Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lacour v. Lacour

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

JEANIQUE VASQUEZ LACOUR
v.
JEREMY LACOUR

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 755-252, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, JEANIQUE VASQUEZ LACOUR Gary S. Brown

          COUNSEL FOR DEFENDANT/APPELLANT, JEREMY LACOUR Barbara V. Madere Jeffrey Hufft

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

          FREDERICKA HOMBERG WICKER JUDGE

         Father-appellant seeks review of the trial court's denial of his rule to relocate his minor child from Louisiana to California. Because we find that the trial judge did not abuse his discretion in determining that it is in the minor child's best interest to remain in Louisiana and in denying the rule to relocate, we affirm.

         PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         Jeanique Vasquez Lacour and Jeremy Lacour, both active duty members of the United States Marine Corps, married in April 2011 in San Diego, California. Prior to marriage, in March 2010, the couple had one child, J.L. In April 2012, Jeremy received orders from the military that he would be transferred from California to Belle Chasse, Louisiana. Jeanique and J.L. followed and moved to Belle Chasse, Louisiana in October 2012.

         The parties separated and were subsequently divorced pursuant to a Texas divorce decree on October 30, 2013. [1] During the period of time surrounding the divorce, Jeanique was deployed to Afghanistan and was not present in Texas for the divorce proceedings. The Texas decree granted Jeremy "the exclusive right to designate the primary residence of the child" and further ordered Jeanique to pay Jeremy $364.00 per month in child support.[2]

         On November 9, 2015, Jeanique filed a "Petition to Register Out-of-State Child Custody Order pursuant to La. R.S. 13:1827 et seq. to Modify Custody Order, to Register Out-of-State Child Support Order Pursuant to La. Ch.C. 1306 et. seq. and to Modify Support Order" in the 24th Judicial District Court for the Parish of Jefferson. On February 24, 2016, the parties appeared before the domestic hearing officer and stipulated that (1) the Final Decree of Divorce issued in Texas would be registered and recognized as a Louisiana judgment; (2) the parties would share joint custody of J.L.; and (3) Jeremy would be designated as the domiciliary parent.

         On May 16, 2016, Jeremy filed a "Rule to Relocate, " asserting that he received military transfer orders requiring him to relocate to California and that it would be in J.L.'s best interest to relocate to California. In his rule to relocate, Jeremy pointed to the Texas judgment, granting him the exclusive right to choose J.L.'s primary residence, and to the February 24, 2016 judgment registering the Texas judgment as a Louisiana judgment and designating him as the domiciliary parent. On June 21, 2016, the parties appeared before the hearing officer on Jeremy's rule to relocate. On that date, the hearing officer deferred a recommendation on the rule to relocate. The parties stipulated to undergo a relocation evaluation and further that, pending the relocation evaluation, J.L. would visit with Jeremy in California from July 2, 2016, through August 16, 2016.

         On August 11, 2016, Jeremy filed a "Motion for Order Granting Temporary Relocation of the Principal Residence of the Minor Child and Request for Expedited Hearing, " contending that due to circumstances beyond the parties control, the relocation evaluation had not yet occurred. Jeremy alleged in his motion that he enrolled the child into school in California, had family support in California, and that relocation pending evaluation would be in the child's best interest. The motion was set for a hearing before the hearing officer on August 17, 2016. On that date, Jeremy filed a motion to continue the hearing officer conference, which was denied, alleging that his military supervisors denied his request for leave to attend the hearing officer conference and he was thus, unable to attend. The record reflects that Jeremy's counsel was physically present and that Jeremy participated by telephone.

         Following the August 17, 2016 hearing officer conference, the hearing officer recommended that Jeremy's motion for temporary relocation be denied; that Jeanique have primary physical custody of J.L., who should be registered to attend school in the Greater New Orleans area; that the rule to relocate be deferred until October 3, 2016; and that Jeremy immediately return the minor child to Louisiana and incur the related travel expenses.[3] The recommendations became the interim judgment of the court on August 18, 2016. The trial court appointed Martha Bujanda as a mental health expert pursuant to La. R.S. 9:331 to complete the relocation evaluation prior to the scheduled October 3, 2016 hearing officer conference.

