Dawn Cheryl Peterson Perez v. Oscar Guevara Perez

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-537

DAWN CHERYL PEREZ

VERSUS

OSCAR G. PEREZ

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76,796-C
HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

*******************

JAMES T. GENOVESE
JUDGE

********************

Court composed of Sylvia R. Cooks, Jimmie C. Peters, Elizabeth A. Pickett, James
T. Genovese, and Phyllis M. Keaty, Judges.

Keaty, J., dissents and assigns written reasons.
Cooks, J., dissents for the reasons assigned by Judge Keaty.

AFFIRMED.

E. Grey Burnes Talley
711 Washington Street
Post Office Box 650
Alexandria, Louisiana 71309-0650
(318) 442-5231
COUNSEL FOR PLAINTIFF/APPELLANT:
Dawn Cheryl Perez

Bradley O. Hicks
Dowden & Hicks, L.L.P.
116 East Lula Street
Leesville, Louisiana 71446
(337) 238-2800
COUNSEL FOR DEFENDANT/APPELLEE:
Oscar G. Perez

GENOVESE, Judge.

In this domestic matter, the mother appeals the trial court’s designation of

the father, her former husband, as the domiciliary parent of their two sons and

permitting him to relocate the minor children’s residence to Texas. For the

following reasons, we affirm the judgment of the trial court in its entirety.

FACTS

Dawn Cheryl Petersen married Oscar Guevara Perez on May 22, 1999. Two

children were born of the marriage, Oscar Guevara Perez, Jr. (born April 2, 2000),

and Sebastian Chong Perez (born May 28, 2001). The parties were divorced on

June 25, 2007. No custody orders were issued by the trial court. Rather, by

agreement of the parties, the children lived with Dawn in Leesville, Louisiana,

while Oscar continued his employment in Iraq.1

In March of 2007, the two children began living with their paternal

grandmother in Oscar’s home, also located in Leesville, Louisiana. When Oscar

returned from Iraq in November 2007, his mother moved out of his house, and

Oscar moved back into his home along with his two children. The children have

continued to reside with Oscar since his return from Iraq.

In 2008, Dawn sought employment in Iraq. Her employment began in

November of 2008, and was expected to continue through November of 2010.2

During 2008, Oscar met Marie Perez. In February of 2008, Marie and one

of her sons3 moved into Oscar’s home along with Oscar and his children. Oscar

and Marie got married at the end of April, 2008. In 2009, Oscar moved to Conroe,

Texas. For the remainder of the school year, Marie and the children moved into

1
Oscar was employed as a heavy equipment foreman in Iraq for approximately four years.
2
According to her testimony, Dawn actually returned from Iraq in April of 2010.
3
Marie’s oldest son lived with his biological father in Pearland, Texas. He, too, later came to
live with Marie, Oscar, and Oscar’s children for a period of time.

Oscar’s mother’s home, and Marie and the children commuted to Conroe on the

weekends to be with Oscar.

In December of 2009, while Dawn was in Iraq, Oscar sent her notice of his

intention to relocate the residence of the children to Texas. Dawn filed an

objection to the relocation on January 8, 2010. The trial court issued a temporary

restraining order prohibiting the relocation, set a hearing date for the injunction,

and appointed Dr. John Simoneaux to perform psychological evaluations. On

May 20, 2010, the trial court dismissed the injunction. Oscar then relocated the

children to Texas.

Trial in this matter began on September 23, 2010, and resumed on October

7, 2010, for the taking of Dr. Simoneaux’s testimony. After taking the matter

under advisement, the trial court issued Written Reasons and signed a Judgment on

Rule and Implementation Plan for Joint Custody granting the parties joint custody,

designating Oscar as the domiciliary parent, and permitting the relocation of the

children to Texas. Dawn appeals.

ASSIGNMENTS OF ERROR

On appeal, Dawn asserts that “[t]he trial court erred in making Oscar Perez

the domiciliary parent of the minor children.” Additionally, she contends that

“[t]he trial court erred in permitting Oscar Perez to relocate the minor children’s

residence to Texas.” The trial court’s ruling on joint custody was not appealed.

