Opinion
NO. 23-CA-311
12-20-2023
Dana A. DUERSON v. Wesley A. DUERSON
COUNSEL FOR PLAINTIFF/APPELLEE, DANA A. DUERSON, Melanie C. Lockett, New Orleans COUNSEL FOR DEFENDANT/APPELLANT, WESLEY A. DUERSON, Jennifer C. Carter, Dixon C. Brown
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 829-096, DIVISION "F", HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, DANA A. DUERSON, Melanie C. Lockett, New Orleans
COUNSEL FOR DEFENDANT/APPELLANT, WESLEY A. DUERSON, Jennifer C. Carter, Dixon C. Brown
Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Scott U. Schlegel
WINDHORST, J.
1Appellant, Wesley A. Duerson, seeks review of the trial court’s January 26, 2023 judgment overruling his objection to and the granting of the motion to obtain court approval to relocate minor children filed by Dana A. Duerson. For the following reasons, we affirm the trial court’s judgment granting Mrs. Duerson’s motion for relocation.
FACTS and PROCEDURAL HISTORY
Dr. and Mrs. Duerson married in April 21, 2018 in Coral Gables, Florida, and thereafter lived in Manhattan, New York, where Dr. Duerson attended New York University Medical School. While living in New York, the couple had their first child, a daughter, in March 2019. Dr. Duerson graduated from medical school in May 2019. In June 2019, the family moved to Connecticut for Dr. Duerson to attend a residency program at Yale University. In June 2020, Dr. Duerson withdrew from the Yale medical program on a medical leave of absence because he required treatment for his obsessive compulsive disorder ("OCD"). This medical leave continued until July 2021. During this time, the family remained in Connecticut until November 2020, and then moved to Dothan, Alabama to live with Dr. Duerson’s parents until February 2021. In February 2021, the family moved to Tennessee for a brief period, and then in May 2021, they moved to Metairie, Louisiana so that Dr. Duerson could continue his residency at Ochsner Medical Center. The couple’s second child, a son, was born in October 2021. Dr. Duerson is still in residency at Ochsner.
On May 22, 2022, Dr. Duerson moved out of the family home. On June 9, 2022, Mrs. Duerson, appellee, filed a petition for divorce. On July 7, 2022, Mrs. Duerson filed a motion to obtain court approval to relocate the minor children to Boynton Beach, Florida. Dr. Duerson, appellant, objected to the relocation. At the initial hearing officer conference on September 2, 2022, the hearing officer 2appointed Dr. Alan James Klein to conduct an evaluation regarding custody, including designation of a domiciliary parent, and relocation.
In an October 18, 2022 report, Dr. Klein recommended that Mrs. Duerson be designated as the domiciliary parent because she handles the day-to-day care and management of the child, including childcare and schooling, with little support from Dr. Duerson. Based on his evaluation, he found that Dr. Duerson had not had the time or opportunity to bond with the children. Dr. Klein did not make a definitive recommendation regarding relocation in his report.
Subsequently, after a follow-up hearing officer conference on October 25, 2022, the hearing officer recommended that Mrs. Duerson be granted permission to immediately relocate with the minor children. In stipulations and recommendations dated October 25, 2022, the hearing officer stated that he found Dr. Duerson did not participate in the children’s lives prior to this litigation, spent quantities of money on himself and his indulgences, and was not emotionally available to support Mrs. Duerson or the children. Dr. Duerson objected, seeking a stay of the immediate relocation until the trial on custody and relocation. Although the trial court denied Dr. Duerson’s request for a stay of the immediate relocation, this court, on review of Dr. Duerson’s application for supervisory writ, granted the stay until the relocation trial could be held.
On November 11, 2022, Dr. Duerson requested an independent medical examination to have an expert observe him and the children regarding bonding, and to opine on the relocation. Pursuant to the court’s order, Dr. Klein conducted a full custody evaluation and an evaluation on relocation, but elected not to observe Dr. Duerson with the children. The trial court denied Dr. Duerson’ request for an independent medical examination, and on review, this court denied his application for supervisory review relative to this ruling. At the relocation trial, the trial court 3permitted Dr. Duerson’s expert, Dr. Kristen Luscher, Ph.D., to testify, but she could not opine on the ultimate issue of relocation.
The relocation trial was held on December 7 and December 19, 2022. Dr. Klein, who was accepted as an expert in clinical psychology and custody evaluations, testified regarding his evaluation and opinion on relocation. Both parties testified, as well as Mrs. Duerson’s parents and Dr. Duerson’s mother.
Mrs. Duerson testified that when she and Dr. Duerson were married in 2018, they were living in New York because Dr. Duerson was attending NYU. In March of 2019, they had a daughter. In the summer of 2019, they moved to Connecticut so that Dr. Duerson could attend a residency program at Yale University. Dr. Duerson withdrew from his residency at Yale before completion because he had OCD issues with generally being at work. She testified that Dr. Duerson had trouble functioning when the OCD was severe.
