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State v. Titus

Court of Appeals of Louisiana, First Circuit

February 28, 2019

STATE OF LOUISIANA
v.
JAMAL TITUS

          Appealed from the Family Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number F181531 Honorable Hunter V. Greene, Judge Presiding

          Travis Turner Keyojuan Turner Gonzales, LA Counsel for Plaintiff/Appellant, Ashley Armstead

          Hillar Moore, III Baton Rouge, LA Counsel for Plaintiff/Appellee, Louisiana Department of Children and Family, et al.

          Austin H. Benton Baton Rouge, LA Tiffany L. Foxworth Baton Rouge, LA Counsel for Defendant/Appellee, Jamal Titus

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         In this custody matter, the mother, Ashley Armstead, appeals from a judgment of the family court denying her request to relocate the minor children and designating the father, Ja'mal Titus, [1] as the domiciliary parent. For the reasons that follow, we affirm the judgment of the family court.

         FACTS AND PROCEDURAL HISTORY

         Ashley Armstead ("Ashley") and Ja'mal Titus ("Ja'mal") are the parents of two minor children, J.T., born in 2006, and A.T., born in 2008.[2] The parties never married; however, Ja'mal is listed as the father of the children on their birth certificates.

         Based on the agreement of the parties, on March 17, 2014, the family court signed a stipulated judgment in which the parties agreed that Ashley and Ja'mal would share joint physical custody of the minor children, with Ashley designated as the domiciliary parent. The judgment further provided that the parties were to enroll in the Our Family Wizard Program through the East Baton Rouge Parish Family Court, communicate regarding the care of the children and all school and extracurricular activities, and permit the noncustodial parent contact with the children daily by telephone between 8:00 and 9:00 p.m. Ja'mal was awarded physical custody of the minor children three weekends per month from Thursday at pickup from school until Sunday at 3:00 p.m., with the exchange location designated as the maternal grandmother's home on The House of Lancaster Drive in Baton Rouge, unless otherwise mutually agreed upon by the parties. Ashley was awarded physical custody of the minor children on the weekend Ja'mal was exercising monthly military drill duties.[3] The parties agreed to alternate weekly visitation during the summer.

         On September 8, 2017, Ja'mal filed a rule to modify physical custody and support, contending that on September 4, 2017, Ashley notified him via a text message that she had relocated with the minor children from Baton Rouge, Louisiana, to Youngsville, Louisiana, a distance of over 75 miles from Ashley's address in Baton Rouge, and, further, that she had done so without first obtaining his consent. Ja'mal contended that the move was "reckless and harmful" to the children, disrupted their schooling, completely changed every aspect of their lives, and prevented him from exercising his designated periods of visitation and physical custody of the children. Ja'mal averred that this change in circumstances in the lives of the children warranted a modification of the physical custody schedule. Thus, he requested that the family court order that the children be immediately returned to Baton Rouge to primarily reside with him and that Ashley be awarded alternating weekend visitation. Ja'mal further requested that he be designated as the domiciliary parent, contending that Ashley frequently enrolled the children in different schools and school districts, which he averred was "turbulent" for the emotional development and stability of the children.

         Ashley filed an answer and reconventional demand, contending she had recently married in July of 2017, and that she and the children moved to Youngsville to live with her husband, Marcus Amos. Ashley further contended that although the distance to Youngsville is less than 75 miles, she notified Ja'mal of the move via text message and that subsequently, with the help of counsel, she provided notice to Ja'mal pursuant to LSA-R.S. 9:355.4.[4] Ashley further averred that she relocated for a job opportunity as a registered nurse at Women and Children's Hospital in Lafayette and that the children's material, educational, and emotional needs could continue to be met at their new home. Accordingly, Ashley requested that the previous custody arrangement remain in place with a new designated exchange location.

         Pending a trial on the matter, an interim stipulated judgment was entered into by the parties on October 17, 2017. The matter was ultimately tried before the family court on January 8, 2018. At the conclusion of trial, the family court ruled orally, finding that the relocation was in excess of 75 miles such that the relocation statutes applied, and that Ashley failed to meet her burden of showing that the relocation was in good faith and in the best interest of the children pursuant to LSA-R.S. 9:355.14. In so ruling, the family court found that Ashley's testimony that she found a job that paid slightly more than her nursing job in Baton Rouge was insufficient to meet her burden, when there was no evidence that Ashley searched for a higher paying job in Baton Rouge or the surrounding area. The court determined that instead, the purpose of Ashley's move to Youngsville was to live with her husband. The family court found that Ashley failed to properly notify Ja'mal of the relocation, ordered that the children be returned to East Baton Rouge Parish immediately, and ordered that Ashley be sanctioned by paying Ja'mal's expenses in objecting to the relocation pursuant to LSA-R.S. 9:355.6.

         As to designation of the domiciliary parent, the family court then reviewed the best interest factors outlined in LSA-C.C. art. 134 and determined that it was in the best interest of the children that Ja'mal be designated as the domiciliary parent. The family court awarded Ashley two weekends of visitation per month, with one being the weekend Ja'mal had military drill duties, and ordered that the parties were to alternate weekly visitation during the summer and share holidays.

