Jason Ted Gray v. Christy Lynn Winnon Gray (Affirmed)
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Judgment rendered November 17, 2010.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
NO. 45,826-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
******
JASON TED GRAY
Plaintiff-Appellant
Versus
CHRISTY LYNN WINNON GRAY
Defendant-Appellee
******
Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2005-370
Honorable Wilson Rambo, Judge
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DONALD L. KNEIPP
Counsel for
Appellant
ALAN J. NORRIS
Counsel for
Appellee
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Before WILLIAMS, STEWART and CARAWAY, JJ.
CARAWAY, J., dissents with written reasons.
WILLIAMS, J.
The plaintiff, Jason Gray, appeals judgments denying his relocation to
Kansas with the parties’ minor child and modifying the prior custody award.
The court designated the defendant, Christy Bruner, as the primary
domiciliary parent of the child and awarded the father visitation. For the
following reasons, we affirm.
FACTS
In October 2001, a child was born of the marriage of Jason Gray
(“Gray”) and Christy Bruner, formerly Gray (“Bruner”). The matrimonial
domicile was in Morehouse Parish, Louisiana, until the parties separated in
May 2005. In a consent judgment, the parties were awarded joint custody of
the minor child and Gray was designated as the domiciliary parent.
Subsequently, the district court rendered a judgment of divorce. In March
2007, Gray gave notice of his intent to relocate with the child to Alabama to
join his fiancée, Jamie Schmitt, who had moved there because of her job
with John Deere Credit. Bruner filed an objection to the relocation and a
rule to modify the domiciliary custody. After a conference in June 2007, a
hearing officer recommended that Gray’s proposed relocation be denied and
that Bruner be awarded primary custody of the child. In October 2007,
following a trial, the court approved the father’s relocation with the child to
Alabama and denied the mother’s motion to modify custody. The court
found that Bruner had not completely recovered from her abuse of
prescription drugs. In November 2007, Gray moved to Alabama with the
child.
Approximately one year later, Gray sent Bruner notice of a proposed
relocation with the minor child to Kansas, based on another job transfer by
Jamie, who was then Gray’s wife. Bruner filed objections to this proposed
relocation in Louisiana and Alabama. In Louisiana, the court issued an
order prohibiting Gray from relocating the child to Kansas pending a
hearing and the Alabama court declined to exercise jurisdiction over the
proposed relocation. Gray moved to Kansas with the child in violation of
the court order and then filed a motion for a temporary order to relocate. In
January 2009, Bruner filed a rule to modify custody seeking an award of
primary domiciliary custody.
After a trial on the objection to relocation and the modification of
custody, the court issued oral reasons for judgment discussing its
consideration of the relocation factors of LSA-R.S. 9:355.12. The court
found that in moving to Kansas the father was subordinating the child’s best
interest to the advancement of his current wife’s career, which had required
frequent moves, and that the relocation was not in the child’s best interest.
The trial court rendered judgment denying the relocation of the minor child
to Kansas and ordering the parties to submit briefs regarding whether the
modification of custody in this case required application of the standard in
Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986).
Subsequently, the trial court issued oral reasons for judgment finding
that the Bergeron standard was not applicable to this situation because the
statutory exception of LSA-R.S. 9:355.11 provides that the relocation of a
party in violation of a court order is a sufficient change in circumstances to
support the modification of custody. Alternatively, the court found that
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even if Bergeron was applicable, then Bruner had satisfied her burden of
proving that a change in circumstances materially affecting the child’s
welfare had occurred through her rehabilitation from a past drug addiction,
and that any harm caused by a change of environment would be
substantially outweighed by the advantages to the child, such as more
frequent contact with his maternal and paternal grandparents. The court
rendered judgment granting a modification of custody, designating Bruner
as the primary domiciliary parent of the minor child and awarding Gray
scheduled visitation. Gray appeals both judgments.
DISCUSSION
Gray contends the trial court erred in sustaining the objection to
relocation of the child. Gray argues that the evidence showed the move to
Kansas was in the child’s best interest and that the court should have
compared Alabama, not Louisiana, as the alternative situation in applying
the relocation factors.
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 (La. 10/15/02), 828 So.2d 1094;
Bingham v. Bingham, 44,292 (La. App. 2d Cir. 5/13/09), 12 So.3d 448.
