San. M. Hains VS Kristin Bock Hains
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CU 1337 SAN M HAINS k jt VERSUS 4 KRISTIN BOCK HAINS d On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 2008 11926 Division B Honorable Elaine W DiMiceli Judge Presiding Catherine Hilton Attorney for Appellee New Orleans LA San M Hains Nanine McCool Attorney for Appellant Mandeville LA Kristin Bock Hains BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered MAR 7 0 2000 PARRO J A mother appeals a trial court judgment that granted her request for relocation awarded joint custody designated her as domiciliary parent and established a physical custody schedule This judgment also adjudicated various motions by the parties that were pending before the court The father answered the appeal For the following reasons the judgment is affirmed Factual Background and Procedural History San M Hains and Kristin Bock Hains met while both were on active duty in the United States Coast Guard San worked in the medical field and desired to become an xray technician Kristin obtained training in carpentry welding and other practical skills On August 22 2003 while stationed in Ketchikan Alaska San and Kristin got married The parties then transferred to San Diego California so San could attend xray school After discussing the possibility of having a child they decided that neither would reenlist when their current enlistments expired According to Kristin they also decided to work on changing their habits relative to smoking and drinking As part of their plan both designated units in Louisiana the home of San family as their next s transfer choice They were transferred to units in the New Orleans area in April 2005 and moved to Slidell Kristin discontinued drinking and smoking but San did not After Hurricane Katrina the parties began to reevaluate their plans In February 2007 Kristin applied for Officer Candidate School Their son Dylan was born on July 25 2007 In connection with Dylan birth Kristin s and San took a leave of absence from the Coast Guard After spending seven years in the Coast Guard San departed from active duty in August 2007 at the expiration of his enlistment Kristin remained on leave until late September When Kristin returned to duty Dylan was placed in daycare The couple planned to move to Alaska so Kristin could advance her career in the Coast Guard by obtaining the time that she needed at sea Therefore in October 2 2007 Kristin requested a transfer for July 2008 billet in Louisiana was to be fulfilled a year before her fouryear Her transfer request was approved In conjunction with her request San and Kristin went through the overseas screening process in January 2008 Despite Kristin anticipated transfer in July 2008 San obtained work in s Metairie in January 2008 as an xray technician in the civilian sector Due to problems in their marriage San indicated that he would not be going with Kristin to Alaska In an effort to work out their problems Kristin cancelled her request for transfer to Alaska and submitted a request for early release from her enlistment contract Nonetheless on April 9 2008 San filed a petition for divorce Subsequently Kristin withdrew her request for early release and her orders for transfer to Alaska were cancelled In light of Kristin request for an early transfer her tour complete date s for her assignment to Louisiana had been moved up to July 2008 and the position at her Louisiana unit had been marked to be filled for the time of her pending transfer making it unfeasible for Kristin to remain in her position with the Louisiana unit s Kristin reassignment and transfer were inevitable After considering San assurance that he would try to find a job wherever she was s stationed and considering the assignments available for her rate pay grade and particular situation Kristin felt that San Pedro California was the most favorable place for her relocation Being in San Pedro would allow her to be near her family who lived in San Diego and enable her to obtain the time needed at sea for the advancement of her career In June 2008 Kristin engaged the services of a private investigator to perform surveillance on San when he had or was to have physical custody of Dylan She believed that the surveillance video evidenced San abuse of s alcohol and his inability to be a parent In his petition for divorce San sought joint shared custody of Dylan 3 Kristin answered and reconvened alleging that San abused alcohol A stipulated judgment was signed on August 13 2008 requiring both parents to submit to a substance abuse evaluation The judgment provided that San would have physical custody of Dylan one day each weekend and a couple of hours on two weekdays If the evaluations did not specify any addiction issues San was to have custody of Dylan on alternating weekends and one overnight visit each week San and Kristin were prohibited from consuming alcohol within 12 hours prior to and during his or her physical custody time with Dylan The results of Kristin and San substance abuse evaluations failed to s reveal any evidence that either had an alcohol abuse problem Both parties appeared for their August 27 2008 court date which was rescheduled to September 10 2008 due to an ongoing criminal trial Disputing whether a stipulation had occurred prior to their August 27 2008 court date Kristin believing that San drank excessively declined to follow the visitation order and dictated the terms of San visitations s She believed this was necessary to protect her son On September 