Opinion
NUMBER 2015 CU 0396
08-05-2015
JAMES R. ELDRIDGE, JR. v. ELIZABETH M. MORGAN AND THE HONORABLE WALTER REED, DISTRICT ATTORNEY OF ST. TAMMANY PARISH, LOUISIANA
Carol T. Richards M. Damian Marinello Covington, LA Counsel for the Plaintiff/Appellee James R. Eldridge, Jr. Angela Cox Williams Jesmin Basanti Finley Slidell, LA Counsel for Defendant/Appellant Elizabeth Morgan Treadaway
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Suit Number 2001-12406
Honorable Dawn Amacker, Presiding Carol T. Richards
M. Damian Marinello
Covington, LA
Counsel for the Plaintiff/Appellee
James R. Eldridge, Jr.
Angela Cox Williams
Jesmin Basanti Finley
Slidell, LA
Counsel for Defendant/Appellant
Elizabeth Morgan Treadaway
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. GUIDRY, J.
In this child custody case, Elizabeth Morgan Treadaway appeals from a judgment of the district court denying her request for relocation. For the reasons that follow, we affirm.
After the initial pleading was filed in this case, Elizabeth Morgan married Thomas Treadaway. For purposes of this appeal, she will be referred to as Elizabeth Treadaway.
FACTS AND PROCEDURAL HISTORY
James Eldridge, Jr. and Elizabeth Treadaway were never married, but they are parents to a daughter, Elizabeth Rose Eldridge. Shortly after Rose's birth, Mr. Eldridge filed a rule for joint custody and to establish child support in the Twenty-Second Judicial District Court (JDC) in St. Tammany Parish Louisiana. By consent judgment dated June 28, 2001, Mr. Eldridge and Mrs. Treadaway agreed to joint custody, with Mrs. Treadaway being designated as the domiciliary parent, and daytime periods of physical custody to Mr. Eldridge several days a week, gradually to increase.
The parties and the trial court consistently refer to the child as "Rose."
Thereafter, on May 13, 2002, Mr. Eldridge filed a rule to modify the joint custody plan of implementation and rule for contempt against Mrs. Treadaway, alleging that Mrs. Treadaway had violated the custody agreement by prohibiting him from having his share of holiday periods and by failing to communicate with him. Mr. Eldridge also sought an increase in custody time. By consent judgment dated June 18, 2002, the parties altered the original custody plan to provide Mr. Eldridge with physical custody on alternating weekends and one day/night per week in addition to holiday time. The rule for contempt was dismissed.
At the time that the parties were originally awarded joint custody in 2001, Louisiana was the home state of both parties and of Rose. In 2002, Mrs. Treadaway married her now husband, Thomas Treadaway, and together, they had four children. In 2004, Mrs. Treadaway relocated with her husband, their children, and Rose to Mississippi. Mrs. Treadaway did not provide Mr. Eldridge with notice of relocation as required by La. R.S. 9:355.4; however, the record does not contain any evidence that Mr. Eldridge objected to the relocation. Due to the close proximity between Mrs. Treadaway's new home in Picayune, Mississippi and Mr. Eldridge's home in Slidell, Louisiana, the parties were able to maintain the same alternating visitation schedule until approximately 2010, when Mr. Eldridge no longer exercised his weekday visitation.
There is conflicting testimony in the record as to whether Mr. Eldridge voluntarily stopped exercising his weekday visitation or whether Mrs. Treadaway unilaterally discontinued the visitation. Regardless, Mr. Eldridge did not file a formal objection or otherwise seek court intervention regarding the change in custody.
In February 2014, Mr. Treadaway learned that he was going to be laid off from his job in Mississippi and began sending resumes for job openings he found online. However, Mr. Eldridge was not informed of this fact until early April 2014. Shortly thereafter, Mr. Eldridge provided Mrs. Treadaway with information regarding two prospective jobs for Mr. Treadaway in his field of software engineering, one in Mississippi and one in Louisiana. However, on May 10, 2014, Mrs. Treadaway informed Mr. Eldridge that Mr. Treadaway was interviewing for a job in Missouri. Two days later, Mrs. Treadaway informed Mr. Eldridge that Mr. Treadaway accepted the position in Missouri, and that the family, including Rose, would be moving to Missouri. Mr. Eldridge was subsequently informed that the proposed date for the move was July 5, 2014.