According to Mrs. Duerson, from June 2020 to June 2021, Dr. Duerson did not work or attend school due to his OCD. During this time, Mrs. Duerson supported the family financially and took care of their daughter. Mrs. Duerson testified that Dr. Duerson occasionally played with their daughter but did not feed, dress, bath or put her to bed. Mrs. Duerson made all the decisions regarding their daughter’s childcare and medical care. Mrs. Duerson asserted that Dr. Duerson spent most of his time in bed on his computer. A cryptocurrency trading report indicated that in February and early March, 2021, he was trading cryptocurrency almost on a daily basis, of which Mrs. Duerson had no knowledge.
In November 2020, the family moved in with Dr. Duerson’s parents in Dothan, Alabama because Dr. Duerson thought it would help his OCD. A few months later, in February 2021, the family moved to Tennessee for a brief period because Dr. Duerson thought he would be offered a position at Vanderbilt University. He did not receive this offer, but instead received an offer for a residency 4program at Ochsner in Metairie, Louisiana. As a result, in May 2021, they moved to Metairie, Louisiana and purchased a house. Mrs. Duerson’s father, Neil Tepper, loaned them a portion of the money to purchase the house. Mr. Tepper has a 50% ownership interest in the house, and she and Dr. Duerson have 50% ownership interest. Mrs. Duerson testified that she does not have any family, friends, or close ties in Metairie.
Mrs. Duerson stated that Dr. Duerson’s grandmother lives in Metairie, and that he has an aunt who lives in Mandeville, Louisiana. Prior to this litigation, she attended weekly dinners with them in Metairie, which Dr. Duerson would rarely attend. Since the litigation began, she has not spent any time with Dr. Duerson’s grandmother or aunt because Dr. Duerson asked them not to communicate with her.
Mrs. Duerson presented an exhibit that she prepared to identify the amount of time Dr. Duerson spent with the children between April 27, 2022 and August 18, 2022. This exhibit showed that Dr. Duerson spent approximately 3.2 hours per week with the Duersons’ daughter and less than that with the son over these sixteen weeks.
On cross-examination, the accuracy of this exhibit was challenged.
Mrs. Duerson testified that she thinks it is important for the children to have a relationship with their father. She stated that if they relocated, she would make arrangements for the children to see their father. Mrs. Duerson acknowledged that their daughter enjoys outings with Dr. Duerson because he takes her to do fun things and will take her to Target to buy a toy. Mrs. Duerson described their son as an easy-going child who will go to anyone.
Mrs. Duerson discussed the benefits of her and the children moving to Florida. First, they would have a more permanent home. Second, they would be surrounded by family, have emotional and physical support from her parents, and it would 5greatly improve her mental health. Third, it would be more cost-effective, allow her to expand her business, and allow her to provide a better life for the children. Mrs. Duerson testified that the Boynton Beach area has great schools. She indicated that they would live temporarily with her parents, and search for a house taking into consideration the best school for the children.
Wendy Tepper, Mrs. Duerson’s mother, testified that she has been a stay-athome mom since her children were born. She testified that she and her husband have visited Mrs. Duerson and the children approximately ten times between May 2021 and December 2022; that she often watches the children without Mrs. Duerson present; and that she speaks with Mrs. Duerson on a daily basis. If Mrs. Duerson and the children relocate to Florida, she would help her daughter take care of them. She also testified that her sister and her mother live in Boynton Beach, Florida, and that her sister could help with the children.
Mrs. Tepper testified that she has discussed schooling with Mrs. Duerson if she and the children move to Florida. She explained that Florida has a voluntary prekindergarten education program, which offers free pre-kindergarten for children four years old and up and gives families the option of either going to a private or a public school. There are five options for preschools that are rated in the top one to five percent within close proximity of Boynton Beach, Florida. Mrs. Tepper stated that the director at Torah Academy, where the Duerson’s daughter’s is attending preschool, knows people in the Boynton Beach area and has offered to help find a school similar to Torah Academy.
Mrs. Tepper also testified that she believed it was important for the children to maintain a relationship with their father, and that she would help facilitate that. She would be willing to assist with transporting the children to see their father either by bringing them to his parents’ house in Dothan, Alabama or to Metairie, Louisiana.
6Mrs. Tepper discussed Dr. Duerson’s presence and involvement with the children. While Dr. Duerson was sometimes present, he did not assist with taking care of the children. When Mrs. Duerson was eight months pregnant, she still bathed the younger daughter, and did all the housework. Dr. Duerson even refused to take the garbage outside or to the street when Mrs. Duerson was eight months pregnant despite that the driveway is narrow and cracked. Dr. Duerson would come home from work, eat and sit on his computer the rest of the night. According to Mrs. Tepper, he ignored everyone while he was home. She stated that when he does have visitation, he often picks them up late and/or brings them home early with no warning. She testified that not long before the trial, Dr. Duerson had two weeks off for Thanksgiving and spent very little time with the children even though he did not have to work.
Mrs. Tepper also discussed issues Mrs. Duerson told her about during the marriage. Dr. Duerson would not come home from work but would go to the gym, often, for up to three hours. Despite that Mrs. Duerson had been home all day with the children and he had not seen them, he would not come home to help her.
