author: | WILLIAMS, J. 11MOORE, J.,

text:
    STATE of Louisiana, Appellee, v. Terry D. FRYE, Appellant.
    No. 37,009-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Lavelle B. Salomon, for Appellant.
    Richard P. Ieyoub, Attorney General, James D. Caldwell, District Attorney, James E. Paxton, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   | WILLIAMS, J.

The defendant, Terry D. Frye, was charged by bill of information with seventeen (17) counts of extortion, violations of LSA-R.S. 14:66. After a jury trial, the defendant was found guilty as charged. He was sentenced to serve a total of 35 years at hard labor. The defendant failed to timely file a motion to reconsider sentence. On appeal, we affirmed the defendant’s convictions in an unpublished opinion. State v. Frye, 28,132 (La.App.2d Cir.5/10/96), 673 So.2d 367, writ denied, 96-1421 (La.11/15/96), 682 So.2d 759. Defendant was granted an out-of-time appeal of his sentence following his submission of an application for post-conviction relief, which alleged his trial defense counsel had been ineffective for failing to preserve his right to appeal his sentence by failing to file a motion for reconsideration of sentence. The trial court allowed the defendant to file a motion for reconsideration, which was denied. This appeal followed. We affirm the defendant’s sentence.

FACTS

The trial testimony showed that the victim, Edgar Allen (Jack) Poe, molested several male juveniles during his life, including defendant Frye. The defendant later blackmailed Poe with threats of exposure in the media and threats of death. The defendant took $185,700 from Poe within an eight-month period, from December 1993 through July 1994. Poe committed suicide in July 1994.

After Poe’s death, an investigation into his finances revealed the checks he had written to the defendant. Poe left an audio cassette tape explaining detailed financial matters of the company, Cypress Grove | ¡¡Plantation, of which he was a partner. Poe also left a letter in which he pledged the proceeds of an annuity to the business as reimbursement for the money he had taken. Poe explained in the letter that he had transferred funds from the business accounts of Cypress Grove farming operation into his personal accounts for the purpose of helping some people who needed financial help and he had gotten “over his head.” Poe did not mention the defendant’s name in either the audio cassette or the letter.

Several witnesses, some who also had been molested by Poe as children and also had received large sums of money from him, testified that the defendant made statements with regard to getting money from Poe, the defendant was “blackmailing” Poe and there were arguments between Poe and the defendant.

DISCUSSION

By this out-of-time appeal, the defendant contends the sentence is excessive and unwarranted. The defendant also argues that the court did not adequately consider mitigating circumstances, failed to articulate adequate reasons for the sentence, erred in imposing consecutive sentences and failed to consider a significantly less harsh sentence, such as one including probation.

The test imposed by the reviewing court in determining the exeessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately ¡¡.considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). In the instant case, the record shows an adequate factual basis for the sentence imposed. Equally, the record shows the trial court adequately considered the guidelines of Article 894.1 and the Sentencing Guidelines which were in effect at the time of sentencing.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates LSA-Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorbhey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or |4all be served consecutively. LSA-C.Cr.P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, 1247-48; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

Concurrent sentences arising out of a single course of conduct are not mandatory, State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993); State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985), and consecutive sentences under those circumstances are not necessarily excessive. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Williams, 445 So.2d 1171 (La.1984); State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508 So.2d 65 (La.1987).

A trial court is not required to render a suspended sentence or probation on a first or qualifying second felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Bradford, supra; State v. Woodman, 28,-004 (La.App.2d Cir.1/24/96), 666 So.2d 1255, writ denied, 96-0489 (La.5/3/96), 672 So.2d 696; State v. Tully, 430 So.2d 124 (La.App. 2d Cir.), writ denied, 435 So.2d 438 (La.1983).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754|RSo.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

Prior to imposing sentence, the trial court considered the evidence adduced at trial, the statements contained in the presentence investigation report (PSI), the defendant’s criminal history, the provisions of LSA-C.Cr.P. art. 883 concerning consecutive and concurrent sentences and the Louisiana Sentencing Guidelines which were then in effect.