Despite her verbal communication with Mr. Eldridge, Mrs. Treadaway did not provide him with a notice of relocation as required by La. R.S. 9:355.4. Therefore, on June 3, 2014, Mr. Eldridge filed a petition in the Twenty-Second JDC opposing relocation, seeking a temporary restraining order, and requesting a modification of custody. The district court issued a temporary restraining order on June 3, 2014, preventing Mrs. Treadaway from removing Rose from the State of Louisiana.
On June 27, 2014, Mrs. Treadaway filed an exception raising the objection of lack of subject matter jurisdiction and alternatively, an exception raising the objection of forum non conveniens; a. motion to vacate the temporary restraining order; and/or alternatively, a request for permission to temporarily/permanently relocate with the minor child. Mrs. Treadaway asserted that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Mississippi is the home state of the child for jurisdictional purposes and that a matter involving the same parties and facts is currently pending in Mississippi. Mrs. Treadaway requested that the Twenty-Second JDC confer with the district court judge in Mississippi to determine the appropriate forum and, if Louisiana is determined to have jurisdiction, sought permission to relocate with the child to Missouri.
Thereafter, Mr. Treadaway moved to Missouri with the Treadaways' four children as scheduled. Mrs, Treadaway and Rose remained in Mississippi pending a determination on the relocation request. Mrs. Treadaway enrolled Rose, who had previously been home schooled, in public school in Mississippi.
On July 14, 2014, the Chancery Court of Pearl River County Mississippi issued a dismissal order, declining to exercise jurisdiction over the custody matter. The matter proceeded before the Twenty-Second JDC, and following a three day trial, the district court took the matter under advisement. Thereafter, on September 24, 2014, the district court issued an oral ruling, finding that Mrs. Treadaway was not in good faith in seeking to relocate with Rose and further, that even if it had found Mrs. Treadaway acted in good faith, a thorough examination of the eleven factors found in La. R.S. 9:35,5.14 results in a finding that the relocation of Rose is not in her best interest. The district court subsequently signed a judgment in conformity with its oral ruling, denying Mrs. Treadaway's request for relocation. Mrs. Treadaway now appeals from the district court's judgment.
DISCUSSION
Relocation
A parent seeking to relocate the principal residence of a minor child has the burden of proving that (1) the proposed relocation is in good faith and (2) that the proposed relocation is in the best interest of the child. La. R.S. 9:355.10. Curole v. Curole, 02-1891, pp. 4-5 (La. 10/15/02), 828 So. 2d 1094, 1097. 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, 02-1891 at p. 4, 828 So. 2d at 1096. Furthermore, in reviewing the record to determine whether the trial court's ultimate conclusion constitutes an abuse of discretion, the appellate court must accept each factual finding the trial court made in arriving at that conclusion, unless the court determines that, based on its review of the record, there is no reasonable basis for the factual finding and that the finding is clearly wrong. See Bush v. Bush, 13-0922, pp. 4-5 (La. App. 1st Cir. 12/27/13), 137 So. 3d 49, 51.
Louisiana Revised Statute 9:355.13 was renumbered to La. R.S. 9:355.10 by 2012 La. Acts 627 § 1, effective August 1, 2012.
In the instant case, the district court determined that Mrs. Treadaway was not in good faith in seeking to relocate to Missouri with Rose. The jurisprudence has defined the meaning of the term good faith in the context of relocation as a legitimate or valid reason for the move. McLain v. McLain, 07-0752, p. 13 (La App. 4th Cir. 12/12/07), 974 So. 2d 726, 734; see also Richardson v. Richardson, 01-0777, p. 6 (La. App. 1st Cir. 9/28/01), 802 So. 2d 726, 730, writ denied, 01-2884 (La. 11/16/01), 8Q2 So. 2d 618 and Owens v. Owens, 14-165, p. 7 (La. App. 3rd Cir. 6/4/14), 140 So. 3d 865, 869. Relocations that are based on a frivolous reason, no reason, or just to interfere with the non-custodial parent's visitation with the child do not satisfy the good faith requirement, McLain, 07-0752 at pp. 13-14, 974 So. 2d at 734.
In denying Mrs. Treadaway's request to relocate Rose's principal residence to Missouri, the district court issued extensive oral reasons. First, the district court noted that while Mrs. Treadaway claimed that it was necessary for the family to relocate due to the inability of Mr. Treadaway to obtain suitable employment in the Louisiana or Mississippi area, this was not established by a preponderance of the evidence. The district court found that Mr. Treadaway was uninterested in finding a job in the area, which was demonstrated by his "deliberate failure" to follow up with Mr. Eldridge's list of prospective jobs that he carefully researched and provided, nor did he ever respond to Mr. Eldridge or Mrs. Treadaway in any way as to whether he looked into the jobs or not. The district court found that the record established that Mr. Treadaway's skills are in high demand in the immediate area of Louisiana and Mississippi, and that he made no meaningful effort to secure employment in these locations. Rather, the district court found that the more likely explanation for the move was the Treadaway's desire to move to that location in Missouri after receiving positive reports from co-workers who had relocated there and based upon Mr. Treadaway's previous travels to Missouri on business.
