Jamie Cass v. Kevin Charlie Cass

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-327

JAMIE CASS

VERSUS

KEVIN CHARLIE CASS

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 19395
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, Marc T. Amy, Elizabeth A.
Pickett, and Billy Howard Ezell, Judges.

REVERSED AND REMANDED.

Saunders, J., dissents and assigns written reasons.

J. Ogden Middleton, II
1744 White Street
Alexandria, LA 71301
(318) 443-4377
COUNSEL FOR DEFENDANT/APPELLANT:
Kevin Charlie Cass

David C. Hesser
2820 Jackson Street
Alexandria, LA 71301
(318) 542-4102
COUNSEL FOR PLAINTIFF/APPELLEE:
Jamie Cass

AMY, Judge.

The defendant appeals a judgment of the trial court disallowing him to relocate

to Texas with his minor son and naming the plaintiff as domiciliary parent. For the

following reasons, we reverse and remand.

Factual and Procedural Background

Ms. Jamie Cass, the plaintiff and appellee, and Mr. Kevin Cass, the defendant

and appellant, obtained a judgment of divorce on July 31, 2009. Pursuant to a

consent judgment, the parties shared joint custody of one minor child born of the

marriage. The consent judgment, entered on May 28, 2009, detailed a shared physical

custody schedule and designated Mr. Cass as the domiciliary parent.

The record reveals that Mr. Cass, a Sergeant First Class in the Army, received

orders in early 2009 informing him that he was being transferred from Fort Polk in

Louisiana to Fort Hood in Texas. Mr. Cass asserts that at some time in either April

or May 2009, he informed Ms. Cass, a Lieutenant in the Army, of the transfer order.

On May 29, 2009, Ms. Cass filed an “Objection to Relocation, Rule For Relocation

Evaluation, and Rule For Custody” seeking to prevent Mr. Cass from moving out of

Louisiana with the child until a hearing could be held in addition to requesting that

she be named the domiciliary parent. Mr. Cass answered Ms. Cass’s objection and

filed a rule for a temporary order to relocate.1 On July 29, 2009, the trial court denied

Mr. Cass’s request to temporarily relocate the child to Fort Hood, and a hearing was

set to determine the permanent relocation issue.

Following a three-day hearing, the trial court issued oral reasons for judgment

denying Mr. Cass’s request to relocate, changing domiciliary custody to Ms. Cass,

and denying Mr. Cass’s request to remain in Louisiana as a domiciliary custodian.

1
Included with the rule for a temporary order to relocate were other motions which are not
at issue in this appeal, and therefore, will not be discussed herein.

A “Judgment on the Rule” was subsequently signed; however, the written judgment

did not contain reference to the trial court’s denial of Mr. Cass’s request to remain in

Louisiana as a domiciliary custodian. Mr. Cass filed a Motion for Entry of

Supplemental Judgment, and on September 10, 2009, the trial court issued a

supplemental judgment reflecting that denial.

Mr. Cass appeals, asserting the trial court erred in: (1) misapplying the

relocation statute and denying his request to relocate; (2) failing to follow the

required analysis in relocation cases; (3) finding that his move to Texas constituted

a change in circumstance warranting a modification of the initial consent judgment;

(4) naming the defendant as the domiciliary parent and refusing to recognize him as

a Louisiana domiciliary; (5) failing to have the child’s in camera interview

transcribed; (6) ignoring the mental health evaluator’s findings; and (7) refusing to

let the mental health evaluator see the minor child to further evaluate emotional

issues.

Discussion

Standard of Review

Mr. Cass first asserts that this court should conduct a de novo review of the

present matter, contending that the trial court: failed to consider the relocation factors

enumerated in La.R.S. 9:355.12; ignored the applicable burden of proof under La.R.S.

9:355.13, and; in making its decision, the trial court relied upon what the child related

to it in an in camera conversation that was not transcribed. He argues that these

alleged failures constitute legal error; therefore, this court is not bound by the

manifest error standard.

2

A parent seeking relocation must prove two things: (1) that the proposed

relocation is in good faith and (2) that the proposed relocation is in the best interest

of the child. La.R.S. 9:355.13. Louisiana Revised Statutes 9:355.12 enumerates

factors the trial court shall consider in deciding a contested relocation, as follows:

(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
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,

3

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.