8 2008 Kristin received orders transferring her to San Pedro California effective November 15 2008 By letter dated September 8 2008 Kristin notified San of the transfer This letter was sent certified mail to him and was also faxed to his counsel At the September 10th hearing San objected when Kristin sought to have the court review the video surveillance His objection was based on the fact that it had been taken prior to the August 13 2008 stipulated judgment The trial court agreed with San and refused to admit the videos into evidence On September 10 2008 San filed a motion to compel seeking more complete responses to discovery production of documents attorney fees and costs He also filed a rule for contempt of court for Kristin violation of the visitation s 12 provisions in the stipulated judgment an objection to Kristin request for s relocation urging that Kristin should leave the service or should be required to stay in Louisiana and a motion in limine seeking to prevent the introduction of the surveillance videos Kristin opposed San motion to compel s She also filed a motion for sanctions in connection with San motion to compel and his objection to her s request for relocation In her motion Kristin also sought a limited evidentiary hearing and a temporary order to relocate as well as sole custody or alternatively joint custody with supervised visitation The trial of these matters was set for November 14 2008 and eventually heard on November 21 2008 On December 16 2008 the trial court entered a judgment which in relevant part 1 ordered joint custody of Dylan with Kristin designated as the domiciliary parent 2 ordered that San enroll in and complete Phase I and Phase II of a Misdemeanor Probation Alcohol Treatment Program treatment program 3 ordered San to enroll in and complete a parenting class 4 prohibited San from ingesting any alcohol while Dylan was in his care and control 5 granted Kristin motion to relocate with Dylan to San Pedro California s on December 18 2008 6 ordered that San be given the first right of refusal for visitation with Dylan if Kristin goes out to sea for more than two consecutive weeks at any one time 7 ordered that upon showing of proof of his enrollment in the ordered treatment program San would be allowed physical custody of Dylan as follows Until the DefendantMother relocates to California shall have visitation in accordance with August 13 2008 judgment to wit every Wednesday from 6 p 30 m until 8 a on Thursday and beginning on December 00 m 13 2008 every other weekend beginning at 9 a on 00 m San Kristin denied San overnight visitations from August 27 2008 until the date of trial November 21 2008 based on San refusal to wear a Secure Continuous Remote Alcohol Monitoring or s SCRAM bracelet 5 Saturday until 4 p Sunday 00 m The parties shall exchange physical custody at the Slidell police station Following Kristin relocation and unless otherwise s agreed in writing by the parties San shall have physical custody of the child for one month out of every three months for a minimum of 4 times per year 8 ordered Kristin to pay all travel related costs of Dylan transportation for s visitation and 9 ordered that the parties agree in writing as to an alternating holiday visitation schedule or in lieu thereof the court shall impose a schedule s San motion to compel was granted in part ordering Kristin to produce records from her personnel file including her dream sheet and Kristin was ordered to pay the costs but not attorney fees associated with the bringing of the motion to compel San motion for contempt and motion in limine as well as Kristin s s motion for sanctions were denied After Kristin motion for new trial was denied she appealed contending s that the trial court erred as follows 1 in requiring proof only of enrollment in a treatment program as a prerequisite to visitation 2 in failing to view the surveillance videos denying her motion for sanctions 3 in determining that the frequency of the visitation ordered in favor of San was in Dylan best interest s 4 in partially granting San motion to compel and s 5 in assessing her with costs related to San motion to compel s San answered the appeal urging that the trial court erred in the following respects 1 allowing Kristin to relocate in light of her bad faith interference with his visitation 2 failing to provide him with a specific schedule of regular and holiday visitation 3 failing to award him custody for at least six months of the year 4 failing to designate him as the domiciliary parent for the months that he has custody 0 5 in improperly amending the judgment to limit Kristin responsibility for s travel costs to those of Dylan and 6 in failing to award attorney fees in connection with the partial grant of his motion to compel Relocation In his answer to Kristin appeal San alleges that Kristin request for s s relocation was motivated by bad faith and the trial court thus erred in allowing Kristin to relocate He contends that bad faith interference with his visitation was evidence of her bad faith Issues involving parental relocation where a custody order exists are governed by LSAR 9 through 355 The relocating parent has the S 355 1 17 burden of proving that the proposed relocation is made in good faith and is in the best interest of the child LSAR 9 S 355 13 In an effort to pursue her career with the Coast Guard the parties had agreed that Kristin would request an early transfer from her Louisiana unit Their desired transfer location was Alaska While in Alaska San was to