The sentencing guidelines used by the trial court indicated that the crime of extortion fell within sentencing guidelines grid cell 4-G, and provided for a minimum time of incarceration of 18 months or a maximum of 36 months, with probation periods ranging from a minimum of 90 months to a maximum of 135 months. The guidelines further indicated that if consecutive sentences are to be imposed, the recommended minimum term of incarceration was 162 months, with a maximum term of 180 months.

The trial court determined that probation was not warranted in this case because defendant showed no remorse for his actions or toward the death of his victim. Based on the witnesses’ trial testimony, the court concluded that defendant made life absolutely miserable for his victim during the months in question by threatening him, which subsequently led |fito him taking his own life. Defendant’s demands for cash became persistent and larger amounts of monies were turned over to the defendant from month-to-month. Between December 1993 to February 1994, defendant demanded and received $35,700.00. Defendant received $50,000.00 during the months of March and April, 1994, and $100,000.00 during May, June and July, 1994.

Further, defendant’s prior criminal record revealed that on July 26, 1994, he was arrested for possession of marijuana with the intent to distribute, which was plea bargained down to the crime of simple possession. Also, the testimony, fear, and potential safety of the victim’s family had an impact on the trial court’s decision.

In sum, the aggravating factors upon which the trial court relied in imposing sentence are as follows: (1) The unusually large amount of money extorted; (2) Defendant used threats of physical harm and public exposure of the molestation; (3) The prior drug and other criminal activity of the defendant; (4) The extortion led to the suicide death of the victim; (5) There was a lack of repentance or remorse; and, (6) The crimes caused a “huge” financial loss to the estate of the victim and his heirs.

On this record, we do not find constitutional error. Defendant saw an opportunity to take advantage of his victim. He executed his scheme of extortion over an extended period of time, which the trial court appropriately analyzed as three distinct sets of events for purposes of consecutive sentencing. Defendant had a plan to extort, acted upon his plan and in fact extorted in excess of $100,000.00 from the victim. Defendant |7could have received the maximum sentence allowed for each of the seventeen (17) counts. Based on the facts of this case, the defendant is clearly among the class of offenders for whom maximum sentences are appropriate. Thus, the court neither erred in imposing maximum sentences on a number of the counts of conviction nor in ordering the individual sentences to be served both concurrently and consecutively. The aggregate sentence imposed is lawful. It is neither grossly disproportionate to the severity of the offense nor does it shock our sense of justice. We do not find an abuse of the trial court’s discretion in sentencing this defendant. Therefore, the sentence is not constitutionally excessive.

CONCLUSION

For the above reasons, the defendant’s sentence is affirmed.

AFFIRMED.

MOORE, J., dissents with written reasons.

11MOORE, J.,

dissenting.

I respectfully dissent. The record overwhelmingly shows that the 17 payments to Mr. Frye were part of a common scheme or plan to extort money from Mr. Poe, who had sexually molested him as a teenager. The district court recognized this fact by directing some of the sentences to be served concurrently. Mr. Frye was a first felony offender and not, as the majority suggests, among the worst class of offenders. The district court abused its discretion in failing to apply La.C.Cr.P. art. 883 as written and make all sentences concurrent.

The majority correctly states that under the Felony Sentencing Guidelines in effect at the time, Grid Cell 4G recommended a maximum sentence of 180 months. Several mitigating factors supported following the guidelines, most notably that Mr. Poe’s conduct induced or facilitated the offense. See, La.C.Cr.P. art. 894.1 B(24), (25) and (26).

To support an upward deviation to over twice the recommendation, the district court used six factors which, in my view, are less than meets the eye. There was nothing false about Mr. Frye’s claim that Mr. Poe had sexually molested him and other teenage hired hands over the years. Thus his threats to accuse Mr. Poe of a crime were factual; they constituted an essential element of the offense, not an aggravating circumstance. Several other victims of Mr. Poe’s sexual depredations were also receiving money from him, so the “huge” financial loss to his estate and heirs cannot be laid entirely at the feet of Mr. Frye. Above all, I do not accept that the extortion “led to” Mr. Poe’s death. The fear of exposing his financial misconduct at laCypress Grove, as well as his sexual misconduct with pubescent laborers under his supervision there, were the causes cited in his suicide note and cassette. The instant sentence seems to express indignation that Mr. Poe’s suicidal hand denied retribution for the sordid conduct that started and nurtured the whole, sad sequence of events.