This statute mandates that the trial court consider the enumerated factors;

however, it does not require the court to give preferential consideration to any certain

factor. Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094. A trial court’s

determination in a relocation dispute is entitled to great weight and will not be

overturned absent a clear showing of abuse of discretion. Id. Further, a reviewing

court may not set aside a trial court’s factual findings in the 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 trial court’s findings: (1) the appellate court must find

from the record that a reasonable factual basis does not exist for the trial court’s

findings, and (2) the appellate court must further determine that the record establishes

that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson,

09-609 (La.App. 3 Cir. 11/18/09), 25 So.3d 203, citing Mart v. Hill, 505 So.2d 1120

(La.1987). On review, if the trial court’s findings are reasonable based upon the

entire record, the reviewing court may not reverse even if it is convinced that had it

been sitting as the trier of fact it would have weighed the evidence differently. Id.

In its oral reasons for judgment, the trial court stated, in pertinent part:

In my decision in this case, is based not only on the evidence that has
been presented in this proceeding, but also the interest that [the child]
has conveyed to me. Sergeant Cass, you bear the burden of proving that
this relocation would be in [the child’s] best interest. In my opinion,
you are placed in a very difficult situation, because of your career.
Whether you orchestrated a move, or whether you were ordered to
move, and had little or no say so in where you were moving to, as you
were presented, or as you testified in this Court, on the 31st of July, on
Monday, the 17th, and, an on the 17th, you have very sketchy

4

information about your work schedule, your duties, who would care for
[the child] while you are at work. There’s very limited information on
the school, other than what some website, how some website ranked it,
which I place no significant credence in. I am left with a lot of
questions about [the child’s] environment in Fort Hood.
....

[W]e have Ms. Cass, who has lived in the same home for a period of
approximately two-years. Her work schedule is very defined, and it is
scheduled in such a manner to where there is no reliance on day care.
....

Sergeant Cass, I find that you have not met your burden of proving that
the relocation would be in [the child’s] best interest.

While a trial court is not required to specifically list each of the enumerated

factors, the record must support that it considered the factors in light of the particular

evidence presented. Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955.

Here, in its oral reasons for judgment, the trial court found Mr. Cass failed to carry

his burden of proof, characterizing the information about his work schedule, the

child’s school, and child care services as “sketchy.” It stated that there was limited

information provided about the child’s school absent a website ranking, which it

opined was unpersuasive.

However, at the hearing Mr. Cass testified that he enrolled the child in

Meadows Elementary School and met with the school’s principal. He explained that

Meadows Elementary was the elementary school which corresponded with his

assigned military housing on the base. Mr. Cass related that when he met with the

principal of the school, she provided him with a packet of information about the

school and base, including: a “Welcome” letter from Fort Hood explaining its size

and function; a calendar of family activities available in Mr. Cass’s assigned

neighborhood and school; a school calendar including vacation days, testing dates,

and parent conference dates; a school supply list and information about school meals,

5

and a memo from the school district superintendent detailing information about the

bus routes, classroom and extra-curricular educational opportunities, and contact

information for the schools. Mr. Cass also testified that he had scheduled an

appointment with the gifted and talented teacher at the school in order to have the

child tested for gifted classes. This informational packet and brochure detailing the

gifted and talented program were submitted into evidence at the hearing.

The hearing’s transcript reveals that the trial court asked Mr. Cass what his

normal work schedule would be during the week, and Mr. Cass confirmed that it

would be 9:00 a.m. to 4:30 p.m., Monday through Wednesday. He indicated that on

Thursdays, he would be released at 1:00 p.m. for “Family Day.”

As to child care, Mr. Cass testified that he enrolled his son in child care

services offered on the military base. He explained that the child care services were

available before and after the child’s school hours for any time in which Mr. Cass was

required to work during school hours. In response to questioning from the trial court,

Mr. Cass explained that he had the child care services available in addition to a

private child care provider and his mother if an emergency arose. He testified that he

made arrangements with military housing personnel to allow his mother to live at the

house, not to exceed thirty days in a one month window, to provide child care if he

was called away from the home to field assignments.