care for Dylan while Kristin pursued her career However once San filed the petition for divorce Kristin requested in July 2008 a transfer to California where she would be near her family who could assist with Dylan care while she obtained her s time at sea Her work in California would make her eligible for advancement in the Coast Guard Furthermore in light of her request for an early transfer to Alaska her position in the Louisiana unit was no longer available Accordingly we are unable to find manifest error in the trial court finding that Kristin s s relocation request was made in good faith In determining the child best interest the trial court must consider the s benefits the child will derive either directly or indirectly from an enhancement in the relocating parent general quality of life LSAR 9 To assist the s S 355 13 trial court in reaching its decision regarding a proposed relocation LSAR S See Curole v Curole 02 1891 La 10 828 So 1094 1097 98 02 15 2d 7 12 355 9 sets forth twelve factors that the trial court must consider A In reaching its decision regarding a proposed relocation the court shall consider the following factors 1 The nature quality extent of involvement and duration of the child relationship with the parent proposing to s relocate and with the nonrelocating parent siblings and other significant persons in the child life s 2 The age developmental stage needs of the child and the likely impact the relocation will have on the child physical s 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 preference taking into consideration the s age and maturity of the child 5 Whether there is an established pattern of conduct of the parent seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating party 6 Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child including but not limited to financial or emotional benefit or educational opportunity 7 The reasons of each parent for seeking or opposing the relocation 8 The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child 9 The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation including child support spousal support and community property obligations 10 The feasibility of a relocation by the objecting parent 11 Any history of substance abuse or violence by either parent including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation 12 Any other factors affecting the best interest of the child B The court may not consider whether or not the person seeking relocation of the child will relocate without the child if 9 relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed Although LSAR 9 mandates that all the listed factors be considered S 355 12 it does not require the court to give preferential consideration to any certain factor or factors See Curole v Curole 02 1891 La 10 828 So 02 15 2d 1094 1097 San notes that the trial court did not reference the relocation statute and failed to analyze the factors as required by LSAR 9 in making a S 355 12 definitive ruling that such relocation would be in Dylan best interest In oral s reasons for judgment the trial court simply stated that because the mother was in the Coast Guard when the couple married the father should have known of the possibility that the mother could be transferred at any time The court also observed that transfer was not something totally within Kristin control s Therefore the court authorized Kristin relocation with Dylan s The oral reasons indicate a failure to consider the factors required by LSAR 9 S 355 12 and imply that any relocation request by Kristin due to transfer by the Coast Guard would have been acceptable In light of the nature of this case we conclude that the trial court imposed a lesser burden on Kristin than the law requires When a trial court incorrectly applies a principle of law which causes a substantial deprivation of a party rights or materially affects the disposition it s commits a legal error Evans v Luncirin 97 541 La 2 708 So 731 98 6 2d 735 Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights Id When such a prejudicial error of law skews the trial court finding of a material issue of fact and causes it to s pretermit other issues the appellate court is required if it can to render judgment on the record by applying the correct law and determining the essential material facts de novo Id In conducting a de novo review of the record we note that the evidence 4 establishes that both Kristin and San have played an active role in Dylan life s At times each has been Dylan primary caretaker s They are good parents who love their son Although San has extended family in Louisiana he was not associating with them at the time of trial In fact the record reflects that s Kristin relationship with San parents was better than San Kristin has an s s extended family that lives in Oceanside California which is about an hour and a half from San Pedro At the time of trial Dylan was 16 months old and attending daycare while his parents worked Since he had not yet started school he did not have a school history With relocation the only obstacle to maintaining San s relationship with Dylan was distance and the expense involved with Dylan s transportation In order to facilitate Dylan continuing relationship with his s father Kristin was willing to assist with Dylan travel costs s The child s preference factor is not relevant given Dylan age s Prior to the judgment from which this appeal lies Kristin refused to comply with the visitation schedule set forth in the stipulated judgment Her testimony