LAW AND DISCUSSION

Domiciliary Status

In designating the domiciliary parent for purposes of a joint custody

determination, the best interest of the children is paramount. In making this

determination, a trial court is guided by La.Civ.Code art. 134, which provides as

follows:
2

The court shall consider all relevant factors in determining the
best interest of the child. Such factors may include:

(1) The love, affection, and other emotional ties between each
party and the child.

(2) The capacity and disposition of each party to give the child
love, affection, and spiritual guidance and to continue the education
and rearing of the child.

(3) The capacity and disposition of each party to provide the
child with food, clothing, medical care, and other material needs.

(4) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of that
environment.

(5) The permanence, as a family unit, of the existing or
proposed custodial home or homes.

(6) The moral fitness of each party, insofar as it affects the
welfare of the child.

(7) The mental and physical health of each party.

(8) The home, school, and community history of the child.

(9) The reasonable preference of the child, if the court deems
the child to be of sufficient age to express a preference.

(10) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and
the other party.

(11) The distance between the respective residences of the
parties.

(12) The responsibility for the care and rearing of the child
previously exercised by each party.

After hearing the evidence in this case, the trial court issued Written Reasons

wherein he concluded that “[i]n carefully considering all of the factors of Article

134 and the testimony of the parties, it appears that the best interest of these

children would be served by allowing them to stay in the environment that they are

now enjoying.” The trial court noted that the children have been in Texas, where

they are enrolled in school and doing well. “Both are making good grades and are
3

happy with their situation.” They reside, along with their father, step-mother, and

her son, in a four-bedroom home. The children also “have a very good relationship

with their step-mother.” The family attends church and both children have been

baptized.

On the other hand, Dawn’s future, including her employment and her living

arrangements, are much more uncertain. She is currently living with her sister’s

family and, while she is a student at Northwestern State University, she is not

employed. Additionally, the trial court noted that Dawn was in a relationship and

testified that she will probably marry a man who lives in Lufkin, Texas. Although

she testified that she hoped to remain in Louisiana, that was dependent on job

opportunities.

We also note the trial court’s decision not to adopt the opinion of

Dr. Simoneaux. Dr. Simoneaux testified in detail at trial, being questioned by both

counsel as well as the trial court judge. The trial court’s Written Reasons confirm

that Dr. Simoneaux’s opinion was carefully considered. However, the trial court

expressly noted that it did “not feel that Dr. Simoneaux was apprised of some

important facts that may have changed his opinions and cannot follow his

recommendations.”

Although relevant, a trial court has much discretion in determining the

weight to be given expert testimony, and it is free to accept or reject the opinion

expressed by any expert. See Dooley v. Dooley, 10-785 (La.App. 3 Cir. 2/2/11),

55 So.3d 985. This is particularly true when, as in the instant matter, the expert is

not apprised of all the relevant facts. In this case, it is noteworthy that although he

expressed the opinion that the children should remain in Vernon Parish,

Dr. Simoneaux had not interviewed the parties for approximately five months

before the hearing, and he admitted that he did not revisit this case since that initial
4

interview occurred. Dr. Simoneaux, also, was not present in the courtroom during

the first day of trial when all of the other witnesses testified.4

We find that the trial court’s consideration of the relevant factors set forth in

La.Civ.Code art. 134, as expressed in its Written Reasons, are reasonably

supported by the record. Therefore, we find no error with the trial court’s

best-interest determination or its designation of Oscar as the domiciliary parent.

Relocation to Texas

This court, in Cass v. Cass, 10-327, pp. 3-4 (La.App. 3 Cir. 11/17/10),

52 So.3d 215, 218-19, writ denied, 11-178 (La. 2/25/11), 58 So.3d 460, recently

stated the following relative to issues of relocation:

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.

4
Dr. Simoneaux had been provided with a transcript of the trial testimony of Oscar.
5

(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.

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.

