RYE G. COOPER
ELIZABETH L. CHAMBERLAIN RYE G. COOPER
ELIZABETH L. CHAMBERLAIN RYE G. COOPER
ELIZABETH L. CHAMBERLAIN RYE G. COOPER
ELIZABETH L. CHAMBERLAIN
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-00038,
DIVISION "K" Honorable Bernadette D'Souza,
M. PRADOS ABIGAIL F. GERRITY LOWE STEIN HOFFMAN ALLWEISS
& HAUVER, L.L.P. Counsel for Plaintiff/Appellant
BENNETT WOLFF WOLFF & WOLFF Counsel for
composed of Chief Judge James F. McKay III, Judge Roland L.
Belsome, Judge Paula A. Brown
F. McKAY III, CHIEF JUDGE
child custody case, the father, Rye G. Cooper ("Mr.
Cooper"), appeals the February 27, 2018 judgment
allowing the mother, Elizabeth L. Chamberlain ("Ms.
Chamberlain"), to relocate with their minor son to
Nashville, Tennessee. Mr. Cooper also appeals the April 20,
2018 judgment, which was rendered in connection with the
granting of his motion for new trial. We affirm both
OF FACTS AND PROCEDURAL HISTORY
parties were married on January 3, 2012. Their son was born
on April 29, 2012. On June 9, 2017, Mr. Cooper filed a
petition for divorce. A consent judgment for interim custody
was issued on November 2, 2017, wherein the parties agreed to
exercise shared, joint legal custody of the minor child. On
November 13, 2017, Ms. Chamberlain filed a motion for
relocation of the minor child to Nashville, Tennessee, where
she was offered a post-doctoral fellowship at Vanderbilt
University. Ms. Chamberlain has a Ph.D. in Earth and
Environmental Science, specializing in luminescence dating.
Cooper objected to the relocation, and the matter was tried
on January 8, 29 and 30, 2018. A judgment and separate
reasons for judgment was rendered on February 27, 2018,
granting Ms. Chamberlain's motion for relocation. The
judgment further awarded joint custody, with Ms. Chamberlain
designated as the domiciliary parent. A summer visitation
schedule was also established, with Mr. Cooper receiving a
block of time with his son. Finally, the judgment ordered Mr.
Cooper to submit to random drug and alcohol screenings.
a hearing on Mr. Cooper's motion for new trial, the trial
court rendered a judgment on April 20, 2018, amending the
February 27, 2018 judgment to provide for a more specific
plan of implementation/visitation schedule, and to address
other ancillary matters in connection with the relocation of
the minor child. All other aspects of the February 27, 2018
judgment remained in effect.
Cooper's appeal from the February 27, 2018 judgment and
the April 20, 2018 judgment followed. He asserts the
following assignments of error:
1. The trial court erred in denying Mr. Cooper's motion
to apply the uncalled witness rule when Ms. Chamberlain
failed to call her mother, whom she listed as a witness;
2. The trial court erred in denying Mr. Cooper's motion
for involuntary dismissal at the conclusion of Ms.
3. The trial court erred in granting Ms. Chamberlain's
motion to relocate the minor child;
4. Alternatively, the trial court erred in failing to provide
an adequate plan of implementation of joint custody;
5. The trial court erred in designating Ms. Chamberlain the
domiciliary parent, when that issue was not before the court;
6. Alternatively, the trial court erred in failing to apply
the custody factors set forth in La. C.C. art. 134.
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 v. Curole, 2002-1891, p. 4 (La. 10/15/02),
828 So.2d 1094, 1096. "In conducting our review to
determine whether the district court abused its discretion,
we must accept each factual finding the district court made
in arriving at its conclusion, unless a particular factual
finding is manifestly erroneous." State ex rel.
Dept. of Social Services v. Whittington, 2015-0118-119,
p. 3 (La.App. 4 Cir. 5/18/16), 193 So.3d 1234, 1237 (citing
LaGraize v. Filson, 2014-1353, p. 15 (La.App. 4 Cir.
6/3/15), 171 So.3d 1047, 1054).
of Error No. 1: Failure to Apply the Uncalled Witness
conclusion of Ms. Chamberlain's case, Mr. Cooper motioned
the court to apply the adverse presumption against Ms.
Chamberlain because she did not call her mother to testify
despite listing her as a witness. The trial court denied the
Chamberlain testified that her mother would be moving to
Nashville with her to assist in caring for the minor child.
Ms. Chamberlain's mother did not testify. Mr. Cooper
questions whether Ms. Chamberlain's mother will relocate
to Nashville, because she lives in Wisconsin on a farm that
she owns with her husband.
Taylor v. Entergy Corp., 2001-0805, pp. 14-15
(La.App. 4 Cir. 4/17/02), 816 So.2d 933, 941, this Court
explained the uncalled witness rule as follows:
The "uncalled witness" rule has been defined as an
adverse presumption that arises when "a party has the
power to produce witnesses whose testimony would elucidate
the transaction or occurrence" and fails to call such
witnesses. 19 Frank L. Maraist, Louisiana Civil Law
Treatise: Evidence and Proof, § 4.3 (1999). A
party's failure to call such witnesses gives rise to the
presumption that "the witnesses' testimony would be
unfavorable to him." Id. Although the advent of
modern, liberal discovery rules has been recognized to limit
this rule, it "remains viable." Id.
Indeed, this court has recognized this rule applies when, as
in this case, witnesses with peculiar knowledge of material
facts pertinent to the case are not called. Stewart v.