According to Mrs. Duerson and her witnesses, Dr. Duerson provided limited financial support for the family, relying on Mrs. Duerson and/or her father to pay insurance, taxes, childcare costs and food. Dr. Duerson provided money for only half the rent or half the mortgage. Mrs. Duerson contends that he was spending his money on online gambling, hotels, drinking, restaurants, and a $3,000.00 diamond studded crucifix for himself. Credit card statements were admitted to support many of these assertions. Mr. Tepper, Mrs. Duerson’s father, testified that he and his wife, Wendy, have visited Mrs. Duerson (before and after her separation from Dr. Duerson) and the children on numerous occasions. He testified that he and his wife live in a 3000 to 3100 square foot house on Glacier Bay Drive, Boynton Beach, Florida, and that Mrs. 7Puerson and the children would be able to live with them until they find their own place. He testified that they have two extra bedrooms for them and a large unused dining room that has been converted into a playroom. Mr. Tepper also testified that Mrs. Duerson could operate her business out of their home because the house has a large laundry room and a large office that she can use.
Mr. Tepper explained that he loaned the parties $50,000.00 to purchase their home in Metairie, that his name is on the title to the property, and that he would be willing to provide Mrs. Duerson with financial assistance to purchase a home in Boynton Beach, Florida.
Mr. Tepper testified that he and his wife would be available regularly to help Mrs. Duerson with the children, and that they have other family nearby. Mr. Tepper testified that his wife’s mother, Natalie Herzig, and sister, Leslie Devine, both live in the Boynton Beach area. Ms. Devine is retired and would also be available to assist with Mrs. Duerson’s children, In addition, they have family friends, whom they have known since before he and his wife’s children were born, and they live on the same street.
Mr. Tepper, who owned and operated an accounting firm for several years, further testified that he reviewed Dr. Duerson’s bank and credit card statements that were produced during discovery in this case. He prepared a chart regarding Dr. Duerson’s spending for the period December 2021 through August 9, 2022 based on his Bank of America activity. Upon review, he found that Dr. Duerson spent a great deal on gambling from February 2022 through June 2022. Dr. Duerson’s other expenditures included liquor, hotels and meals. Mr. Tepper testified that Mrs. Duerson was paying all the household bills with her money, and that Dr. Duerson refused to provide any money for her or his children.
Mr. Tepper testified that if Mrs. Duerson and the children moved to Boynton Beach, Florida, their quality of life would be better. He discussed the fact that Mrs. 8Duerson manages the household and her business, and takes care of the children alone because she has no support in Metairie. As a result, he testified that "she works all hours of morning and night. She does not stop for a second."
With regard to the children’s relationship with their father, he testified that the children had very little contact and minimal interaction with their father when Dr. and Mrs. Duerson were together. Since the separation, he has become more insistent about seeing the children on a certain date for a certain time period, but he is often an hour to four hours late. In addition, even though he is allowed to see the children for eight hours, he does not spend the entire eight hours with them. Mr. Tepper testified that Dr. Duerson has never picked them up on time or brought them home at the designated time.
Dr. Duerson testified that he and Mrs. Duerson attempted counseling many times prior to separating. He testified that he moved out because he could not take the "physical abuse, verbal abuse, and the manipulation financially." Dr. Duerson stated that he "would cry every single night on the phone" with his parents. He testified that when they lived in Tennessee, she clawed him because he took her phone away, and that she hit him again in Metairie, but not as bad. Dr. Duerson testified that Mrs. Duerson is a "great mom" does a great job taking care of the children and balancing a growing business, and that every decision she has made has been for the benefit of the children.
On May 3, 2022, he moved out and stayed in hotel rooms, with his grandmother, and in an Air B&B until he rented his current apartment in Mid-City, New Orleans. Dr. Duerson testified that he has a comfortable place for the children at his apartment with lots of toys for them.
Dr. Duerson introduced several pictures into evidence of him and his daughter to evidence time spend with his daughter. He presented pictures of the family when they lived in Dothan, Alabama with his parents when he was struggling with his 9OCD. He testified that when they were there, he spent time with his children, fed them, changed diapers, played with them, and rocked his son to sleep.
He testified that the family took a Disney Cruise with his parents and that his parents paid for the trip. Mrs. Duerson and their daughter got sick on the cruise, and he stated, that they both helped take care of their daughter. He reiterated that Mrs. Duerson is a "great mom."
Dr. Duerson testified that he takes the children to City Park to the playground, Storyland, and Café Du Monde. He stated that his daughter’s school provides a daily report regarding what the children learned at school, and that he tries to enforce the things she is learning at school. He testified that he has met her teacher when he has picked her up from school.
Dr. Duerson testified that his schedule is "totally variable," but that two out every six weeks, he has a clinic block, which starts at 9:00 A.M. each morning. On the mornings that he starts at 9:00 A.M., he brings his daughter to school. He presented a picture of himself taking her to school. If he finishes up early, he will pick her up from school. He testified that he makes his daughter "the priority of my time, anytime I can."