Pursuant to LSA-R.S. 9:355.13, the parent seeking relocation has the burden
of proving that the proposed relocation is made in good faith and in the best
interest of the child. LSA-R.S. 9:355.12 provides that in making a decision
regarding a proposed relocation, the court shall consider these factors:
(1) The nature, quality, extent of involvement, and duration of
the child’s relationship with the parent proposing to relocate
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and with the nonrelocating parent, siblings, and other
significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the
likely impact the relocation will have on the child’s physical,
educational, and emotional development, taking into
consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between
the nonrelocating parent and the child through suitable
visitation arrangements, considering the logistics and financial
circumstances of the parties.
(4) The child’s preference, taking into consideration the age
and maturity of the child.
(5) Whether there is an established pattern of conduct of the
parent seeking the relocation, either to promote or thwart the
relationship of the child and the nonrelocating party.
(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.
Although the statute mandates that all the listed factors be considered, the
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court is not required to give preferential consideration to any particular
factor. Curole, supra; Parker v. Parker, 44,246 (La. App. 2d Cir. 5/13/09),
12 So.3d 485.
In the present case, the trial court thoroughly considered the statutory
factors. The court noted that the child was able to enjoy a close relationship
with both parents. However, the record shows that the relocation to Kansas
would have taken the child farther away from his mother and from other
significant persons in the child’s life, such as his maternal and paternal
grandparents. The court expressed concern over the disruption of the
child’s education caused by the father’s move to Kansas. The child was
removed from first grade in Alabama in the middle of the school year and
then missed two weeks of school in January 2009, before being enrolled in
Kansas. There was no showing that Kansas offered the child significantly
better educational opportunities than Alabama. The court was also
concerned that with the three-hour longer driving distance to Kansas,
preserving a good relationship between the child and his mother would be
less feasible.
At trial and in his appellate brief, Gray emphasized the financial
difficulties and debt of Bruner and her current husband as a factor
supporting relocation. However, the court was not required to give more
weight to this factor than to others. In addition, the evidence showed that
the relocation to Kansas would not immediately enhance the general quality
of life for Gray and the child, because the father left a job with Helena
Chemical at a salary of $50,000 to start a new job as an insurance salesman
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with a guaranteed starting income of $2,000 per month. The court noted
that the father’s primary motivation to relocate was to follow his wife in
moving for the needs of her employer, whereas the mother objected to
relocation because of her fear that her relationship with the child would be
diminished. The court found that Bruner had been successful in recovering
from her past prescription drug abuse through rehabilitation.
Based upon the evidence presented and the applicable statutory
factors, we cannot say the trial court erred in finding that Gray failed to
satisfy his burden of proving that relocation was in the child’s best interest.
Consequently, the court did not abuse its discretion in denying the
relocation of the child. The assignment of error lacks merit.
Custody
Gray contends the trial court erred in modifying the custody of the
child. Gray argues that Bruner failed to show that the benefits of modifying
custody would outweigh the harm of the child’s reduced financial security.
The best interest of the child is the paramount consideration in child
custody cases. LSA-C.C. art. 131; Sawyer v. Sawyer, 35,583 (La. App. 2d
Cir. 11/2/01), 799 So.2d 1226. LSA-C.C. art. 134 provides a number of
factors for the court to consider in determining the child’s best interest,
including the capacity of each parent to give the child love, to continue the
child’s education and to provide for the child’s material needs, and the
length of time the child has lived in a stable, adequate environment. The
court is not required to make a mechanical evaluation of all the statutory
factors, but should decide each case on its own facts in light of those
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factors. Sawyer, supra. The trial court’s determination of custody issues is
afforded great weight and will not be disturbed on appeal absent an abuse of
discretion. Sawyer, supra. After a court has made a considered decree of
custody, the party seeking change has the burden of proving that the
continuation of the present custody is so deleterious to the child as to justify
a modification of custody, or 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. Bergeron, supra.
In the present case, the trial court applied the Bergeron standard as an
alternative basis for modifying the prior custody order. The court found that
with the father as domiciliary parent, the child’s interest in having a stable
environment was secondary to the needs of the stepmother’s career, as
indicated by the father’s move to Kansas one year after taking the child to
Alabama. The court determined that maintenance of a stable environment
for the child would be better achieved in the mother’s household. Noting
that most of the child’s extended family resided near the mother in
Louisiana, the court found that modification would give the child the best
chance to maintain meaningful contact with his grandparents and other
family members. The testimony showed that the child was close to his
great-grandmother, who was 81 years old and had helped care for the child
since his birth.