         On April 2, 2018, the family court signed a "Considered Decree," finding that there had been a material change in circumstances since the 2014 stipulated judgment, which had designated Ashley as the domiciliary parent of the minor children, and thereby ordered that:[5]

(1) Ashley's request to relocate J.T. and A.T. to Youngsville was denied;
(2) J.T. and A.T. were to be returned to East Baton Rouge Parish immediately;
(3) Ashley's status as the domiciliary parent of J.T. and A.T. was terminated;
(4) Ja'mal was designated as the domiciliary parent of J.T. and A.T.;
(5) Ja'mal's request for make-up visitation was denied;
(6) J.T. and A.T. were to be exchanged at the maternal grandparent's home on The House of Lancaster Drive in Baton Rouge, unless otherwise mutually agreed upon by the parties;
(7) J.T. and A.T. primarily reside with Ja'mal and that Ashley be provided with physical custody of the minor children for two weekends a month, with one of those weekends being the weekend that Ja'mal is attending military drill;
(8) Ja'mal and Ashley equally share physical custody of J.T. and A.T. during the children's summer vacation from school;
(9) The parties equally share the children's holidays from school and mutually agree on a holiday visitation schedule. In the event that the parties are unable to agree upon a holiday schedule, the parties may request that the trial court establish a court date for the purpose of setting a holiday schedule. Until the parties agree on a holiday schedule, the current holiday schedule found within the previous judgments in this matter would apply;
(10) Ashley was in contempt of court for failing to facilitate visitation from the time she moved to Youngsville until the interim visitation judgment was rendered on October 17, 2017;
(11) Ashley was responsible for payment of $3, 500.00 in reasonable expenses, including attorney's fees, for her act of contempt and failure to comply with the relocation statute (to be paid within 90 days of the rendering of judgment); and
(12) All court costs were assessed to Ashley.

         Following the denial of her motion for new trial, Ashley filed the instant appeal, contending that the family court: (1) erred in denying her motion for new trial after improperly applying the relocation statutes; (2) erred by improperly weighing the factors for consideration of the best interest of the child set forth in LSA-C.C. art. 134; and (3) erred in designating Ja'mal as the domiciliary parent and uprooting the children from their mother with whom they have primarily resided since birth.[6]

         DISCUSSION

         Assignment of Error Number One

         In her first assignment of error, Ashley contends that the family court erred in denying her motion for new trial. Specifically, she contends that the relocation statutes were incorrectly applied herein, where the relocation distance is less than 75 miles utilizing radial or "as-the-crow-flies" miles to calculate the distance, rather than roadway miles.

         The statutes that govern the relocation of a child's residence, codified in LSA-R.S. 9:355.1, et seq., apply if there is a court order awarding custody and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than 75 miles from the principal residence of the child at the time that the most recent custody decree was rendered. LSA-R.S. 9:355.2(B)(3).

         Louisiana Code of Civil Procedure article 1972 provides that a new trial shall be granted: (1) when the verdict or judgment appears clearly contrary to the law and the evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or (3) when the jury was bribed or has behaved improperly so that impartial justice has not been done. Moreover, pursuant to LSA-C.C.P. art. 1973, a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. The standard of review of a denial of a motion for new trial, whether based on peremptory or discretionary grounds, is that of abuse of discretion. Jackson v. Wise, 2017-1062 (La.App. 1st Cir. 4/13/18), 249 So.3d 845, 856, writ denied, 2018-0785 (La. 9/21/18), 252 So.3d 914. When a motion for new trial is filed, it is the mover's burden to prove to the trial court that she is entitled to a new trial. Jackson v. Wise, 249 So.3d at 856.

         The basis of Ashley's motion for new trial pursuant to LSA-C.C.P. art. 1972 was her post-trial discovery of Holley v. Holley, 2017-325 (La.App. 5th Cir. 11/20/17), 232 So.3d 717. In Holley, the court held that the appropriate method used to measure "miles" under the relocation statutes is by radial miles, or "as the crow flies," rather than by surface or road miles. Holley v. Holley, 232 So.3d at 727. Ashley avers that her discovery of this case constitutes "new evidence," which she could not, with due diligence, have obtained prior to trial, and that this jurisprudence establishes that the relocation statutes were incorrectly applied herein, where the distance between the parties' homes was less than 75 miles. In support, Ashley attached two "As the Crow Flies" Distance Calculators showing the distance from Ja'mal's home in Baker to Ashley's home in Youngsville as 61 miles and the distance from Ja'mal's mother's residence at Cedar Line Drive in Baton Rouge to Ashley's home in Youngsville as 65 miles. Ashley further urged that a new trial was warranted pursuant to LSA-C.C.P. art. 1973 based upon her claims of ineffective assistance of counsel, where she claimed that her trial counsel: (1) failed to object to questions posed to her; (2) failed to alert the court or offer evidence of the improper application of the relocation statute; and (3) failed to file a motion to request that the court conduct a Watermeier interview of the children.[7]

         Following a hearing, the family court denied Ashley's motion for new trial with reasons. In its reasons, the court pointed to its finding at trial that the relocation distance was 75.8 miles utilizing "Google Maps" and 76 miles utilizing "Apple Maps," and disagreed with the finding of the appellate court in Holley. Rejecting the use of radial miles or the "as-the-crow-flies" method of measurement to calculate the distance for relocation, the family court stated:

The mode of transportation in the modern world is by automobile, not boat, plane, helicopter, or some sort of aerocar reminiscent of The Jetsons' television show. The only practical and economical way of traveling between places is in an automobile and by using surface roads. Using any other method to calculate the distance would lead to absurd consequences. Flying in a plane, helicopter or aerocar directly from the old residence to the new residence would be impractical, as it would be by boat. Additionally, it would be impossible in Louisiana to walk in a straight line from one residence to the other without either being stopped by a marsh or body of water or without trespassing on private property. This Court is not bound by the ruling in Holley and the use of road miles is clearly not contrary to the law.

         The family court further noted that Hollev was decided prior to trial herein, and although the court would not have ruled differently, with due diligence, evidence of radial miles nonetheless could have been obtained before or during trial and the issue could have been argued at trial. The court thus determined that Ashley failed to meet any of ...


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