         On August 26, 2016, Jeanique filed a motion for contempt against Jeremy, alleging that he failed to return J.L. to Louisiana as stipulated between the parties following the June 21, 2016 hearing officer conference and further as ordered in the August 18, 2016 interim judgment. In her motion, Jeanique further alleged that Jeremy, without her knowledge, withdrew J.L.'s registration from her Louisiana school, Belle Chasse Academy, and enrolled her into a school in California.

         The parties appeared before the hearing officer on October 3, 2016. On that date, the hearing officer recommended that Jeremy be found in contempt of court for failing to return the minor child to Louisiana; withdrawing the child from her Louisiana school; enrolling the child in school in California; and for failing to reimburse Jeanique for one-half of the cost of the airline ticket she purchased to return the child to Louisiana. The hearing officer further recommended that Jeremy be ordered to return the minor child to Louisiana no later than October 14, 2016, and that, should Jeremy fail to return the child by that date, a civil warrant should issue to allow law enforcement officers to retrieve the child from California.[4] The parties subsequently appeared before the district court judge, who found, "[b]ut for the fact that you were not given a copy of the signed interim judgment ordering you to immediately return your daughter I would put you in jail, but…I don't think I can legally do that today." The trial judge warned that if Jeremy failed to return the minor child to Louisiana by October 14, 2016, he would find Jeremy in contempt and place him in jail.

         The record reflects that Jeremy returned J.L. to Louisiana on October 14, 2016. On November 15, 2016, the matter proceeded to trial on Jeremy's rule to relocate.

         Jeanique testified at trial that she and J.L. live in a three bedroom home with a backyard on the military base in Belle Chasse, Louisiana, which she described as a community environment. Jeanique does not have any family in Louisiana but considers her military friends who live on base to be her family. She explained that the military moms help each other in any way they can and that one of her good friends is a military wife and stay-at-home mother who helps frequently with J.L. and is listed as an emergency contact with J.L.'s school. J.L. attends elementary school on the military base at Belle Chasse Academy. Jeanique testified that J.L. has a lot of friends in Louisiana, is enrolled in soccer, and attends church regularly.

         Jeanique testified that, although she does not fall within a "non-deployable" classification according to the military guidelines, her supervisor has informed her that she will not be deployed again because her current job position is not needed overseas. Jeanique further testified that she intends to leave the military in 2019, upon completion of her current term, and remain in the New Orleans area. She is registered in online courses to complete her degree in counseling by 2019. She testified that, if she remained in the military and reenlisted in 2019, she would have the option to relocate to California.

         Jeanique testified that she has nine brothers and three sisters who primarily reside in New York and Florida. Jeanique was raised by her grandmother and did not have a relationship with her mother as a child, due to her mother's substance abuse issues. She stated that she has recently started to communicate with her mother and that her goal is "to give my daughter everything I didn't have growing up." Jeanique testified that she has been dating someone for several months and hopes to be engaged within the year.[5]

         Jeanique testified to her opinion that Jeremy attempted to make her a "weekend mom." She explained that Jeremy consistently withheld information about J.L., including not informing her that he withdrew J.L.'s registration from Belle Chasse Academy in May 2016, where she attended Kindergarten the year before. She stated she did not learn of Jeremy's actions until mid-August 2016, when she dropped off J.L.'s school supplies and was informed by the school office that J.L. was no longer a registered student.

         Jeremy testified at trial that he and Jeanique met while in the military and dated approximately three to four months before she became pregnant. For a period of time after J.L.'s birth, Jeanique worked a civilian job at Capital One and became a weekend reserve. Shortly thereafter, Jeanique received orders that she would be deployed to Afghanistan. Jeremy testified that he took care of J.L. during Jeanique's nearly one-year deployment.

         Jeremy testified that, in his new position as a recruiter for the Coast Guard, he is classified in the military as non-deployable. Jeremy disagrees with Jeanique's opinion that she is non-deployable, explaining that there are three classifications of Marines that are non-deployable and that Jeanique does not fit into any of those categories.

         Concerning Jeremy's decision to withdraw J.L. from her Louisiana school and enroll her into a school in California, Jeremy testified that he was advised by his previous counsel that because he had the right, under the Texas judgment, to determine J.L.'s primary residence and, further, because he was designated as domiciliary parent in the February 24, 2016 stipulations in Louisiana, the court proceedings for relocation were simply "procedural." According to Jeremy, his counsel advised him to begin the process to relocate his daughter to California and to obtain "all … documents" to support relocation, such as having suitable housing and enrolling her into an acceptable California school.