establishes that such refusal was based on her belief that San abused alcohol and that Dylan was in need of protection Furthermore she disputed whether they had entered into a stipulated judgment since she had not had her day in court At trial she testified that she would abide by the judgment entered by the trial court after it had heard all of the evidence even one that authorized unsupervised visitation by San Kristin was aware that it was not good for a child Dylan age to be withdrawn from his father s She recognized that San loves Dylan and acknowledged the importance of Dylan maintaining a relationship with his father3 Kristin even suggested the use of a webcam as a method of maintaining contact Kristin also noted the importance of Dylan relationship with San parents and vowed to continue to foster that s s San has been providing financial support for Dylan 10 relationship The record establishes that Kristin had been on active duty with the Coast Guard for nine years She had planned a career with the Coast Guard and would be stationed in California for approximately three years or through July 2011 Her sex and rank limited her assignment possibilities with the Coast Guard The smaller cutter in San Pedro California would require her to be out at sea for only three days at a time as opposed to three to six months with the larger cutters If she and Dylan are able to move to California she would have a secure job with a chance of advancement in the Coast Guard which will result in a higher salary and a better standard of living for them If she is not allowed to move she would be required to continue to reside in Louisiana where her position in the Louisiana unit has already been filled There are no available cutters in the New Orleans area that accommodate women She does not have a degree or any type of certification Although the evidence shows that Kristin could possibly obtain employment with San father working at his s jewelry store in Morgan City that employment option would require that she give up her career in the Coast Guard Although San testified that the terms of employment with his father would be better than Kristin has in the military he conceded that the retirement and benefits offered by the military are better Kristin testified that if she continued in the Coast Guard she would be eligible for retirement in 11 years Thus the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child Kristin is seeking relocation pursuant to a transfer by the Coast Guard which would allow her to remain a member of the Coast Guard and give her an opportunity to advance her career San opposition to the relocation is equally s clear He loves Dylan and he does not want to be separated from him However he testified that he was aware that Kristin job would eventually s require her to relocate 11 Considering the situation of both parties it appears that it might be feasible for San to relocate The parties have discussed this possibility At one point San who was in a relationship with another woman and worked as an x ray technician for a company with offices across the country was open to the idea San checked into the possibility of being transferred to California but without much luck due to a hiring freeze and cutbacks However he had not gone so far as to check on the availability of employment with other entities in the San Pedro area Notably he had applied locally with a company in an effort to obtain better pay and room for growth He was not interested in returning to the Coast Guard Although Kristin has alleged that San has an alcohol abuse problem the record establishes that he has never been treated for substance abuse has never been arrested for driving under the influence has abided by the court s order that he refrain from drinking prior to and during visitations and has never been diagnosed as suffering from such a condition Based on our de novo analysis of the twelve factors set out in I S SAR 12 355 9 we find no factors that would prevent relocation After weighing the factors as a whole we find that they weigh in favor of allowing the relocation Accordingly we find that Kristin has successfully carried her burden of proving that the relocation is in Dylan best interest as required by LSAR 9 s S 355 13 Thus the legal error by the trial court did not materially affect the outcome Therefore we find no clear abuse of discretion by the trial court in authorizing the relocation Custody Kristin urges that the trial court erred in only requiring proof of San s enrollment in a treatment program as a prerequisite to his entitlement to overnight visitation and that such a prerequisite alone provided no mechanism 4 A trial court determination in a relocation matter involving children of parties to a divorce is s entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion Curole 828 So at 1096 2d 12 or review process to ensure that San drinking had changed as a result of his s attending the classes In light of the following evidence we are unable to find that the trial court committed error in allowing joint custody and unsupervised visitation to San upon proof of enrollment in the treatment program the court appointed expert found that San did not have a substance abuse problem the ACER evaluation revealed that San did not have a substance abuse problem and San testified that he did not drink when he had physical custody of Dylan In any event this assignment of error is moot because San subsequently completed his enrollment obligations proof of which is in the record