Wingate v. Wingate

333 So.3d 848

Michael Lynn WINGATE

v.Jennifer Guillory WINGATE

21-472

Court of Appeal of Louisiana, Third Circuit.

January 26, 2022

John Green, Jr., 1135 Hodges Street, Lake Charles, Louisiana 70601, (337) 990-0060, Counsel for Plaintiff/Appellant: Michael Lynn Wingate

Stephen W. Hale, 1735 Ryan Street, Lake Charles, Louisiana 70601, (337) 433-0612, Counsel for Defendant/Appellee: Jennifer Guillory Wingate, now Kalscheuer

Court composed of John E. Conery, D. Kent Savoie, and Sharon Darville Wilson, Judges.

WILSON, Judge.

Jennifer Guillory Wingate, now Kalscheuer (Mrs. Kalscheuer), filed a petition for permission to relocate the principal residence of her minor child from Louisiana to Wisconsin. The child's father, Michael Lynn Wingate (Mr. Wingate), filed an answer to the petition and objected to the relocation. The trial court granted the request, and Mr. Wingate now appeals. For the reasons that follow, we affirm the trial court's ruling,

I.ISSUES

We must decide:

1. whether the trial court erred in finding that Mrs. Kalscheuer's request for relocation to Wisconsin was made in good faith; and

2. whether the trial court erred in finding that relocation to Wisconsin was in the best interest of the child.

II.FACTS AND PROCEDURAL HISTORY

The parties were married on April 20, 2013, and on January 22, 2015, a child was born. The parties separated on February 28, 2017, and their divorce became final by judgment signed on February 28, 2019. The parties stipulated to joint custody with Mrs. Kalscheuer being named domiciliary parent. Prior to Mrs. Kalscheuer stating her wish to relocate with the minor child, there were no disputes between the parties after the judgment of divorce.

Mrs. Kalscheuer married Mark Kalscheuer (Mr. Kalscheuer) on June 20, 2020. Mr. Kalscheuer is from Wisconsin and has many family members who reside there. His eighteen-year-old daughter is a student at the University of Wisconsin. Mrs. Kalscheuer and the minor child have visited Wisconsin with Mr. Kalscheuer four times.

Mrs. Kalscheuer submitted two notices of relocation to Mr. Wingate in 2020. She indicated that she had an employment opportunity in Wisconsin and that she and her new husband wished to live there. Mr. Wingate opposed the move but admitted that Mrs. Kalscheuer was not proposing the relocation for the purpose of separating him from their minor child.

The petition for permission to relocate came for hearing on March 30, 2021, and April 9, 2021. The trial court granted Mrs. Kalscheuer permission to relocate to Wisconsin by judgment dated April 13, 2021. This appeal by Mr. Wingate followed.

III.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 , 02-1891, p. 4 (La. 10/15/02), 828 So.2d 1094, 1096. "However, as to any underlying factual findings made by the trial court, such as whether the proposed relocation was made in good faith and whether the proposed relocation was in the best interest of the child, the manifest error standard of review is applicable." Gautreaux v. Gautreaux , 19-1486, p. 5 (La.App. 1 Cir. 7/23/20), 309 So.3d 362, 365-66.

IV.LAW AND DISCUSSION

"The person proposing the relocation has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child." La.R.S. 9:355.10.

Louisiana Revised Statutes 9:355.14 states:

A. 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 relocation will have on the child's physical, educational, and emotional development.

(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.

(4) The child's views about the proposed relocation, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.

(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.

(7) The reasons of each person for seeking or opposing the relocation.

(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.

(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.

(10) The feasibility of a relocation by the objecting person.

(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.

(12) Any other factors affecting the best interest of the child.

B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

Mr. Wingate argues that the trial court erred in finding that Mrs. Kalscheuer's request to relocate was made in good faith. He notes that the statute requires Mrs. Kalscheuer to prove that the relocation request is made in good faith but that "good faith" is not defined by the statute. "[T]he jurisprudence has defined the meaning of the term good faith in this context as a legitimate or valid reason for the move." McLain v. McLain , 07-752, p. 13 (La.App. 4 Cir. 12/12/07), 974 So.2d 726, 734. The court in McLain , 974 So.2d at 734, citing Janet L. Richards, Children's Rights v. Parents’ Rights: A Proposed Solution to the Custodial Relocation Conundrum, 29 N.M. L.Rev. 245, 263 (Spring 1999), noted the following legitimate reasons for a relocation request:

(i) to be close to significant family or other support networks;

(ii) for significant health reasons;

(iii) to protect the safety of the child or another member of the child's household from a significant risk of harm; (iv) to pursue a significant employment or educational opportunity; or

(v) to be with one's spouse (or equivalent) who is established, or who is pursuing a significant employment or educational opportunity, in another location.

Mrs. Kalscheuer testified that she is presently employed by the Leverage House, a company that assists real estate agents with transactions, as a transaction coordinator.¹ She indicated that upon relocation to Wisconsin, she would receive a promotion to director for the State of Wisconsin. Austin Polk (Mr. Polk) is the owner of the Leverage House. At present, Mrs. Kalscheuer is his only employee. He testified that as a director for the Leverage House in Wisconsin, Mrs. Kalscheuer could make in excess of $3,500.00 per month on a commission-based salary. According to Mr. Polk, the specifics of a formal job offer, including a ten percent share of the company, had not been "ironed out." Mr. Polk and Mrs. Kalscheuer agreed that the job offer was not specific to Wisconsin, but they both indicated that Mr. Kalscheuer's contacts in Wisconsin would help establish business there. Mr. Kalscheuer is employed as a real estate agent for Keller Williams in Lake Charles, Louisiana, and he would continue this employment in Wisconsin.

Mr. Wingate argues that the employment opportunity given by Mrs. Kalscheuer is not a legitimate reason for the relocation request because her salary would not be guaranteed and because the job offer is not specific to Wisconsin. Mr. Wingate asserts that "Wisconsin offers no different employment opportunity than Jennifer and her husband have right now in Lake Charles. The employment with the Leverage House is merely a pretext to add legitimacy to her request for relocation." The trial court stated its conclusion that the "business opportunity with [t]he Leverage House is that, while it is clearly not the reason that she wants to...