State v. Titus
| Decision Date | 28 February 2019 |
| Docket Number | NUMBER 2018 CU 1511 |
| Citation | 274 So.3d 591 |
| Parties | STATE of Louisiana v. Jamal TITUS |
| Court | Court of Appeal of Louisiana — District of US |
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.
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.
Ashley Armstead ("Ashley") and Ja'mal Titus ("Ja'mal") are the parents of two minor children, J.T., born in 2006, and A.T., bom 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
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
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...
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