         Jeremy testified that J.L. adjusted very well during her time in California. J.L. attended summer camp in California and, from mid-August to October 2016, excelled academically. Jeremy testified that he works Monday through Friday from 8:30 a.m. to 4:30 p.m. regularly and had no childcare issues while J.L. lived with him in California. Additionally, he testified that his mother visited him in California during that time to visit and help with J.L. Jeremy testified that he has cousins and three aunts who live in California, one who lives approximately twenty-five minutes from his home.

         Concerning his decision not to return J.L. to Louisiana until October 14, 2016, Jeremy testified that he was unable to attend the August 17, 2016 hearing officer conference because his supervisor did not approve his leave request and he was advised by his attorney at that time that the trial court would grant a 90-day continuance of the hearing officer conference under the Service Members Civil Relief Act. Concerning why he did not return J.L. to Louisiana when he traveled to Louisiana for the October 3, 2016 hearing officer conference, Jeremy testified that J.L. was participating in state testing and he thought it was in J.L.'s best interest to not be absent during the state-wide mandated testing. The record reflects that Jeremy did not return J.L. to Louisiana until the trial judge instructed him that he would be placed in jail if he failed to return J.L. by October 14, 2016.

         At trial, Jeremy expressed concern about J.L.'s care in Louisiana. He testified that he has never met Jeanique's boyfriend and does not have a way to contact him in case of emergency.[6] He further expressed concern that he, being in California, doesn't know who is watching J.L. when Jeanique goes out with her boyfriend or friends. He testified that J.L. informed him that a man slept over at Jeanique's house on two occasions, to which Jeanique responded that a male sergeant-friend, who has a daughter J.L.'s age, came over to let their daughters play, and decided to let the girls have a sleepover. According to Jeanique, the male friend slept on the couch.

         The record reflects that the parties had a volatile relationship. Jeremy testified that he and Jeanique argued constantly when they were together and Jeanique confirmed that the two had a volatile relationship and that Jeremy "brought out [the] worst" in her. Jeremy recalled one incident when he was lying on the couch holding J.L. as a baby and the two began arguing. He testified that Jeanique smacked him across the face, knocking off and breaking his glasses. He testified that J.L. was scared and began to cry. Jeanique admitted to slapping Jeremy while he was holding J.L. during an argument after she learned Jeremy had cheated on her with another woman. Jeanique denied having any anger management issues, except in her relationship with Jeremy.[7]

         Ms. Martha Bujanda, an expert in custody and relocation evaluations, testified as the court-appointed mental health expert at trial.[8] Ms. Bujanda testified that both parents are committed and attached to J.L. and have a major emotional bond to the child and that J.L. is also attached to both parents. Ms. Bujanda testified extensively concerning the factors set forth in La. C.C. art. 134[9] as well as those set forth in La. R.S. 9:355.14.[10] Ms. Bujanda prepared a written report, introduced into evidence at trial, which ultimately recommended that J.L. remain in Louisiana with Jeanique designated as the domiciliary parent.

         Ms. Bujanda testified at trial that both parties are good parents who are loving and devoted to J.L. and can equally provide for her material needs. She placed significant emphasis on the stability and continuity of the community where the child has resided for more than three years. Although she recognized that stability and continuity in a military family is different than a civilian family, she found that J.L. has resided in Louisiana since 2013 and has lived in the same community and attended the same school since that time. Ms. Bujanda also spoke with J.L.'s first-grade teacher at Belle Chasse Academy by telephone, who advised that J.L. appears happy and well-adjusted and is doing well academically.

         Ms. Bujanda emphasized that both Jeremy and Jeanique are capable and loving parents. She testified that, if Jeanique were the parent relocating, she would most certainly have recommended that J.L. remain with Jeremy in Louisiana. She did however find that there is "no substitute" for a mother-daughter bond and placed emphasis on the mother-daughter relationship. She stated that while Jeremy claims that he is supportive of J.L.'s bond with Jeanique, his actions in this regard are "incongruent." She reported that Jeremy has an "entitled ownership attitude" toward J.L. For example, she testified that documents from Belle Chasse Academy reflect that Jeremy withdrew J.L.'s registration from Belle Chasse Academy and enrolled J.L. into a California school prior to the court's determination on the issue of relocation and without Jeanique's knowledge or consent. She further discussed Jeremy's decision to disregard the court order to return J.L. to Louisiana and testified to her opinion that Jeremy "does not view Jeanique as a viable parent figure, and if left to his own would not make the child accessible to the mother."