Based on the father’s previous withdrawal of the child from school in
the middle of the year, the court determined that the child’s education would
be less likely to be disrupted after modification, thereby giving the child a
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better opportunity to learn and develop friendships at school. There was
testimony that in Ruston, where the mother resided with her current
husband, the elementary school which the child likely would attend was
very good.
The trial court was aware that the mother did not have the same
financial capacity as the father to provide for the material needs of the child.
However, the evidence showed that the mother was able to adequately feed,
clothe and care for the child with assistance from her family. Although
Gray contends the court should have given more weight to the financial
inequality of the parties, the court exercised its discretion in weighing that
factor along with the others.
Based upon the evidence presented, the record supports the trial
court’s determination that the advantages to the child resulting from
modification, particularly the opportunity for a more stable home and school
environment and more frequent contact with grandparents and other family
members, substantially outweighed any detriment to the child caused by the
reduced financial security in the mother’s household. Consequently, we
cannot say the trial court abused its discretion in modifying the custody
order to designate the mother as the domiciliary parent of the minor child.
The assignment of error lacks merit. In reaching this conclusion based on
the trial court’s application of the Bergeron standard, we pretermit any
discussion of the issue of whether LSA-R.S. 9:355.11 constitutes a statutory
exception to the burden of proof required for modification of a considered
custody decree under Bergeron.
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CONCLUSION
For the foregoing reasons, the trial court’s judgments modifying
custody of the child and denying relocation of the child are affirmed. Costs
of this appeal are assessed to the appellant, Jason Gray.
AFFIRMED.
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CARAWAY, J., dissenting.
With the Bergeron test and its major concerns lost in this matter’s
“relocation” emphasis, the majority’s and trial court’s change of custody
rulings are in error.
The initial trial court ruling in 2007 which allowed the domiciliary
parent (“Gray”) to move to Toney, Alabama, was a unique “considered
decree” as that term has been raised to most important significance by the
ruling in Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). Not only did
the parents contest in 2007 the custody of their child, the facts of the
additional complicating factor of relocation were also “considered” and
adjudicated under the special relocation statutes for custody in La. R.S.
9:355.1, et seq. While the best interest of the child test is always
paramount, the “considered decree” of 2007 not only measured the relevant
considerations of Civil Code Article 134 but also the special quality of life,
parental employment, financial and feasibility factors associated with
relocation to another state set forth in La. R.S. 9:355.13. Once adjudicated
by one district judge in 2007, a different district judge in 2010 is prohibited
by Bergeron from allowing the same matter of relocation to be adjudicated
again.
First, in our highly mobile society, joint custody arrangements, even
those operating harmoniously under the best of conditions, can become
greatly impacted by the economic need of a parent to relocate to another
state. A framework for a custody decision caused by such relocation is
therefore specifically addressed in La. R.S. 9:355.1, et seq. From the
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standpoint of logistics alone, given the great distance between the parents’
residences, the decision is difficult. That difficult decision was made in
2007 with Gray being allowed to remain as domiciliary parent and move to
Alabama, a great distance from the location of the prior joint custody setting
in Louisiana.
Second, the statute’s definitional terms provide that “relocation”
means “[i]ntent to establish legal residence with the child at any location
outside of the state.” La. R.S. 9:355.1(4)(a). In the light of Bergeron, the
correct reading of that definition is that the initial establishment, founding
or beginning that out-of-state residency, is Louisiana’s concern for
adjudication when the nexus of joint custody operating in Louisiana is first
broken.
Third, once relocation out of state has occurred and the special factors
of La. R.S. 9:355.13 have been considered and adjudicated, the further
litigation of virtually those same factors amounts to a suit for a change of
custody and not a suit for relocation, thus implicating the serious concerns
of Bergeron. For example, if Gray’s move amounted to 30 miles to the
other side of Huntsville, Alabama, has “relocation” occurred, throwing open
the courthouse doors for further parental conflict over virtually the same
geographical and related concerns that were the subject of the prior judicial
conflict and considered decree? Once the first adjudication of relocation
allows primary custody with the out-of-state parent and a smaller amount of
time spent with the Louisiana parent during the school year, the critical best
interest of the child determination is that the child should be with that parent
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for the greater amount of time. The specific location in Alabama or Kansas
is not the linchpin of the ruling.
