Gray v. Gray
2011 La. LEXIS 1582
| La. | 2011Background
- Jason Gray sought to relocate Jayden from Alabama to Kansas under La.Rev.Stat. 9:355.1 et seq., after a prior approved relocation to Alabama from Louisiana.
- Christy Winnow (Bruner) opposed relocation and later sought to modify custody, with the original 2007 decree designating Jason as domiciliary parent.
- Trial court denied relocation to Kansas but later, on reconsideration, granted Christy’s rule to modify custody, awarding domiciliary custody to Christy in Louisiana.
- On rehearing, the court of appeal reversed, finding abuse of discretion in both the relocation denial and the custody modification.
- Louisiana Supreme Court reversed, holding the trial court abused its discretion in denying relocation and in granting custody modification under Bergeron, and rejected a statutory exception to Bergeron in 9:355.11.
- The matter was remanded to transfer domiciliary custody to the father and set a visitation schedule consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the relocation denial was an abuse of discretion | Gray argues relocation to Kansas is in best interest and not an intrastate relitigated issue. | Winnow argues 9:355.12 factors and best interest favor maintaining custody in Louisiana. | Abuse of discretion; relocation to Kansas should be approved. |
| Whether Bergeron standard applies to modification after final decree | Bergeron burden remains heavy for modification of a considered decree; 9:355.11 does not create an exception. | 9:355.11 creates an exception to Bergeron for relocation-related changes in circumstances. | Bergeron standard does not yield to 9:355.11; no modification supported by ex parte violation or rehabilitation evidence. |
| Whether 9:355.11 provides an exception to Bergeron for custody modification | Ex parte violation and rehabilitation constitute sufficient changes in circumstances. | 9:355.11 does not exempt Bergeron’s heavy burden in modification. | No statutory exception; Bergeron burden remains. |
| Whether the trial court’s factual findings supported a custody change | Record shows benefits of residing with father and extended family in Louisiana and Kansas; adequately supported. | Record lacks clear, convincing evidence of deleterious effect to justify modification. | Custody modification to Christy was abused; no clear deleterious impact proven. |
| Whether relocation and custody rulings conflicted with statutory factors | Relocation factors weighed in favor of the relocating parent; prior approvals considered. | Factors weigh against relocation and modification due to stability and family ties in Louisiana. | Court abused discretion; remand to effect transfer of domiciliary custody to father with visitation plan. |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (heavy burden to show change in custody justifies modification of a considered decree)
- Curole v. Curole, 828 So.2d 1094 (La. 2002) (relocation factors and balancing relative child welfare in relocation decisions)
- Gathen v. Gathen, 66 So.3d 1 (La. 2011) (appellate deference to trial court's relocation weighing; de novo review limited)
- Rao v. Rao, 927 So.2d 391 (La. App. 1 Cir. 2005) (relocation context; discusses Bergeron applicability)
- Major v. Major, 849 So.2d 547 (La. App. 1 Cir. 2003) (intrastate move not per se material change in circumstances)
- AEB v. JBE, 752 So.2d 756 (La. 1999) (restates Bergeron framework for change in custody after considered decree)
- Johnson v. Johnson, 634 So.2d 31 (La. App. 1 Cir. 1994) (custody change not warranted by absence of deleterious effects)
- Weems v. Weems, 5 So.3d 989 (La. App. 2 Cir. 2009) (prior remarriage or relocation evidence insufficient for modification)