         Ms. Bujanda reported that J.L. stated a preference to move to California and remain with her father. However, Ms. Bujanda found that, at six years of age, J.L. cannot make that decision. She further explained that, during one of the visits with Jeremy and J.L., Jeremy began to cry and was visibly upset when discussing whether J.L. would relocate to California. She explained that J.L. certainly "feels the conflict of the situation."

         Ms. Bujanda acknowledged that Jeanique has a "quick temper" and her written report recommended that Jeanique attend counseling for co-parenting without anger. Ms. Bujanda admonished Jeanique for slapping Jeremy while holding J.L., but explained that the incident occurred only once, while the parties were married, and did not occur recently. Ms. Bujanda did not contact anyone in Jeanique's family, but did contact her military supervisor to inquire about any possible anger issues in the workplace. Jeanique's supervisor indicated that she has been a stable Marine with no outbursts or temper issues in the workplace. Ms. Bujanda further recommended that Jeanique seek counseling for family of origin issues, so as to not repeat the cycle of substance abuse and neglect as her mother.

         Although her written report does not recommend any counseling for Jeremy, Ms. Bujanda revised her report during her testimony at trial to also recommend that Jeremy seek counseling for co-parenting without anger. She described Jeremy as "domineering" and testified that both parties would benefit from counseling.

         Ultimately, Ms. Bujanda recommended that J.L. remain in Louisiana to preserve a sense of stability and continuity for J.L. She recommended that the parents have joint custody of J.L., with Jeanique designated as domiciliary parent. She recommended that Jeremy visit J.L. at least once a month either in Louisiana or in Dallas, Texas, where the paternal grandmother resides. Also, she recommended that the parties alternate holidays with J.L. and that J.L. spend the summer with Jeremy, returning two weeks before the school-year begins.

         At the conclusion of trial, the trial judge encouraged the parties to reach a compromise concerning relocation and took the matter under advisement. On December 13, 2016, the trial judge issued a written judgment denying Jeremy's rule to relocate and finding that relocation to California was not in J.L.'s best interest.

         On appeal, Jeremy seeks review of the trial court's denial of his rule to relocate. First, Jeremy contends that the trial court erred in failing to consider the twelve relocation factors under La. R.S. 9:355.14 and requests that this Court conduct a de novo review. Second, Jeremy contends that the trial court erred in finding that relocation to California is not in J.L.'s best interest.

         DISCUSSION AND ANALYSIS

         We first address Jeremy's assignment of error relating to the applicable standard of review in this case. In brief to this Court, Jeremy contends that the trial judge erred in failing to consider all of the relocation factors under La. R.S. 9:355.14 and in failing to expressly provide oral or written reasons for his determination that relocation is not in J.L.'s best interest.

         The Louisiana Supreme Court has directly addressed this issue in Gathen v. Gathen, 10-2312 (La. 5/10/11), 66 So.3d 1. The Court in Gathen granted a writ "to determine the appropriate standard of review of a trial court's decision in a child relocation case, where the trial court does not expressly analyze each factor under La. R.S. 9:355.12 [now La. R.S. 9:355.14] in determining whether relocation is in the best interest of the child." Gathen, 66 So.3d at 2. Upon consideration, the Gathen Court held that while the relocation statute mandates that the trial judge consider all twelve relocation factors, a trial judge need not expressly analyze each and every factor in its oral or written reasons for judgment. Id. at 9. Rather, the Court ultimately concluded that if it can be "gleaned from the record as a whole that the trial judge followed the law in reaching his ultimate determination, " a de novo review is not proper. Id. at 13. The Court recognized that while oral or written reasons analyzing each factor certainly "makes appellate review for abuse of discretion somewhat difficult, " it is simply not required. Id. at 10. The Court reasoned that the legislature does not impose upon a trial court the requirement to provide written or oral reasons under La. R.S. 9:355.12 and that, should the parties desire to have written and express reasons for judgment, they have the right to request written reasons pursuant to La. C.C.P. art. 1917. Id. at 9.

         In this case, neither party filed a request for written reasons in the trial court. A thorough review of the record before us is replete with discussion and reference to each and every relocation factor provided in La. R.S. 9:355.14.[11] Accordingly, we review the trial court's judgment in this case under the abuse ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.