Not once in the majority’s opinion is it said that this child’s continued
custody with Gray will be so deleterious to the child so as to justify the
child’s return to Louisiana. Neither was Bergeron’s observation about
relocation noted:
There is evidence that more harm is done to children by
custody litigations, custody changes, and interparental conflict,
than by such factors as the custodial parent’s post divorce
amours, remarriage, and residential changes, which more often
precipitate custody battles under liberal custody modification
rules than conduct that is obviously harmful to the child, such
as abuse or serious neglect.
Id. at 1199. Instead, the factors of Article 134 and the relocation statute are
now re-examined as though the prior conclusion of a different district judge
was a mistake. Most importantly, nothing is said in the trial court’s ruling
that found fault with the bond between the primary custodian and his son
reflecting badly on Gray’s care. As for the change of schools, the ruling for
the child’s return to school in Ruston, as opposed to Bastrop where the child
had previously attended school, is no different from the change from
Alabama to Kansas.
Likewise, the majority’s opinion makes no comparison with other
cases applying Bergeron. The heightened Bergeron standard, requiring
proof that the continuation of the present custody is so deleterious to the
child as to justify a modification of the custody decree, has been applied to
disrupt considered custody arrangements sparingly and reserved for the
most egregious offenses. See AEB v. JBE, 99-2668 (La. 11/30/99), 752
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So.2d 756 (sexual molestation by stepbrother); Howard v. Oden, 44,191
(La. App. 2d Cir. 2/25/09), 5 So.3d 989, writ denied, 09-0965 (La. 6/26/09),
11 So.3d 496 (abuse by parent’s subsequent spouse); Ard v. Ard, 628 So.2d
1221 (La. App. 3d Cir. 1993) (punishment methods reflected an
insensitivity and lack of awareness of the deepening problems that the
children were experiencing and extremely severe “parent bashing”); Hull v.
Hull, 542 So.2d 205 (La. App. 3d Cir. 1989), writ denied, 546 So.2d 1216
(La. 1989) (mother repeatedly giving birth to children out of wedlock in
total disregard for the moral well-being of her adolescent children).
Consistent in their approach, courts have been hesitant even in
relocation settings to change custody once a considered decree has been
entered. Johnson v. Johnson, 93,1015 (La. App. 1st Cir. 3/11/94), 634
So.2d 31 (father’s removal of child to another state without notice to mother
was not so deleterious as to mandate change in custody); Weems v. Weems,
548 So.2d 108 (La. App. 2d Cir. 1989) (evidence that mother had remarried,
moved with her children to Texas, and had refused to transfer custody to
father during summer months as required by joint custody order was
insufficient to warrant amendment of order to make father primary
domiciliary parent). See also, Knowlton v. Knowlton, 40,931 (La. App. 2d
Cir. 4/12/03), 927 So.2d 640 (no deleterious circumstances found despite
daughter’s disciplinary problems and expressed desire to live with other
parent); Rome v. Bruce, 09-155 (La. App. 5th Cir. 10/13/09), 27 So.3d 885
(no cause of action when father’s petition, complaining of child failing
kindergarten and first grade and mother living with another man out of
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wedlock, did not allege facts so deleterious as to warrant change in
custody); Lee v. Lee, 34,025 (La. App. 2d Cir. 8/25/00), 766 So.2d 723, writ
denied, 00-2680 (La. 11/13/00), 774 So.2d 150 (despite the fact that mother
made significant improvements in her emotional and physical well-being by
maintaining steady employment and establishing a stable home, trial court
abused its discretion in changing custody when evidence showed children
had strong bonds with both parents and children were thriving under current
custody arrangement); Plunkett v. Plunkett, 576 So.2d 100 (La. App. 2d Cir.
1991) (no modification of considered decree based on divorced wife’s
evidence that husband committed adultery).
Having read the lengthy trial court ruling in 2007 when the decision
to allow the domiciliary parent to relocate to Alabama was made, I’m
convinced that Bergeron requires new judges in 2010 to protect the best
interest of the child and allow the established custody to remain stable.
Bergeron was lost in the trial court’s misguided focus on the relocation
statute, and I respectfully dissent.
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