6

As this court has noted, La.Civ.Code art. 134 “supplements and to a great

extent overlaps with La.R.S. 9:355.12.” Miller v. Miller, 01-356, p. 5 (La.App. 3

Cir. 10/31/01), 799 So.2d 753, 756. In the instant matter, as with the issue of

domiciliary status, we find that a reasonable factual basis exists for the trial court’s

ruling on the issue of relocation. Without a recitation of the facts relative to each

factor delineated in La.R.S 9:355.12, we find no manifest error in the trial court’s

determinations. Considering the evidence in the record, we find no abuse of the

trial court’s discretion in concluding that the evidence weighs in favor of relocation

of the children to Conroe, Texas, with Oscar.

The extent of involvement and the duration thereof of the children’s

relationship with their father is significant. Even while in Iraq, Oscar maintained

communication with his children. Curiously, for reasons not explained in the

record, beginning in March of 2007, while Oscar was still in Iraq, instead of

remaining with Dawn, the two children went to live with Oscar’s mother until he

returned in November, 2007. Upon Oscar’s return, the children resided with him,

which they have continued to do to date. The ability of preserving the relationship

of the children with their mother is feasible despite some distance between the

parties. Although Oscar did not historically and actively promote the relationship

between the children and their mother, leaving that to a great extent to her to

initiate or for the children to request, he did not thwart that relationship. The

overall impact of the relocation on the children has been positive, and the quality

of life that the children enjoy in Conroe has been established.

Perhaps most importantly, the stability which a life in Conroe provides for

the children is very significant. They reside in a four-bedroom home with their

father, stepmother, and her son. Marie does not work and cares for the children

after school. Their father works and is home every evening, helping with
7

homework and playing with the children. The children are doing well in school

and even showing more of an interest in school. Moreover, they have, in fact, been

in this stable and positive environment since May of 2009.

To the contrary, allowing the children to reside in Leesville would not

provide the same stability and is replete with unknowns. Dawn currently resides

with her sister and her family. Dawn testified that she would “get her own place”

if the children were to reside with her; however, she provided no details, and she

has no income. Although Dawn is a full-time student, her education and

employment future remain completely uncertain. Further, Dawn testified that she

was in a relationship with a man who resided in Texas and that she anticipated that

they would get married. Even if these plans came to fruition, Dawn was unable to

say with any reasonable degree of certainty whether they would reside in Texas or

in Louisiana, that being dependent on future employment opportunities.

Finally, this court again acknowledges the opinion expressed by

Dr. Simoneaux that the children should remain in Leesville. However,

Dr. Simoneaux had performed his interviews and evaluation of these parties

approximately five months before the hearing. He had not performed any further

evaluations since the children had moved to Texas, and circumstances had already

changed considerably. Additionally, Dr. Simoneaux was not present in court on

the first day of the hearing to hear and consider the evidence and testimony of all

the other witnesses. At the time he provided his testimony to the trial court,

Dr. Simoneaux had only been provided with Oscar’s testimony from the first day

of trial. Thus, it is clear that Dr. Simoneaux did not have all of the current relevant

facts available at the time that he reiterated his initial opinion on the second day of

trial.

8

For the foregoing reasons, considering the evidence of record, we find that

the trial court did not abuse its discretion in designating Oscar as the domiciliary

parent of the two minor children. Likewise, we find no abuse of the trial court’s

discretion in permitting the relocation of these children to Texas.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all

respects. The costs of this appeal are assessed to Plaintiff/Appellant, Dawn Cheryl

Perez.

AFFIRMED.

9

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-537

DAWN CHERYL PEREZ

VERSUS

OSCAR G. PEREZ

KEATY, J., dissenting.

In its judgment on relocation, the trial court allowed a father, who had

already moved his children out of state without permission from the court and in

obvious disregard of their mother‟s objection, to change the children‟s residence to

Texas. The trial court analyzed the facts of this case pursuant to the incorrect

statute and ignored the recommendation of its appointed expert. The majority

opinion, which affirms the trial court‟s judgment, fails to utilize the appropriate

standard of review. Together, these rulings create legal precedent that is in direct

conflict with existing relocation law and jurisprudence. To the detriment of

Louisiana families, this new precedent will be relied on in the future to support the

propositions that a parent need not prove that the relocation is in the best interest of

the children nor obtain permission from the court before physically moving the

children. For these reasons, and the ones that follow, I respectfully dissent.

