Dragon v. Dragon

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APRIL OWENS DRAGON v. BRIAN DRAGON

BRIAN A. DRAGON v. APRIL OWENS DRAGON

Nos. 2022 CU 0076, 2022 CU 0077

Court of Appeals of Louisiana, First Circuit

August 30, 2022

NOT DESIGNATED FOR PUBLICATION

ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, STATE OF LOUISIANA NUMBER 2018-13712 CONSOLIDATED WITH 2018-13732, DIVISION I HONORABLE REGINALD T. BADEAUX, III, JUDGE.

Angela Cox Williams

Jesmin Basanti Finley

Slidell, Louisiana

Counsel for Plaintiff -Appellee

April Owens

Scott G. Jones

Slidell, Louisiana

Counsel for Defendant -Appellant

Brian Dragon

BEFORE; GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

CHUTZ J.

Defendant-appellant, Brian A. Dragon, appeals the trial court's judgment, which approved the relocation of the minor child he shares with his former wife, plaintiff-appellee, April Owens (formerly Dragon), and denied relief on his claims for contempt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on February 13, 2010, and their only child was born on October 31, 2013. They separated on May 13, 2018. On August 1, 2018, Owens filed a petition for divorce seeking, among other things, an award of permanent sole custody. Dragon answered Owens' lawsuit and entered into a stipulated judgment that awarded Owens temporary sole custody of the child with express supervised visitation of the child in favor of Dragon. Owens subsequently amended her pleadings to aver that she was entitled to a divorce on the basis of adultery which Dragon "denied as written" in an answer.

At a hearing on October 9, 2018, where Dragon chose not to appear but for which his attorney was present, Owens was granted an immediate divorce. The matter of custody was disposed of in a judgment signed on October 31, 2018, which awarded permanent sole custody to Owens, finding it was in the child's best interest. Dragon was granted no visitation with the child.

The following relevant facts are undisputed. Dragon committed adultery during his marriage and was subsequently diagnosed with a substance abuse disorder for his use of methamphetamine. At the time of the parties' separation, Dragon was an attorney. As a result of his substance abuse, he was suspended from the practice of law in Louisiana. Although he had a relapse, Dragon thereafter successfully completed rehabilitation and remained sober as monitored by the Judges and Lawyers Assistance Program (JLAP). Owens was a principal of the elementary school that the child attended. She suffers from an immune deficiency and also has a deficient lung which made her particularly vulnerable to Covid, placing her at high risk. As a result, it was determined that as of the 2020-2021 school year, returning to the classroom or working as a principal was not feasible and Owens was approved for disability retirement by the St. Tammany Parish School Board.

Commencing in February 2019, without court intervention and in graduated steps, Owens began allowing Dragon to visit with the child. At first the visitation was supervised, but as Dragon maintained his sobriety, the visits became unsupervised and eventually were unsupervised and overnight. At the time of the parties separation in May 2018, Dragon remained in the matrimonial domicile and Owens and the child moved to a condominium that her parents owned.

According to Dragon, in August 2019, on the child's first day of school, he arrived at the condominium around 6:30 a.m. and helped the child get ready. Because the child was wearing a school uniform, Dragon dressed in similar garb. Dragon then began "the pattern or the routine" of going to Owens' residence to prepare the child for school almost every day that the child had school. He was also present at Owens' residence daily after she returned from work with the child who typically attended the school's aftercare program while Owens finished her work day. Dragon helped the child do his homework, spent "daddy and [the child] time," and assisted in the child's bath. Dragon stated that he then tucked both Owens and the child into bed. He explained that he and Owens had a plutonic relationship and that he frequently spent the night at the condominium, sleeping in a bed with the child between him and Owens, but that Owens never spent the night at Dragon's house.

On August 19, 2020, Owens sent a notice to Dragon by certified mail, informing him that she and the child were seeking to relocate to Brandon, Mississippi, as soon as possible for her support system and health. She advised Dragon that her parents were also moving to Brandon and that she was transferring her medical treatment to Jackson, Mississippi.