Here, in its oral reasons for judgment, the trial court found Mr. Cass failed to

carry his burden of proof, characterizing the information about his work schedule, the

child’s school, and child care services as “sketchy.” It stated that there was limited

information provided about the child’s school absent a website ranking, which it

opined was unpersuasive. Although the trial court provides reasons for its ruling, it’s

6

original judgment, supplemental judgment, and oral reasons for judgment do not cite

or make reference to any of La.R.S. 9:355.12’s factors.2 While a trial court is not

2
The trial court’s oral reasons for judgment state, in pertinent part:

In trying to decide this case, there are, there have been many issues presented by the
parties. It’s my view that, with respect to Sergeant Cass’ request to relocate, that I
am to determine what is in [the child’s] best interest. The parties, both sides, has
[sic] spent a significant amount of time trying to point out to me how the other is a
bad parent. I see very positive aspects for both parents, and I see some weaknesses
on both sides.

I think that as a couple, that the two of you probably complimented each other. I
think some of the strengths of one would compliment the weaknesses of the other.
I think that both sides have a tendency in this proceeding to, fail to take responsibility
for their own actions in bringing us to this place. I’m not here to decide whose the
best parent, or who is a better parent. I’m here to decide what is going to be [the
child’s] best, what is going to serve his interests for the best, for the immediate
future.

[The child] is a, based on my brief conversation with him, he is a personal [sic]
young man, who loves both his parents. [He] wants to spend time with both parents.
He does not want to decide, and nor should he have to decide, which parent he will
spend the majority of his time with. He did not want to fill, fulfill that role, which
was his reluctance to speak with Dr. Logan. Because that was going to be the
ultimate question asked of him. I did not want to ask him that question, because I
knew he did not want to answer that question. I did explore interest with [the child].

In my decision in this case, is not based not only on the evidence that has been
presented in this proceeding, but also the interest that [the child] has conveyed to me.
Sergeant Cass, you bear the burden of proving that this relocation would be in [the
child’s] best interest. In my opinion, you are placed in a very difficult situation,
because of your career. Whether you orchestrated a move, or whether you were
ordered to move, and had little or no say so in where you were moving to, as you
were presented, or as you testified in this Court, on the 31st of July, on Monday, the
17th, and, and on the 17th, you have very sketchy information about your work
schedule, your duties, who would care for [the child] while you are at work. There’s
very limited information on the school, other than what some website, how some
website ranked it, which I place no significant credence in. I am left with a lot of
questions about [the child’s] environment in Fort Hood.

It has nothing to do with whether or not you love your son, and whether or not you
have been involved in his upbringing, or his education. I believe that, that is clear.
That you have been. What concerns me is based on the testimony there would be
significant times where [the child] would be in the child care provided by the
military, or left with a private sitter, whom by your own testimony you could not
recall that persons name. I’m not saying that’s all entirely your fault, but that is the
situation we find ourselves in.

On the converse, we have Ms. Cass, who has lived in the same home for a period of
approximately two-years. Her work schedule is very defined, and it is scheduled in
such a manner to where there is no reliance on day care. Are there some areas that
Ms. Cass should improve on as a parent? I believe that there are. Ms. Cass, based

7

required to specifically list each of the enumerated factors, the record must support

that it considered the factors in light of the particular evidence presented. Leger v.

Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955. While there is no doubt that

the trial court expressed concern for the parties, especially the minor child, it is

difficult for this court, on review, to determine what factors, if any, the trial court

considered, and how it evaluated and weighed the evidence under each factor.

Further, the record does not support that the findings the trial court did make were

reasonably based upon the evidence in the record. Here, Mr. Cass submitted several

exhibits explaining Fort Hood’s environment and Meadows Elementary. He further

testified as to the hours he would be working, how child care was to be provided, and

what activities he either planned to enroll the child in or had already enrolled the

child in. Also, he testified extensively regarding the opportunities available at Fort

Hood. Mr. Cass also submitted documentary evidence to support his testimony. The

school rankings referenced in the trial court’s oral reasons for judgment were

submitted by Ms. Cass.

on the testimony that has been presented, I believe that is [sic] somewhat of a
confusion, in your mind, as whether you are [the child’s] mother, or whether you’re
his buddy. There have been several examples presented to this Court, where [the
child] decided what he was going to do: meeting with Dr. Logan, going to the Pine
Ridge Derby, continuing to attend college camp. Those are, in my opinion, those are
decisions that you should have made. I understand that you and Sergeant Cass may
have differences of opinion regarding discipline. Appropriate discipline is very
important for a child.