Relocation

Relocation is governed by La.R.S. 9:355.1-.17. In La.R.S. 9:355.12, the

legislature enumerated twelve factors to be considered by trial courts when

determining whether relocation should be granted. Although similar to

La.Civ.Code art. 134, which sets forth factors for determining the best interest of

children in custody cases, the two statutes are not identical. “A court commits

1

legal error when it fails to consider the factors for relocation and instead completes

an evaluation of the best interest of the child under La. C.C. art. 134.” Smith v.

Smith, 44,663 p. 18 (La.App. 2 Cir. 8/19/09), 16 So.3d 643, 654. In Gathen v.

Gathen, 10-2312, p. 1 (La. 5/10/11), 66 So.3d 1, 2, the supreme court stated, “La.

R.S. 9:355.12 mandates that the trial court consider all twelve factors listed in La.

R.S. 9:355.12.” Failure to consider the factors set forth in La.R.S. 9:355.12 is a

“prejudicial legal error that materially affect[s] the outcome [of the case] and

deprive[s] a party of substantial rights.” Johnson v. Spurlock, 07-949 p. 7 (La.App.

5 Cir. 5/27/08), 986 So.2d 724, 728.

In its written reasons for ruling, the trial court stated,

In carefully considering all of the factors of Article 134 and the
testimony of the parties, it appears that the best interest of these
children would be served by allowing them to stay in the environment
that they are now enjoying. Therefore, this Court will allow the
relocation of the children to their father‟s home in Conroe, Texas[.]

Because the trial court did not consider the proposed relocation in light of the

factors set forth in La.R.S. 9:355.12, and instead relied on the factors enumerated

in La.Civ.Code art. 134, the trial court committed legal error, and its decision

should be reviewed de novo. The majority opinion employed an incorrect standard

of review when it reviewed the trial court‟s judgment for manifest error/abuse of

discretion.

Relocation is a two-prong test, requiring that the relocating parent prove that

the proposed relocation is made in good faith and that it is in the best interest of the

child. La.R.S. 9:355.13. In conducting a de novo review, the record might support

a finding that Oscar‟s proposed relocation was in good faith, as he moved to be

closer to his wife‟s family. Oscar‟s actual relocation, however, should be

considered bad faith, as he moved the children to Conroe without permission from

the Court and against Dawn‟s objections. Further, despite Dawn‟s attempts to
2

obtain an injunction prohibiting him from doing so, he enrolled the children in

school in Conroe before the issue of relocation could be adjudicated and without

the necessary temporary permission from the court pursuant to La.R.S. 9:533.5 and

La.R.S. 9:355.10.

Even if Oscar is given credit for meeting the first prong of the relocation

test, he still bears the burden of proving that the relocation is in the best interest of

the children. To determine whether a parent has met its burden of proving that the

relocation is in the best interest of the child, “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.” La.R.S. 9:355.13. Additionally,

La.R.S. 9:355.12(A) requires a court to consider twelve enumerated factors before

reaching a decision regarding a proposed relocation. Section B of La.R.S.

9:355.12 prohibits the court from considering “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.”

The twelve factors that a court must consider before making a decision on

relocation 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.

3

(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.

La.R.S. 9:355.12(A).

In conducting a de novo review of the case, each factor should be considered

before determining whether relocation is in the best interest of the children.

Although each factor must be considered, courts are not required to give

preferential consideration to any certain factor or factors. H.S.C. v. C.E.C., 05-

1490 (La.App. 4 Cir. 11/8/06), 944 So.2d 738. Accordingly, I will only address

the factors that I think weigh in favor of, or against, the proposed relocation.

