author: | JOHNSON, Justice. | t CALOGERO, Chief Justice,

text:
    STATE CIVIL SERVICE COMMISSION v. DEPARTMENT OF PUBLIC SAFETY DIRECTOR, et al.
    No. 2003-CA-1702.
    Supreme Court of Louisiana.
    April 14, 2004.

      Frank G. DeSalvo, New Orleans, Charles C. Foti, Jr., Atty. Gen., Charles H. Braud, Jr., Ann E. Wall, Francine Weaker, Willie E. Broome, Baton Rouge, Counsel for Applicant.
    Robert R. Boland, Jr., Counsel for Respondent.
   | JOHNSON, Justice.

We are called upon in this case to determine whether LSA-R.S. 33:2218.2(A)(2)(a), as enacted by the Louisiana Legislature, infringes upon the exclusive constitutional powers granted to the State Civil Service Commission. After a thorough review of the record, applicable statutes, legislative history, and jurisprudence, we affirm the Court of Appeal’s ruling that the statute is unconstitutional because it infringes upon the exclusive authority of the Civil Service Commission to regulate compensation for state classified employees.

FACTS and PROCEDURAL HISTORY

This suit was filed by the Civil Service Commission following the enactment of LSA-R.S. 33:2218.2(A)(2)(a) on July 1, 1999. The disputed statute at issue reads as follows:

(2)(a) Every sworn, commissioned law enforcement officer employed on a full-time basis by a bona fide police agency of the state or its political subdivisions, other than the Department of Public Safety and Corrections and the Department of Wildlife and Fisheries, and headquartered in a municipality with |aa population in excess of four hundred fifty thousand, and who serves the welfare of the public.in the capacity of a police officer by providing police services to the general public through effecting arrests, issuing citations, serving warrants, patrolling levees, waterways, and riverfront areas or while patrolling bridges that are within the boundaries of a municipality with a population in excess of four hundred fifty thousand shall be paid by the state extra compensation in the amount of three hundred dollars per month in addition to the compensation now paid to him by his employer out of self-generated revenue attributable to the agency employing such officers. To be eligible for the extra compensation, each such law enforcement officer shall have completed one year of service, and any such law enforcement officer hired after March 31, 1986, shall also have completed and passed a council-certified training program, as provided in R.S. 40:2405.
(b) For purpose of qualifications, computations, and other applicable provisions of this Section, references to “municipality” and “municipal” shall include in their meaning the bona fide police agency of the state or its political subdivisions that employ full-time sworn, commissioned law enforcement officers made eligible in this Paragraph.

On October 23, 1999, three months following the enactment of LSA-R.S. 33:2218.2(A)(2)(a), the Legislature sought to pass a constitutional referendum that would amend LSA-Const. Art. 10, Section 10(A)(1) — the article that embodies the duties and powers of the Civil Service Commission- — to provide the legislature with the authority to grant a supplemental pay raise to the Port of New Orleans Harbor Police. The referendum read,

Nothing herein shall prevent the Legislature from supplementing police department uniform pay plans from any available funds of the state, the department, the agency, or the political subdivision, provided that such supplement may be made available only for sworn, commissioned law enforcement officers employed on a full time basis by such police department who serve the welfare of the public, in their capacities as police officers, by providing police services to the general public, by affecting arrests, issuing citations, and serving warrants while patrolling levees, bridges, waterways and riverfronts.

That referendum was rejected by the voters. However, the referendum was not tied to the passage of LSA-R.S. 33:2218.2(A)(2)(a), and the defendants, Port of New Orleans Harbor Police Officers applied to the Department of Public Safety and Corrections Supplemental Pay Board for the pay increase.

[ 3The Civil Service Commission responded to the actions of the Port of New Orleans Harbor Police Officers by filing a Petition for Preliminary and Permanent Injunction and Declaratory Judgment which sought injunctive relief to prohibit the payment of the pay raise authorized by LSA-R.S. 33:2218.2(A)(2)(a) by the Director of the Department of Public Safety. On July 24, 2002, without assigning written reasons, the trial court held that the subject statute was in fact constitutional and therefore, denied the Civil Service Commission’s petition. The Civil Service Commission appealed this ruling to the First Circuit Court of Appeal.

On May 9, 2003, the First Circuit Court of Appeal reversed the trial court’s ruling and held that the statute was indeed unconstitutional because it represented an infringement on the constitutional grant of powers given to the Civil Service Commission. State Civil Service Commission v. Director of the Department of Public Safety, et al., 2002-1901 (La.App. 1 Cir. 5/9/03), 849 So.2d 602. Specifically, the Court of Appeal held that: (1) the statute violated the exclusive authority of the Civil Service Commission to regulate the compensation of state classified employees, as provided by LSA-Const. Art. 10, Section 10(A)(1); (2) that the legislature did not have the authority to enact LSA-R.S. 33:2218.2(A)(2)(a) pursuant to the minimum wage exemptions for firemen and municipal policemen found in LSA-Const. Art. 6, Section 14(B)(5) and discussed by this Court in New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 82-C-0025 (La.1982), 422 So.2d 402. The Court of Appeal concluded that unlike the Firefighters case, where there was a specific constitutional exemption for firemen and municipal policemen, there was no corresponding constitutional amendment for the Port of New | ¿Orleans Harbor Police; and (3) that LSA-R.S. 33:2218.2(A)(2)(a) was not a reasonable exercise of the Legislature’s police powers. Defendant, Robert Hecker, Chief of Port of New Orleans Harbor Police, et ah, appealed the judgment of the First Circuit Court of Appeal.

Subsequent Referendum

It should be noted that on November 5, 2002, the voters did approve a constitutional amendment. The pertinent part of the amendment reads as follows:

(3)(a) The legislature shall provide by law for the payment by the state of supplements to salaries of full-time local law enforcement and fire protection officers of the state. Beginning with the fiscal year which begins July 1, 2003, the legislature shall appropriate funds sufficient to fully fund the cost of such state supplement to the salaries of full-time law enforcement and fire protection officers. LSA-Const. Art. 7, section 10(D)(3)(a).

The Historical Notes to LSA-Const. Art. 7, section 10 state that “a proposal to add subpar. (D)(3) to Const. Art. 7, section 10 was submitted to the electors of the state of Louisiana and ratified by them at the statewide election held November 5, 2002.”

Intervenor, The Fraternal Order of Police, argues that as a result of the November 2002 constitutional amendment, the statute now spells out that the Harbor Police are eligible for the supplemental pay. The Fraternal Order of Police argues that “(t)he Constitution now expressly authorizes the supplemental pay without the blessings of Civil Service for the class of protectors of the public safety covered by the Statute.” In opposition, the State Civil Service Commission argues that this statute provides no authority for the legislature to provide supplemental pay to the Port of New Orleans Harbor Police because the amendment specifically refers to “local” police officers and the Port of New Orleans Harbor Police are not local police officers, but are police officers of the state serving as state classified employees.

The First Circuit Court of Appeal held that the State Civil Service Commission’s appeal “was not rendered moot by the passage of a constitutional amendment which expressly granted the legislature power to provide such | ¡¡supplemental pay, where the constitutional amendment had a later effective date and, thus, was not yet effective.” State Civil Service Com’n v. Director of Dept. of Public Safety, 2002-1901 (La.App. 1 Cir. 5/9/2003), 849 So.2d 602. We agree.

DISCUSSION and ANALYSIS

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of government. Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. Art. 9. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. Art. 12.