Dr. Duerson generally has one day out of seven off, and that he tries to spend time on these days with the children. Dr. Duerson testified that his current schedule continues through June 2023, and that he does not know his schedule for June 2023 through June 2024. Dr. Duerson testified that the hospital can call him into work within an hour for a twelve-hour shift. During his third year, June 2023-2024, Dr. Duerson’s responsibilities will increase for each rotation. After he graduates in June 2024, Dr. Duerson will continue his education with a fellowship in hematology and oncology, the location of which will depend on where he matches.
As to whether his fellowship would be in Florida, he testified that he can indicate a preference on his application, but there’s no guarantee. He testified that 10he matched with his number one choice the first time and his second choice, the second time. Thus, he thinks there is a good chance he could match with a fellowship in Florida. He testified that he loves Florida, and that he thinks his children would do great there, as long as he is there too.
Dr. Duerson testified that he would not have enough time off to travel to Florida to see the children while in his residency. He testified that he is concerned about the children having to travel to visit him because his daughter gets car sick. Ultimately, Dr. Duerson testified that he would like Mrs. Duerson to delay relocating to Florida until he can move there as well.
Dr. Duerson testified that his grandmother lives in Metairie, and that his grandfather lives on the West Bank. He testified that he, Mrs. Duerson, and their daughter would have dinner on Tuesday evenings at his grandmother’s house. Based on Dr. Duerson’s cross-examination, it is unclear how often he actually attended these dinners. Dr. Duerson acknowledged that he has never spent the night alone with either of his children since their birth because he has "never really had the opportunity to do that."
Dr. Duerson acknowledged that he posted a picture with his daughter on his profiles on two dating apps, asserting that he wanted a potential partner to know that his children are a priority. He created a dating profile in May 2022, the same month, he moved out of the family home. On his dating profile, Dr. Duerson advertised himself as a "DILF," which he explained means "It’s a dad I’d like to f---," claiming that several females have referred to him in that way. On his profile, he indicates he likes fancy dates and Old Fashions. During cross-examination, he acknowledged several expenditures at Hooters, Acme, Heidelbergs, Rambler, Cure, Vals, Birdy’s, Good Friends, El Pavo Real, Maple Street Café, Lafitte’s, Wrong Iron, Pat O’Brien’s, Tropical Isle in the months of May, June and July 2022. He also acknowledged using Lyft frequently between January 2022 and July 2022, and 11asserted that he does not like to drive in areas he does not know very well and where parking is difficult. He further acknowledged hotel expenditures and pictures of himself with different women on dates.
Dr. Duerson’s mother, Sharon Duerson, testified that she traveled to New York and Connecticut to visit the Duersons and help with the children. She stated that, when their daughter was a baby, Dr. Duerson had long days and she was often ready for bed by the time he got home from work.
Sharon Duerson testified that when the Duersons lived with her and her husband in Dothan, Alabama during COVID, they fell into a routine. The Duersons and Sharon’s days revolved around the daughter’s schedule, and they engaged in family activities. They all tried to provide for the daughter’s needs. The daughter was very attached to Mrs. Duerson because she was her primary caregiver.
At some point, the Duersons began arguing, there was yelling and slamming doors, and the conflict became uncomfortable. Sharon Duerson discussed this with them, and the Duersons moved out soon thereafter.
Sharon Duerson testified that she has traveled to Metairie to help the Duersons with the children, and that she has historically been the grandmother to provide the most assistance. She indicated that despite COVID, her and her husband continued to travel to visit the Duersons, but that Mrs. Duerson’s parents were hesitant to travel during COVID. She testified that when she visited in Metairie, Dr. Duerson would rock the baby and try to soothe and comfort him. She stated that she finds Dr. Duerson attentive to the children’s needs, and that they interact verbally, physically, and emotionally. Sharon Duerson testified that she believes Dr. Duerson wants happiness for his children and is concerned about their welfare. She testified that they are both good parents, but that they were likely parented very differently.
Dr. Klein testified at the trial regarding his evaluation, and indicated that he met with each of the parties separately on four different occasions. He used the 12Minnesota Multiphasic Personality Inventory II ("MMPI") to evaluate the parents’ mental, emotional, and personality issues. Dr. Klein learned during his evaluation that Dr. Duerson had been diagnosed with OCD and attention deficit disorder, and that he took Lexapro and Adderall to relieve the symptoms associated with these disorders. Dr. Klein also learned that Mrs. Duerson was taking a low dose of Lexapro for mild symptoms of anxiety and depression. He found that Mrs. Duerson exhibited personality characteristics of being shy, inhibited, quiet, submissive, and lacking self-confidence, which he indicated may have resulted in Dr. Duerson taking advantage of her by leaving all the childcare, household responsibilities, and decision-making responsibilities to her.
Dr. Klein found that equal time between the two parents was unworkable because of Dr. Duerson’s demanding and inconsistent schedule. Dr. Klein found that Mrs. Duerson had been the children’s primary caretaker since birth, that Dr. Duerson had little involvement in the children’s care, and rarely took both children at the same time. He also found that Dr. Duerson had little consideration for Mrs. Duerson’s needs because she has to conform to his schedule, he does not offer a supportive helpful parenting role as a father figure, and is insensitive to her anxiety and stress.