Next Kristin asserts that the evidence in the record did not support a finding that the ordered visitation schedule was in Dylan best interest s In particular she points to Dylan tender age and San excessive drinking as s s allegedly evidenced by surveillance videos that were offered into evidence San has also assigned error with regard to the visitation schedule set by the trial court He urges error in the trial court failure to award him physical custody s of Dylan for at least six months of the year guaranteeing shared physical custody of Dylan He also complains that the trial court erred in failing to provide him with a specific schedule of regular and holiday visitation in light of s Kristin interference with his visitation in the past It is undisputed that the investigation and filming of the surveillance videos were done on or about June 24 and July 31 2007 which was before the August 13 2007 stipulated judgment Kristin testified about the content of the videos but she did not introduce the testimony of the videographer to Dr Rafael F Salcedo was appointed by the trial court to perform a mental health evaluation of San and Kristin His evaluation of San revealed insufficient data to warrant a formal diagnosis concerning his use of alcohol Dr Salcedo found that there did not appear to be compelling evidence that San alcohol consumption had impaired either his social or s occupational functioning or had caused him any subjective distress Nonetheless given San s genetic family history of alcohol problems Dr Salcedo noted that San had the potential for developing problems with alcohol 13 authenticate the video tapes 6 Furthermore the evidence of San more recent s conduct that was offered at trial presented a conflicting view Based on these facts we find no error or abuse of discretion in the trial court failure to view s the surveillance videos In the absence of an agreement the court shall award custody to the parents jointly LSA C art 132 To the extent it is feasible and in the best interest of the children physical custody of the children should be shared equally LSAR 9 Nonetheless the trial court finding that S 335 b 2 A s joint custody is in the best interest of the child does not necessarily require an equal sharing of physical custody Martello v Martello 060594 La App 1st Cir 3 960 So 186 191 citing Stephens v Stephens 02 0402 La 07 23 2d App 1st Cir 6 822 So 770 777 The implementation order should 02 21 2d allocate the time periods during which each parent shall have physical custody of the children so that the children are assured of frequent and continuing contact with both parents LSAR 9 S 335 a 2 A In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown LSAR S 1 8 335 9 The primary consideration in a child custody determination is always the best interest of the child LSAC art 131 C Louisiana Civil Code article 134 enumerates the following twelve nonexclusive factors that are relevant in determining the best interest of the child 1 The love affection and other emotional ties between each party and the child In the absence of a proper foundation for the proffered surveillance videos they are properly excludable by the trial court See Rareshide v Mobil Oil Co 97 1376 La App 4th Cir 98 22 4 719 So 494 504 writ denied 981595 La 10 726 So 28 2d 98 9 2d Joint custody means a joint custody order that is not shared custody as defined in LSA S 315 R 9 LSA R 9 Shared custody means a joint custody order in which S 315 E 8 each parent has physical custody of the child for an approximately equal amount of time LSA S 315 R 9 1 A 8 Many of these factors were considered by this court in determining the relocation issue 14 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 and 12 The responsibility for the care and rearing of the child previously exercised by each party The best interestofthe child test under LSAC arts 131 and 134 is a C fact intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case Martello 960 So at 191 Every child custody case 2d is to be viewed on its own peculiar set of facts and the relationships involved with the paramount goal of reaching a decision which is in the best interest of the child Id The trial court is vested with broad discretion in deciding child custody cases Because of the trial court better opportunity to evaluate witnesses s and taking into account the proper allocation of trial and appellate court functions great deference is accorded to the decision of the trial court Martello 960 So at 191 2d A trial court determination regarding child s custody will not be disturbed absent a clear abuse of discretion Id at 191 92 15 In light of the distance between the parents following the relocation s Dylan tender age and the expense involved in transporting Dylan from one location to the other the trial court apparently believed that shared custody was not in Dylan best interest Instead the trial court found that one of the s parents needed to be designated as the domiciliary parent who would have the obligation of communicating with the other parent concerning all matters related to the child health school activities and the like That parent would s be in a position to make a decision concerning matters if the other parent did not agree After hearing the evidence the trial court found that Kristin should be that parent By awarding San custody for one month out of every three months the trial court split Dylan time approximately 2 to Kristin and 1 to San at a s 3 3 minimum Additionally San was to be given the opportunity to