The bottom line comes down to, there’s been testimony that both of you, you have
both testified that the other loves [the child], and is a good parent. You both did that.
So, in my mind, where is [the child] going to be cared by a parent the most? For that
reason, Sergeant Cass, I find that you have not met your burden of proving that
relocation would be in [the child’s] best interest.

8

Based upon a lack of indication that the trial court considered all of the factors

in La.R.S. 9:355.12 in addition to our determination of manifest error in some of the

underlying factual determinations, we find that a de novo review is required. The

finding of error does not mandate a reversal on that ground alone; rather, this court

may remedy the deficiency via a de novo review based on the evidence in the record.

Leger, 854 So.2d 955.

De Novo Review

Under a de novo review, we must analyze the evidence presented regarding the

relocation and determine whether Mr. Cass met his burden of proving: (1) that the

proposed relocation is in good faith; and (2) that the proposed relocation is in the best

interest of the child. La.R.S. 9:355.13.

Good Faith

There is no dispute in the record that Mr. Cass was ordered by the United

States Army to report to Fort Hood in Texas. However, Ms. Cass contends that Mr.

Cass “made plans to relocate out of Louisiana in order to deprive [her] of her

relationship with the minor child.” She further contends that Mr. Cass “likely

requested that he be transferred to Fort Hood given the parties’ history of the military

allowing them to choose where they wanted to be assigned.”

Mr. Cass testified, at length, about the military’s process of transferring

soldiers. He explained that he was asked to fill out a form in 2006 for his personnel

file listing his preferences for relocation if his transfer became necessary. Mr. Cass

testified that he listed Fort Hood in Texas and Fort Carson in Colorado, explaining

that he did not have the choice to list Fort Polk as an option. Mr. Cass related that on

January 7, 2009, he received his first orders to report on May 10, 2009. He stated that

9

his counsel, whom he had retained for the divorce proceedings, recommended he wait

until sixty days before the move to inform Ms. Cass. At the hearing, Mr. Cass

explained as follows:

And, Your Honor, the first orders were dated January the 7th. I had
those amended to say that I agreed to go to Fort Hood. Then they were
dated 21st January, to reflect the July 10th relocation to Fort Hood. I
then went a step further and utilized my total 90 day extension of these
current orders to be relocated. Once that had been initiated, now the
Department of the Army is saying, “Sergeant Cass, you agreed prior to
the 7th of January. We allowed you to extend the 60 now to 90 days.
Now you must relocate to Fort Hood.” If, in hindsight, Your Honor, if
I knew that Jamie was - - had ability to relocate that far out where she
was able to, I’m sure I would’ve informed her, from Counsel’s
recommendation, to do that. But to stay at Fort Polk now is
impossible[.]

The record contains the orders requiring him to report to Fort Hood, which

corroborate his testimony. While Ms. Cass argues that Mr. Cass’s relocation is in bad

faith, she offers no evidence other than the assertion, in brief, that Mr. Cass “likely

requested that he be transferred to Ft. Hood” to “deprive her” of a relationship with

her child. She has offered no contradictory evidence demonstrating that Mr. Cass or

the military conspired to have him transferred or any other action on the part of Mr.

Cass indicating bad faith. See Richardson, 25 So.3d 203.3 In light of the evidence

3
In Richardson, 25 So.3d at 207, a case factually similar to the present matter, a panel of this
court discussed good faith relocation and military orders, stating:

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

10

presented, the record supports a finding that Mr. Cass met his burden of proving that

the relocation was in good faith.

Relocation Factors

In addition to proving that relocation was made in good faith, Mr. Cass must

prove that relocation is in the child’s best interest. La.R.S. 9:355.13. “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.” The court must also consider the enumerated factors in

La.R.S. 9:355.12. We turn to consideration of the record in light of these 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

Dr. James Logan, a medical psychologist, was appointed by the parties to make

a determination as to whether relocation was in the best interest of the child. When

asked specifically about this factor, Dr. Logan replied “I would still give an

advantage to [Mr. Cass] on that factor. Clearly not based on the duration of primary

care-taker, but just an overall global impression of the current relationship.” In his

“relocation evaluation” report submitted into evidence, Dr. Logan opined that the

child “appear[ed] to be most comfortable and enthusiastic when in the company of

his father.”