Under the general rules of statutory construction, courts begin their review with the premise that legislation is the solemn expression of legislative will, and, therefore, the interpretation of the law primarily involves the search for the legislature’s intent. Cole-Miers Post 3619 V.F.W. of De Ridder v. State, Department of Revenue & Taxation, Office of Alcoholic Beverage Control, 1999-2215 (La.1/19/00), 765 So.2d 312. However, legislative intent is not the appropriate starting point for statutory interpretation. Rather, the appropriate starting point is the language of the statute itself. In re Louisiana Health Service and Indem. Co., 1998-3034 (La.10/19/99), 749 So.2d 610, 615.

In the instant case, the Legislature amended LSA-R.S. 33:2218.2 by adding a new paragraph (A)(2)(a), which inter alia grants full-time law enforcement officers who provide police services to the general public through “... patrolling levees, | ¿waterways, and riverfront areas or while patrolling bridges” in a municipality with a population in excess of four hundred fifty thousand “shall be paid by the state extra compensation in the amount of $300.00 per month in addition to the compensation now paid ...”

The purpose and intent of LSA-R.S. 33:2218.2(A)(2)(a) is clear and unambiguous. The Board of Commissioners of the Port of New Orleans has the statutory authority to regulate the commerce and traffic of the port and harbor. LSA-R.S. 34:21 et seq. Port of New Orleans Harbor Police are “Peace Officers” and have all the power of Sheriffs as Peace Officers in all places and on all premises under the jurisdiction and control of the Board of Commissioners of the Port of New Orleans, and of the streets and approaches thereto. Op.Atty.Gen., No. 99-39, August 2, 1999. Clearly, the legislature, by enacting LSA-R.S. 33:2218.2(A)(2)(a), intended to grant supplemental pay, or extra compensation, to the Port of New Orleans Harbor |7Police. Thus, the issue for this Court is not to search for the legislative intent of LSA-R.S. 33:2218.2(A)(2)(a), but to determine its constitutionality.

Constitutional scrutiny favors the statute. State v. Griffin, 1308, 86-KA-0944 (La.1986), 495 So.2d 1306. Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Hart, 95, 96-0599 (La.1/14/97), 687 So.2d 94. In its exercise of the entire legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit. Louisiana Public Facilities Authority v. Foster, 2001-0009 (La.18/01), 795 So.2d 288; Meredeth v. Ieyoub, 1996—1110 (La.9/9/97), 700 So.2d 478. The legislature of this state, unlike Congress, which can do nothing that the Federal Constitution does not authorize, may do everything that the Louisiana Constitution does not prohibit. Bozant v. Campbell, 9 Rob. 411, 1845 WL 1357 (La.1845). Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. State v. Griffin, supra, at 1308. To hold legislation invalid under the state constitution, it is necessary to rely upon some particular constitutional provision that limits the power of the legislature to enact the statute appealed. Civil Service Commission of the City of New Orleans v. William J. Guste, 82-C-2611 (La.1983), 428 So.2d 457; New Orleans Firefighters Association v. Civil Service Commission of the City of New Orleans, supra.

In the present case, the State Civil Service Commission argues that LSA-Const. Art. 10, Section 10(A)(1) limits the power of the Legislature to grant supplemental |spay, or extra compensation, to state classified employees, such as the Port of New Orleans Harbor Police. Among the Civil Service Commission’s powers and duties enumerated in LSA-Const. Art. 10, Section 10(A)(1) is the responsibility to fix “compensation and disbursements” for state classified employees and to adopt a “uniform pay and classification plan.” The Commission asserts that it has the exclusive and plenary authority to regulate those areas delegated to it by statute, although the word “exclusive” is absent from the statute. Moreover, the State Civil Service Commission likens its powers to those granted to the Public Service Commission.

The powers and duties of the Public Service Commission are contained in LSA-Const. Art. 4, Section 21(B), and although there is no use of the word “exclusive” in this section, this Court, in Bowie, et al. v. Louisiana Public Service Commission, 92-CA2236, 92-CA2237 (La.1993), 627 So.2d 164, 166. held that LSA-Const. Art. 4, Section 21(B) “delegates to the Public Service Commission the exclusive and plenary power to regulate all common carriers and public utilities. The Commission’s power in this regard is as complete in every respect as the regulatory power that would have been vested in the Legislature in the absence of Article IV, Section 21(B).” Thus, the State Civil Service Commission argues that it is axiomatic that it also has the exclusive and plenary power to regulate those areas under its authority, in as complete a manner as would the Legislature in the absence of LSA-Const. Art. 10, Section 10(A)(1).

| ^Additionally, the State Civil Service Commission argues that there is a line of jurisprudence that establishes its exclusive authority to regulate the state classified service. In Louisiana Civil Service League, et al. v. Forbes, et al., 258 La. 390, 246 So.2d 800, 807 (1971), overturned for other reasons, this court held that, “it is the opinion of this court that the mandate of the people evidenced a clear intent, as reflected by their constitution, to invest the State Civil Service Commission with the sole and exclusive authority to establish all rates of compensation paid to civil service personnel, subject only to the routine approval of the Governor of this State.” The First Circuit, in Thoreson, et al. v. Department of State Civil Service, et al., 433 So.2d 184, 190 (La.App. 1st Cir. 1983), writ denied, 440 So.2d 726 (1983), while referring to exceptions to the Commission’s authority to establish uniform pay and classification plans, held that “the debate surrounding the State Police amendment and the amendment concerning the wildlife officers, further shows that the intent of the framers was that these be exceptions to the exclusive power of the Commission to establish a uniform pay and classification plan for classified employees, subject only to the approval of the Governor.”

Similarly, in New Orleans Firefighters Association Local 632 v. City of New Orleans, 91-0969,(La.1991), 590 So.2d 1172, 1175, this Court held that the City Civil Service Commission has “the exclusive power to adopt rules regulating the classified service in the areas specifically enumerated in Section 10(A)(1) and the city governing authority cannot constitutionally infringe on the Commission’s exercise of this power.” In sum, the State Civil Service Commission argues that “there is no more clearer principle in Louisiana constitutional law than that the State Civil Service Commission has authority exclusive to that of the Legislature to regulate | mcompensation for state classified employees such that the Legislature may not give a raise in pay to state classified employees.”

Conversely, Appellants, Robert Hecker, Chief of the Port of New Orleans Harbor Police, et ah, argue that while the Constitution limits the plenary power of the Legislature regarding a “uniform pay plan” it does not limit the Legislature’s plenary power to grant civil service employees “supplemental pay.” Thus, Appellants make a distinction between “uniform pay” and “supplemental pay.” Furthermore, appellants argue that because LSA-Const. Art. 10, Section 10(A)(1) fails to state that the Commission’s power is “exclusive,” then the Legislature, not the Civil Service Commission, has the authority to legislate this area. We now address both the “supplemental pay” and “exclusivity” arguments separately.

Exclusivity of Commission’s potuers

The Legislative history and jurisprudence regarding the authority of the Civil Service Commission indicates that its enumerated powers and duties were meant to be exclusive. The Louisiana Constitution has detailed provisions for the Civil Service Commission since 1952. Provisions for the Commission were placed in the Constitution so that the system could only be repealed or modified by a vote of the people, thereby removing the system from the control of a temporary majority of the Legislature. New Orleans Firefighters Association Local 632, AFL-CIO, et al. v. City of New Orleans, supra, at 1175, FN2, quoting 3 Projet of a Constitution for the State of Louisiana 572 (1954). The delegates to the 1973 Constitutional Convention adhered to this theme by rejecting an amendment that would have allowed the Legislature by a two-thirds vote to change the nature and powers of the Commission. In Id. quoting, 9 Records of the Louisiana Constitutional Convention of 1973: Convention Transcript pp. 2595, 2633.