I would therefore vacate this excessive sentence and remand to the district court for resentencing not to exceed 20 years total.

      . The Louisiana Sentencing Guidelines were advisory to the sentencing judge. Under the jurisprudence, "no sentence shall be declared unlawful, inadequate, or excessive solely due to the failure of the judge to impose a sentence in conformity with the sentencing guidelines.” LSA-S.G. § 103(J); LSA-C.Cr.P. art. 894.1; State v. Lowery, 609 So.2d 1125 (La.App. 2d Cir.1992); State v. Perow, 607 So.2d 888 (La.App. 2d Cir.1992). Furthermore, a trial court could choose not to follow the guidelines, even in the absence of aggravating or mitigating circumstances. State v. Smith, 93-0402 (La.7/5/94), 639 So.2d 237; State v. Tuttle, 26,307 (La.App.2d Cir.9/21/94), 643 So.2d 304.


source: Caselaw Access Project

author: I iBROWN, C.J.

license: Public Domain

text:
    Michael WHITE, Plaintiff-Appellee, v. Tabitha KIMREY, Defendant-Appellant.
    No. 37,408-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Rehearing Denied June 6, 2003.

      Chris L. Bowman, Jonesboro, for Appellant.
    Layne M. Adams, Monroe, for Appellee.
    Before BROWN, WILLIAMS, and CARAWAY, JJ.
   I iBROWN, C.J.

The primary issue in this domestic dispute is whether the trial court erred in modifying its original custody order by awarding sole custody of the parties’ five-year-old daughter to plaintiff, Michael White, after finding that defendant, Tabitha Kimrey, had intentionally undermined the father-daughter relationship, made relentless allegations of sexual abuse and denied Michael, on several occasions, his court-ordered visitation. While we find no manifest error in the trial court’s factual determinations, which were the basis for his decision that a change of custody was warranted, we nonetheless conclude that joint custody, with Michael as the domiciliary parent, is warranted and amend the judgment accordingly.

Facts

Krista Paige Kimrey was born to the parties on August 26, 1997. Because Tabitha was receiving AFDC (Aid for Families with Dependent Children), when Krista was approximately 18 months old, the State of Louisiana instituted child support proceedings against Michael. Thereafter, he filed a rule for joint custody on April 28, 1999. Tabitha responded, alleging that Michael had been physically violent and emotionally abusive toward her in the past and requesting that any visitation granted to Michael be supervised.

|20n May 28, 1999, the trial court entered an interim consent order in which the parties agreed to joint custody with Tabitha being designated as the domiciliary parent. Michael was allowed visits with Krista every other weekend, with a gradual increase in the length of the visits from two to eight hours. He was also ordered to attend an anger management class and the matter was scheduled for review on August 27, 1999. On that date, pursuant to stipulations entered into in open court, the parties entered into a consent agreement providing for joint custody with Tabitha designated as domiciliary parent. Provisions were made for Michael’s visitations to gradually increase such that, at the end of the 17th visitation period, which was every other weekend, he would have weekend visitations beginning on Friday at 6:00 p.m. and ending on Sunday at 6:00 p.m.

Michael’s first full weekend visitation was to begin on April 21, 2000. On that date, however, Tabitha told Michael that Krista was ill and took her to the emergency room on Friday evening. The second full weekend visitation was to begin on May 5, 2000. Tabitha again denied Michael visitation because she did not want him taking Krista to Texas to visit his relatives. On June 14, 2000, Michael filed a rule to fix visitation and for contempt. The rule was heard on October 13 and 24, 2000. The 1 ¡¡trial court rendered judgment granting the parties joint custody, with Tabitha being designated as domiciliary parent.

