Danny R Odell v. Billie Kellerhuis Odell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-250

DANNY R. ODELL

VERSUS

BILLIE KELLERHUIS ODELL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 92135
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

AFFIRMED IN PART. REVERSED IN PART.

Richard Ducote
4800 Liberty Avenue, Third Floor
Pittsburgh, PA 15224
(412) 687-2020
COUNSEL FOR DEFENDANT/APPELLANT:
Billie Kellerhuis Odell

George R. Knox
117 W. Convent Street
Lafayette, LA 70501
(337) 264-9083
COUNSEL FOR PLAINTIFF/APPELLEE:
Danny R. Odell

AMY, Judge.

In an initial, considered decree, the trial court awarded the parties joint

custody of their minor son. The trial court named the mother as the domiciliary

parent. The parties returned to the trial court after the mother sought to relocate

the child’s residence to Illinois. The father opposed the relocation and pursued a

change in domiciliary status. Additionally, the father filed a motion for contempt

upon an allegation that the mother violated a temporary restraining order regarding

the relocation of the child’s residence to Illinois. Following a hearing, the trial

court denied the mother’s relocation request, named the father as the domiciliary

parent, issued a joint and shared custody plan, and found the mother in contempt.

The trial court awarded attorney fees to the father. The mother appeals. For the

following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

The parties, Danny Odell and Billie Kellerhuis (formerly Billie Kellerhuis

Odell), are the parents of a son born in 2009. In an initial, August 2011 custody

decree, the trial court awarded the parties joint custody of the child and designated

Ms. Kellerhuis as the domiciliary parent. At that time the trial court denied Ms.

Kellerhuis’s motion to relocate the child’s residence to the State of Illinois.

On December 5, 2012, Ms. Kellerhuis filed a “Motion for Relocation

Authorization Pursuant to R.S. 9:355.1-355.17, Expedited Hearing, & Temporary

Order of Relocation.” Therein, Ms. Kellerhuis again asked the trial court to allow

her to relocate the child’s residence to Illinois in order for her to accept a job offer

in that state. She noted that the deadline for beginning the position was December

17, 2012.

By a filing the following day, Mr. Odell opposed the relocation to Illinois

and suggested that the proposed relocation constituted a change in circumstances

warranting a modification in the custody order. Namely, Mr. Odell sought

designation as the domiciliary parent. Mr. Odell prayed for the issuance of a

temporary restraining order to prevent Ms. Kellerhuis’s relocation of the child’s

residence before a hearing could be conducted. Additionally, Mr. Odell alleged

that, since the issuance of the initial custody arrangement, Ms. Kellerhuis had

moved with the child from her apartment in Lafayette, Louisiana to Walker,

Louisiana. He asserted that Ms. Kellerhuis did so without appropriate notice to

him of the relocation and that the distance of the relocated home exceeded the

mileage permitted by La.R.S. 9:355.2(B)(3).

Thereafter, on December 12, 2012, the trial court issued a temporary

restraining order prohibiting Ms. Kellerhuis from “re-locating the residence of the

minor child to Princeton, Illinois from his current residence, or across State lines,

until such time that a hearing can be held in this matter in accordance with the

provisions of La.R.S. 9:355.1 et seq.” A hearing was scheduled for January 2013.

Before a hearing was conducted however, and in a January 3, 2013

supplemental opposition to Ms. Kellerhuis’s request for relocation, Mr. Odell

alleged that Ms. Kellerhuis had, in fact, relocated the child’s residence to Illinois.

He further asserted that Ms. Kellerhuis had made no effort to find employment in

her initial residence of Lafayette, but had “focused all of her efforts in finding

employment in the State of Illinois as a means of justifying a move to the State of

Illinois which was previously denied” by the trial court. Mr. Odell simultaneously

filed a rule for contempt, citing Ms. Kellerhuis’s alleged violation of the December

12, 2012 order prohibiting her from relocating the child’s residence to Illinois or

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across state lines before a hearing could be conducted on her relocation request.

He further argued that the alleged relocation violated the August 2011 custody

judgment. Within the rule for contempt, Mr. Odell requested an award of expenses

incurred by his objection to the relocation. The rule for contempt was set to be

heard contemporaneously with the previously scheduled motions.

Although the hearing on the parties’ respective motions commenced on

January 23, 2012 as scheduled, the hearing was re-fixed so that the parties could

file briefs regarding a motion in limine filed by Mr. Odell. Thereafter, the matter

resumed in March 2012. Following a hearing, the trial court found that Ms.

Kellerhuis had impermissibly relocated the child to Walker, Louisiana, a distance

of more than seventy-five miles without authorization, thereby violating La.R.S.

