Misty Hernadez VS Brandon Jenkins
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NOT DESI FOR PUBLICATION ATED IV TE STA OF LQLIISIAl TA COURT OF APPEAL FIRST CIRCUIT NO 20 T2 CU 0097 MISTY HERNANDEZ VERSUS T BRANDOI JENKINS Judgment Rendered V NO 3 Q 201 L On Appeal from The Family Court In and far the Parish of East Baton Rouge State of Louisiana Trial Court No 151 645 Honorable Lisa W White Judge Presiding oodrufi Mark D Plaisance Thibodaux LA Attorneys for Plaintiff Appellant Misty Hernandez Dean M Esposito Baton Rouge LA Keelus R Miles Attorney for Defendant Appellee Baton Brandon Jenkins Rouge LA BEFORE CARTER C PARRO GUIDRY McDONALD AND J HIGGINBOTHAM JJ v 1G b a o p a I i Cu 12 0 HIGGINBOTHAM J In this child custody case a mother appeals a trial court judgment that denied her request for relocation For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Misty Hernandez and Brandon Jenkins are the parents of M who was H born on April 19 2004 The parties were never married and never resided together after M birth s H In a stipulated judgment signed on October 12 2004 the parties were granted joint custody of M with 7enkins enjoying custody every H other weekend with extended custody during the summer and holidays On March 21 2011 Jenkins filed a to Amend Custody alleging that a change of Petition circumstances had occurred since the original judgment because the parties had voluntarily changed the terms of the judgment Hernandez filed a rule for past due child support and contempt on April 12 201 l and a motion for court authorization to relocate to Enterprise Alabama on May 2 2011 In Hernandez srequest to relocate she alleged that she was engaged to be married that she was recently laid off that the job opportunities were better in Alabama and that the relocation would enhance the quality of life for her and M She further alleged that Jenkins H failed to timely pay the amount of child support he owed After a hearing on the rule for past due support and contempt the trial court did not find Jenkins in contempt but did find him 1 in arrears for his failure to pay the amount of 40 424 S ia a a tr 9 child support set forth in the judgment and 3arrears for his failure to pay his percentage of child care cost On August 1 2011 the matter came before the court on Hernandez srequest to relocate The court signed a judgment on October 5 2011 denying Hernandez s request to permanently relocate the residence of M It is from this judgment that H On May 7 2011 Misry married Gary Ray and is now know as Misty Hernandez Ray 2 Hernandez appeals contendmg that the trial court abused its discretion in denying s Hernandez motion to relocate LAW AND ANALYSIS The relocating parent has the burden of groving that the proposed relocation is made in good faith and is in the best interest of the child La R 9 The S 355 13 court shall consider the benefits the child will derive either directly or indirectly from an enhancement in the relocating parent general quality s of life Id Louisiana Revised Statute 9355 provides a non list of factors the 12 exclusive court shall consider in reaching its decision regarding the proposed relocation The factors include 1 The nature quality extent of involvement and duration of the s child relationship with the parent proposing to relocate and with the nonrelocating parent siblings and other significant persons in the slife child 2 The age developmental stage needs of the child and the likely impact the relocation will have on the child physical educational s 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 age and s 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 ar 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 I 3 9 The extent to which the objecting parent has fulfilled his ar 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 aXtempts at rehabilitation 12 Any other factors affecting the best interest ofthe child A trial court determination in a relocation matter is entitled to great weight s and will not be overturned on appeal absent a clear showing of abuse of discretion Gathen v Gathen 10 La 5 66 So3d 1 9 Upon review the enrire 2312 11 10 record should reflect that the trial court properly considered all of the factors mandated by La R and reasonably concluded based on a totality of 12 9355 S the circumstances that relocation would or would not be in the child best s interest Id at 8 Althoug h La R 9355 mandates that all listed factors b e S 12 considered it does not require the court to give preferential consideration to any certain factor or factors Id The trial court in oral reasons for judgment considered each of the relevant factars of La R 9355 and determined which S 12 parent each factor favored According to the original judgment the parties were exercising joint custody with Jenkins exercising physical custody every other weekend with extended visitation during the summer and holidays Jenkins testified that for the last 3 2 years the parties have been sharing custody equally on a 2 3 2 rotation Hernandez testified that they never had a 2 3 2 schedule but she did let Jenkins see M when he requested it which may have resulted in an extra day each H week s Jenkins parents both testified that they saw M when he was with H Jenkins and they saw him during the week The trial court noted that it was impossible for both parties to be telling the truth regarding the schedule and the truth was probably somewhere in the middle 4 Hernandez alleged that Jenkins put her in dire straits by failing to pay his support obligation The court fqund Jenkins in arrears totaling 6 from 60 869 September 2008 through April 2011 but did not find him in contempt Jenkins had argued that he began paying less support in accordance with an extra judicial agreement between the parties Although Jentcins failed to pay the correct amount of support per the judgment he c paid sugport to Hernandez nsistently Hernandez testified that she wanted to move to Alabama because she married the love of her life and felt she could better provide for M in Alabama H with her husband assistance s According to Hernandez she has a job offer in Alabama in the field in which she had been previously employed Hernandez s work history in Baton Rouge had been inconsistent The trial court was concerned that the primary motivation for the move was her marriage but found that M H would benefit if Hernandez had full employment time The trial court further found that M would benefit emotionally from being in the same household as a H mom step and siblings dad s H M paternal grandparents live in Baton Rouge and his aunt and her