On January 25, 2001, Michael filed a rule for contempt based upon Tabitha’s refusal to allow him visitation as provided for in the court’s judgment. Tabitha countered with a reconventional demand seeking sole custody. On May 17, 2001, the trial court signed a consent order maintaining the judgment rendered on October 24, 2000, and continuing without date the rule for contempt and reconventional demand.

On July 16, 2001, Tabitha filed a rule for contempt alleging nonpayment of child support and seeking an increase in Michael’s monthly obligation. Michael filed an exception, alleging that there was no valid child support order and that Tabitha failed to join a necessary party, the State of Louisiana. A supplemental and amended rule was filed, naming the state.

|40n March 28, 2002, Michael filed a rule for contempt and requesting sole custody of Krista, based upon Tabitha’s failure to allow him visitation and her continued allegations of sexual abuse, all of which were investigated and found to be invalid by the sheriffs office and Child Protective Services. Evidence was presented beginning May 28 and ending July 1, 2002. On August 30, 2002, the trial court issued its written reasons for judgment and a judgment was filed on November 13, 2002, granting sole custody of Krista to Michael and specified visitation rights to Tabitha. The court further found Tabitha to be in contempt of court for violating the court’s custody ruling and ordered her to pay $1,000 in attorney fees and all costs of the proceeding. Michael was also found to be in contempt for failure to timely pay court-ordered child support and was assessed with $350 in attorney fees. All other incidental demands raised by the pleadings were denied. It is from this judgment that Tabitha has appealed.

Discussion

Applicable Legal Principles

The burden of proof upon a party seeking to modify a prior permanent custody award is dependent on the nature of the original custody award. Custody awards are of two types. The first is a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is La considered decree, which is rendered after the trial court has received evidence of parental fitness to exercise care, custody and control of a child. Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731; Shaffer v. Shaffer, 00-1251 (La.App. 1st Cir.09/13/00), 808 So.2d 354, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

When the original custody decree is a stipulated judgment, the party seeking modification must prove that there has been a material change in circumstances since the original decree and that the proposed modification is in the best interest of the child. Evans, supra; Touchet v. Touched 36,881 (La.App.2d Cir.01/29/03), 836 So.2d 1149; Masters v. Masters, 33,438 (La.App.2d Cir.04/05/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/07/01), 803 So.2d 975.

A party seeking to modify a considered decree of permanent custody bears a heavy burden of proving that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Evans, supra; Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Evans v. Lites, 30,-632 (La.App.2d Cir.06/24/98), 714 So.2d 914.

La.C.C. art. 132 provides in pertinent part:

In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Both parties requested that they be granted sole custody of Krista. Their burden pursuant to La.C.C. art. 132 was to prove by clear and convincing evidence that sole custody, as opposed to joint custody, was in the best interest of the child. In order to prove a matter by clear and convincing evidence, a party must demonstrate that the existence of a disputed fact, in this instance, that sole custody was preferable, is highly probable or much more probable than its nonexistence. Washkow v. Washkow, 33,965 (La.App.2d Cir.08/23/00), 765 So.2d 1210; Johnson v. Brock Construction Co., 32,311 (La.App.2d Cir.09/22/99), 743 So.2d 296.

La.C.C. art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interest of the child. An analysis of these factors should be made in actions to change custody as well as those to establish custody | -/initially. La.C.C. art. 134, comment (d); Craft v. Craft, 35,785 (La.App.2d Cir.01/23/02), 805 So.2d 1213; Shaw v. Shaw, 30,613 (La.App.2d Cir.06/24/98), 714 So.2d 906, writs denied, 98-2414, 98-2426 (La.11/20/98), 729 So.2d 558.

When an award of joint custody is determined to be in the best interest of the child, equal sharing of physical custody is not necessarily required. Craft, supra; Nichols v. Nichols, 32,219 (La.App.2d Cir.09/22/99), 747 So.2d 120; O’Brien v. O’Brien, 30,001 (La.App.2d Cir.12/10/97), 704 So.2d 933. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Craft, supra; Boyd v. Boyd, 26,292 (La.App.2d Cir.12/07/94), 647 So.2d 414. As noted by the court in Nichols, supra, joint custody does not necessarily mean a 50/50 sharing of time.