have physical custody of Dylan on alternating holidays as well as when Kristin was at sea for more than two consecutive weeks at any one time In ordering joint custody the trial court was trying to maximize the amount of San physical custody s while minimizing the transportation costs associated with that custody Considering the feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable custody arrangements as well as the logistics associated with the custodial times and the financial circumstances of the parties we conclude that the findings of the trial court concerning custody are reasonable and are not manifestly erroneous Furthermore we find no merit to San argument that the trial court erred or s abused its discretion in failing to name him as a co domiciliary parent or as the 9 The domiciliary parent is the parent with whom the child shall primarily reside but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents LSAR 9 The domiciliary parent shall S 335 2 B have authority to make all decisions affecting the child unless an implementation order provides otherwise All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child 3 13 335 9 16 LSAR S domiciliary parent during the minimum of four months of the year during which he had physical custody of Dylan A decree of joint custody was entered in this case Pursuant to the designation as domiciliary parent Kristin was the parent with whom Dylan would primarily reside Furthermore the trial court observed the demeanor of the parties and apparently believed that Kristin would work with San with regard to Dylan best interest s Travel Related Expenses San complains that the trial court improperly modified its oral judgment to limit Kristin responsibility for travel related costs to the minor s child only He notes that the trial court orally ruled that Kristin would be liable for all travel costs However the judgment simply orders Kristin to pay for the costs of Dylan travel s In light of this disparity San contends that the trial court modified the substance of the trial court judgment in violation of LSA P C art 1951 Article 1951 provides A final judgment may be amended by the trial court at any time with or without notice on its own motion or on motion of any party 1 To alter the phraseology of the judgment but not the substance or 2 To correct errors of calculation A final judgment shall be identified as such by appropriate language LSA P C art 1918 We note that when written reasons for the judgment are assigned they shall be set out in an opinion separate from the judgment Id Thus where there are only written reasons and no separate signed judgment there is no final judgment White v West Carroll Hospital Inc 613 So 150 2d 155 La 1992 In the instant case the trial court issued only oral reasons for its findings In oral reasons the trial court stated that Kristin was to pay for the transportation Until such findings were reduced to writing there was no final M judgment See White 613 So at 155 The written judgment simply ordered 2d Kristin to pay for all travel related costs of Dylan transportation for visitation s The trial court written judgment is controlling even if the trial court may have s intended otherwise Rebco Marine Inc v Homestead Insurance Company 96 1975 La App 1st Cir 12 706 So 508 511 The written judgment 97 29 2d in this case was not subsequently modified by the trial court after signing the judgment Since there was no modification to the final judgment by the trial court in this case this assignment of error lacks merit Motion to Compel Kristin asserts that the trial court erred in partially granting San motion s to compel and in ordering her to pay associated costs The particular discovery request at issue which she objected to on the ground of relevancy pertained to Kristin applications for a transfer s San maintains that the information was relevant to Kristin request for relocation s agreed and ordered the documents to be produced desired The trial court However it declined to award attorney fees since the procedure set forth in La Dist Ct R 10 was 1 not followed properly by San Instead it simply awarded the costs of filing the motion Kristin urges that since San did not abide by Rule 10 his motion to 1 compel should not have been partially granted and she should not have been ordered to pay costs Rule 10 which pertains to discovery motions provides 1 Before filing any discovery motion the moving party must attempt to arrange a conference with the opposing party for the The purpose of amicably resolving the discovery dispute conference may be conducted in person or by telephone The discovery motion must include a certificate stating a that the parties have conferred in person or by telephone as required by this rule and the reasons why they were unable to agree or b that opposing counsel has refused to confer after reasonable notice io Furthermore under the circumstances of this case we find no abuse of discretion in the trial s court failure to order Kristin to pay the travel related costs incurred by San 18 If the court finds that opposing counsel has willfully failed to confer or failed to confer in good faith the court may impose sanctions See Judson v Davis 041699 La App 1st Cir 6 916 So 1106 05 29 2d 1116 writ denied 05 1998 La 2 924 So 167 Rule 10 requires 06 10 2d 1 that before filing any discovery motion the moving party must first attempt to arrange a conference with the opposing party to try to resolve the discovery dispute Also a discovery motion must include a certificate