Melinda L. Cardenas Owens v. Kevin R. Owens

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-165

MELINDA L. CARDENAS OWENS

VERSUS

KEVIN R. OWENS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 85,538, DIV. 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, Billy Howard Ezell,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Elvin Clemence Fontenot, Jr.
110 East Texas Street
Leesville, LA 71446
Telephone: (337) 239-2684
COUNSEL FOR:
Plaintiff/Appellee – Melinda L. Cardenas Owens

Scott Westerchil
301 South 3rd Street
Leesville, LA 71446
Telephone: (337) 238-0019
COUNSEL FOR:
Defendant/Appellant – Kevin R. Owens

THIBODEAUX, Chief Judge.

The defendant, Kevin R. Owens, appeals the judgment granting the

request of the plaintiff, Melinda L. Cardenas Owens Spears, to relocate the parties’

daughter to Johnson City, Tennessee. Finding no abuse of discretion in this

relocation dispute, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court abused its discretion or

manifestly erred in granting the mother’s request to relocate the minor child to

Tennessee and in modifying the father’s visitation accordingly.

II.

FACTS AND PROCEDURAL HISTORY

Kallee Owens is the daughter of Kevin Owens and Melinda Owens

Spears. After their divorce, Melinda married Dr. Thomas Spears and sought

relocation of Kallee to Johnson City, Tennessee from Hornbeck, Louisiana. The

trial court granted the request.

We adopt the well-written reasons of the trial court in our discussion

below of the further particulars of the case.

III.

STANDARD OF REVIEW

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. [Curole v.
Curole, 02-1891 (La.10/15/02), 828 So.2d 1094].

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.

Perez v. Perez, 11-537, p. 6 (La.App. 3 Cir. 2/29/12), 85 So.3d 273, 278, writ

denied, 12-743 (La. 5/18/12), 89 So.3d 1195.

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. Canter v.

Koehring Co., 283 So.2d 716 (La.1973).

IV.

LAW AND DISCUSSION

Mr. Owens contends that the trial court manifestly erred in granting

the relocation request of Mrs. Spears. We disagree. Mrs. Spears met her burdens

of proving by a preponderance of the evidence that the relocation is being done in

good faith and is in the best interest of the parties’ daughter. Additionally, the

modification of the visitation/custody arrangement is in the best interest of the

child.

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The Title 9 child relocation statutes are La.R.S. 9:355.1 to 9:355.19.

“The person proposing relocation has the burden of proof that the proposed

relocation is [1] made in good faith and is [2] in the best interest of the child.”

La.R.S. 9:355.10. “Although the person proposing relocation has the burden to

prove that the relocation attempt is made both in good faith and in the best interest

of the child, there is no presumption in favor of or against relocation of the child’s

residence.” La.R.S. 9:355.10, Comment (a) – 2012 Revision. “If an objection to

the relocation is made in accordance with R.S. 9:355.7, the person wishing to

relocate must prove by a preponderance of the evidence, on contradictory hearing,

that relocation meets the good faith and best interest standards.” Id.

Under La.R.S. 9:355.14, the court is given twelve factors to consider

in determining whether the requested relocation is in the best interest of the child:

A. In reaching its decision regarding a proposed
relocation, the court shall consider all relevant factors in
determining whether relocation is in the best interest of
the child, including the following:

(1) The nature, quality, extent of involvement, and
duration of the relationship of the child with the person
proposing relocation and with the non-relocating person,
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.

(3) The feasibility of preserving a good
relationship between the non-relocating person and the
child through suitable physical custody or visitation
arrangements, considering the logistics and financial
circumstances of the parties.

(4) The child’s views about the proposed
relocation, taking into consideration the age and maturity
of the child.

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(5) Whether there is an established pattern of
conduct by either the person seeking or the person
opposing the relocation, either to promote or thwart the
relationship of the child and the other party.

(6) How the relocation of the child will affect the
general quality of life for the child, including but not
limited to financial or emotional benefit and educational
opportunity.

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

(8) The current employment and economic
circumstances of each person and how the proposed
relocation may affect the circumstances of the child.

(9) The extent to which the objecting person has
fulfilled his financial obligations to the person seeking
relocation, including child support, spousal support, and
community property, and alimentary obligations.

(10) The feasibility of a relocation by the objecting
person.

