Cooper v. Chamberlain

• Court: Court of Appeal of Louisiana
• Writing for the Court: JAMES F. MCKAY III, CHIEF JUDGE
• Citation: Cooper v. Chamberlain, 266 So.3d 316 (La. App. 2018)
• Decision Date: 12 December 2018
• Docket Number: NO. 2018-CA-0618, NO. 2018-CA-0619,NO. 2018-CA-0617, NO. 2018-CA-0620,2018-CA-0617
• Parties: Rye G. COOPER v. Elizabeth L. CHAMBERLAIN Rye G. Cooper v. Elizabeth L. Chamberlain Rye G. Cooper v. Elizabeth L. Chamberlain Rye G. Cooper v. Elizabeth L. Chamberlain

266 So.3d 316

Rye G. COOPER

v.Elizabeth L. CHAMBERLAIN

Rye G. Cooperv.Elizabeth L. Chamberlain

Rye G. Cooperv.Elizabeth L. Chamberlain

Rye G. Cooper

v.Elizabeth L. Chamberlain

NO. 2018-CA-0617

NO. 2018-CA-0618

NO. 2018-CA-0619

NO. 2018-CA-0620

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 12, 2018

DAVID M. PRADOS, ABIGAIL F. GERRITY, LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139, Counsel for Plaintiff/Appellant

BENNETT WOLFF, WOLFF & WOLFF, 3017 21st Street, Suite 100, Metairie, Louisiana 70002-4939, Counsel for Defendant/Appellee

(Court composed of Chief Judge James F. McKay III, Judge Roland L. Belsome, Judge Paula A. Brown )

JAMES F. MCKAY III, CHIEF JUDGE

In this 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 judgments.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The 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.

Mr. 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.

Following 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.

Mr. 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. Chamberlain's case;

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; and

6. Alternatively, the trial court erred in failing to apply the custody factors set forth in La. C.C. art. 134.

DISCUSSION

Standard of Review

"A 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 ).

Assignment of Error No. 1 : Failure to Apply the Uncalled Witness Rule

At the 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 motion.

Ms. 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.

In 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 case." Id.

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).

As this Court further explained in Moretco, 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.

Upon 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.

Assignment of Error No. 2: Denial of the Motion for Involuntary Dismissal

Mr. 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.

In 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

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