Second, the district court found that the evidence demonstrated a continuation of a pattern of distancing Rose from Mr. Eldridge similar to that found in Odell v. Odell, 14-250 pp. 5-6 (La. App. 3rd Cir. 6/4/14), 139 So. 3d 1275, 1279, writ denied, 14-1436 (La. 7/15/14), 145 So. 3d 1034, and of marginalizing Mr. Eldridge. Particularly, the district court noted that the Treadaways have promoted the substitution of Mr. Treadaway as the child's real father and refer to Mr. Eldridge as "James." The district court further found that the mother has established a pattern of presenting the father with what the court described as a fait accompli. Specifically, the district court found, based on the testimony presented at trial, that Mrs. Treadaway did not consult with Mr. Eldridge regarding her relocation to the State of Mississippi with Rose, her elimination of Mr. Eldridge's weekday visitation, or her relocation with Rose to the State of Missouri.
From our review of the entire record, we cannot say that there is no reasonable basis for the district court's factual determinations or that the factual determinations are clearly wrong. According to the record, Mr- Treadaway's local job efforts consisted mainly of sending resumes for job openings he found online. Mr. Treadaway acknowledged that he did not respond to the two prospective jobs located and referred by Mr. Eldridge, stating that he was not qualified for the positions, despite the fact that he admitted to having held these types of positions in the past. Further, Mr. Treadaway acknowledged that he did not send resumes directly to major technological companies that were expanding and opening offices in Louisiana. However, according to Mr. Treadaway, he had been traveling to St. Louis twice a year since 2006 when the company he worked for acquired an office there, and he knew a Jot of people in Missouri, Mr. Treadaway stated that he began communicating with friends in Missouri as early as December of 2013 or January of 2014 and inquiring about available jobs in that area. Therefore, based on our review of the record, the district court was reasonable in finding that contrary to Mrs. Treadaway's assertion, the move to Missouri was not due to Mr. Tredaway's inability to obtain suitable employment in Louisiana of Mississippi but was a result of the Treadaway's desire to move to that location in Missouri.
Furthermore, the district court reviewed the testimony and found that Mrs. Treadaway's behavior established a pattern of marginalizing Mr. Eldridge as Rose's father and of distancing him from Rose. The testimony of all parties and Rose confirmed that Mrs. Treadaway often refers to Mr. Eldridge as "James" when speaking to Rose, and that Rose calls Mr. Treadaway "daddy Thomas" and Mr. Eldridge "daddy James." Additionally, Mr. Eldridge stated that Mrs. Treadaway moved to Mississippi after she married Mr. Treadaway without discussing the move with him, unilaterally discontinued his weekday visitation because it was not convenient for her after the birth of her other children, and decided to relocate to Missouri without discussing the matter with him, other than notifying him that Mr. Treadaway was interviewing for a position in Missouri and, two days later, notifying him that Mr. Treadaway accepted an offer in Missouri and the family, including Rose, would be moving.
Although Mrs. Treadaway testified that she discussed with Mr. Eldridge the relocation to Mississippi and also discussed the relocation to Missouri, to which she claimed Mr. Eldridge replied, "ok, keep me posted," the district court evaluated and weighed her testimony against that offered by Mr. Eldridge and clearly chose to credit the testimony of Mr. Eldridge over that of Mrs. Treadaway. See Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Additionally, the district court considered that Mrs. Treadaway failed to send the required notice of relocation for either the relocation to Mississippi or the relocation to Missouri. See La. R.S. 9:355.6. Therefore, from our review of the record, we cannot say that the district court's decision to credit Mr. Eldridge's testimony was manifestly erroneous.