In Strickland v. State, Office of the Governor, 525 So.2d 740, 743 (La.App. 1st Cir.1988), the First Circuit Court of Appeal acknowledged that LSA-Const. Art. 10, Section 10 failed to state that the Civil Service Commission had “exclusive” authority. However, the court held the following:

Article X of the constitution evidences an intention to grant exclusive jurisdiction to the Commission in those areas where the Commission has exercised its ‘broad and general rule-making’ power. Unless that jurisdiction is exclusive, the orderly fashion of resolving employer-employee related disputes will be disrupted if the employee can forum shop between the Commission and the courts.

Similarly, the First Circuit Court of Appeal, in Leger v. Louisiana State University, 601 So.2d 20, 21 (La.App. 1st Cir.1992), held that:

Pursuant to La. Const. Art. 10, Sect. 10 the Commission has the authority to administer and regulate matters such as compensation and reductions in pay. The Commission has exclusive jurisdiction in areas where the Commission has exercised its broad rule-making powers.

Also, this Court in Lafleur v. City of New Orleans, 943-944, 01-3224 (La.14/4/02), 831 So.2d 941, held that “a city civil service commission has the exclusive power to adopt rules regulating the classified service in the areas specifically enumerated in Section 10(A)(1), and the city governing authority cannot constitutionally infringe on the commission’s exercise of this power.” This holding was also cited by this Court in Civil Service Commission of the City of New Orleans v. The City of New Orleans, 02-1812 (La.9/9/03), 854 So.2d 322, 328, and in Firefighters, supra, at 1175. Thus, the exclusive authority of the Civil Service Commission over areas specified in LSA-Const. Art. 10, Section 10(A)(1) is established by both the legislative history of the Civil Service Commission and the jurisprudence interpreting Section 10(A)(1).

11i>Supplemental Pay

Likewise, the legislative intent and jurisprudence regarding the Civil Service Commission’s authority to regulate “compensation and disbursements” and to adopt a “uniform pay and classification plan,” as provided by LSA-Const. Art. 10, Sect. 10(A)(1), indicate that the Civil Service Commission also has the exclusive authority to regulate supplemental pay.

A plain reading of LSA-Const. Art. 10, Section 10(A)(1), indicates that the Civil Service Commission has the exclusive authority to regulate “compensation and disbursements” for state classified employees. “Compensation” is identified in LSA-Const. Art. 10, Section 10(A)(1), as an area to be regulated by the Civil Service Commission. Similarly, “compensation” appears in LSA-R.S. 33:2218.2(A)(2)(a), which, inter alia, grants Port of New Orleans Harbor Police “extra compensation in the amount of three hundred dollars per month in addition to the compensation now paid to him.”

Furthermore, previous courts have recognized “supplemental pay” as part of compensation. This court in Firefighters, supra, at 413, stated that “Our courts have consistently held in a variety of contexts that state supplements are to be considered as part of the overall level of compensation due to employees.” In Hebbler v. New Orleans Fire Department, 310 So.2d 113, 115 (La.1975), this Court held that state supplemental pay was part of a fireman’s salaries and wages. Also, in Latino v. City of Bogalusa, 9822 (La.App. 1st.Cir.1974), 295 So.2d 560, the First Circuit Court of Appeal held that city policemen were entitled to have their overtime pay computed not only on the basis of their city salary but also with the inclusion of their supplemental pay. Therefore, “compensation,” as identified in LSA-Const. Art. 11810, Section 10(A)(1), is inclusive of both uniform pay and supplemental pay, and subject to the Civil Service Commission’s exclusive authority to regulate.

Next, Appellants, Harbor Police, and Intervenor, the Fraternal Order of Police, and the Attorney General, argue that LSA-Const. Art. 6, Section 14, and this Court’s decision in Firefighters, supra, provide an exception to the Civil Service Commission’s authority to regulate compensation for the Harbor Police.

The pertinent part of LSA-Const. Art. 6, Section 14 reads as follows:

Section 14. (A) No law or state executive order, rule, or regulation requiring •increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance enacted, or resolution adopted, by the governing authority of the affected political subdivision or until, and only as long as, the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided, or until a law provides for a local source of revenue within the political subdivision for the purpose and the affected political subdivision is authorized by ordinance or resolution to levy and collect such revenue and only to the extent and amount of such revenue. This section shall not apply to the school board.
(B) This section shall not apply to:
(5) A law providing for civil service, minimum wages, hours, working conditions, and pension and retirement benefits, or vacation or sick leave benefits for firemen and municipal policemen.

Appellants, argue that this Court, in Firefighters, supra, held that state supplemental pay for firemen was outside the Civil Service Commission’s authority and that state supplemental pay for firemen did not infringe on the Commission’s powers.

Intervenor, the Fraternal Order of Police, asserts that the disputed statute in the present case, like the supplemental pay statute in Firefighters, falls under the “minimum wage” power of the Legislature as codified in LSA-Const. Art. 6, Section 14, and that if “the ‘minimum wage’ power of the Legislature was broad enough in 1982 to include a supplemental pay statute, it is broad enough now.” Also, Intervenor argues that the supplemental pay statute in the present case is necessary because of 114the grossly inadequate salary earned by the Port of New Orleans Harbor Police. Further, Intervenor asserts that if the plenary power of the Legislature includes supplemental pay for firefighters and policemen paid by a municipality as an exception to Article 6, Section 14, “it easily includes supplemental pay to firefighters and policemen who are paid by another political subdivision of the state.”

The Attorney General argues that this Court addressed LSA-Const. Art. 6, section 14, when deciding Firefighters, and that the court’s broad interpretation of the “minimum wage” portion of the statute allowed for the ruling that the Legislature could set supplemental pay for firemen and municipal police. Further, the Attorney General argues that what is meant by the designation “municipal police” is unclear. The Attorney General stated the following,

The Harbor Police, which the supplemental pay raise at hand benefits, definitely provide a municipal service to all of the Port of New Orleans, the major water thoroughfare into the United States, and it can be argued that they are municipal even though the municipality itself does not pay them. Art. VI, section 14 of the Constitution protects groups, such as the harbor police, who are in fact paid by other political subdivisions outside their municipality. The legislature is better attuned to coordinate these political subdivisions in order to assure that these policemen get their fair share in the area of salary and pay increase.

In opposition, the State Civil Service Commission distinguishes the Firefighters ease from the present matter. First, the State Civil Service Commission argues that Firefighters addressed the fixing of a minimum wage, not supplemental pay, as in the present case. Second, the State Civil Service Commission argues that Article 6, Section 14 allows the Legislature to enact minimum wage and working standards for firemen and municipal policemen and that the Port of New Orleans is not a municipality. The State Civil Service Commission states,

The term ‘municipal is specifically defined in Article VI, Section 44(3) as meaning ‘an incorporated city, town, or village.’ The Port of New Orleans is established and empowered at R.S. 44:1, et seq. and while those statutes do not |¡ ¡¡identify the Port as any particular type of entity, it is certainly not a city, town, or village of the state.

Thus, the Civil Service Commission argues that appellants reliance on Firefighters is misplaced.