Great Atlantic and Pacific Tea Co., 657 So.2d 1327, 1330
(La.App. 4 Cir. 1995); Gurley v. Schwegmann Supermarkets,
Inc., 617 So.2d 41, 44 (La.App. 4 Cir.1993). We have
also noted that "[t]he court may consider this
presumption as it would any other relevant evidence in the
Louisiana Supreme Court has stated that "[a]n adverse
presumption exists when a party having control of a favorable
witness fails to call him or her to testify, even though the
presumption is rebuttable and is tempered by the fact that a
party need only put on enough evidence to prove the
case." Driscoll v. Stucker, 2004-589, p. 18
(La. 1/19/05), 893 So.2d 32, 47 (citation omitted).
Court further explained in Moretc, Inc. v. Plaquemines
Par. Council, 2012-0430, p. 18 (La.App. 4 Cir. 3/6/13),
112 So.3d 287, 296-97 (citations omitted),
Whether to apply such an inference is fully within the
discretion of the trial court. Roth v. New Hotel
Monteleone, LLC, 2007-0549, p. 6 (La.App. 4 Cir.
1/30/08), 978 So.2d 1008, 1012. Louisiana jurisprudence has
held that the trial court's failure to apply the negative
inference is not an abuse of discretion under any one of
these circumstances: where the witness's testimony would
be cumulative; where the party seeking to avail itself of the
negative inference has the burden of proof on the issue that
would be addressed by the witness's testimony; and where
the witness is equally available to the opposing party. As
all of these circumstances are present here, and any one
would have been sufficient to justify the trial court's
refusal to apply the presumption, we cannot say that the
court's failure to do so was an abuse of discretion.
review of the record in the present case, we find no abuse of
discretion in the trial court's failure to apply the
uncalled witness rule. The trial court made a credibility
determination based on Ms. Chamberlain's testimony that
her mother would accompany her to Nashville. Furthermore, the
record reflects that Ms. Chamberlain's mother was present
in New Orleans during part of the trial, and Mr. Cooper could
have issued a subpoena to ensure her testimony. In sum, we
find that the facts presented here do not warrant the
application of the uncalled witness rule.
of Error No. 2: Denial of the Motion for Involuntary
Cooper argues that the trial court erred in denying his
motion for involuntary dismissal. Mr. Cooper made the motion
at the close of Ms. Chamberlain's case, asserting that
she failed to prove by a preponderance of the evidence that
relocation was in the child's best interest. We find no
merit in this assignment of error.
Crescent City Cabinets & Flooring, L.L.C. v. Grace
Tama Develop. Co., L.L.C., 2016-0359, pp. 8-9
(La.App. 4 Cir. 10/19/16), 203 So.3d 408, 413-14, this Court
explained the well-established principles of involuntary
dismissal as follows:
Following a bench trial, a defendant may move for involuntary
dismissal, pursuant to La. C.C.P. art. 1672(B), when the
plaintiff has shown no right to relief based upon the facts
and law. Cao v. Liberty Mut. Ins. Co., 12-954, pp.
4-5 (La.App. 5 Cir. 5/30/13), 119 So.3d 725, 728 (citing
Brock v. Singleton, 10-550, p. 16 La. App. 5 Cir.
3/29/11), 65 So.3d 649, 660). The trial court must
"evaluate all the evidence and render a decision based
upon a preponderance of the evidence without any special
inferences in favor of the opponent to the motion."
Carollo v. Carollo, 13-0010, p. 11 (La.App. 1 Cir.
5/31/13), 118 So.3d 53, 61. "Proof by a preponderance of
the evidence simply means that taking the evidence as a
whole, such proof shows that the fact or cause sought to be
proved is more probable than not." Id. (citing
Connelly v. Connelly, 94-0527, p. 14 (La.App. 1 Cir.
10/7/94), 644 So.2d 789, 798).
The trial court is vested with much discretion in deciding a
motion for involuntary dismissal. Ragas v. Hingle,
13-1577, pp. 4-5 (La.App. 4 Cir. 7/9/14), 146 So.3d 687, 690
(citing Guidry v. City of Rayne Police Dep't,
09-664, p. 2 (La.App. 3 Cir. 12/9/09), 26 So.3d 900, 902). A
trial court's ruling on a motion for involuntary
dismissal shall not be reversed unless there is no factual
basis for its finding or that finding is manifestly erroneous
or clearly wrong. Cao, 12-954, p. 5, 119 So.3d at
728; Carollo, 13-0010 at p. 11, 118 So.3d at 61.
"The issue is not whether the trial court was right or
wrong, but whether its conclusion was reasonable."
Carollo, 13-0010 at p. 12, 118 So.3d at 62 (citing
Stobart v. State through Dep't of Transp. &
Dev., 617 So.2d 880, 881 (La. 1993).
will discuss more fully below, the trial court considered the
twelve factors required in a relocation case, and found the
majority of those factors to be in favor of Ms. Chamberlain
and relocation. Moreover, it is undisputed that Ms.
Chamberlain's request for relocation was made in good
faith. Clearly, the record establishes a factual basis for
the trial court's ruling in denying the motion for
of Error No. 3: Granting the Motion to Relocate
Cooper argues that it is not in the child's best interest
to relocate given the short-term nature of the relocation and
the fact that the child has stability and consistency in New
Orleans in his school, friends and extended family network.
Mr. Cooper further argues that Ms. Chamberlain failed to
present any evidence as to how the child's life would be
enhanced by the move.
person proposing relocation has the burden of proof that the
proposed relocation is made in good faith and is in the
best interest of the child." La. R.S. 9:355.10. La. R.S.
9:355.14(A) provides twelve factors that courts are to
consider in ruling on whether a contested relocation is in
the best interest of a child, as follows:
(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.
(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.
(3) The feasibility of preserving a good relationship between
the non-relocating person and the child through suitable
physical custody or visitation arrangements, considering the