139 So. 3d 1275
La. Ct. App.2014Background
- Initial 2011 custody decree awarded joint custody with Kellerhuis as domiciliary parent.
- 2012 relocation request to Illinois; Odell opposed and sought change in domiciliary status; TRO sought.
- December 12, 2012 temporary restraining order prohibiting relocation pending hearing.
- January–March 2013 hearing; court found relocation to Walker, LA exceeded 75 miles and denied relocation; Odell named domiciliary parent with a joint/shared plan; Kellerhuis found in contempt and ordered to pay Odell's fees under 9:355.6.
- On appeal Kellerhuis challenges relocation denial, change of custody, and attorney-fee award; court affirms in part, reverses in part.
- Appellate court holds no abuse of discretion on relocation denial; holds no abuse regarding Bergeron-based change in custody; reverses attorney-fee award under 9:355.6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relocation in good faith and best interests | Kellerhuis contends relocation was in good faith and best interests. | Odell argues relocation not in good faith and harms child. | Trial court did not abuse discretion; relocation denied. |
| Change of custody under Bergeron standard | Kellerhuis argues no adequate change in circumstances to modify custody. | Odell demonstrates deleterious effect and benefits of change; Bergeron satisfied. | No abuse; Odell met Bergeron burden; domiciliary parent changed. |
| Attorney fees under La.R.S. 9:355.6 | Attorney fees awarded under 9:355.6 are permissible. | 9:355.6 does not authorize attorney fees; only expenses may be awarded. | Reversed; attorney-fee award improper under 9:355.6. |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (heavy burden to modify a considered custody decree)
- Mulkey v. Mulkey, 118 So.3d 357 (La. 2013) (reinforces Bergeron standard for change of custody)
- Curole v. Curole, 828 So.2d 1094 (La. 2002) (trial court's relocation rulings reviewed for abuse of discretion)
- Gray v. Gray, 65 So.3d 1247 (La. 2011) (strong deference to trial court on custody matters)
- Randazzo v. Prosperie, 135 So.3d 22 (La. App. 1 Cir. 2013) (addresses attorney fees under relocation statute and sanctions)