Furthermore, contrary to Mrs, Treadaway's argument on appeal, we do not find the district court's reference to Odell to be misplaced. In Odell, the mother moved with the child from Lafayette, Louisiana, to Walker, Louisiana, a distance over seventy-five miles, without ''notifying' the father and thereafter, while a relocation hearing was pending and in violation of a restraining order, moved with the child to Illinois. 14-250 at pp. 2 and 6; 139 So. 3d at 1277 and 1279. Finding no error in the district court's determination that, as the party requesting relocation, the mother failed in her burden of proving that the proposed relocation was in good faith, the Third Circuit found that the district court reasonably rejected the mother's purported motive for moving, i.e. a job offer in Illinois close to the mother's parents, and found that the district court permissibly viewed the attempted relocation to Illinois as the acceleration of a pattern of behavior directed toward distancing the child from the father. Odell, 14-250 at p. 6, 139 So. 3d at 1279. Additionally, the Third Circuit noted that the mother failed to engage in any meaningful job search activities in the area closer to the father, in either Lafayette or Walker, other than sending a few inquiries regarding possible positions that she found on the internet. Odell, 14-250 at pp. 7-8, 139 So. 3d at 1280. Accordingly, while the facts of Odell may not be identical to those currently before the court, we find no error in the district court's reference to the analysis in Odell in support of its determination regarding good faith.
Finally, Mrs. Treadaway asserts that the jurisprudence finds that improved job prospects of the relocating parent or of that parent's spouse is sufficient to establish good faith. See Nelson v. Land, 01-1073, p. 5 (La. App. 1st Cir. 11/9/01), 818 So. 2d 91, 94. However, the district court determined, based upon the facts of this case, that the relocation was not based upon improved job prospects but was motivated by the Treadaways desire to move to Missouri and in furtherance of a pattern of distancing Rose from Mr. Eldridge and marginalizing Mr. Eldridge's role in Rose's life.
Therefore, having reviewed the jurisprudence in conjunction with the facts of this case as evidenced by the record, we find no error in the district court's determination that Mrs. Treadaway failed to establish that the relocation was sought in good faith, and accordingly, we find no abuse of discretion in its decision denying relocation. Rebuttal Testimony
On appeal, Mrs. Treadaway also asserts that the district court failed to address the best interest factors contained in La. R.S. 9:355.14. However, because the district court found that Mrs. Treadaway did not meet her burden of proof with regard to the good faith element, as required by La. R.S. 9:355.10, there was no reason for the district court to discuss these factors and Mrs. Treadaway's argument on this issue is without merit. --------
Mrs. Treadaway also asserts that the district court erred in refusing to allow a rebuttal witness to testify at trial as to the veracity of Mr. Eldridge's testimony that he had never quit employment in lieu of termination and that he had never been fired from a job. The trial court has discretion in controlling the conduct of trial and the presentation of evidence, which includes the power to admit or refuse rebuttal evidence. Faulkner v. Better Services, Inc., 10-867, p. 8 (La. App. 5th Cir. 5/24/11), 67 So. 3d 646, 652.
In the instant case, during questioning of Mr. Eldridge's friend and former co-worker on August 22, 2014, counsel for Mrs. Treadaway attempted to elicit testimony regarding the circumstances of Mr. Eldridge's separation from his previous employment. Following an objection, counsel for Mrs. Treadaway indicated that she had not put on her case in chief yet, and that the foundation for such testimony would become relevant through a rebuttal witness. At that time, the district court did not state whether it would allow rebuttal testimony, and counsel for Mrs. Treadaway discontinued the line of questioning. Thereafter, when trial resumed on September 11, 2014, counsel for Mrs. Treadaway attempted to call another former co-worker of Mr. Eldridge's on rebuttal, at which time counsel for Mr. Eldridge objected. The district court sustained the objection, noting that counsel for Mrs. Treadaway had known for some time, since the last hearing date, that the witness was going to be called as a rebuttal witness and failed to notify opposing counsel. Given the circumstances of this case, and mindful of the discretion afforded. the district court in conducting a trial and in the admissibility of a witness's testimony, we find no abuse of the district court's discretion in refusing to allow the rebuttal witness testimony. Court Costs
Finally, Mrs. Treadaway asserts that the district court erred in assessing her with court costs. Louisiana Code of Civil Procedure article 1920 provides, in pertinent part, that "[e]xcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." A trial judge has great discretion in awarding costs. Therefore, a trial court's award of costs will not be disturbed upon review in the absence of an abuse of discretion. Barrilleaux v. Franklin Foundation Hospital, 96-0343 (La. App. 1st Cir. 11/8/96), 683 So. 2d 348, 361, writ denied, 96-2885 (La. 1/24/97), 686 So. 2d 864. From our review of the record, we find no abuse of discretion by the district court in ordering Mrs. Treadaway to pay court costs.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court. All costs of this appeal are assessed to Elizabeth Morgan Treadaway.
AFFIRMED.