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
for the PSC [permanent station change], 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.

11

At the hearing, Ellis R. Spikes, principal of G.W. Carver Elementary, testified

that Mr. Cass was heavily involved in the child’s school, volunteering in the

classroom and on the playground in addition to attending and coordinating parent-

child activities. The record also reveals that Mr. Cass was involved in Cub Scouts

with the child. Dr. Logan also noted that Mr. Cass’s involvement and effort to be

involved in the child’s life was “impressive.”

Testimony indicates that the child also has a close relationship with his mother

and with his half-sister, Ms. Cass’s daughter from a previous relationship. The record

reveals that Ms. Cass and the child enjoy activities such as fishing, baseball, movies,

canoeing, and roller skating.

The record reveals that both parties have a close relationship with their son and

have, at different times in the child’s life, been the primary caregiver. However, the

weight of evidence, including the testimony of the parties, the child’s school

principal, and Dr. Logan, under this factor, favors relocation.

(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

This factor also favors relocation. As explained above, Mr. Cass was heavily

involved in the child’s schooling. Both parties testified that the child was struggling

academically during the 2006/2007 school year, and the parties feared that he would

fail the first grade. During this period of time, Ms. Cass was the child’s primary

caregiver. However, in May of 2007, Ms. Cass moved from DeRidder to Pollock,

and Mr. Cass became the child’s primary caregiver. The record reveals that the

child’s grades began to steadily improve over the next two years, and in May 2009,

the child received a 4.0 grade point average. Ms. Cass contends that the improvement

12

of grades was a result of diagnosing the child with a speech problem that was

affecting his test taking ability. Dr. Logan opined “that Sergeant Cass apparently

places a higher value in academic involvement, academic achievement. The young

man is profiting from it. At one point, years ago, he was at risk of repeating the first

grade. Now he’s on the cusp of being tested for gifted and talented.”

It is clear that both parents are committed to their child’s education; however,

in reviewing this factor, we must ask what “impact” the relocation would have on the

child’s educational development. In reviewing the child’s academic history in the

present matter, there is evidence that Mr. Cass’s heavy involvement positively

impacts the child’s academics. As such, continuance of that involvement would be

in the child’s best interest, and this factor favors relocation.

(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

This factor does not favor either party insofar as the parties appear to be willing

to incur travel expenses to share regular periods of physical custody throughout the

year. In its judgment, the trial court provided a physical custody arrangement

wherein Mr. Cass would exercise physical custody on the 2nd and 4th weekend of

every month. The child would be flown from Alexandria to Dallas/Fort Worth, and

the parties would equally share the cost of transportation. Mr. Cass would have

physical custody for the entire summer absent two weeks. The record reveals that

both parties are financially able to maintain this type of visitation arrangement. In

brief, neither party argues that the logistics of the trial court’s visitation arrangement

make it unfeasible, thus the visitation schedule could be modified, in the event of

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relocation, to allow Ms. Cass physical custody on alternating weekends and in the

summer.

(4) The child’s preference, taking into consideration the age and maturity of the child

This factor does not favor either parent in light of an absence of evidence on

the subject. Dr. Logan’s report opines that the child “expressed no reservations about

the location.” The trial court met with the child in chambers, but that meeting was

not transcribed.4 In oral reasons for judgment the trial court stated:

[The child] is a, based on my brief conversation with him, he is a
personal [sic] young man, who loves both his parents. [He] wants to
spend time with both parents. He does not want to decide, and nor
should he have to decide, which parent he will spend the majority of his
time with. . . . I did not want to ask him that question, because I knew he
did not want to answer that question. I did explore interest with [the
child].

Since this conversation was not transcribed, there is no evidence in the record

to determine whether the child has a preference and, thus, this factor favors neither

parent.

(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

Both Mr. and Ms. Cass contend that the other has established a pattern of

conduct to thwart the other’s relationship with the child. The record reveals that both

parties have acted contentiously towards each other at different times throughout this

proceeding with neither party clearly acting more egregiously than the other. The

4
Mr. Cass questions the failure to transcribe the interview in support of his argument that
a de novo review is required. Specifically, he argues the trial court committed legal error in relying
in part upon what the child told him in rendering a decision and that conversation not being made
part of the record. We note that while the trial court referenced the conversation in its oral reasons
for judgment, the trial court has filed a per curiam with this court stating that it did not rely on the
conversation with the child in rendering its opinion.