We agree that LSA-Const. Art. 6, Section 14 and Firefighters, supra, are inapplicable to the case sub judice. LSA-Const. Art. 6, section 14 was adopted by the 1973 constitutional convention and approved by Louisiana voters. Firefighters, supra, at 407. Convention debate focused on the Legislature’s authority over minimum wages and working conditions of firemen and municipal policemen (those areas specified in Section 14(B)(5)). Id. The statute was adopted by a vote of 85 to 30, including the legislative authority over minimum wages and working conditions of firemen and municipal policemen. Id. at 408. This provision is an exception to the overall intent of the statute, which is that “legislation increasing a political subdivision’s employee benefits shall not become effective until approved by its governing authority or until the legislature appropriates funds for the purpose.” Id. at 406.

LSA-Const. Art. 6, Section 14 was interpreted by this court in Firefighters, supra. In Firefighters, a class action suit was filed by the New Orleans Firefighters Association Local 632 AFL-CIO and several of its members against the City Civil Service Commission. The Firefighters sought to have their supplemental pay included in their overtime wage computations. Id. at 405. The issue before this Court was the allocation of power between the Legislature and the Civil Service Commission in establishing minimum wages and overtime wages for New Orleans’ firemen. Id. at 404-405. This Court concluded that the disputed statute was not an attempt by the Legislature to fix salaries or to amend a civil service pay plan but a |1figood faith effort to set a floor under wages and a ceiling over hours pursuant to a statewide public policy. Id. at 414. In reaching its conclusion, this Court reviewed the purpose and legislative history of LSA-Const. Art. 6, Sect. 14.

In interpreting the purpose of the statute, this Court held the following:

There is nothing in the wording of Art. 6, section 14 that restricts the power of the legislature to enact minimum wage and working condition laws for firemen. On the contrary, this power is expressly reserved to the legislature as an exception to the provision’s restraint upon laws increasing the financial burden of political subdivisions. Id. at 407.

In Firefighters, this court reviewed the 1973 constitutional convention proceedings in determining the legislative intent of the statute. It was noted that “the record of the convention proceedings indicates that the legislature’s power to set minimum wage and labor standards prevailed because of the obviously compelling state interest in providing citizens with more effective police and fire protection.” Id. at 409. Further, this Court determined that the “driving force in retaining the legislative prerogative was a widely perceived need for state government to address vigorously the problems of rising crime, riots and other public disorders which had become prevalent in the 1960’s and early 1970’s.” Id. Thus, this Court held that the Civil Service Commission was not free to ignore the legislative commandment of LSA-Const. Art. 6, Section 14 to include supplemental pay in calculating overtime pay for firemen as the commandment was embodied in the scheme for minimum wages for fire fighters and is a valid exercise of the Legislature’s plenary power.

The supplemental pay statute va. Firefighters was upheld because of the express provision of LSA-Const. Art. 6, Section 14(B)(5) that exempted firemen and municipal policemen. In the present case, there is no corresponding constitutional provision excepting the Harbor Police who have stipulated that they are employed in the state classified civil service as state classified employees. Thus, appellants ' are |17outside of the scope of Firefighters and Article 6, Section 14(B)(5), because they are state classified employees and not municipal policemen.

Lastly, Intervenor, the Fraternal Order of Police, argue that the Civil Service Commission’s authority does not limit the Legislature’s prerogative to deal with public safety. Public safety is of vital interest and concern to the citizens of Louisiana, particularly in an age of international terrorism, according to Intervenor. In support of their claim, Intervenor make the following arguments:

If the State gave the Harbor Police supplemental pay to compensate them for their vital role in protecting the Port and the State in the current terrorist threat, no one could possibly object. The fact that the Legislature amended the supplemental pay statute before 9/11 should make no difference at all. The State’s police powers should include the power to anticipate a threat. The State should not have to wait until the Port is destroyed to enact legislation to protect it!

This argument was soundly rejected by the First Circuit Court of Appeal in the instant case, State Civil Service Commission, supra, at 607. The First Circuit noted that,

The defendants presented no empirical data nor other documentation to prove that the legislation was passed in response to heightened security needs in the area of the Port of New Orleans, nor has it been shown that due to the lack of sufficient compensation, there has been an inability to maintain a sufficient, active police force to patrol the Port of New Orleans.

Further, the Court added,

The defendant’s assertion in brief appears to be a blatant attempt to bootstrap the traumatic events of recent years to the otherwise unconstitutional action of the legislature in enacting legislation in derogation of the authority of the Commission, as pronounced in La. Const. Art. X, section 10(A)(1).

We are sympathetic to the economic plight of Louisiana’s police officers, particularly during a time of increasing threats to our nation’s shores and borders. However, like the Court of Appeal before us, we conclude that defendant’s argument — that the disputed statute at issue is a constitutional exercise of the Legislature’s police powers — is without merit. Inalienability of police power does not preclude 11 aits delegation to municipalities and other governmental subdivisions as those entities are also part of the total government of the state. City of New Orleans v. Board of Commissioners of the Orleans Levee District, 93-C-0690 (La.7/5/94), 640 So.2d 237. The people of the State through their constitution may vest and define police powers in municipalities and other governmental subdivisions. Id. at 250. The Louisiana Constitution granted exclusive powers to the Civil Service Commission. Those powers should be upheld and not abridged by this Court.

CONCLUSION and ORDER

We conclude that LSA-R.S. 33:2218.2(A)(2)(a) is unconstitutional, because in enacting said law, the Legislature infringed upon the constitutional powers of the Civil Service Commission that can only be abridged by constitutional amendment. Further, the Port of New Orleans Harbor Police are state classified employees, and not municipal policemen, and therefore they are outside the purview of the constitutional exceptions found in LSA-Const. Art. 6, Section 14 and in the Firefighters case. Defendants’ argument that the statute is a constitutional exercise of the Legislature’s police powers is without merit. Therefore, the judgment of the Court of Appeal is AFFIRMED.

CALOGERO, C.J., additionally concurs with reasons.

| t CALOGERO, Chief Justice,

additionally concurring.

I agree with the majority’s conclusion that La.Rev.Stat. 33:2218.2(A)(2)(a), which established a supplemental pay increase for Port of New Orleans Harbor Police Officers, unconstitutionally infringes on the exclusive powers of the Louisiana Civil Service Commission to “adopt a uniform pay and classification plan.” La. Const, art. X, § 10(A)(a) (1974). In fact, I expressed that same conclusion in my dissent from this court’s recent denial of the writ application in Fraternal Order of Police v. City of New Orleans, 2003-1216 (La.10/3/03), 862 So.2d 960. In that case, plaintiffs, Fraternal Order of Police Crescent City Lodge No. 2 and others (hereinafter referred to collectively as “FOP”), sought a judgment ordering defendant, City of New Orleans, to pay New Orleans policemen additional wages allegedly due under a 1928 amendment to La. Const, art. XIV, § 25 (1921). My dissent in that case fully sets forth my position that no valid law or Constitutional authority supported FOP’s claims because the provision relied upon by FOP never became statutory after the adoption of the 1974 Louisiana Constitution because it conflicted with the Civil Service Commission’s constitutionally-granted exclusive authority. Thus, I would have granted the writ application filed by the City in that case.

|¡>The majority now embraces the exact argument I set forth in Fraternal Order of Police in order to affirm the court of appeal’s finding in this case that La.Rev.Stat. 33:2218.2(A)(2)(a) unconstitutionally granted a supplemental pay increase to the New Orleans Harbor Police in violation of the Civil Service Commission’s exclusive power. Because the majority has now adopted the conclusion I espoused in that earlier case, I agree with the decision in this case.

