate a close relationship between the children and Steven,

the trial court ordered that the September 2003 joint custody order be modified to

name Steven as the primary custodial parent, with visitation to Chanda. The order

also provided that if either parent was to be away for thirty days or more, the other

parent would be allowed to keep the children before any other arrangements were

made, but not if the children were in school at the time and would have to be

transferred. In April of 2008, Steven received orders from the Department of the

Army for a permanent station change (PSC) to Fort Carson, Colorado. He filed a

motion with the court to relocate, and Chanda opposed the motion.

Following a hearing in August 2008, the trial court entered a judgment

in December of 2008 allowing the relocation of the children to Colorado, with the

provision that if Steven were deployed, Chanda could have the children for the entire

school year. Chanda appealed the judgment.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two

tiered test must be applied in order to reverse the findings of the trial court:

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a. the appellate court must find from the record that a
reasonable factual basis does not exist for the
finding of the trial court, and

b. the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more

reasonable than the fact finders, reasonable determinations and inferences of fact

should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330

(La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s

findings are reasonable based upon the entire record and evidence, an appellate court

may not reverse said findings even if it is convinced that had it been sitting as trier

of fact it would have weighed that evidence differently. Housely v. Cerise, 579 So.2d

973 (La.1991). The basis for this principle of review is grounded not only upon the

better capacity of the trial court to evaluate live witnesses, but also upon the proper

allocation of trial and appellate functions between the respective courts.

Chanda contends that the trial court erred in assessing the testimony of

the minor children and that the error is tantamount to a legal error that would require

this court to conduct a de novo review of the record. We disagree. The trial court’s

interpretation of the testimony in this case is based upon reasonable factual

conclusions, and the standard of review is manifest error, not legal error.

The trial court considered the testimony of both children and indicated

that only one child stated a preference, which was a strong preference, and that it

would be given significant consideration. Taking the testimony as a whole, this was

not a misstatement by the court. The trial court then considered the young age of the

child with the stronger preference, and determined that a child of such tender years

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should not be put in a decision making position on custody and relocation issues. The

“reasonable preference” of the child is a factor in determining the best interest of the

child, “if the court deems the child to be of sufficient age to express a preference.”

La.Civ.Code art. 134(9). Likewise, La.R.S. 9:355.12, governing relocation, provides

that one of the factors used to determine a contested relocation is “[t]he child’s

preference, taking into consideration the age and maturity of the child.”

Dr. John Simoneaux, who performed psychological evaluations on all

family members stated that the custody issue should be determined by adults, not

children. We find that the trial court’s factual conclusions regarding the testimony

of the minor children were reasonable based upon the record as a whole, and we will

not disturb its reasonable determinations and inferences of fact upon review.

Burden of Proof

Chanda further contends that the trial court clearly erred and abused its

discretion in allowing Steven to relocate with the minor children to Colorado. The

question for this court then, upon appeal, is whether Steven, the relocating parent

with custody of his two children, met his burden of proof with regard to the

relocation. Steven’s burden of proof is found at La.R.S. 9:355.13:

§ 355.13. Burden of proof

The relocating parent has the burden of proof that
the proposed relocation is made in good faith and is in the
best interest of the child. In determining the child’s best
interest, the court shall consider the benefits which the
child will derive either directly or indirectly from an
enhancement in the relocating parent’s general quality of
life.

Therefore, Steven’s burden of proof is two-fold, in that the relocation

must be made (1) in good faith; and, must be (2) in the best interest of the children.

With regard to the first prong, Chanda contends that Steven did not act in good faith

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in relocating, but rather orchestrated a transfer with the military to Fort Carson,

Colorado, with the specific intent of separating the children from their mother. She

argues that it had always been Steven’s wish to transfer to Colorado, and that after

having been stationed in Louisiana for eleven years, he was suddenly transferred to

Colorado just thirty days after he obtained custody of the minor children. The trial

judge stated that he would be surprised if, in every soldier’s life, the soldier and

spouse did not discuss their preferred stations and where they would like to live while

in the military.

The court further indicated that just because Steven might have told

Chanda years earlier that he wanted to be transferred to Fort Carson one day, this fact

did not mean, and there was no evidence in support, that Steven and the military

colluded or conspired to get the transfer through shortly after Steven won primary

custody of the children. The trial court further stated that Chanda had only opinions

regarding the relocation, while the military order dated April 3, 2008, was credible

evidence that the military had taken charge of Steven’s life, as always, and transferred

him to another location. The trial judge indicated that it was more surprising that the

military had allowed Steven to stay in Louisiana for eleven years.

Steven testified that he had always wanted to go to Fort Carson, and that

he had spoken about it, saying that he would probably be sent somewhere, and that

if he had a choice, it would be Fort Carson. He stated that when he received the April

2008 notice, his choices were, Hawaii, New Jersey, and New York. He further stated

that the Army considers you “stagnant” if you stay in one place too long. He stated

that when he saw the choices, he held out for a short time to see if Fort Carson,

Colorado became available, and it did. The record contained the official transfer

orders to Fort Carson, Colorado, a letter from Steven’s commander stating the reason

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for the PSC, and a letter from his branch manager indicating the available locations.