It was Dr. Klein’s understanding from Dr. Duerson that while it is unknown where he will match after he finishes his residency at Ochsner, he intends to leave Metairie. As to Mrs. Duerson’s career, it was his understanding that she did not have much time because she was constantly caring for the children without any family support. If she relocated to Boynton Beach, Florida, she has her parents, and other family members who live there. He found that Mrs. Duerson had no problem with Dr. Duerson spending time with the children or visiting them in Florida, and that she would insure he had regular visits and FaceTime with them.
13Based on the MMPI results, Dr. Klein indicated that Dr. Duerson attempted to place himself in an overly positive light by minimizing his faults and denying his psychological problems, was arrogant and intolerant, had narcissistic personality characteristics of self-centeredness and resentfulness to the extent that if his demands for attention are not met he becomes resentful and hostile. The MMPI confirmed the pattern of behavior that Mrs. Duerson said Dr. Duerson exhibited during the marriage.
During the course of his testimony, Dr. Klein indicated that he believed relocation would be in the children’s best interests. On cross-examination, however, he expressed that relocation was a difficult decision, and that he wanted to avoid making a firm recommendation one way or the other. Dr. Klein stated that if Mrs. Duerson and the children relocate, the court should establish guidelines for Dr. Duerson to have visitation so that he can develop a bond with the children. Dr. Klein reasoned that it would be very difficult for Mrs. Duerson to remain here for another year and a half until Dr. Duerson finishes his residency and then move somewhere else with no certainty regarding Dr. Duerson’s subsequent residence. He further reasoned that a mother’s emotional well-being is important and that in this instance Mrs. Duerson needs emotional support because she lost her marriage and has no support helping care for the children. Dr. Klein opined that if the relocation improves Mrs. Duerson’s quality of life for the mother, it would improve her ability to care for her children, and as a result, improve the children’s quality of life.
The trial court took the matter under advisement and issued its ruling in open court on January 11, 2023. The Judgment was signed on January 26, 2023. The trial court ruled it was not in the best interest for the children to relocate at that time, stating that the older child should remain in her preschool where she was doing well, and the children should continue to have time with their father for further bonding and frequent physical contact. However, after stating reasons why an immediate 14relocation was not in the children’s best interest, the trial court stated that relocation could take place after May 26, 2023, with no reasons given. The trial court also declined to provide written reasons, stating that counsel for the parties could obtain a copy of the transcript from the oral ruling of January 11, 2023, as the written reasons.
The trial court allowed overnight physical custody to Dr. Duerson but did not set a physical custody schedule or joint implementation plan and required the times requested by Dr. Duerson to be approved and agreed to by Mrs. Duerson. The trial court also told the parties that once the relocation occurred, they were to work out a long-distance schedule and could return to court for further review of a physical custody schedule if no agreements could be reached. As a result of this ruling, Dr. Duerson is at the mercy of Mrs. Duerson to allow him time with the children. Dr. Duerson appeals the ruling granting the relocation and the physical custody ruling giving Dana Duerson sole control over Dr. Duerson’s physical time with the children.
LAW and ANALYSIS
Dr. Duerson appeals the trial court’s judgment granting Mrs. Duerson’s request for relocation. Dr. Duerson presents the following issues for our review: (1) whether the trial court’s judgment granting relocation constitutes legal error in that it does not reference any of the relocation factors to show that relocation is in the children’s best interests; (2) whether the trial court abused its discretion in finding that Mrs. Duerson satisfied her burden of showing that she was acting in good faith in relocating; (3) whether the trial court abused its discretion in finding relocation in the children’s best interests; (4) whether the trial court abused its discretion in ordering the parents to set up a custody schedule instead of the court establishing a schedule or joint implementation plan; (5) whether Dr. Duerson is entitled to an independent custody/relocation evaluation under La. C.C.P. art. 1464; and (6) whether Dr. Duerson is entitled to a suspensive appeal of a relocation judgment under La. C.C.P. art. 3943.
15 The Relocation Judgment
[1] Dr. Duerson argues that the trial court committed legal error because it did not consider the relocation factors set forth in La. R.S. 9:355.14. For this reason, Dr. Duerson urges this court to conduct a de novo review in this case. Mrs. Duerson responds that there was no error of law, and that the trial court made a factual determination as to the best interest of the children, and as a result, his ruling is subject to the manifest error/clearly wrong standard of review.
Before ruling on Mrs. Duerson’s relocation request, the trial court recited the law applicable to a parent’s request for relocation, including (1) the burden of proof; (2) the good faith requirement; (3) the best interest requirement; and (4) the consideration of the La. R.S. 9:355.14 factors. In ruling on the motion for relocation, the trial court stated as follows:
I am not going to at this time recite all twelve factors into the record, but the Court has reviewed all of the factors. It has reviewed all of the testimony, the evidence, [and] the exhibits that were presented to the Court of the trial of this matter.
Following the review of all of the evidence, taking into consideration, the Court is going to grant the relocation after May 26, 2023.
Thus, while the trial court did not expressly reference any specific factor, the court clearly indicated to the parties that it had taken all of the factors into consideration based on the testimony and evidence presented.