      . LSA-R.S. 34:21. Rights and powers of board in general.
      A. (1) The board of commissioners shall regulate the commerce and traffic of the port and harbor of New Orleans in such manner as may, in its judgment, be best for the maintenance and development thereof. (2)However, such regulation of such commerce and traffic including international commerce in the parish of St. Bernard shall be governed by the provisions of R.S. 34:1701 et seq.
      B. It shall be the duty of the board:
      (1) To have charge of, and administer the public wharves, docks, sheds, and landings of the port of New Orleans which are owned and operated, or which may be purchased, acquired, or operated by the board.
      (2) To construct new wharves and other structures when necessary.
      (3) To erect sheds and other structures on such wharves and landings.
      (4) To place and keep these wharves and landings, sheds, and other structures in good condition.
      (5) To maintain proper depths of water at all such wharves and landings.
      (6) To provide mechanical facilities for the use of such wharves, landings, sheds, and other structures.
      (7) To provide light, water, police protection, and any other services for such wharves, landings, and sheds, as it may deem advisable.
      (8) To finance erect, and operate all basins, locks, canals, and warehouse elevators.
      (9) To charge for the use of all facilities administered by it, and for all services rendered by it, such fees, rates, tariffs, or other charges as it may establish.

      . LSA-Const. Art. 10, Section 10. Rules; Investigations; Wages and Hours
      Section 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service is herein established. It may make recommendations with respect to employee training and safety.

      . LSA-Const. Art. 4, Section 21. Public Service Commission
      Section 21. (B) Powers and Duties. The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.


source: Caselaw Access Project

author: h KNOLL, J.,

license: Public Domain

text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KK-1095.
    Supreme Court of Louisiana.
    May 5, 2004.
   \,ORDER

Motion for continuance granted. The Court has pending numerous writ applications involving this defendant and other writs that were filed simultaneously with this Court and the court of appeal that have not yet been ruled on by the court of appeal.

KNOLL, J., dissents.

h KNOLL, J.,

dissenting.

I would deny the motion for continuance. I found no abuse of discretion by the trial court judge in denying defendant’s motion for continuance.


author: LPER CURIAM. hKNOLL, Justice

text:
    In re Robert F. FADAOL.
    No. 2004-B-0811.
    Supreme Court of Louisiana.
    May 14, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in a sexual relationship with a client, prepared a will for a client naming his wife as a legatee, and engaged in other conflicts of interest. Following the filing of formal charges in the matter, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Robert F. Fadaol, Louisiana Bar Roll number 5419, be suspended from the practice of law in Louisiana for a period of one year. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., rejects consent discipline for the reasons assigned by Knoll.

KNOLL, J., rejects consent discipline with reasons.

hKNOLL, Justice

(dissenting).

Considering the serious nature of respondent’s misconduct, I believe a fully-deferred suspension is inappropriate. Accordingly, I would reject the petition for consent discipline and remand the case to the Office of Disciplinary Counsel to proceed with formal charges against respondent.


author: PER CURIAM.

text:
    In re Reginald J. McINTYRE.
    No. 2004-B-0943.
    Supreme Court of Louisiana.
    May 14, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his client’s legal matter and failed to communicate with his client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Reginald J. McIntyre, Louisiana Bar Roll number 9356, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Richard Lee O’BRIEN.
    No. 2004-OB-0946.
    Supreme Court of Louisiana.
    May 14, 2004.
   BORDER

Respondent is the subject of ten counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”). The charges allege that respondent failed to communicate with his clients, neglected legal matters, failed to account for his fees and failed to refund unearned fees, failed to expedite litigation, and failed to obey court orders. Respondent also acted beyond the scope of his representation and dishonestly settled clients’ cases without their knowledge, forged their endorsements on checks, and converted the settlement funds to his own use, then failed to cooperate with the ODC in its investigation. In addition to the pending formal charges, respondent is also the subject of one open investigative file.

Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Richard Lee O’Brien, Louisiana Bar Roll number 24181, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Richard Lee O’Brien for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

I,IT IS FURTHER ORDERED that Richard Lee O’Brien shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from' seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


text:
    In re Alex Orlando LEWIS, III.
    No. 2004-OB-0945.
    Supreme Court of Louisiana.
    May 14, 2004.
   hORDER

Respondent is the subject of three sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”). The first set of charges encompasses twelve counts of misconduct and alleges that respondent failed to competently represent his client, failed to communicate with his client, neglected a legal matter, failed to promptly remit funds to third-party medical providers, commingled and converted client and third-party funds, knowingly disobeyed a court order, and failed to cooperate with the ODC in its investigation. The second set of charges encompasses four counts of misconduct and alleges that respondent negotiated a settlement draft before executing the release, then subsequently refused to return the release to the insurer. In addition, respondent failed to cooperate with the ODC in its investigation of that matter. Finally, the third set of charges encompasses two counts of misconduct and alleges that respondent neglected a legal matter, failed to communicate with his client, engaged in dishonest and deceitful conduct, and failed to cooperate with the ODC in its investigation. In addition to the three sets of pending formal charges, respondent is also the subject of seven open investigative files.

Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

| {.Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Alex Orlando Lewis, III, Louisiana Bar Roll number 23518, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Alex Orlando Lewis, III for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Alex Orlando Lewis, III shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


text:
    In re CONFIDENTIAL PARTY.
    No. 2004-B-0992.
    Supreme Court of Louisiana.
    May 18, 2004.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for the institution of formal charges.

FOR THE COURT:

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


text:
    In re Gregory L. THIBODEAUX.
    No. 2004-B-0991.
    Supreme Court of Louisiana.
    May 21, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his client’s legal matter and failed to communicate with his client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Gregory L. Thibodeaux, Louisiana Bar Roll number 18463, be suspended from the practice of law in Louisiana for a period of one year. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: J^EDWIN A. LOMBARD, Judge.

text:
    Erich A. KOENIGER v. David A. NEWSOME, M.D.
    No. 2003-CA-1492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.
    Rehearing Denied June 15, 2004.

      Roger A. Stetter, Roger A. Stetter, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Wayne E. Garrett, Wayne E. Garrett, A.P.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   J^EDWIN A. LOMBARD, Judge.

This case arises out of an action to collect a balance due under an Agreement of Sale. The trial court rendered a summary judgment in favor of the defendant, thereby dismissing the case. For the reasons assigned, we reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

Plaintiff, Erich Koeniger (Koeniger), was the sole shareholder of Koeniger Lens International, Inc. (KLI), a contact lens manufacturing business, formerly d/b/a Gulf Coast Contact Lens, Inc. (Gulf Coast). On April 30, 1997, Koeniger sold the business to defendant, David E. Newsome, M.D. (Newsome), who would thereafter operate the business as Gulf Coast.

An Agreement of Sale (Agreement) was perfected and the parties agreed upon a purchase price of $180,000.00 payable over five years at the rate of $3,000.00 per month. Newsome executed the Agreement and a promissory note both as president of Gulf Coast and individually as surety or guarantor. Under the terms of the Agreement and the promissory note, Newsome guaranteed payment of the purchase price “until paid in full.” Koeniger agreed to act as a consultant to Gulf Coast for a period of three years.

laOn May 15, 1997, KLI assigned all of its rights under the Agreement and note to Koeniger. Gulf Coast made 36 payments of $3,000.00 ($108,000.00) to Koeniger pursuant to the Agreement. Thereafter, Gulf Coast went out of business and Koeniger filed suit against Newsome for the unpaid principal balance of $72,000.00.

Newsome brought a motion for summary judgment, arguing that, pursuant to a provision in the Agreement, monthly payments were only guaranteed for three years. On May 23, 2003, the trial court granted the summary judgment in favor of Newsome and dismissed Newsome as a party defendant. Written reasons for judgment have not been made a part of this record.