Instead, 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, supra; Nichols, supra. Each case will depend on the child’s age, the parents’ situations and other factors relevant to that particular custody dispute. Craft, supra; Brazan v. Brazan, 93-2369 (La.App. 1st Cir.06/24/94), 638 So.2d 1176.

The trial court’s determination regarding child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Craft, supra; Warlick v. Warlick, 27,389 (La.App.2d Cir.09/29/95), 661 So.2d 706.

| ^Analysis

In attacking the trial court’s judgment granting Michael sole custody, Tabitha first contends that the. trial court applied the wrong standard in finding that Michael met his burden of proof that a change of custody was warranted. It is Tabitha’s position that, in light of the fact that a considered decree had been rendered granting the parties joint custody, the applicable burden was as set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), i.e., that there had been a substantial change in circumstances since the previous ruling and that continuation of the current custody arrangement was so deleterious to the child such that a change in custody was justified. On the other hand, Michael contends that the heavy Bergeron burden did not apply because, contrary to Tabitha’s assertion, the original custody decree was not a considered decree in which evidence of parental fitness was adduced. Instead, joint custody was agreed to by the parties in open court on August 28, 1999. Visitation was to be “worked out” and a joint custody plan was to be submitted. No judgment was ever signed because the parties were unable to work out a visitation schedule/joint custody plan. The rule heard on October 13 and 24, 2000, and therefore the evidence introduced thereto, did not concern custody, but was simply to establish visitation. Thus, the Bergeron standard is inapplicable.

We have reviewed the trial court’s written reasons for judgment and find that, contrary to Tabitha’s argument, the trial court did in fact apply the heavy burden set forth in Bergeron and found that Michael met the more onerous burden of proof required in cases in which evidence of parental 19fitness had been introduced. Particularly, in its written reasons for judgment, the trial court concluded:

... After careful thought, consideration and review, the court has determined that a substantial material change in circumstances has occurred.
... The continuation of the present custodial arrangement is so deleterious to the child as to justify a modification of the custody decree.

We find, however, that there was no previous considered decree. The initial custody order, which was to be an interim arrangement, was entered into by stipulation of the parties. Although the parties agreed to joint custody with Tabitha as the domiciliary parent, because they could not work out the details of Michael’s visitation schedule, no judgment was signed effecting said agreement. Thereafter, the hearing that was held in October 2000, of which no transcript has been provided, was on Michael’s rules for contempt and to establish visitation. Therefore, any evidence adduced at that hearing went to those issues, not the issue of parental fitness for custody. Notwithstanding our conclusion that the trial court erred in applying the higher Bergeron burden, we find that Michael introduced sufficient evidence that a change in custody was warranted.

The following is excerpted from the trial court’s written findings:

This matter is the latest chapter in an unfortunate progression of litigation. The court has tried to set forth in detail the procedural history of this case in order to demonstrate the numerous difficulties and complications that have arisen regarding the minor child. The testimony of the parties, the supporting witnesses and the evidence dictates the following conclusions.
After careful thought, consideration, and review the court has determined that a substantial material change in circumstances has occurred. Tabitha’s ability to provide the more nurturing home for ImKrista has been tainted by her constant efforts to thwart the father-daughter relationship. She admitted that she told Michael that she would drop child support if he would sever his parental ties with Krista. The record and testimony shows that she has made repeated allegations of sexual abuse against Michael regarding Krista, none of which have ever been substantiated or validated. She has obviously deprived Michael of some of his court-ordered visitation. Furthermore, problems have ensued during the custody exchanges, including the time that Tabitha’s father called Michael a child molester.
In the present case, Dr. E.H. Baker, a Louisiana psychologist, testified on behalf of the Whites. He testified that he had interviewed the Whites and the child as well as reviewing the reports of Dr. Susan B. Vigen and Dr. Sally Thig-pen. He opined that the mother was trying to prevent the father’s access to the child. Dr. Baker further testified in effect that the mother was programming the child to be negative as regards the father. He diagnosed the situation as parental alienation syndrome, which is harmful to the child. He further related that the accepted method of treatment for parental alienation syndrome is to give the child to the parent not causing the alienation. However, he does believe that the child should have contact with her mother.
The evidence clearly demonstrates that the mother’s reported conduct is indicative that her behavioral control has deteriorated since the inception of this lawsuit. The court shares Dr. Baker’s concern that if the child remains with the mother on a continuous basis that she would be at risk of developing even more serious emotional problems because of her expressions and comments towards her father. The court is convinced that the mother is deeply troubled and that her emotional and mental state has (sic) contributed to her inability to control her behavior in a more acceptable manner. Unfortunately, it is totally unrealistic to expect the mother to resolve her conflicts with Michael and completely refocus on the “best interests” of their daughter. Therefore, based on the evidence, it is the opinion of the court that Michael would facilitate and encourage a close and continuing relationship between Tabitha and Krista, whereas Tabitha would continue to thwart the father-daughter relationship.
The factors concerning the length of time the child has lived in a stable, adequate environment, the desirability of maintaining continuity of that environment and the permanence, as a family unit, of the existing or proposed custodial home also weigh in Michael’s favor. Tabitha has been what the court terms Krista’s primary caretaker since birth. However, she is twenty-five years of age and, although she has attained her GED, remains unemployed, still resides with her parents, and has food stamps and child support as her only visible means of support. Again, because of the unwillingness and | n inability of Tabitha and her mother to get along with Michael in an acceptable manner, Krista would most certainly be the recipient of further serious emotional and mental instability if maintained in the domiciliary custody of her mother. On the other hand, Michael has a close relationship with his wife and family, has secured gainful employment in Bastrop, Texas, and is able and willing to provide an appropriate home for his minor daughter. Consequently, Michael is better able to supply his daughter’s material needs and provide a stable living environment with the support of his family.
The factor concerning the moral fitness of each party, insofar as it affects the welfare of the child, also weighs in Michael’s favor. The court is absolutely horrified at the statements that have been made by Tabitha and her mother concerning Michael in the presence of this young child. Additionally, the court is convinced that Tabitha has talked to Krista concerning the unsubstantiated allegations of sexual abuse.
The continuation of the present custodial arrangement is so deleterious to the child as to justify a modification of the custody decree....
Based upon the tumultuous history of this case, it is obvious that the court has endeavored to give the mother an opportunity to demonstrate that she could and would refocus on the “best interests” of her daughter. Despite the court’s past lectures and warnings, the mother’s behavior has progressively worsened, whereas Michael has made serious attempts to comply with the court’s orders. The mother gave up a child for adoption although the reasons are unclear. The court strongly suspects but in reality can only guess as to whether this has increased her emotional and mental instability as regards Krista. But, the court is absolutely convinced that Tabitha desperately needs mental health counseling to address her problems.

| ^Having reviewed the record in its entirety, we find ample support for the trial court’s determination that a change of custody was warranted. We disagree, however, that Michael established by clear and convincing evidence that an award of sole custody would be in the best interest of the child and will amend the judgment to provide for joint custody, with Michael designated as domiciliary parent. Given the distance between the parties’ residences, but primarily because of Tabitha’s attitude and conduct and their detrimental effect upon Krista, Tabitha’s continuing suspicions despite any evidence in support thereof, and her intentional disregard of previous court orders, we are very concerned with the trial court’s decision to award Tabitha with visitation every other weekend. Michael, however, neither filed an appeal nor answered Tabitha’s appeal. In light of the facts of this case, telephonic visitation as awarded by this court in Martin v. Martin, 36,860 (La.App.2d Cir.12/11/02), 833 So.2d 1216, certainly seems more appropriate.

1,sConclusion

For the reasons set forth above, the judgment of the trial court is AMENDED in the following respects:

(1) Joint custody of Krista is awarded to Michael White and Tabitha Kimrey.
(2) Michael "White is designated as the domiciliary parent.