[2–4] La. R.S. 9:355.12 requires that the trial court consider the enumerated factors in reaching its decision regarding a proposed relocation. Cueva v. Gaddis, 10-981 (La. App. 5 Cir. 5/24/11), 66 So.3d 1134, 1140. Louisiana courts, however, have held that while La. R.S. 9:355.12 requires the trial court to consider all twelve factors therein, the court’s failure to expressly analyze each factor in its written or oral reasons will not constitute an error of law such that de novo review is appropriate. Gray v. Gray, 11-548 (La. 7/1/11), 65 So.3d 1247, 1255; Gathen v. Gathen, 10-2312 (La. 5/10/11), 66 So.3d 1, 9-10; Cueva, 66 So.3d at 1140. The trial court is not 16required to give preferential consideration to any certain factor. Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094. If the legislature had intended the trial court to expressly analyze each and every factor in either oral or written reasons, it could have provided so. Gathen, 66 So.3d at 9. While a trial court is not required to specifically list each of the enumerated factors, the record must support that it considered the factors in light of the particular evidence presented. Leger v. Leger, 03-419 (La. App. 3 Cir. 7/2/03), 854 So.2d 955.
The trial court expressly stated that it considered all of the factors and referred to pertinent legal tenets on relocation when it rendered its ruling. In addition, the trial court heard testimony from multiple witnesses, reviewed numerous exhibits, and took the motion under advisement for almost one month. Accordingly, based on our review, we find no legal error warranting de novo review of the trial court’s judgment. Thus, we will apply the following standard of review.
Standard of Review
[5, 6] A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. Cueva, 66 So.3d at 1140. Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989).
[7, 8] A two-tiered test must be applied in order for an appellate court to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong. Cueva, 66 So.3d at 1140. On appellate review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not 17 reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.
In reaching its final determination regarding relocation, the trial court made no findings of fact relative to any of the twelve relocation / best interest factors enumerated in La. R.S. 9:355:14. While we would prefer findings of fact specific to each of the factors, the trial court is not compelled to make them. Our review therefore focuses on whether the testimony and other evidence adduced at trial could reasonably have been found sufficient to support the trial court’s grant of relocation, or whether the evidence was so insufficient as to constitute a clear abuse of discretion.
The Good Faith Requirement
[9] La. R.S. 9:355.10 provides that the person requesting relocation has the bur- den of proving that the proposed relocation is made in good faith and is in the best interest of the child. Legitimate reasons for relocation include: to be close to significant family or other support networks; for significant health reasons; to protect the safety of the child or another member of the child’s household from a significant risk of harm; to pursue a significant employment or educational opportunity; or to be with one’s spouse (or equivalent) who is established, or is pursuing a significant employment or educational opportunity in another location. Wylie v. Wylie, 52,800 (La. App. 2 Cir. 5/22/19), 273 So.3d 1256, 1259.
[10] We find no abuse of discretion in the trial court’s determination that Mrs. Duerson’s request to relocate has been made in good faith. Mrs. Duerson established that she has no family in the New Orleans area, that she moved to New Orleans on a temporary basis in 2021 for Dr. Duerson’s residency, and that her parents and other family members live in the Boynton Beach, Florida area where she proposes relocating. She also established that her financial opportunities would improve in Florida, because she would have close family available to assist her with childcare 18while she works. Thus, Mrs. Duerson has met her burden of providing at least two legitimate reasons for proposing relocation.
Trial Evidence Relevant to the Relocation Factors
[11] The court must determine whether relocation would be in the best interest of the children considering the twelve factors enumerated in La. R.S. 9:355.14. Gathen, 66 So.3d at 10. The parent seeking relocation has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child. La. R.S. 9:355.13.
In considering the relocation / best interest factors in La. R.S. 355:14, and whether the trial court’s final conclusions are reasonably supported by evidence admitted at trial, we find from the record the following evidence relevant to each factor on which the trial judge could have relied in making his decision.
(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.
The record indicates that Mrs. Duerson has been the children’s primary caregiver, and that, since Dr. Duerson’s residency began, she has managed almost all of the responsibility for caring for the children given Dr. Duerson’s demanding schedule. Even when Dr. Duerson was not working, he did not spend a great deal of time with the children, according to the testimony of Mrs. Duerson. She also provided Exhibit DD-19, which was admitted into evidence, showing the time he spent with them over a period of approximately 16 weeks. Dr. Duerson disputes her testimony, the exhibit, and testified to the contrary. Neither set of grandparents live in the New Orleans area so the children’s relationship with their grandparents would not be harmed by relocating. Because Mrs. Duerson proposes relocating to Florida to be close to her parents, the children’s relationship with their maternal grandparents would benefit. Dr. Duerson’s parents live in Dothan, Alabama, necessitating travel by the paternal grandparents to visit the children regardless of 19whether the children remain in Metairie or relocate to Boynton Beach, Florida. Finally, while Dr. Duerson has some family members in the Metairie area, the evidence did not reflect that the children had a strong attachment to these family members.
(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.