Paramount in my review is the opinion of Dr. John Simoneaux, the court‟s

appointed expert. Although the trial court determined that it could not follow his

recommendations because it felt that Dr. Simoneaux had not been apprised of some
4

key changes since he initially met with the parties, Dr. Simoneaux had been given

a copy of the transcript from the first day of trial, which is the only day that he

missed. Accordingly, he was aware of any new developments that had been

presented during trial. After reviewing it, he testified that his opinion on the

proposed relocation and custody of the children remained unchanged.

A “trial court is not bound by the testimony of an expert, but such testimony

is to be weighed the same as any other evidence.” Smith, 16 So.3d at 653. “The

weight given expert testimony is dependent upon the experts‟ professional

qualifications and experience and the factors upon which the opinions are based.”

Id. “Further, a trial judge may substitute his/her own common sense and judgment

for that of an expert witness when such a substitution appears warranted on the

record as a whole.” Id.

The trial court chose to ignore the opinion of Dr. Simoneaux, its court-

appointed expert, claiming that he had not been apprised of certain new

developments. Dr. Simoneaux testified that he had been given a transcript from

the first portion of the trial and had reviewed it, and his opinion would not change.

Dr. Simoneaux met with Dawn, Oscar, their children, and Marie, Oscar‟s new

wife. He performed various diagnostic tests on the parties in addition to

interviewing them. His report to the court and the recommendations he makes are

drawn from the test results and his interviews with the parties. Dawn‟s test results

were valid. Dr. Simoneaux determined that although Dawn had made mistakes in

her past, she was honest about them, was the more stable parent, and would be

most likely to foster a relationship with the other parent. Conversely, he found that

Oscar and Marie‟s test results were invalid, that they tried to present themselves as

perfect, that their statements were inconsistent, that neither of them was likely to

foster a relationship between the children and Dawn, that the relocation was more
5

likely for their best interests than the children‟s, and that the relocation “would

severely compromise the children‟s relationship with their mother.” Given the

amount of time he spent with the parties individually and the interviews and tests

he conducted, he proposed that if the parties lived in the same town, Dawn should

be domiciliary parent, and the parties should split custody 50/50. He opposed the

proposed relocation.

After reviewing the record, I find nothing to support the trial court‟s

substitution of its own common sense and judgment for that of Dr. Simoneaux, and

I propose that the trial court‟s failure to give credence to Dr. Simoneaux‟s

recommendations was erroneous. In continuing with the de novo review of the

record, factors one, two, three, five, six, seven, eleven and part of factor twelve

weigh against relocation. A second part of factor twelve weighs in favor of the

relocation. Because the majority of the factors weigh against relocation, Oscar

should have been prohibited from relocating the children‟s residence to Texas.

Factor one of La.R.S. 9:355.12 requires the court to look at the children‟s

history with each parent and their relationship with other significant persons in the

children‟s lives. The boys, who were nine and ten when the matter was tried, had

lived in Leesville for their entire lives. Their maternal grandparents and paternal

grandmother also lived in Leesville, as well as extended family members including

aunts, uncles, and cousins. They often visited their maternal grandparents, and

lived, on two separate occasions, with their paternal grandparents.

There is no indication that the children lived with anyone other than their

parents while they were young. For four years, beginning in 2003 and ending in

November 2007, Oscar worked in Iraq. He was given leave every four months.

From the time Oscar left until March 2007, the children lived with Dawn. From

March 2007 until November 2007, the children lived in their home with Oscar‟s
6

mother. Upon his return in November 2007, the children resided with Oscar, and

at some point, Marie moved in with them. In late 2009 or early 2010, Oscar

moved to Conroe. Marie and the children lived with his mother during the school

week and commuted to Conroe on the weekends until school let out in May, at

which time Marie and the children moved permanently to Conroe. In Conroe, the

children live with Oscar, Marie, and Marie‟s son. There has been some friction

between the Perez children and Marie‟s son. Oscar works long hours, from early

in the morning until late in the evening and nearly all of the parenting is done by

Marie. Other than their father, the children do not have family in Conroe. In

contrast, the children have an extensive network of family members in Leesville

who have been actively present for the entirety of their lives, and who have also

stepped in as temporary caretakers for the children. Accordingly, this factor

weighs against relocation.

