APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2014-02658, DIVISION " K" . Honorable Bernadette D'Souza, Judge.
Martha J. Maher, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Marc D. Winsberg, Robin Penzato Arnold, Jonathan D. Gamble, WINSBERG & ARNOLD, LLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins).
[2014-1353 La.App. 4 Cir. 1] Max N. Tobias, Jr.,
The plaintiff/appellant, John Paul Louis LaGraize (" Mr. LaGraize" ), appeals from two judgments; one that permitted the defendant/appellee, Lily Virginia Filson (" Ms. Filson" ), to relocate their minor child to Italy for a period of three years and the second that set up a custody and visitation schedule through 14 September 2015. Finding no abuse of discretion by the trial court in this fact-intensive case on the relocation issue, we affirm the judgment. However, we reverse in part the second judgment and remand the matter to the trial court for further proceedings.
Facts and Procedural History
According to Mr. LaGraize, Ms. Filson and he dated from September 2012 through March 2013, resulting in Ms. Filson's pregnancy with VLF, who was born on 26 July 2013. The couple was not married, and Mr. LaGraize lived and worked in Mobile, Alabama. He tried to be involved during the pregnancy; however, Ms. Filson, who lived in New Orleans, discouraged him because she was uncertain if [2014-1353 La.App. 4 Cir. 2] he was the father. He rekindled their relationship in July and requested a paternity test, hoping to learn if he was the father. When Ms. Filson went into labor, he went to the hospital and wanted to go into the delivery room, but she did not permit it. About a month after the birth, the paternity test confirmed that he was VLF's father, and he had his name added to the birth certificate. While he was still living in Mobile, Mr. LaGraize tried coming to New Orleans every weekend to see his daughter - usually three to four times a month. However, on some occasions, Ms. Filson refused to let him see VLF, or would not respond to calls or texts when Mr. LaGraize tried to reach her.
In October 2013, he used a month of unpaid leave from work to be with Ms. Filson and VLF. He took them to Florida for a weekend, spending the rest of the time in New Orleans so he could see his daughter whenever Ms. Filson would allow. He was unable to reach Ms. Filson one entire weekend in that month because she would not answer his calls or text messages.
After several months of commuting and exhausting his paternity leave, he decided to return to New Orleans, even if it meant quitting his job. Fortunately, his company created a position which allowed him to work in New Orleans and telecommute, thereby eliminating the travel requirements for work that he once had.
In December 2013, Ms. Filson first raised the idea of taking VLF to Europe; Mr. LaGraize opposed the idea. The stated purpose of the trip was to attend a conference in Vienna and a fellowship in Prague from April through May 2014. [2014-1353 La.App. 4 Cir. 3] Ms. Filson would not give him specific departure and return dates so he did not
know how long the trip would last. This began while Mr. LaGraize was in the process of moving back to New Orleans to be with his child.
Concerned that the trip might become indefinite, Mr. LaGraize filed a petition to establish custody and visitation, and obtained a temporary restraining order (" TRO" ) to stop Ms. Filson from taking VLF out of the country. The trial court conducted a hearing on 16 April 2014 at Ms. Filson's request to suspend the TRO, and granted her request to take VLF to Vienna and Prague.
By May 2014, Mr. LaGraize had moved back to New Orleans and tried to see his daughter as much as possible after she and Ms. Filson returned from Europe in June 2014. Upon their return, he noticed that VLF was stressed and clingy to her mother, and did not re-bond with him at first; Ms. Filson also noticed the change and anxiety in the baby. After the trip, Ms. Filson restricted him to supervised visits on Saturdays and Sundays, and two hours unsupervised visits on Tuesdays. Immediately before trial, however, Ms. Filson became less restrictive and allowed Mr. LaGraize more unsupervised time with his daughter.
Mr. LaGraize is a native New Orleanian and has a large family in the city and surrounding area. His father lives in Franklinton and Metairie. Mr. LaGraize has three older brothers living in New Orleans, Metairie, and Lafayette, two stepbrothers, plus seven nieces and nephews, and lots of cousins with children, all of whom live in Louisiana. They are a very close family and get together [2014-1353 La.App. 4 Cir. 4] frequently. They would like to see VLF more than they have been allowed in the past.