9:355.1, et seq. Additionally, the trial court denied Ms. Kellerhuis’s request to re-

locate the child’s principal residence to Illinois. The trial court ordered that Ms.

Kellerhuis pay attorney fees to Mr. Odell “in accordance with the provisions of

La.R.S. 9:355.6.”

With regard to Mr. Odell’s request to change the original custody decree, the

trial court re-visited the prior order, naming Mr. Odell as the domiciliary parent

and issuing a joint and shared custody implementation plan. Finally, upon a

finding that Ms. Kellerhuis was in violation of the temporary restraining order

issued on December 12, 2012, the trial court found Ms. Kellerhuis in contempt of

court.

Ms. Kellerhuis appeals that judgment, assigning the following as error:

A. The trial court manifestly abused his discretion in finding
that Ms. Kellerhuis was not in good faith in her relocation request,
instead finding that she simply wanted to exclude the child from his
father’s life, and, thus, in denying the relocation request.

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B. The trial court manifestly abused his discretion in
modifying the child custody decree to name Mr. Odell as the
domiciliary parent and primary residential custodian, where the record
does not support that Mr. Odell met his burden under Bergeron.

C. The trial court clearly erred as a matter of law in
awarding attorney’s fees purportedly under R.S. 9:355.6.

Discussion

Relocation Request

Ms. Kellerhuis, as the parent seeking to relocate the principal residence of

the minor child, had the burden of proving that 1) the proposed location was made

in good faith and 2) the relocation was in the best interest of the child. La.R.S.

9:355.10. See also Hernandez v. Jenkins, 12-2756 (La. 6/21/13), 122 So.3d 524.

With regard to the best interest element, La.R.S. 9:355.14 provides:

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.

(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.

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(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 explained by the supreme court, “[a] trial court’s determination in a relocation

matter is entitled to great weight and will not be overturned [on] appeal absent a

clear showing of abuse of discretion.” Curole v. Curole, 02-1891, p. 4 (La.

10/15/02), 828 So.2d 1094. 1096.

In its denial of Ms. Kellerhuis’s request to relocate the child’s place of

residence to Illinois, the trial court rendered extensive written reasons.

Referencing its earlier rulings in the case, the trial court remarked that Ms.

Kellerhuis had previously been granted the relief she sought in the ongoing

custody matter, except for the denial of her initial request to relocate to Illinois.

However, the trial court determined that, after the initial decree, Ms. Kellerhuis

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continued to pursue that relocation and did so in order to further separate Mr. Odell

from the child. The trial court opined that Ms. Kellerhuis then set about pursuing a

job offer in Illinois, without pursuing employment in Lafayette or Walker. The

trial court further discounted the custody/visitation arrangement advanced by Ms.

Kellerhuis, finding that, despite the child being “still in the bonding stage,” Ms.

Kellerhuis proposed that the time periods between seeing Mr. Odell would be

“completely inappropriate considering the age of this child[.]” In light of this

perceived intent to separate the child from Mr. Odell, the trial court found Ms.

Kellerhuis to be in “bad faith[.]” After review, we find that the record supports a

determination that, as the party requesting relocation, Ms. Kellerhuis failed in her

burden of proving that the proposal was in good faith.

In an attempt to meet that burden, Ms. Kellerhuis testified that she moved to

Illinois to pursue a job offer with the State of Illinois. She explained that the

position would enable her to live adjacent to her parents, who had developed a

close relationship with the child and who could offer assistance with his care while

she worked. However, the trial court acted within its fact-finding role in rejecting

that explanation. Rather, the trial court permissibly viewed the attempted

relocation to Illinois as the acceleration of a pattern of behavior directed toward

distancing the child from Mr. Odell.

Also, and in addition to what the trial court determined were manipulative

attempts to report Mr. Odell for allegedly inappropriate behavior with the child, the

trial court was aware that Ms. Kellerhuis moved beyond the seventy-five mile

limit1 permitted by La.R.S. 9:355.22 in her initial move to Walker. Ms. Kellerhuis

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The parties stipulated at the hearing that the distance between the Lafayette residence
and the Walker residence exceeded seventy-five miles.

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did so without advance notice to Mr. Odell or permission of the court. Further, the

record lacked evidence that the move was made in order to better Ms. Kellerhuis’s

job search options. Rather, Ms. Kellerhuis explained that she provided services in

both the Lafayette and Walker locations in exchange for assistance with her rent.

Otherwise, the unilateral move to Walker was largely unexplained in the record.