Both children are very young as the daughter is four years-old and has been in preschool, and the son is two years-old and not attending any preschool yet. While the evidence indicates the daughter attends and enjoys a good preschool here, Mrs. Duerson’s mother testified that there are several excellent preschools in their area, and that she will be available on a regular basis to help Mrs. Duerson with the children. She also testified that Florida offers a voluntary pre-k program, pursuant to which children four years old and up may attend a religious or a public preschool tuition-free.
Considering the children’s young ages, the availability of excellent preschools in Boynton Beach, and family assistance, relocation would not hinder their physical, educational, or emotional development, but could have a positive impact.
(3) The feasibility of preserving a good relationship between the nonrelocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
According to his testimony, it is unlikely Dr. Duerson would have enough time off during his residency to travel to Boynton Beach, Florida. Mrs. Duerson and her parents, however, testified that they would meet Dr. Duerson at his parents’ house in Dothan, Alabama, which is a more manageable trip for him, or bring the children to Metairie to visit him. Most testimony indicated that Dr. Duerson’s present intense schedule limits time he can spend with the children even when they are nearby. See, 20 Blake v. Morris, 51,402 (La. App. 2 Cir. 6/30/17), 222 So.3d 1277, 1283 (court considered fact that parents could meet halfway between two residences for father to see the children upon relocation).
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
This factor is not relevant here, given the young ages of the children (2 and 4).
(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.
There is no evidence that Mrs. Duerson has thwarted the relationship between Dr. Duerson and the children. She has accommodated Dr. Duerson’s unscheduled pick up and drop off times. Even though he often cannot commit to certain days or times for visitation, she has continued to work with him so that he can spend time with the children. In addition, there is nothing to indicate that she has been difficult with him despite that he shows a lack of consideration for her time by not picking up and/or dropping the children off at the scheduled times. Furthermore, she testified that she would work with Dr. Duerson to ensure that he has time with the children upon relocation.
(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.
The record contains testimony that relocation will generally enhance the quality of life for both Mrs. Duerson and the children. Her and her mother’s testimony is to the effect that Mrs. Duerson currently bears a significant workload relative to the house, children, and trying to grow an online business, and her work will decrease. With the assistance of her parents, she will have the opportunity to develop her growing business, and thus become more financially secure. See, Blake, 222 So.3d at 1283 (if relocation has positive impact economically, that weighs in favor of granting relocation). This will allow her to provide a more stable and secure environment for the children, as well as offer them more opportunities 21for educational and physical development. Furthermore, her parents’ assistance with the children will have a positive impact on her mental and emotional well-being. Dr. Klein’s testimony indicates that a parent who has a well-balanced life makes for a better parent and happier children.
(7) The reasons of each parent for seeking or opposing the relocation.
Mrs. Duerson’s reasons for seeking relocation and Dr. Duerson’s reasons for opposing it all seem to be based on the good faith desire to provide the best life they can for their children and to maintain a healthy relationship with them.
(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.
According to testimony, Mrs. Duerson’s current economic circumstances will improve. She will incur less childcare expenses and have more help given that she will be living with and/or close to her parents and other family. This will allow her to develop her growing business more effectively. The more financially secure Mrs. Duerson is, the better she is able to provide for the children’s needs.
(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.
There was significant testimony that Mrs. Duerson has borne a disproportionate share of the family expenses, from which the trial court could reasonably conclude that this factor also weighs in favor of relocation.
(10) The feasibility of a relocation by the objecting parent.
Before discussing this factor, we consider the apparent discord between this factor, La. R.S. 355:14 A(10), and La. R.S. 355:14 B, which prohibits the court’s consideration of "whether the person opposing relocation may also relocate if relocation is allowed." Neither provision is a more recent expression of legislative will in that they were both amended and reenacted simultaneously in Act 627 of the 2012 regular session. In such instances, courts should seek to harmonize statutory 22provisions in apparent disagreement, interpreting such statutes in pari materia. When the provisions at issue here are read in reference to each other, we conclude that La. R.S. 355:14 ? prohibits a court from considering whether a parent might relocate if forced to do so in order to maintain a close relationship with the child or children, as opposed to considering simply whether the opposing parent’s voluntary relocation is feasible under this factor La. R.S. 355:14 A(10).
According to Dr. Duerson’s testimony, he would like to relocate to Florida upon completion of his residency. While he is not guaranteed his first choice for a fellowship after his residency, he testified that he has a positive outlook on obtaining a fellowship in Florida. Thus, there is a good possibility of Dr. Duerson eventually relocating to Florida.
(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.
The record does not contain evidence of substance abuse, harassment or violence such that it weighs in favor or against relocation.
(12) Any other factors affecting the best interest of the child.
It is clear that Mrs. Duerson has not only been the primary caregiver, but has accepted the great majority, if not all, of the responsibility for the mental, physical, and emotional well-being of the children. While assuming the responsibility for all aspects of the children’s lives, she has also managed a growing business and a household with little help from Dr. Duerson. There was testimony that even when she was far along in her pregnancy with their second child, Mrs. Duerson continued to manage the responsibility for the children and the house. Further, the evidence reflects that she endured all this responsibility while Dr. Duerson engaged in social activities.