14

record also indicates that both parties have a desire to support the child’s relationship

with the other parent. Accordingly, this factor favors neither.

(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; and (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

There is sufficient evidence in the record to support a finding that relocation

would enhance Mr. Cass’s and the child’s quality of life. Mr. Cass’s testimony

indicates that Fort Hood offers a myriad of activities wherein the child would spend

time with other families who share the commonality of being in the military.

Additionally, as discussed earlier, relocation would benefit the child’s educational

development as Mr. Cass has shown to provide an effective support system to allow

the child to succeed academically.

Ms. Cass testified that she is currently employed as a military dental hygienist,

and is obligated to remain at this position in Louisiana for two years. Ms. Cass

testified that she earns $4,600.00 a month for her job and can adequately provide for

the child’s needs under this salary. In brief, Ms. Cass contends that she earns a higher

salary than Mr. Cass because she outranks him. Mr. Cass testified that he earns an

annual gross income, which included a bonus, of $73,740.00 dollars. He asserts that

relocation is necessary per his obligation to the military and to improve his salary and

maintain him on the track of retiring in fewer than four years.

Based on the evidence in the record and in light of the transfer facilitating Mr.

Cass’s retirement and increase in salary, we find that this factor favors relocation.

15

(7) The reasons of each parent for seeking or opposing the relocation

Here, Mr. Cass is seeking relocation in order to fulfill his military obligations.

In brief, Ms. Cass asserts that she is opposing relocation “because it would

substantially damage the child’s relationship with her.” However, Ms. Cass does not

specify how her relationship with the child would be substantially damaged in light

of the evidence which indicates the parties have previously operated under a shared

physical custody plan. This factor favors relocation.

(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

This factor is not applicable to the present case. Mr. Cass does not assert that

Ms. Cass, the objecting parent, has failed to fulfill any financial obligations.

(10) The feasibility of a relocation by the objecting parent

Ms. Cass’s military obligation requires her to remain in Louisiana, thus her

relocation is not feasible. This factor does not favor relocation.

(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

Ms. Cass contends that Mr. Cass has an anger management problem which has

resulted in abuse to her teenage daughter. Mr. Cass admitted to violence against his

ex-wife from a previous marriage, for which he received counseling; however, he

denied any abuse against Ms. Cass’s teenage daughter. The trial court limited

submission of evidence regarding the alleged abuse of Ms. Cass’s daughter, and thus

the facts of the alleged abuse are unclear from the record. Dr. Logan commented in

his relocation evaluation that Mr. Cass demonstrated some heightened levels of anger

possibly from the custody dispute or his military background. However, nothing in

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the evaluation indicated that Mr. Cass was a threat to the child or that it was not in the

child’s best interest to be with Mr. Cass; in fact, Dr. Logan opined the opposite.

(12) Any other factors affecting the best interest of the child

In its oral reasons for judgment, the trial court reasoned that relocation was not

in the best interest of the child because Mr. Cass would have to rely, in part, on

outside child care whereas Ms. Cass would not. Mr. Cass testified that he would have

to rely on child care three days a week for the window of time from when the child

got out of school and he was working. The record indicates that before the relocation

dispute, Mr. Cass, per the consent judgment, was the child’s domiciliary parent and

that the child lived with him during the school week. At that time, Mr. Cass had to

rely on child care much like he would have to do at Fort Hood. Ms. Cass has not

articulated why, at this point, it would not be in the best interest of the child to be

exposed to minimal outside child care.

Based on our above de novo analysis of the factors set out in La.R.S. 9:355.12,

we find no factors that would prevent relocation. After weighing the factors as a

whole, we find that they preponderate in favor of allowing relocation. Accordingly,

we find that Mr. Cass has carried his burden of proving that relocation is in the

child’s best interest.

DECREE

For the foregoing reasons, we reverse the trial court’s August 19, 2009

judgment and September 10, 2009 supplemental judgment. On appeal, we reinstate

Mr. Cass as the domiciliary parent. The parties will continue to share joint custody.