In addition to the fact that Ms. Kellerhuis was aware of the previous denial

of her request to relocate the child’s residence to Illinois, Ms. Kellerhuis removed

the child from the state over both the objection of Mr. Odell and several days after

the rendition of the December 12, 2012 temporary restraining order. While Ms.

Kellerhuis suggested that she was entitled to travel with the child for a period of

two weeks under the initial custodial plan, a reading of the custodial plan does not

support that position in this instance. Rather, the trial court could have permissibly

viewed the fine, technical interpretation of both the custodial plan and the

relocation efforts as an attempt to distance the child from Mr. Odell and that she

did so at the risk of violating both the custodial plan and the restraining order.

Similarly, although Ms. Kellerhuis suggests that the move to Illinois is

necessary in order for her to secure a suitable job, the trial court rejected that

purported motive. Notably, Ms. Kellerhuis failed to demonstrate that she engaged

in any meaningful job search activities in an area closer to Mr. Odell. Rather, her

2
Louisiana Revised Statutes 9:355.2 provides that the statutory framework controlling
the relocation of a child’s residence is applicable to a proposed relocation when:

(3) There is a court order awarding custody and there is an intent to
establish the principal residence of a child at any location within the state that is at
a distance of more than seventy-five miles from the principal residence of the
child at the time that the most recent custody decree was rendered.

Both stipulation of the parties and testimony established that the distance between the
Walker residence and the initial residence in Lafayette exceeded seventy-five miles.

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testimony reflected that she sent only a few inquiries regarding possible positions

she found via the internet or by word of mouth. This fact, too, supports the trial

court’s determination that Ms. Kellerhuis’s reliance on the Illinois job opportunity

was not the primary motivation. In opposition, Mr. Odell presented an expert in

vocational rehabilitation who testified that Ms. Kellerhuis would be qualified for a

number of jobs in the Lafayette area, and she could earn a salary in the mid-

$30,000 range.

While Ms. Kellerhuis briefly argues that the trial court abused its discretion

in its assessment of the best interest factors of La.R.S. 9:355.14, we note that Ms.

Kellerhuis was required to prove both good faith and that the relocation was in the

child’s best interest. The trial court’s finding as to good faith pretermits further

discussion of the best interest factors insofar as it relates to the relocation request.

For these reasons, we find no abuse of discretion in the trial court’s denial of

the request to relocate the principal residence of the minor child to Illinois.

Change of Custody

In her brief to this court, Ms. Kellerhuis blends her argument that the trial

court should have granted the relocation request with that pertaining to the separate

custody issue. However, the trial court’s ruling and analysis is two-fold. First, the

trial court denied the relocation request, addressed above. Additionally, the trial

court granted Mr. Odell’s request regarding a change in custody, namely a change

in the domiciliary parent designation and the issuance of a joint and shared custody

implementation plan. With regard to his request, Mr. Odell was, of course,

required to meet the burden of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986),

since it is unquestioned that he sought to change the custodial arrangement

provided by the considered decree of August 2011.

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Restating the Bergeron standard, the supreme court has recently explained

that:

When a trial court has made a considered decree of
permanent custody the party seeking a change bears a
heavy burden of proving that the continuation of the
present custody is so deleterious to the child as to justify
a modification of the custody decree, or of proving by
clear and convincing evidence that the harm likely to be
caused by a change of environment is substantially
outweighed by its advantages to the child.

Thus, when a party seeks to change custody rendered in a considered
decree, the proponent of change must not only show that a change of
circumstances materially affecting the welfare of the child has
occurred since the prior order respecting custody, but he or she must
also meet the burden of proof set forth in Bergeron.

Mulkey v. Mulkey, 12-2709, p. 11 (La. 5/7/13), 118 So.3d 357, 365 (footnotes

omitted). As with the issue of relocation, a trial court’s determination regarding

child custody matters is entitled to great weight and will not be disturbed on appeal

absent a clear showing of abuse of discretion. Gray v. Gray, 11-548 (La. 7/1/11),

65 So.3d 1247, citing Bergeron, 492 So.2d 1193.

A large portion of the trial court’s extensive reasons for ruling addressed its

concern regarding what it determined to be Ms. Kellerhuis’s ongoing efforts to

keep Mr. Odell from the child. These reasons were largely set forth within the

framework of the best interest of the child considerations of La.R.S. 9:355.14.

However, those factors carried into the trial court’s ultimate decision to grant Mr.

Odell’s request to be named the domiciliary parent. The trial court explained:

The Court finds that the Bergeron heavy burden standard has been
met by Mr. Odell. The Court finds that the actions of Ms. Kellerhuis
are so deleterious to this child as to warrant a change of domiciliary
custody from her to Mr. Odell. The Court believes that a shared
custodial schedule is in the best interest of this child at this time. I do
not think the child is seeing his father enough. I think the child needs
continuing, ongoing contact with his mother.