(11) Any history of substance abuse, harassment,
or violence by either the person seeking or the person
opposing relocation, including a consideration of the
severity of the 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 the person
seeking relocation of the child may relocate without the
child if relocation is denied or whether the person
opposing relocation may also relocate if relocation is
allowed.
As with the factors in the custody statute, La.Civ.Code art. 134, 1 the

court “need not make a factual finding on every factor.” La.R.S. 9:355.14,

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

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Comment (a)–2012 Revision. Nor does the relocation statute “direct the court to

give preferential consideration to certain factors.” Curole, 828 So.2d at 1097.

Here, the trial court’s well-written reasons accurately reflect the facts

and accounts in the record; they address the factors of La.R.S. 9:355.14; and the

narrative is one upon which we need not improve:

The mother, Melinda Owens, now Spears,
hereinafter referred to as Spears, and the father, Kevin
Owens, hereinafter referred to as Owens, are the parents
of Kallee, age 7. The parents divorced December 17,
2012. In a prior judgment on rule, on December 19,
2011, the parents agreed to joint custody, designating the
other as domiciliary parent. The father obtained physical
custody on the days he was off of work as an offshore oil

(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.

La.Civ.Code art. 134 (emphasis added).

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worker. Essentially this amounted to twelve days each
month. He worked shifts of fourteen days on and
fourteen days off. He used two of the fourteen days off
for travel to and from his required work location.

Both parents lived in Vernon Parish. The child has
resided here since birth in the same residence. Since the
separation the physical custody by the father has been
exercised at the residence of his parents where he also
resides.

All of the grandparents reside in the same area of
Hornbeck, Louisiana in Vernon Parish. The child has a
close relationship with relatives on both sides of the
family.

The mother has been the primary care provider for
the child since birth. During the marriage, the father
provided some care when he was in. Since the separation
he has provided care for the ten to twelve days he is not
working each month.

The child has a close relationship with each parent.
The mother has had more involvement with the child
regarding educational, religious, and social activities.

The father has provided for and met all of his
financial obligations to the child. He has not been held in
contempt for any reason.

Each parent remained single until August 29, 2013
when the mother remarried. She married Dr. Thomas
Spears, a dentist at Bayne Jones Army Community
Hospital at Ft. Polk, Louisiana. She had a relationship
with Dr. Spears for quite some time prior to their
marriage. The mother was employed there as an oral
surgeon assistant. They were both civil service
employees.

Due to recent cuts in financial budgeting from the
Federal government, the hospital was required to
temporarily cut back on hours worked by employees.
This affected both the mother and Dr. Spears. As a
result, Dr. Spears sought a transfer to the Veteran’s
Administration facility in Johnson City, Tennessee and
was able to obtain employment there. His job there has
resulted in an increase in income. He is also about two
hours away from his parents and other relatives.

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Mrs. Spears, the mother, has indicated in the notice
of relocation that a primary reason she wants to relocate
is to seek more secure employment with the V.A.,
however, in her testimony she indicated that was not a
major factor. As a result of her new husband’s increase
in income, she may have the opportunity to become a
stay at home parent.

The home in Tennessee is very adequate and
appears to be in an upper middle class area. The school
in the district is apparently of a good quality, however,
the Court is not convinced that it is of a significant
difference from those here in Vernon Parish. The area
around the new location provides greater opportunities
than Vernon Parish for cultural and educational
experiences for the child.

As stated above, the physical custody arrangement
has worked well. The mother has not sought to thwart
the relationship of the child with the father. There have
been some problems recently about the number of days
the father had the child, however, that started about the
same time the relocation issue arose. Prior to that there
were no issues. The mother appears to be willing to
continue to foster a relationship between the child and
father.

The child is of a young age, however, she is
genuinely excited about the relocation and the
opportunity to make new friends. Of course, she is
saddened by the prospect of not seeing her father and
other relatives as frequently as she has if she does move.
That is over[come] by the very strong bond between the
mother and the child. The Court feels the child will be
able to adapt without much difficulty to her new
surroundings.

The Court cannot conclude that the proposed
relocation would have any negative impact on the child
and her development, physically, educationally, or
emotionally.

One of the requirements that the Court must
consider in this relocation case is whether the mother is
seeking to relocate in good faith. The Court is convinced
that the reason she is seeking this move is to move on
with her life, post-divorce, with her new husband. As
noted above, his reasons for relocating were legitimate
and for good reasons. The Court is unable to find that

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any proof has been presented to indicate this move is
being made for any other reason, particularly to deny
reasonable access of the father with his child. Her
reasons are in good faith.