In support of the motion for summary judgment, and on this appeal, Newsome relies on section 2(b) of the Agreement, under which the purchaser could request a reduction in the purchase price after three years based on a decline in gross revenues, or a so-called “revenue base line reduction.” This provision is the source of the dispute. It states in pertinent part:

2. That the parties have agreed on a purchase price of ONE HUNDRED EIGHTY THOUSAND AND NO/100 ($180,000.00) DOLLARS for the sale of said assets, said money to be paid at the rate of THREE THOUSAND AND NO/ 100 ($3,000.00) DOLLARS per month, interest to be charged only if any payment should not be made timely, and then to be charged at the rate of eight (8%) percent per annum, until paid in full, payment for which vendee does hereby execute a promissory note payable to the order of vendor at the rate of $3,000.00 per month, subject to the following provisos:
a. That in addition to the sale of the aforementioned assets, Erich Koeniger, individually, does hereby agree to act as a consultant on behalf of said corporation for a period of three years ...
b. That said payment schedule of $3,000.00 per month is guaranteed for the first three years of said contract, or until April 30, 2000, at ivhich time the parties agree to review the 13performance of said Gulf Coast Contact Lens, Inc., and to adjust the payment schedule on the following basis:
The base line is set at the gross revenues of Koeniger Lens International, Inc. from April 1, 1997 through March 31, 1998 will be hereinafter referred to as “the revenue base line”, if the gross revenue of Gulf Coast Contact Lens, Inc., in subsequent years after revenue base line has been set, has declined below said revenue base line, then the monthly payment due to Dr. Erich Koe-niger shall be reduced by the percentage of reduction in said gross revenues of Gulf Coast Contact Lens, Inc.

(Emphasis added)

ARGUMENT:

Koeniger argues that the trial court erred when it misinterpreted the revenue base line reduction provision of the Agreement and concluded that Newsome was not responsible for any payments after three years. Koeniger asserts that the trial court’s ruling was manifestly erroneous for several reasons: 1) The parties did not agree that Newsome’s guarantee of the purchase price ($180,000.00) would expire in three years. Rather, it is argued that the Newsome guaranteed payment of the purchase price in full, and that the parties agreed to a possible adjustment in the monthly payment schedule based upon the financial performance of Gulf Coast after three years of operation. 2) It is undisputed that Gulf Coast never exercised its option to seek a revenue base line reduction. 3) It is undisputed that Gulf Coast never provided Koeniger with a revenue base line as required under the Agreement and promised by Newsome’s attorney on the date of the closing. 4) It is undisputed that Gulf Coast never provided Koeniger with financial results or evidence of the decline in gross revenue as required under the Agreement.

Koeniger relies on the well settled legal principle that a contract should be given a reasonable interpretation and the whole of it should be read to understand each of its parts. Noto v. Wong, 01-0210 (La.App. 4 Cir. 3/20/02), 814 So.2d 640, 642; Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1937 (La.App. 3 Cir. 5/10/00), 763 So.2d 40, 42. Koeniger contends that the trial court’s interpretation of the contract would lead to the absurd consequence of absolving Newsome from his obligation to pay the entire purchase price as stipulated in the Agreement. Moreover, Koeniger argues that the trial court’s decision is particularly erroneous in light of the fact that Newsome never availed itself of the procedure for obtaining a reduction in the monthly payments due under the contract.

In opposition to this appeal, Newsome maintains the position that he guaranteed monthly payments for only three years; and because the gross revenues of the business declined, he was not responsible for any payments beyond that time. New-some acknowledges the revenue base line reduction provision of the contract, but he does not explain his failure to follow the procedure outlined in section 2(b) that required a financial review of Gulf Coast in order to determine by what percentage the monthly payments might be reduced.

STANDARD OF REVIEW:

Whether a contract is ambiguous or not is a question of law. Fourroux v. Board of Commissioners for the Orleans Leevee District, 03-0374 (La.App. 4 Cir. 1/8/03), 837 So.2d 698; McCrory v. Terminix Service Co., Inc., 609 So.2d 883 (La. App. 4 Cir.1992). When a contract is to be interpreted by the court as a matter of law, a motion for summary judgment is the proper procedural vehicle to present the question to the court. Fourroux.

In the present case, the trial court based its judgment on its interpretation of the contract. This constitutes a legal finding. As such, the proper standard of review for such legal findings is de novo. Landry v. Landry, 97-1839 (La.App. 4 Cir. 11/25/98), 724 So.2d 271, 274. When appellate review is not premised upon any factual findings made at the trial level, but instead is based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct. Spohrer v. Sphorer, 610 So.2d 849 (La.App. 1 Cir. 1992).

DISCUSSION:

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract. La. C.C. art.2050. Noto; McDuffie v. Riverwood Intern. Corporation, 27,292 (La.App. 2 Cir. 8/23/95), 660 So.2d 158; Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031.

The threshold issue in this case is whether the contract’s terms are ambiguous or explicit. After a thorough review of the Agreement, we fail to find any ambiguity in the disputed provisions. We further find that the trial court was legally incorrect in its interpretation of the contract as it pertains to the revenue base line reduction provision and Newsome’s obligation under the contract to pay the full purchase price.

Under the plain reading of the Agreement, it is clear to this court that New-some was obligated to pay the entire purchase price ($180,000.00) unless, pursuant to section 2(b), the payments were adjusted after 36 months, upon review of the performance of Gulf Coast by the parties. It is undisputed that Newsome | ¿never sought such a review and never presented any financial information to Koeniger in reference to the declining gross revenues of Gulf Coast. Instead, Newsome unilaterally stopped paying the monthly installments after the 36-month guaranty period. We find this to be a clear breach of New-some’s obligation under the Agreement, and accordingly, we find that the trial court erred in granting the summary judgment in favor of Newsome.

CONCLUSION:

For the reasons set forth herein, the judgment of the trial court is reversed. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


author: | pPARRO, J.

text:
    Robert Patrick ROMANOWSKI v. Sherry Lane ROMANOWSKI.
    No. 2003 CU 0124.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      John N. Samaha, Baton Rouge, for Plaintiff-Appellee Robert Patrick Roma-nowski.
    Brent K. Delee, Baton Rouge, for Defendant-Appellant Sherry Lane Romanow-ski.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | pPARRO, J.

A mother appeals from a trial court judgment, which designated the minor children’s father as the domiciliary parent, awarded her child support based on a finding that she was voluntarily unemployed, and failed to award her interim periodic spousal support. For the following reasons, we amend in part, and as amended, we affirm.

Facts and Procedural History

Sherry Lane Romanowski (Sherry) and Robert P. Romanowski (Robert) married in 1997. Two children were born of this marriage: Mallory on February 3, 1998, and Nicholas on January 27, 1999. Sherry also had two teenage daughters from a prior marriage. After separating, Robert filed a petition for divorce on March 12, 2002, seeking sole custody of the minor children. Sherry responded by filing an answer and reconventional demand in which she sought a divorce under LSA-C.C. art. 102 based on an allegation that the parties had begun living separate and apart on March 1, 2002, and had not reconciled since then. Additionally, she requested custody and visitation in accordance with the Post-Separation Family Violence Relief Act, LSA-R.S. 9:361 et seq., child support, and interim periodic spousal support. Subsequently, Sherry filed a rule for interim child custody, interim child support, and interim periodic spousal support. In her rule, Sherry alleged that she was not required to obtain employment, since she cared for the parties’ minor children under the age of five.