Factor two requires the court to consider the age and needs of the child and

the impact the relocation will have on the children‟s physical, educational, and

emotional development. Dr. Simoneaux noted that the boys had lived with Oscar

for the majority of the three years prior to his interview with them, and they had

significant behavioral and emotional difficulties, which was “particularly

troublesome” to Dr. Simoneaux. He found that the boys long for a relationship

with their mother and that the proposed relocation would severely hinder that

relationship. Accordingly, this factor weighs against relocation.

Factor three requires the court to consider the feasibility of preserving a

good relationship between the nonrelocating parent and the child through suitable

visitation arrangements. In his report to the court, Dr. Simoneaux opined that the

relocation “would severely compromise the children‟s relationship with their

mother.” Dawn asserted that, when on a sixteen-day leave, she was only allowed
7

to see the boys four days and that she was not given any significant time with the

boys during the summer. She asserted that although she encouraged the boys to

send their dad letters and cards while he was in Iraq, he did nothing to encourage

them to communicate with her. Oscar did not prove otherwise. Accordingly, this

factor weighs against relocation.

Factor number five requires the court to consider the parent seeking

relocation‟s history in either promoting or attempting to thwart the relationship of

the children and the nonrelocating parent. As previously discussed, Oscar has

done little to nothing to facilitate a relationship between Dawn and her children.

Accordingly, this factor weighs against relocation.

Factor six requires the court to determine whether the relocation will

enhance the general quality of life for the relocating parent and the children,

including, but not limited to, financial, emotional, or educational benefits. Oscar‟s

move to Conroe was a lateral one. Although the family currently lives in a four

bedroom house, we do not know how this home differs from the one the family

lived in in Leesville. Oscar makes $45,000 per year, and his is the only source of

income. The record does not contain evidence that Oscar or the children have

benefitted from the move, financially or emotionally. Rather, the record seems to

support the conclusion that, at least emotionally, the relocation will be harmful to

the children. Evidence was not introduced to support a proposition that the Conroe

schools provide a more advantageous educational opportunity to the boys than the

Leesville school. This factor weighs against relocation.

Factor seven requires the court to consider the reasons of each parent for

seeking or opposing the relocation. Oscar sought relocation because he wanted to

be closer to Marie‟s family and his best friend. The move was not mandated by his

employer and was not the result of a promotion. Dawn opposes the relocation
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because she won‟t be able to be involved in the children‟s lives on a daily basis,

and it will be a struggle to foster a close and continuous relationship with them,

given Oscar‟s predilection to thwart those attempts. Further, the boys will be

removed from their extended family and from their school and friends. This factor

weighs against relocation.

Factor eleven requires the court to consider any history of substance abuse

or violence by either parent, including the severity of that conduct and the failure

or success at any rehabilitation attempts. Oscar has a history of perpetuating

violence against Dawn. At one point, he wrapped a towel around her neck and

dragged her to the bathroom, placed her near the bathtub, and began choking her.

This violence was corroborated by statements Marie made to Dr. Simoneaux. The

record lacks evidence that Oscar has enrolled in a rehabilitation program. The

statute requires the court to consider any history of violence by either parent.

There is a history of violence by Oscar, and the record does not contain evidence

that he has done anything to rehabilitate himself. Accordingly, this factor weighs

against relocation.

Factor twelve allows the court to consider any other factor affecting the best

interest of the child. I suggest that there are two factors that need to be considered

here: Dawn‟s relinquishment of physical custody of her children to Oscar‟s

mother and her subsequent move to Iraq, and Oscar‟s relocation of the children to

Conroe without court approval.

Admittedly, Dawn handed custody over to Oscar‟s mother in March 2007.

Oscar‟s mother cared for the boys from March 2007 until November 2007, at

which time Oscar returned home and began caring for the boys. Dawn began

working overseas in November 2008 and returned home in the Spring of 2010.