The trial court did not abuse its discretion in finding that Steven’s relocation of

himself and the minor children to Colorado was done in good faith.

With regard to the second prong, the best interest of the children, the trial

court went through the twelve factors of La.R.S. 9:355.12, governing relocation, and

determined that the relocation was in the best interest of the children. For example,

with regard to La.R.S. 9:355.12(5), “[w]hether 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,” the court reiterated its concerns

about Chanda’s ability to foster a relationship between the children and their father,

while there was nothing to suggest that Steven had sought to limit the mother’s

visitation. With regard to factor number six, “[w]hether 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,” the trial judge indicated that the schools seemed

comparable, and that the father’s opportunity for promotion was a positive. While the

trial court may not have always articulated its conclusions regarding the relocation

factors with great precision, its ultimate conclusion to approve the relocation was

very well-founded.1

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§ 355.12. Factors to determine contested relocation

A. In reaching its decision regarding a proposed relocation,
the court shall consider the following factors:

(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.

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More specifically, the best interest of the children was a factor when

earlier determining the custody issue under La.Civ.Code art. 134. When determining

the relocation issue under La.R.S. 9:355.12, and also under La.R.S. 9:355.13, the

burden of proof statute pertaining to relocation, the best interest of the children, is

also a factor. Chanda complains that the court commented on a lack of change, as if

the burden of proof was on Chanda to prove changes in circumstance for a custody

change, which would have been error. We disagree. First, the trial court properly

(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 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.

B. The court may not consider whether or not the person
seeking relocation of the child will relocate without the child if
relocation is denied or whether or not the person opposing relocation
will also relocate if relocation is allowed.

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went through the relocation factors in La.R.S. 9:355.12 and La.R.S. 9:355.13.

Second, since Steven was ordered to transfer to Fort Carson, the court had to consider

whether custody should remain with him or be changed back to Chanda. The court’s

having occasionally mentioned that it saw no change occurring between February

2008 (custody hearing) and August 2008 (relocation hearing) does not render its

analysis faulty. While the trial court did not explore the custody issue at the

relocation hearing, we note that the underlying custody change from Chanda, as

domiciliary parent, to Steven, as primary custodial parent, was well-reasoned, and

undoubtedly still fresh in the court’s mind.

Dr. John Simoneaux evaluated both families in January and March of

2006, pursuant to the court’s request. His report, after all evaluations were

completed, included an analysis of the twelve factors of La.Civ.Code art. 134

regarding the “best interest” of the children. His concerns were many, and included

the poor judgment exercised by Chanda in relating information to the children that

they were too young and too emotionally fragile to absorb. In Chanda’s interview

with Dr. Simoneaux, she accused Steven of engaging in dangerous behavior and of

being an alcoholic. However, Dr. Simoneaux found these remarks to be

exaggerations or representations of youthful excess.

In Brenda Richardson’s interview with Dr. Simoneaux, she disclosed

stalking by Chanda, extreme mood shifts, calls to Brenda’s supervisor’s causing her

problems at the school where she taught, calls to the MP’s to drug search Steven and

Brenda’s house at one o’clock in the morning, finally culminating with Chanda’s

being banned from the post. Brenda reported that Chanda had gone to extremes to

discredit her, her mother, and her father, and that Brenda and her mother had filed

complaints because of the malicious lies told by Chanda.

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Dr. Simoneaux was concerned particularly for the medical care that

Chanda, who had a well-documented history of bipolar disorder, was providing to the

girls. He characterized her as overly zealous and overly influential with the

children’s medical providers and social worker in Baton Rouge, resulting in

inaccurate information and over-medication of the children. He described Chanda’s

emotional state as fragile and found most factors favoring Steven and Brenda

Richardson as the primary custodial parents because they had a more stable family

unit. Dr. Simoneaux’s greatest concern was that Chanda, who “demonized” Steven,

and who seemed incapable of change, actually created danger for the children and

their welfare. Dr. Simoneaux stated that Chanda should be in therapy, and that if she

would not give up the fight and try to encourage the children’s relationship with their

dad, then sole custody to Steven would be in order.

This evidence assisted the trial court in changing the primary domicile

to Steven in February 2008, and it justified its statement at the relocation hearing in

August 2008, that the court saw no reason to remove the children from the custody

of their father and would, therefore, grant the relocation of the children to Colorado.

IV.

CONCLUSION

Based upon the foregoing, we find no abuse of discretion by the trial

court in finding that the relocation of the minor children was in good faith and in the

best interest of the children. Those determinations were reasonable based upon the

record as a whole and will not be disturbed by this court. Accordingly, the judgment

of the trial court is affirmed in its entirety. The costs of this appeal are to be borne

by Chanda Richardson Lalonde.

AFFIRMED.

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