In an interlocutory judgment, the parties stipulated that physical custody of the children would be with Sherry during the week and Robert on the weekends. Robert was responsible for payment of day care expenses. The parties reserved the right to litigate any of the issues set forth in the stipulated judgment without having to show a change in circumstances. Approximately three months later, a second stipulated interlocutory judgment was entered allowing the parties to share custody, in the interim, on a week-to-week basis with Robert providing monthly child support of $750 and Sherry taking care of the children for Robert while he worked.

At the trial of this matter on September 6, 2002, the court determined that it was in the best interest of the minor children to continue the shared custody arrangement |sand named Robert as the domiciliary parent. In determining the amount of child support, the court assigned a monthly income of $1,905 to Sherry, resulting in a monthly award of $381 in her favor. The issue of interim periodic spousal support was before the trial court at this time; however, the judgment is silent on this issue. Sherry appealed, contending that the trial court erred in assigning $1,905 in monthly income to her for the purpose of calculating child support, since she was at home caring for the parties’ three and four-year-old children, in designating Robert as the domiciliary parent, and in failing to order interim periodic spousal support.

Domiciliary Parent Designation

In the absence of an agreement, the court shall award custody to the parents jointly. LSA-C.C. art. 132. To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. LSA-R.S. 9:335(A)(2)(b). In a decree of joint custody, the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown. LSA-R.S. 9:335(B)(1).

The primary consideration in a child custody determination is always the best interest of the child. LSA-C.C. art. 131. LSA-C.C. art. 134 enumerates the following 12 nonexclusive factors that are relevant in determining the best interest of the child:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
14(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The best interest of the child test under LSA-C.C. arts. 131 and 134 is a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Street v. May, 35,589 (La.App. 2nd Cir.12/5/01), 803 So.2d 312, 315. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Craft v. Craft, 35,785 (La.App. 2nd Cir.1/23/02), 805 So.2d 1213, 1217.

The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate functions, great deference is accorded to the decision of the court. A trial court’s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Stephens v. Stephens, 02-0402 (La.App. 1st Cir.6/21/02), 822 So.2d 770, 774; Hodnett v. Hodnett, 36,532 (La.App. 2nd Cir.9/18/02), 827 So.2d 1205, 1209.

Sherry argues that the trial court was manifestly erroneous in designating Robert as the domiciliary parent of their two minor children, since the children were in her physical custody the majority of the time after the parties separated, specifically 65 percent of the time. Although the testimony does in fact support her contention, in that she cared for the children while Robert was at work when he had physical custody of the children, such arrangement was not ordered by the judgment that is being appealed and was subject to change at the insistence of either party without court involvement.

|RSherry does not otherwise attack the trial court’s weighing and balancing of the factors listed in LSA-C.C. art. 134, nor does she contend that the designation of the father is not in the best interest of the children. In reaching its decision to designate Robert as the domiciliary parent, the trial court made numerous factual findings, which included the fact that Sherry’s two children from a prior marriage were high school dropouts, with an extensive history in the criminal justice system and drug use/rehabilitation. The evidence disclosed a chaotic relationship between Sherry and these two girls. Based on Sherry’s record with these two children, the trial court found that it would be in the children’s best interest to have their father named as the domiciliary parent. Given the trial court’s opportunity to observe the demean- or of the witnesses, it was in the best position to make determinations as to the credibility of witnesses. Our review on appeal reveals that the trial court carefully evaluated the testimony and made factual findings which are reasonably supported by the record. Furthermore, we cannot find that it abused its discretion or was manifestly erroneous in its decision to designate Robert as the domiciliary parent.

Calculation of Child Support

Child support is a continuous obligation of both parents; children are entitled to share in the current income of both parents and should not be the economic victims of divorce. LSA-R.S. 9:815(A); see LSA-C.C. art. 141. Income means the actual gross income of a party, if the party is employed to full capacity. LSA-R.S. 9:315(C)(6)(a). Income means the potential income of a party, if the party is voluntarily unemployed or underemployed; in such a case, his gross income shall be determined as set forth in LSA-R.S. 9:315.11. LSA-R.S. 9:315(C)(6)(b) and 9:315.2(B). If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is caring for a child of the parties under the age of five years. LSA-R.S. 9:315.11; Walden v. Walden, 00-2911 (La.App. 1st Cir.8/14/02), 835 So.2d 513, 530.

| (¡Voluntary unemployment or underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse. Romans v. Romans, 01-587 (La.App. 3rd Cir.10/31/01), 799 So.2d 810, 812; Gould v. Gould, 28,996 (La.App. 2nd Cir.1/24/97), 687 So.2d 685, 693. In virtually every case where a parent’s voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent’s control which influenced or necessitated the voluntary change in employment. Hutto v. Kneipp, 627 So.2d 802, 805 (La.App. 2nd Cir.1993).

At the time of their wedding, Sherry was working at McConnell’s Furniture Re-finishers, Inc. (McConnell’s), a business owed by her sister and brother-in-law. She continued at this job until she was eight months pregnant for the couple’s first child (approximately the end of December 1997). During the course of her employment with McConnell’s, Sherry was allowed to do some work at home. At times, her sister would drop off chairs at Sherry’s home for re-covering and/or refurbishing. Once she ceased working on a regular basis at the end of 1997, she continued to perform chair work at home.

Robert testified that Sherry returned to work for McConnell’s on a regular basis in April 2000, which was prior to the couple’s acquisition of a new vehicle. On the other hand, Sherry stated that her date of return was in May 2001, which was after their vehicle purchase. Robert conceded that Sherry had to work so they could afford the payments on that newly purchased vehicle. The acquisition date of the vehicle is not in evidence.

Prior to their separation in 2002, Sherry and Robert were both employed. According to Robert, Sherry was paid different rates based on the work being performed for McConnell’s, averaging an hourly rate of $12.50. He testified that she had no set schedule and that her work hours varied, without indicating the average number of hours worked. Sherry stated that her regular rate of pay was $11 per hour |7and that her work hours varied from an average of 20 to 25 hours a week. Sherry maintained that she never earned more than $15,000 a year since she returned to work. Sherry explained that the variance in her pay was due to the flexibility in her work hours, because she worked for her sister. According to Robert, all of their income was reported on their tax returns.

While Robert and Sherry worked, the minor children were placed in day care. Robert testified that the children were removed from day care by Sherry in April of 2002. Sherry was uncertain as to whether the children were removed when she got laid off or some time before. Sherry explained that her financial situation prompted this decision. Sherry testified that she was laid off from her employment with McConnell’s a few months prior to trial because of the financial condition of the business. Other employees had been laid off from work before her; she was the last to be laid off. According to Sherry, her brother-in-law worked full time in the business, which was in a bad financial bind.

Sherry could not recall the specific date on which she had been laid off. She could only remember that it occurred in the middle of this litigation. She testified that since that time, she has been doing painting and other work for her employer at home when needed. However, she explained that work had not been steady and that in the few months before trial, she had only earned $150 doing that type of work. Sherry explained that she did not apply for unemployment compensation because, as a part-time employee, she would not have qualified. Sherry also admitted to earning $50 for assisting her ex-husband with a job.

According to Robert, bank records reflect that Sherry deposited $6,500 in late April 2002. He did not know how she got this money. Sherry explained that $6,000 of the deposited amount came from cash advances from a credit card company. No explanation was given as to the source of the other $500.

| ^Robert argued that Sherry was voluntarily unemployed. According to Robert, Sherry’s alleged unemployment was not based on her desire to be a “stay-at-home” mother. He testified that Sherry did not stay home every day to care for the children and that the children were being watched by others all or part of the time.