stating that the parties conferred and the reasons why they were unable to agree or that opposing counsel refused to confer after reasonable notice Trahan v State ex rel Dept of Health and Hospitals 04743 La App 3rd Cir 11 886 04 10 2d So 1245 1251 On appeal San does not dispute the fact that his motion to compel failed to comply with Rule 10 instead he urges that compliance with Rule 10 is 1 1 required only in non familynondomestic cases The trial court disagreed stating that Rule 10 is followed in family court Rule 10 is found in Title II 1 1 of the Louisiana District Court Rules According to La Dist Ct R 1 Title b II of the rules applies to all civil proceedings in district courts except for family juvenile and domestic relations proceedings Therefore San correctly asserts that compliance with Rule 10 was not necessary in a family proceeding 1 Title IV of the Louisiana District Court Rules applies to family and domestic relations proceedings The numbering system for the rules in Title IV reveals that the filing of discovery motions in these types of proceedings is governed by Rule 26 of Chapter 26 1 However the rules for the Twenty Second Judicial District Court do not include Chapter 26 relating to discovery Accordingly we find no abuse of discretion or error in the trial court s consideration of San motion to compel s Since the Louisiana District Court Rules are intended to supplement the Louisiana Code of Civil Procedure in the absence of an applicable rule we refer 19 to the Code of Civil Procedure for guidance See La Dist Ct R 1 Comment 0 a A party generally may obtain discovery regarding any matter that is relevant to the subject matter involved in the pending action LSAC art P C 1422 There are limitations to this rule however when justice requires that a party or other person be protected from annoyance embarrassment oppression or undue burden or expense Stolzle v Safety Systems Assur Consultants Inc 02 1197 La 5 819 So 287 289 see LSAC 02 24 2d P C art 1426 The trial court has broad discretion in ruling on discovery matters Laburre v East Jefferson Gen Hoso 555 So 1381 1385 La 1990 Based 2d on our review of the requested discovery and the issues presented to the trial court for consideration we are unable to find that the trial court abused its discretion in determining that the requested document was relevant or by partially granting San motion to compel s Relative to motions to compel discovery LSAC art 1469 P C 4 provides If the motion is granted the court shall after opportunity for hearing require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order including s attorney fees unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust If the motion is denied the court shall after opportunity for hearing require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion including attorney fees unless the court finds that s the making of the motion was substantially justified or that other circumstances make an award of expenses unjust If the motion is granted in part and denied in part the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner This provision provides for three different scenarios In the instant case San s motion to compel was not granted but rather was granted in part Furthermore the scenario pertaining to a grant in part does not expressly 20 authorize an award of attorney fees Therefore San argument that an award s of attorney fees was mandatory in this case lacks merit Because San motion s was granted in part we find that the trial court acted within its discretion in ordering Kristin to pay court costs associated with the filing of the motion and in not ordering her to pay San attorney fees s Motion for Sanctions Kristin challenges the trial court denial of her motion for sanctions In s connection with her motion Kristin asserts that the allegations in San motion s to compel and objection to relocation were untrue that his arguments were not supported by law or the evidence and that San knew that Kristin relocation s was inevitable In light of the fact that San motion to compel was partially s granted we find no merit in Kristin argument that San motion to compel was s s unfounded The imposition of sanctions in connection with a request for relocation is authorized by LSAR 9 which provides S 355 A 16 After notice and a reasonable opportunity to respond the court may impose a sanction on a parent proposing a relocation of the child or objecting to a proposed relocation of a child if it determines that the proposal was made or the objection was filed 1 To harass the other parent or to cause unnecessary delay or needless increase in the cost of litigation 2 Without being warranted by existing law or based on a frivolous argument 3 Based on allegations and other factual contentions which have no evidentiary support nor if specifically so identified could not have been reasonably believed to be likely to have evidentiary support after further investigation Emphasis added The language of LSAR 9 is clearly permissive S 355 A 16 The trial court in this case decided against imposing sanctions Further we note that the slightest justification for the exercise of a legal right precludes sanctions Bingham v Bingham 44 La App 2nd Cir 5 12 So 292 09 13 3d 448 452 Under the facts of this case we find that this assignment of error is 21 without merit Decree For the foregoing reasons the judgment of the trial court is affirmed The parties are to bear their own costs of appeal AFFIRMED 22
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