As we recognize that the parties scheduling needs may have changed since the

judgment was rendered, we remand for the entry of a physical custody schedule in

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light of the minor child’s relocation with his father. All costs of this proceeding shall

be assessed against Ms. Cass, the plaintiff and appellee.

REVERSED AND REMANDED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-327

JAMIE CASS

VERSES

KEVIN CHARLES CASS

SAUNDERS, J., dissents and assigns written reasons

In this relocation and custody matter, the majority has concluded firstly that

the trial court committed legal error in its analysis of the case and that the matter

should be reviewed on a de novo basis, and secondly, on de novo review, that it is

in the best interest of the child that Mr. Cass be allowed to relocate David and to

be reinstated as domiciliary parent. I respectfully disagree.

In finding that the trial court committed legal error, the majority opinion

references the case of Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d

955, to stand for the principle that although the trial court is not required to

specifically list each of the enumerated factors of La.R.S. 9:355.12, there must be

support in the record suggesting that each of the factors were considered. This

court, in Leger, addressed a relocation case where the trial court stood firmly

against relocation of the children—stating that, “[t]his court is unwilling to put the

children in ANY RISK associated with a move. . . .” Leger, 854 So.2d at 956-

957. This court found that the trial court was imposing too high a burden on the

mother seeking relocation and stated that no relocation would be acceptable under

such an elevated standard.

I find the present matter to be distinguishable from Leger. There is nothing

to indicate that the trial court in this matter was so firmly entrenched in its stance

against relocation as to be applying a heavier burden on Mr. Cass than is required

by law. Although the trial court did not list each of the factors to be considered, it

did provide numerous reasons justifying its decision—in particular, its finding that

Ms. Cass would provide a more stable environment for David because of her

structured work schedule and the fact that she would not need to rely on daycare.

It is my opinion that this case more closely mirrors this court’s decision in

Miller v. Miller, 01-356, (La.App. 3 Cir. 10/31/01), 799 So.2d 753, where the

court found that the trial court had not committed legal error in choosing to only

emphasize three of the listed factors in its reasons for judgment. In the present

case, the trial court, in its reasons for judgment, addressed at least five of the

La.R.S. 9:355.12 factors—particularly factors one (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) and six (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).

Regarding factor one, the trial court noted that David loves both parents and

wants to spend time with both parents. It also noted that Mr. Cass has been active

in the David’s life and his education, and it expressed concern that Ms. Cass was

occasionally more of a “buddy” than a parent.

Regarding factor six, the trial court expressed great concern with the

amount of time David would have to spend in childcare if Mr. Cass was allowed to

relocate, and it noted that Ms. Cass would not need to rely on daycare.

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Furthermore, the trial court expressed its dissatisfaction with the amount of

information provided by Mr. Cass on what his work schedule would be and on the

school David would attend. The trial court also took into consideration the fact

that Ms. Cass has been living in the same home for the past two years.

Outside of these two factors, the trial court also commented that David did

not want to choose which parent he wanted to live with (Factor 4). It also

addressed the problem of both parents attempting to depict the other as a bad

parent (Factor 5). Finally, the trial court, in great detail, discussed visitation

arrangements and how each party would bear the costs of David’s travel back and

forth (Factor 3).

For these reasons, I disagree with the majority opinion that the trial court

committed legal error in failing to consider the factors set out in La.R.S. 9:355.12.

However, even if legal error had occurred on the part of the trial court, I

find that a de novo review of the record would still support a denial of Mr. Cass’s

request for relocation. In addition to the studied reasons laid out by the trial court,

I find great significance in David’s close relationship with his half-sister and also

with the pattern of violent behavior exhibited by Mr. Cass in the past.

A strong sibling relationship is an incredibly important bond, the impact of

which is impossible to measure. The potential for severing that relationship

should not be taken lightly. The record indicates that David and Jessie have the

type of sibling bond that should not be disturbed without compelling reasons.

Furthermore, as important as the relationship between David and his sister

seems to be, perhaps an even more compelling consideration for denying the

relocation request is Mr. Cass’s history with anger/violence, most notably his

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extreme method of disciplining Jessie, his elevated MMPI results, and his history

with domestic assault. I fail to see how being brought up in such an environment

can be interpreted as being in David’s best interests.

For these reasons, I respectfully dissent from the majority opinion.

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