After considering this evidence, the trial court found that Sherry was capable of earning $11 per hour working for her sister, resulting in a monthly income of $1,905 being imputed to her for purposes of computing child support. These factual findings were apparently made subsequent to a determination that Sherry was voluntarily unemployed or underemployed. The trial court obviously felt that Sherry’s voluntary unemployment was not in good faith, apparently not believing that extenuating circumstances beyond her control influenced or necessitated the voluntary change in employment.

Voluntary unemployment or underemployment is a fact-driven consideration. Koch v. Koch, 97-1600 (La.App. 4th Cir.4/22/98), 714 So.2d 63, 66. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. State v. Battson, 36,336 (La.App. 2nd Cir.9/18/02), 828 So.2d 132, 135. Whether a spouse is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed absent manifest error. Stephenson v. Stephenson, 37,323 (La.App. 2nd Cir.5/14/03), 847 So.2d 175, 184. Furthermore, the trial court’s conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error. Havener v. Havener, 29,785 (La.App. 2nd Cir.8/20/97), 700 So.2d 533, 539. Based on our review of the record, we do not find that the trial court manifestly erred in determining that Sherry was voluntarily unemployed or underemployed or in finding reasonable factual support for the imputation of $1,905 in monthly income to Sherry. However, Sherry argues that since both children were under the age of five at the time of trial on September 6, |92002, LSA-R.S. 9:315.11 precludes a determination of her income earning potential because she was absolutely unemployable by operation of law.'

LSA-R.S. 9:315.11 provides, in pertinent part:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is ... caring for a child of the parties under the age of five years.

Sherry contends the application of LSA-R.S. 9:315.11 is mandatory and not discretionary, and therefore the trial court committed legal error in failing to apply this law. Robert points out that the court awarded physical custody of the children on a 50/50 basis and questions the applicability of LSA-R.S. 9:315.11 under such circumstances. He argues the trial court was correct in not applying the statute in this ease.

The clear meaning of LSA-R.S. 9:315.11 is that the income earning potential of a party who is voluntarily unemployed or underemployed will not be considered in the calculation of child support if that party is caring for a child of the parties under the age of five years. In this case, the parties were awarded “shared custody” of the children on a 50/50 basis. See LSA-R.S. 9:315.9(A)(1). Based on this custody sharing arrangement, we conclude that the trial court legally erred in finding that Sherry was voluntarily unemployed or underemployed for the purpose of calculating child support for the period of time during which she had actual custody of the under-five-year-old children and was required to provide for their care. Nonetheless, we do not find under the facts of this case that LSA-R.S. 9:315.11 automatically precluded the trial court from finding that Sherry was voluntarily unemployed or underemployed for the period of time during which Robert had actual custody of the children. Where the parties share custody on a 50/50 basis as in this case, a reasonable interpretation of LSA-R.S. 9:315.11 would limit its application such that a custodial parent would only be deemed unemployable for 50 percent of the month; in other words, “caring” would not be undertaken on a fulltime basis. As to the remaining 50 percent of the time, the trial |incourt is free to determine if the party is voluntarily unemployed or underemployed. If such a finding is made, then the trial court should make a determination of the party’s income earning potential based on the particular set of facts and circumstances of the case.

Having previously found no manifest error in the trial court’s determination of the voluntariness of Sherry’s unemployment, we conclude that, based on such a finding by the trial court, she was also voluntarily unemployed or underemployed for part-time work during 50 percent of the month. Furthermore, under the particular facts of this case, we determine that Sherry’s income earning potential based on part-time employment was $952.60. Therefore, we reduce the monthly income imputed by the trial court to Sherry from $1,905 to $952.60.

Sherry was capable of earning $952.60, and Robert earned a monthly income of $3,519 for a combined gross income of $4,471.60. With a combined gross income of $4,471.60 per month, and in a shared custody arrangement with the younger of the two children being born on January 27, 1999, Sherry is entitled to the sum of $426.63 per month from Robert for the support of the children until January 27, 2004, and $381 per month thereafter. See LSA-R.S. 9:315.9, 9:315.19, and 9:315.20.

Interim Spousal Support

Sherry maintains that the trial court erred in failing to order interim periodic spousal support, presumably based on her capacity to earn income. A spouse may be b, awarded an interim spousal support allowance based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. LSA-C.C. art. 113. Absent a pending demand for final spousal support, an award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. LSA-C.C. art. 113. The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such. Clark v. Clark, 34,314 (La.App. 2nd Cir.11/1/00), 779 So.2d 822, 825, writ denied, 00-3196 (La.1/12/01), 781 So.2d 563.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Clark v. Clark, 779 So.2d at 826; Thomey v. Thomey, 33,000 (La.App. 2nd Cir.4/7/00), 756 So.2d 698, 702. The trial court was able to examine the affidavits of income and expenses and consider the financial condition and needs of the parties. After reviewing the entire record in this matter, we are unable to find that the trial court erred or clearly abused its discretion. Accordingly, we find no error in the trial court’s denial of Sherry’s request for interim spousal support.

Decree

For the foregoing reasons, the judgment of the trial court is amended to award Sherry Lane Romanowski child support in the sum of $426.63 per month until January 27, 2004, and $381 per month thereafter. Otherwise, the judgment is affirmed. Costs of this appeal are assessed to the parties equally.

AMENDED IN PART, AND AS AMENDED, AFFIRMED.

      . A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. LSA-R.S. 9:315(C)(6)(b).

      . Robert testified that prior to being employed by McConnell's, Sherry worked for another furniture company.

      . However, she testified that her two-week's pay received on May 23, 2001, was $198; on June 8, 2001, was $494; on July 6, 2001, was $664.50; and on November 9, 2001, was $581.

      . The tax return for 2000 revealed total wages of $42,300, $41,768.74 for Robert and $531.63 for Sherry from McConnell’s. No other tax returns were introduced at trial.

      . $11 (hourly rate) x 40 (hours per week) x 4.33 (weeks per month) = $1,905.

      . Even if the court did not determine that the party was voluntarily unemployed or underemployed, any actual income would still be considered by the court in calculating child support. Settle v. Settle, 25,643 (La.App. 2nd Cir.3/30/94), 635 So.2d 456, 463, writ denied, 94-1340 (La.9/16/94), 642 So.2d 194.

      . $11 (hourly rate) x 40 (hours per week) x 2.165 (weeks per month) = $952.60.

      . The parties' youngest child reaches the age of five on this date, and the exception for voluntary unemployment or underemployment provided in LSA-R.S. 9:315.11 no longer applies in this case.

      . This was the amount of child support owed by Robert as determined by the trial court when considering Sherry’s income earning potential on full-time employment based on a finding that she was voluntarily unemployed or underemployed. This child support calculation has not been disputed on appeal.

      .Although the issue of interim periodic spousal support was before it, the judgment is silent on this issue. When a judgment is silent as to a claim or demand, it is presumed that the trier of fact denied the relief sought. Caro v. Caro, 95-0173 (La.App. 1st Cir. 10/6/95), 671 So.2d 516, 520; Prevost v. Jobbers Oil Transp. Co., 95-0224 (La.App. 1st Cir. 10/6/95), 665 So.2d 400, 405 n. 3, writ denied, 96-0440 (La.4/8/96), 671 So.2d 336.

      . Under the particular facts of this case, we find it unnecessaiy to determine what, if any, impact LSA-R.S. 9:315.11 has on a determination of a party’s entitlement to spousal support.