The Court, after reviewing and considering the
factors in R.S. 9:355.14 and for the reasons previously
stated finds the proposed relocation by the mother is in
good faith and in the best interest of the child. The
proposed relocation is approved.

Under La.R.S. 9:355.14(1), the quality and duration of Kallee’s

involvement with her mother as the primary caregiver has been close, constant, and

loving since birth. Though she has a close relationship with her father, his daily

presence with Kallee was less than half of the mother’s involvement during the

marriage because of his offshore job. Since the divorce, the father has lived with

his parents, and while this arrangement has provided an opportunity for Kallee to

see more of her extended family, the one-on-one time for father and child has been

further reduced. Because of travel time, he sometimes sees Kallee only ten days a

month. Under La.R.S. 9:355.14(9), however, the father has met his financial

support obligations to Kallee, and he has indicated his plans to buy a double-wide

modular home for them.

The impact of the move to Tennessee and the emotional and quality-

of-life changes resulting from the relocation, pursuant to La.R.S. 9:355.14(2) and

(6), are positive and support the relocation. The schools are reportedly good; the

Spears already have a nice house and neighborhood for Kallee, and she is enjoying

diverse cultural experiences. The exhibits contain numerous pictures of family

outings with Kallee, her mother, and her new stepfather that depict a strong bond

between a genuinely happy threesome enjoying the area and each other. Kallee

indicated that Dr. Spears, whom she calls “Big Papa,” is funny and likes to do silly

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things with her. Dr. Spears testified that Kallee loves magic and stories; thus, they

have magic shows and he reads her a lot of stories, in addition to going to movies

and parks. The exhibits contain numerous crayon notes and pictures that confirm a

creative and loving relationship between Kallee and Dr. Spears. There are also

pictures showing a loving relationship between Kallee and her father.

Under La.R.S. 9:355.14(3) and (5), the mother appears more willing

than the father to foster a relationship between Kallee and the other parent. The

father has openly disparaged the new marriage in his brief to this court, which

indicates an intolerant and negative outlook for fostering Kallee’s relationship with

her mother. While the twelve-hour driving distance created by the relocation will

decrease the frequency of the father-child visitation during the school year, the

longer summer visits will allow Mr. Owens and his family members extended

opportunities to maintain a quality relationship with Kallee. Further, there is an

airport within fifteen minutes of Johnson City, and Dr. Spears testified that he

would assist and facilitate the father and child visitation. Dr. Spears is from a

nearby area and has family less than two hours away.

Mr. Owens points out Dr. Spears’s prescription addiction, which we

will address as it falls under La.R.S. 9:355.14(11). Dr. Spears candidly testified

that he was being treated with the prescription drug, Xanax, and that he became

addicted to it and underwent treatment around 2003, pursuant to the Board of

Dentistry requirements. He stated that, after four months of inpatient care, he

attended group sessions, completed the program around 2004, and that he currently

takes no medication except for hypertension. Under the statute, there is no

evidence of a severe addiction, and the rehabilitation ten years ago was apparently

successful since Dr. Spears, a medical professional, passed the federal

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government’s stringent background check before being offered the new position in

Tennessee.

As for Kallee’s views on the relocation under La.R.S. 9:355.14(4),

the trial judge interviewed her privately in chambers and has accurately

summarized the transcription of the interview. Kallee clearly loves both of her

parents but also is clearly looking forward to her new future in Tennessee with

positive anticipation. The record further indicates that, pursuant to La.R.S.

9:355.14(7) and (8), the relocation to Tennessee was requested in good faith and is

based upon occurrences in the job market for the mother and her new husband,

who met through their employment. The changes indicate a positive outcome for

Kallee. Dr. Spears testified to an increase in income and benefits in Tennessee,

and Kallee’s mother anticipates not only better employment opportunities for

herself eventually but also the possibility of being a stay-at-home parent for Kallee.

While Mr. Owens attempts to make an issue of Dr. Spears’s age

(forty-nine) compared to Kallee’s mother’s age (thirty-six), this issue is not

covered by the statute, and the trial court did not find it an additional factor to

include in its written analysis. We note that the age difference is not great; Dr.

Spears does not have any children of his own; and the record indicates that there is

already a special bond that benefits the child in this case. We find no abuse of

discretion in the trial court’s conclusions under La.R.S. 9:355.14 that the relocation

is requested in good faith and that it is in the best interest of the child to grant it.

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V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court

and assess costs of this appeal to the defendant/appellant, Kevin R. Owens.

AFFIRMED.

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