Her actions certainly do not depict those of a stable, caring mother who put her
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children‟s best interests before her own wants or needs. However, she did

terminate her employment contract nearly a year early so that she could return to

Leesville and actively participate in the children‟s lives. In her evaluation with

Dr. Simoneaux, he found her to be honest about her past and her mistakes and

remorseful about her actions. Regardless, at the time the relocation was proposed,

Dawn was working overseas and had relinquished custody of her children twenty

months before taking the overseas assignment. This factor weighs in favor of

relocation.

The final factor that needs to be addressed is the fact that Oscar moved the

children to Texas and enrolled them in school without permission from the court.

La.R.S. 9:355.5 mandates judicial permission before a parent can relocate with a

child if the nonrelocating parent objects to the proposed relocation. Oscar showed

flagrant disregard for the law when he moved the boys to Conroe and enrolled

them in school there, absent court permission. This factor weighs against

relocation.

Having considered all and analyzed the relevant factors in La.R.S. 9:355.12,

it is clear that the proposed relocation was not in the children‟s best interests.

Accordingly, Oscar failed to prove the second prong of the two-part relocation test,

and the relocation should be denied. The boys should be returned to Leesville.

Custody

I do not think that the issue of custody, domiciliary status, and

implementation of a joint custody plan was properly before the court. In the

objection to relocation, Dawn sought an injunction prohibiting Oscar from

relocating the children before a hearing and evaluations by a court-appointed

expert. Although she prayed that Oscar not be allowed to relocate the children to

Texas, she did not pray for a determination of custody, including the establishment
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of a domiciliary parent. Oscar did not file a reconventional demand to establish

custody. “„[N]othing in the article [art. 862] is intended to confer jurisdiction on a

court to decide a controversy which the parties have not regularly brought before

it.‟ Otherwise, „[a] judgment beyond the pleadings is a nullity.‟” Domingue v.

Bodin, 08-62, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted).

For these reasons, I would find that the portion of the judgment determining

custody is null.

Louisiana law, however, allows a court to address issues not raised by the

pleadings when those issues were tried by the express or implied consent of the

parties. La.Code Civ.P. art. 1154. In those situations, the issue “must be treated in

all respects as if the issue had been raised by the pleadings.” Wexler v. Martin, 367

So.2d 111 (La.App 4 Cir. 1979). If one were to determine that the issue of custody

had been tried with either the express or implied consent of the parties, then a

determination of custody might be appropriate in the instant case.

If La.Code Civ.P. art. 1154 is determined applicable in the instant case, the

portion of the judgment granting Oscar domiciliary status should be reversed. The

domiciliary parent is the parent with whom the child resides most of the time.

La.R.S. 9:335. A new order should be issued granting domiciliary status to the

parent living in Leesville. If both parents live in Leesville, the court should rely on

Dr. Simoneaux‟s report and award domiciliary status to Dawn or order that the

parties submit for a new evaluation for use in a custody determination.

The majority opinion affirms a trial court judgment that relied on the wrong

statute to reward a father who failed to comply with Louisiana relocation laws

before moving his children to Texas and who failed to meet both prongs of the

two-part relocation test at hearing. In applying the wrong standard of review,

manifest error rather than de novo, the majority opinion affirms the trial court‟s
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travesty of a judgment. The majority opinion creates divergent jurisprudential

precedent that will have destructive effects on Louisiana relocation law, as it will

be relied on in the future as proof that a party need not obtain judicial permission

to change a child‟s residence, either temporarily or permanently, as required by

La.R.S. 9:355.5 and La.R.S. 9:355.10, and that a party seeking to relocate need not

prove both prongs of the two-part relocation test: good faith and the best interest

of the child as determined by La.R.S. 9:355.12-.13. If these permissions and

determinations were not of the utmost importance and instead were simply to be

established by the whim and fancy of any parent wanting to change his child‟s

residence, the legislature would not have made them law. It pains me to think

about the pernicious effects this opinion will have on our relocation laws. For the

reasons I have set forth, I respectfully dissent.

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