On August 27, 2020, Dragon filed a rule to modify custody and an objection to the relocation. He also requested a temporary restraining order (TRO), precluding Owens from relocating with the child. On September 11, 2020, the trial court issued a TRO directed at Owens, restraining her from permanently removing or relocating the child until the hearing on Dragon's rules. Owens filed her motion for permission to relocate with the child on September 23, 2020. On October 7, 2020, Dragon filed a rule for contempt, averring that Owens had violated the TRO and seeking attorney fees and costs associated with the contempt claim. All matters were set for hearing together.

After a three-day hearing, the trial court took the matter under advisement. On March 10, 2021, the trial court issued extensive written reasons for judgment, approving of Owens' relocation and expressly denying Dragon relief on "the oral motion for contempt." The trial court maintained permanent sole custody with Owens but awarded Dragon unsupervised visitation every other weekend, alternating major holidays, Father's Day, and two uninterrupted two-week blocks in June and July, subject to Dragon's continued sobriety as monitored by JLAP. A judgment in conformity with the written reasons was issued on March 10, 2021. Dragon appeals, challenging the trial court's determinations, which approved the relocation by Owens and denied contempt relief.

DISCUSSION

Under certain circumstances, the relocation of a child's principal residence to a location out of state is governed by Louisiana's relocation statutes, La. R.S 9:355.1-9:355.19. La. R.S. 9:355.2. When the relocation of the child's principal residence is contested, La. R.S. 9:355.10 requires that the relocating parent prove that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. Gautreaux v. Gautreaux, 2019-1486 (La.App. 1st Cir. 7/23/20), 309 So.3d 362, 365 (citing Curole v. Curole, 2002-1891 (La. 10/15/02), 828 So.2d 1094, 1096).

On appeal, in challenging the trial court's approval of Owens' relocation, Dragon suggests that Owens failed to demonstrate her request was in good faith. He also maintains that while the evidence supports a finding that relocation is in Owens' best interest, the record lacks support to find the move is in the child's best interest.

Good Faith:

The jurisprudence has defined the meaning of "good faith" in the context of relocation as a legitimate or valid reason for the move. Legitimate reasons for relocation include: for significant health reasons; to protect the safety of the child or another member of the child's household from a significant risk of harm; and to be close to significant family or other support networks. See Wylie v. Wylie, 52,800 (La.App. 2d Cir. 5/22/19), 273 So.3d 1256, 1259.

The trial court found that Owens' request for relocation was made in good faith. Specifically, the trial court concluded that the move was necessary for maintenance of Owens' physical and mental health which, due to her underlying health condition, were intertwined. Also noted by the trial court in support of its conclusion that Owens established the requisite good faith is that she desired "to start anew somewhere far enough away to shield her and [the child] from the toxic atmosphere [of the community] created solely by [Dragon]."

In her testimony, Owens explained that in Brandon, she resided on a working horse farm. Because she shows horses, she found the new location relieved stress, which is a significant trigger for her immune disorder. She also explained that as a former principal in an elementary school with 115 employees and 800 students, she had been involved in many community organizations and was well known in the community. After the demise of the marriage, when Owens attended school functions, she described the stigma that she faced as a result of Dragon's actions which gave rise to the divorce. This testimonial evidence supports the trial court's express findings that Owens is relocating for legitimate reasons including significant health reasons and to remove herself and the child from the community in which they faced stigma as a result of Dragon's pre-divorce conduct.^[1] Thus, the record supports the trial court's determination that Owens' request was made in good faith.

Best Interest;

Louisiana's relocation statutes retain the "best interest of the child" standard as the fundamental principle governing decisions made pursuant to its provisions. Gautreaux, 309 So.3d at 365. In particular, La. R.S. 9:355.14(A) provides that:

In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child including the following:

(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child, and the likely impact the

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