family live in Zachery Donna Jenkins Jenkins mom testified that the family gets together quite often Ken Jenkins Jenkins dad testified that he has a very good relationship with M likes to take him hunting and to LSU games and works H with him on his reading M does not have any extended family in Alabama H The trial court determined that a relocation would have a negative impact on s H M relationship with his father and his extended family She noted that the move would restrict weekday interactions with M and his father and family H H M attends Shenandoah Elementary which according to the record is a blue ribbon school Jenkins testified that he recently found a reading specialist to assist M with his reading difficulties The trial court noted that M cunent H s H school was adequately meeting his needs and his grandparents who both have 5 experience in education were providing him with educational support Hernandez testified about the school M woulci attend in Enterprise however little H information was presented into evidence regarding the school The trial court noted that this was a difficulY decision and thoroughly and thoughtfully gave its reasons for denying the proposed relocation In finding that the relocation was not in the best interest of M it focused on the effect it would H have on M relationship with his father and extended family the educational s H needs of M and the limitations that will be created by the distance between H Enterprise and Baton Rouge After consideration of the factors set forth in La R 9 the trial S 355 12 court found that Hernandez proved that the proposed relocation was in good faith but failed to carry her burden of proving that the proposed relocation was in the best interest of M The trial court properly considered all the factors mandated H by the statute and reasonably concluded based on the totality of the circumstances that the proposed relocation was not in the best interest of M After careful H review of the record we find no clear showing that the trial court abused its discretion CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed All costs of this appeai are assessed to Misty Hernandez AFFIRMED 6 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CU 0097 G P MISTY HERNANDEZ VERSUS BRANDON ENKINS BEFORE CARTER C PARRO GUIDRY McDONALD AND HIGGINBOTHAM 77 PARRO J dissenting I disagree with the majority because I believe the court abused its discretion under the circumstances of this case This is a child custody case concerning M an eight boy whose H old year parents were never married and never lived together after his birth Shortly after his birth the parents agreed to a stipulated judgment of oint custody with his mother Hernandez as the domiciliary parent and his father enkins enjoying custody every other weekend and extended custody during holidays and summertime Hernandez has been the child primary caregiver since his birth s Although the stipulated judgment included certain child support provisions enkins did not timely pay support or medical reimbursements as required by that judgment In May 2011 the court found he was in arrears for the period September 2008 through April 2011 in the amount of 1 40 425 for child support and 5for failure to pay his share of child care costs 20 445 Jenkins failure to live up to his support obligations exacerbated Hernandez s financial burden of raising M particularly since she was unable to find full H time employment in Baton Rouge relocate with her son to She eventually petitioned the court for permission to Enterprise Alabama She was and engaged to later married I a to man who lived there had steady employment there had children who could be companions for M and was willing to provide financially and emotionally for her and H her son Additionally she had been offered a good job in Alabama in her field as a mortgage loan processor This job would allow her to work from home so she would not incur the expense of after care as she did in Baton Rouge Hernandez was school willing to make travel arrangements to facilitate Jenkins continued regular visits with his son and was also willing for him to have additional visitation time during summers and holida Y s In making its decision the court emphasized that M paternal grandparents s H who live in Baton Rouge have a good relationship with him and being educators could help him with reading Also M was enrolled in a blue ribbon school Shenandoah H Elementary and enkins had located a tutor to help him with his reading Rather than focusing on the child best interest the court focused on the relationships with his s father and e family finding that these relationships would be negatively ended affected by the relocation However there was no explanation of why there would be a negative effect if scheduled visitation with Jenkins in Louisiana would be continued and even increased as Hernandez had proposed It appeared from oral reasons that the court was more concerned with the effect on Jenkins and his parents than with the effect on M Moreover the court decision regarding M educational needs did H s s H not take into consideration the fact that M would be attending a school in Alabama H with smaller classes where he could get more attention Finally although the court acknowledged that M would be more financially secure with his mother new family H s it did not mention the financial strain that Hernandez and H M would continue to endure if she could not find full employment and had to continue to rely on time Jenkins to help her support their son Inexplicably the court did not even find Jenkins in contempt of court for his continued failure to provide court support for M ordered H Given these facts I believe the court abused its discretion by denying Hernandez permission to relocate with M thereby forcing on her the impossible dilemma of H leaving her son in order to live with her husband or living apart from her husband in order to stay with her son As a result of this judgment H M and his mother are sentenced to remain in financial difficulties because of limited employment opportunities and she is unable to join with her husband in providing emotional and financial support for M as a member of their family M is denied the opportunity H H to live in a supportive family environment with two parents in the home Because the majority has chosen not to overturn the family court ill judgment this s considered intolerable situation could continue for the next ten years until M reaches the age of H majority Accordingly I respectfully dissent
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