Opinion
NO. 2012 CU 1907
03-22-2013
KEVIN MORALES v. CHERIE BERGERON
Rebecca N. Robichaux Raceland, LA Attorney for Plaintiff-Appellee, Kevin Morales Mark D. Plaisance Baker, LA Attorneys for Defendant-Appellant, Cherie Bergeron Beau Brooks Thibodaux, LA
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
17th Judicial District Court,
In and for the Parish of Lafourche,
State of Louisiana
Trial Court No. 112488
Honorable Ashly Bruce Simpson, Judge Presiding
Rebecca N. Robichaux
Raceland, LA
Attorney for Plaintiff-Appellee,
Kevin Morales
Mark D. Plaisance
Baker, LA
Attorneys for Defendant-Appellant,
Cherie Bergeron
Beau Brooks
Thibodaux, LA
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
The appellant, Cherie Varian (formerly Bergeron), appeals the judgment of the trial court denying her request to relocate with the minor child to Corpus Christi, Texas.
Cherie married Trevor Varian on June 13, 2012.
On September 3, 2010, Cherie Varian and Kevin Morales agreed to share custody of their minor child A.M. on a fourteen-day alternating basis. The shared-custody arrangement was for A.M. to spend fourteen days in Raceland, Louisiana, with Morales and fourteen days in Corpus Christi, Texas, with Varian. Neither parent was designated as the domiciliary parent. On April 11, 2011, Varian filed a "Rule to Show Cause," requesting that she be granted sole custody of A.M, or alternatively, that she be designated as domiciliary parent and that she be allowed to relocate with A.M. to Corpus Christi. After a two-day trial, on August 18, 2011, the trial court signed a judgment denying her request to relocate, but naming her domiciliary parent. Varian appealed that decision to this court and we affirmed the trial court on May 3, 2012. On February 2, 2012, Morales filed a "Rule for Injunction/Temporary Restraining Order, Modify Domiciliary Parent and Rule for Contempt of Court, Attorney Fees and Cost." Varian filed a "Rule to Modify Visitation, Relocate and For Contempt" on July 3, 2012. These matters came before the trial court on August 16, 2012, and August 17, 2012, after which judgment was signed on August 22, 2012, denying all motions by both parties. It is from this judgment that Varian appeals, asserting that the trial court abused its discretion in denying her request to relocate.
Varian's request for relocation was filed less than one year after her previous request was denied. Despite her prior request to relocate being denied, she continued to live in Corpus Christi. Therefore, since the rendition of the August 18, 2011 judgment, A.M. has continued to live fourteen days in Raceland with her father and fourteen days in Corpus Christi with her mother. A.M. is now school age, and it is no longer feasible for the parties to share custody equally while living in two different states. Varian raised very few new allegations in her request to relocate. She alleges in her motion that she is now married to Trevor Varian, who is in the U.S. Coast Guard and required to remain in Corpus Christi, and that she cannot find a job in her profession in Louisiana.
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. Gathen v. Gathen, 10-2312 (La. 5/10/11), 66 So.3d 1, 8. Upon review, the entire record should reflect that the trial court properly considered all of the factors mandated by La. R.S. 9:355.12 and reasonably concluded, based on a totality of the circumstances, that relocation would or would not be in the children's best interest. Id. at 8.
The trial court's written reasons for judgment discuss the relevant facts of this contentious custody litigation and the pertinent factors forming the basis of its judgment. A careful review of the record demonstrates that the trial court did not abuse its discretion in finding that the proposed relocation was made in good faith, but was not in the best interest of the minor child. The statute does not mandate that any one factor be given more weight than another in the trial court's analysis. Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094, 1097. Conversely, it does not prohibit the trial court from determining that one or more factors are entitled to more weight than others in comparing them and ultimately determining the issue. Although this court might disagree with the conclusions and the relative weight accorded some factors by the trial court, we simply cannot conclude that its ultimate decision constitutes a clear abuse of discretion.
The record of this matter amply demonstrates that this is a case of two loving parents who want the best for their child. However, they cannot communicate and do not agree on the best way to achieve that goal. The trial court had the benefit of direct observation of the parties and the difficult task of weighing credibility and the weight of all the evidence over the course of two, two-day trials and many years. Given that evidence and its thorough reasons for judgment, we cannot presume to second-guess the trial court's considered judgment as to the best interest of the child.
The judgment of the trial court is affirmed. This memorandum opinion is issued pursuant to Rule 2-16.1(B) of the Uniform Rules of the Louisiana Courts of Appeal. The costs of this appeal are assessed to the appellant, Cherie Varian.
AFFIRMED.
2012 CU 1907
KEVIN MORALES
v.
CHERIE BERGERON
McCLENDON, J., dissents and assigns reasons.
I disagree with the majority that it is in the minor child's best interest to deny the domiciliary parent's request to relocate.
Since September of 2010, the minor child has been living on a 14-day alternating basis, spending 14 days in Raceland, Louisiana with Mr. Morales and 14 days in Corpus Christi, Texas with Ms. Varian. Importantly, for more than four years, Mr. Varian was a stable and ongoing part of the minor child's life, prior to his marriage to the child's mother. Also, it is undisputed that Ms. Varian was terminated from her employment in Louisiana as a teacher due to a reduction in work force and that she was able to find a teaching position in Corpus Christi. Her new employment pays her substantially more than her teaching position in Louisiana. Significantly, since the last relocation hearing, Ms. Varian has married her fiance, who is a United States Coast Guard pilot and stationed in Corpus Christi. Further, no one disputes the trial court's determination that the proposed relocation by Ms. Varian was made in good faith.
Based on the factors set forth in LSA-R.S. 9:355.12 and the specific circumstances of this case, I believe the trial court abused its discretion in failing to find that relocation was in the best interest of the minor child. Accordingly, I must respectfully dissent.