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After review, we find no abuse of discretion in the trial court’s determination that

Mr. Odell met the required burden.

The trial court’s findings undoubtedly related to actions taken by Ms.

Kellerhuis after the August 2011 considered decree. Those actions included two

unilateral changes of location, one of those being an out-of-state location that

would have necessarily affected Mr. Odell’s exercise of his joint custody of the

child. Further, the change of location to Illinois was taken under the shadow of

temporary restraining order.

Additionally, the trial court addressed what it termed an “abuse of services”

in an effort to create litigation support. On this note, testimony from social agency

workers indicated that Ms. Kellerhuis had raised concerns of inappropriate conduct

with the child. Although Ms. Kellerhuis denied that she felt that the child was

being abused, the trial court referenced the reporting and explained that it feared

that her conduct could eventually lead her to “try to convince the child that things

are happening.” The court further stated that: “I think it is immoral to, you know,

take services that are designed to help a child and really use them for litigation

support so you can, you know, accomplish your quest to move to Illinois[.]”

The facts underlying these findings are well established in the record. The

trial court’s interpretation of those facts relied upon an appreciation of the parties’

testimony and assessment of their credibility. In light of the trial court’s

factfinding role, we do not disturb those conclusions. Rather, in light of the facts

as found by the trial court, the record supports the view that Mr. Odell

demonstrated a change of circumstances that materially affected the welfare of the

child had occurred after the prior custody order. It additionally supports a view

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that the continuation of the existing decree was so deleterious to the child as to

justify a modification of the custody decree.

Accordingly, we find no abuse of discretion in the trial court’s order of

custody.

Attorney Fees
In its judgment, and as prayed for by Mr. Odell, the trial court ordered Ms.

Kellerhuis to pay attorney fees to Mr. Odell in the amount of $3,000.00. The

judgment reflects that it did so “in accordance with the provisions of La.R.S.

9:355.6[.]” However, as pointed out by Ms. Kellerhuis in her brief, La.R.S.

9:355.6 only provides that:

The court may consider a failure to provide notice of a
proposed relocation of a child as:

....

(3) Sufficient cause to order the person proposing relocation to
pay reasonable expenses incurred by the person objecting to the
relocation.

While the statute provides for the payment of “reasonable expenses,” it does not

separately provide for attorney fees.3 Certainly, [a]s a general rule, attorney fees

may not be awarded to a successful litigant unless specifically provided for by

statute or contract.” Campbell v. Melton, 01-2578 (La. 5/14/02), 817 So.2d 69. In

this case they were not.

As noted by Mr. Odell in his brief, La.R.S. 9:355.19 provides for sanction

for an unwarranted or frivolous proposal to relocate a child, including reasonable

expenses and attorney fees. In Randazzo v. Prosperie, 13-0704 (La.App. 1 Cir.

3
The version of La.R.S. 9:355.6 effective until August 2012, immediately prior to the
events now at issue, provided that: “The court may consider a failure to provide notice of a
proposed relocation of a child as: . . . (3) Sufficient cause to order the parent seeking to relocate
the child to pay reasonable expenses and attorney fees incurred by the person objecting to the
relocation.” (Emphasis added.)

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9/13/13), 135 So.3d 22, the first circuit considered a situation in which attorney

fees were awarded in a case involving a failure to send notice as required under the

relocation statutes. The first circuit, noting that La.R.S. 9:355.6 no longer permits

an award of attorney fees, nonetheless affirmed the award finding that such fees

were otherwise available under La.R.S. 9:355.19. In that case, however, the first

circuit remarked that, in making the award, “the trial court made no specific

findings as to the cause regarding the award of sanctions.” Id. at 30. The present

matter differs from Randazzo in this latter regard. In his prayer to the court, Mr.

Randazzo sought attorney fees pursuant to La.R.S. 9:355.6 and the judgment

reflected that they were made pursuant to La.R.S. 9:355.6. In light of this specific

award, we do not reference La.R.S. 9:355.19 as a viable method of recovery.

As La.R.S. 9:355.6 provides no basis for attorney fees, we reverse that

award.

DECREE

For the foregoing reasons, we reverse the trial court’s award of $3,000.00 in

attorney fees. In all other respects, we affirm the judgment of the trial court. Costs

of this proceeding are assessed to the appellant, Billie Kellerhuis Odell.

AFFIRMED IN PART. REVERSED IN PART.

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