23According to testimony, Dr. Duerson regularly picks up the children later and/or returns them home earlier than scheduled. Dr. Duerson’s inability to adhere to a schedule interferes with Mrs. Duerson’s ability to schedule necessary, work-related, and/or personal appointments or events. Considering this, it is clear that the presence of Mrs. Duerson’s parents in her and the children’s day-to-day activities and schedule will enhance the quality of their lives.
Moreover, the evidence shows that the relocation will provide the children with stability that has been lacking in the Duersons’ lives. The record shows that the Duersons have lived in four cities since 2018. When they were first married in 2018, they lived in New York, but moved to Connecticut in 2019 for Dr. Duerson to attend medical school at Yale University. In 2020, they had to leave Connecticut due to Dr. Duerson’s struggles with OCD. They moved to Dothan, Alabama with Dr. Duerson’s parents until February 2021. At this time, Dr. Duerson insisted on moving to Tennessee near Vanderbilt University for a residency for which he had not received an offer. Ultimately, because he did not receive an offer from Vanderbilt, they moved to Metairie, Louisiana few months later. Additionally, based on the record, Dr. Duerson’s ties to this area are not significant. Given the past instability and Dr. Duerson’s indication that he would be willing to move to Florida for a fellowship, the evidence indicates that relocation will provide the children with more stability than in the past.
Finally, on appellate review, we acknowledge that if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Cueva, 66 So.3d at 1140. After a thorough review of the record in its entirety, affording due deference to the trial court’s credibility determinations, and to the discretion afforded the trial court, we find sufficient evidence in the record on which the trial court could base its decision. Accordingly, 24we conclude that the trial court did not abuse his discretion in determining that relocation was in the best interest of the children. We therefore find no error in the trial court’s judgment granting relocation.
Our decision in this case is based on the individual and unique circumstances present here. The determination to grant a relocation request will always depend on the facts and circumstances unique to each case. The trial court must thoroughly evaluate those facts and circumstances to determine the best interests of the child applying the guidelines set forth in La. R.S. 9:355.14.
Dr Duerson’s Remaining Assignments of Error
[12] Dr. Duerson asserts that the trial court abused its discretion in ordering the parents to set up a custody schedule instead of the court establishing a schedule and in ordering Dr. Duerson to pay for a nanny instead of their son attending preschool or daycare. With regard to a visitation schedule, the trial court stated that "hopefully the parties can make the necessary arrangements for that to happen. And if I need to be involved, I’ll continue to retain jurisdiction for the appropriate time for that to occur." In light of Dr. Duerson’s demanding schedule and the uncertainties with the children’s schedule upon relocation, we cannot say the trial court abused its discretion in not setting up a visitation schedule. Dr. Duerson has recourse in the trial court should he have visitation conflicts with Mrs. Duerson.
Attached to the appellee’s brief is a certified copy of a May 15, 2023 Consent Judgment providing a visitation schedule for Dr. Duerson upon Mrs. Duerson’s relocation. While it was not in the appeal record or part of our review, it apparently shows that this assignment of error is moot.
[13] We also find no abuse of discretion in the trial court’s order that Mrs. Duerson retain a child care provider and/or nanny for up to 35 hours per week to facilitate her employment opportunities and other necessary opportunities at Dr. Duerson’s sole expense. Child care is necessary to allow Mrs. Duerson to run her business and handle necessary issues outside of the home. The Duerson’s son is still very young 25and has not yet been enrolled in preschool. The trial court properly left the decision regarding the appropriate time to enroll him in preschool to the domiciliary parent.
[14] Dr. Duerson also asserts that the trial court committed legal error in not applying La. C.C.P. art. 1464 to a relocation case and permitting him to retain an independent custody/relocation evaluation. We agree with the December 2, 2022 disposition rendered by this court regarding this issue. Therein, this court found that Dr. Duerson had failed to establish that a mental condition of Ms. Duerson or the children is in controversy and requires further examination under La. C.C.P. art. 1464. This court further concluded that Dr. Duerson was simply seeking a second custody evaluation because he finds the first evaluation to be inadequate. As this continues to be the situation, we find the trial court did not abuse its discretion in denying Dr. Duerson an independent custody evaluation.
La. C.C.P. art. 1464 A provides as follows: When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an additional medical opinion regarding an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Finally, Dr. Duerson claims that he was entitled to a suspensive appeal of a relocation judgment. La. C.C.P. art. 3943 states:
An appeal from a judgment awarding, modifying, or denying custody, visitation, or support of a person can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend execution of the judgment insofar as the judgment relates to custody, visitation, or support.
Considering the laws governing the relocation of child’s residence fall under Part 3 of the Revised Statutes under Title 9 entitled, "Child Custody," and the pertinent issues involved in that determination, we find that a judgment regarding relocation is governed by La. C.C.P. art. 3943 and that an appeal cannot suspend the execution of a relocation judgment.
26 DECREE
For the reasons stated herein, we affirm the trial court’s January 26, 2023 judgment granting Mrs. Duerson’s motion for relocation.
AFFIRMED