He has tried to bring VLF to visit with his family on weekends from the time she was born, but was limited by the visitation and supervision schedule. Due to this restrictive schedule (only two hours per week unsupervised), he could visit only close family like his brothers, and can see his cousins only two or three times a month. Ms. Filson has had complete control over VLF and was unwilling to increase his unsupervised visitation until just before the trial.
His entire extended family met VLF when Mr. LaGraize hosted a baby shower for Ms. Filson after the baby was born, inviting his family and friends as well as hers, as well as for VLF's first birthday party which he hosted. His extended family adores VLF and would like to have a closer relationship with her, but has not had the opportunity to do so.
Ms. Filson had a bit different version of the facts. She stated that in September 2012, she and Mr. LaGraize started dating casually, their relationship becoming more serious in October 2012. In November 2012, Ms. Filson discovered that she was pregnant. As Ms. Filson and Mr. LaGraize were not seeing each other exclusively, she was truthful with Mr. LaGraize that he might not be the father of the unborn child. Mr. LaGraize and Ms. Filson continued dating during the initial months of Ms. Filson's pregnancy through March 2013. After the [2014-1353 La.App. 4 Cir. 5] relationship ended, the parties did not speak until July 2013, a week before VLF was born, when the parties rekindled their romantic relationship.
About one month after the birth, a paternity test confirmed that Mr. LaGraize was VLF's father. Mr. LaGraize had the birth certificate amended to add his name as the father. In addition, Ms. Filson and Mr. LaGraize together filled out an Acknowledgment of Paternity.
From the time VLF was born until May 2014, Mr. LaGraize lived and worked in Mobile, Alabama. While living in Mobile,
he would generally travel to New Orleans most weekends and visited with VLF for only a couple hours on one or both days of the weekend. Ms. Filson invited Mr. LaGraize to her house to spend time with the baby and encouraged him to spend as much time with her as he could.
In October 2013, Mr. LaGraize took paternity leave from his job in Mobile with the expectation of staying with Ms. Filson while he was in New Orleans. During that time, Mr. LaGraize would generally spend a couple of hours with VLF and then go out with his friends. He would come back to Ms. Filson's home very late at night while she and the baby were sleeping. Ms. Filson eventually asked Mr. LaGraize not to stay at her house anymore because it became unfeasible for her to take care of the baby while he was using her house as a " crash pad."
In December 2013, Mr. LaGraize suggested that he might sue Ms. Filson for custody of VLF. As a precautionary measure, in January 2014, Ms. Filson began keeping a calendar of when and how long Mr. LaGraize would visit with VLF. [2014-1353 La.App. 4 Cir. 6] Mr. LaGraize visited with her a total of six days in January for fifteen total hours, four days in February for fourteen total hours, and five days in March for eighteen and a half total hours.
In December 2013, Ms. Filson informed Mr. LaGraize that she had been offered an opportunity to speak at the Scientiae conference in Vienna, Austria in April 2014. She advised Mr. LaGraize that she was planning to speak at the conference and then visit Florence, Italy to reconnect with her professional network after her maternity hiatus. Ms. Filson informed Mr. LaGraize that this trip would last from April to May 2014.
On 27 February 2014, Ms. Filson was awarded the Katerina Duskova Fellowship with the Institute of Art History, Academy of Sciences of the Czech Republic. The fellowship permitted Ms. Filson to use the Institute's " world-famous" research center and library in Prague for three weeks to continue her research regarding the topic of her Master's thesis. Because she would already be in Vienna for the conference in April 2014, Ms. Filson intended to travel to Prague to complete her fellowship immediately after the conference in order to avoid the unnecessary, substantial fees of traveling to Europe on two different occasions.
On 11 March 2014, Ms. Filson informed Mr. LaGraize that she intended to leave for Europe on March 27, 2014. She would visit Florence, where she had previously lived from 2009 to the beginning of 2011, until the end of April. She would then travel to Vienna to attend the conference at the end of April. After her conference, she would travel to Prague and complete her three-week fellowship [2014-1353 La.App. 4 Cir. 7] and would return to New Orleans at the end of May or early June. Ms. Filson informed Mr. LaGraize that the fellowship was for a fixed duration and could not be extended. At no time did Ms. Filson suggest that she was permanently moving to Europe. Despite Ms. Filson's assurances that she would be returning to New Orleans in late May or early June, on 17 March 2014, Mr. LaGraize filed a petition for custody, visitation, TRO, and preliminary and permanent injunctions. In his ...