In all other respects, the judgment of the trial court is AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, CARAWAY, KOSTELKA, and DREW, JJ.

Rehearing denied.

      . Tabitha and Michael never married and were not living together at the time of Krista’s birth.

      . Michael saw Krista until she was approximately five months old but, because Tabitha and her parents made him "very, very uncomfortable,” and wouldn't let him leave their home with the baby, he stopped visiting with Krista at that time.

      . Tabitha was given the option to supervise these visits.

      . The record contains a certificate dated August 21, 1999, indicating Michael's completion of the anger management class as ordered.

      . The medical records indicate that Krista had been sick for several days when her mother brought her to the emergency room.

      . Judgment was rendered in open court on October 24, 2000, but was not signed until February 26, 2001.

      . In his rule, Michael alleged that he exercised his visitation the weekend of November 3, 2000. At the exchange, which took place at the Morehouse Parish Sheriff’s Office, Krista's maternal grandfather called Michael a "child molester." Several hours after his next scheduled visitation, which was Thanksgiving, Tabitha took the child to the emergency room and made allegations of child abuse against Michael. These allegations were investigated and found to be invalid by both the Morehouse Parish Sheriff's Office and Child Protective Services before Christmas 2000. Tabitha, however, continued to deny Michael any contact or visitation with Krista.

      . Continuing to allege sexual and physical abuse, Tabitha sought to limit Michael’s contact with Krista to supervised visitation.

      . This order also included the requirement that both Tabitha and Michael participate in counseling at the University of Louisiana in Monroe’s Marriage and Family Therapy Clinic.

      . After one such allegation, fearing that her mother's actions were harmful to the child, Michael took her to psychologist E.H. Baker for an evaluation.

      . The record was left open so that the deposition of Suzanne Craig, a counselor, could be taken and filed. The deposition was filed on August 12, 2002.

      . The factors enumerated in article 134 are:

      (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.
      (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 trial court, while presented with evidence of the love, affection and emotional ties between Krista and Tabitha and her parents, as well as their ability to provide the child with food, clothing, medical care and other material needs, obviously concluded that the animosity and hard feelings on the part of Tabitha and her parents toward Michael created an environment of instability and hostility that was detrimental to the child's well being. With this conclusion we must agree.

      . We find troubling, however, Michael's failure to pay court-ordered child support for a • nine-month period. We recognize that he was unemployed and note his payment in full of this past-due obligation as soon as he secured gainful employment, but cannot, as did the trial court, make the conclusion that he has seriously complied with all of the court’s orders in light of this fact. On the other hand, he has respected the court's custody rulings, something we cannot say about Tabi- ■ tha.

      .It would be an understatement to say that there is animosity between these parents. As guidance "for the parties, we will quote the supreme court's definition of “joint custody:''
      The term "custody” is usually broken down into two components: physical or "actual” custody and legal custody. The typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child frequent and continuing contact with both parents. Legal custody, by contrast, has previously been defined as "the right or authority of a parent or parents, to make decisions concerning the child’s upbringing.” Pursuant to this definition, both parents remained legal custodians of the child regardless of which parent had physical custody of the child at a given time under the typical joint custody plan. Joint legal custody thus involved a sharing of the responsibilities concerning the child including decisions about education, medical care, discipline and other matters relating to the upbringing of the child. Evans v. Lungrin, supra at 737 (citations omitted).


author: I,WILLIAMS, Judge. |¡CARAWAY, J.,

text:
    Jason HUGHES, Plaintiff-Appellee, v. William R. SANDERS and All Occupants, Defendant-Appellant.
    No. 36,968-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      F. Scott Straub, for Appellant.
    Walter F. Johnson, III, Shreveport, for Appellee.
    Jason Hughes, In Proper Person.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   I,WILLIAMS, Judge.

The defendants, William Sanders and all occupants, appeal a judgment of eviction in favor of the plaintiff, Jason Hughes. The city court ordered defendants to vacate the subject premises. For the following reasons, we affirm.

FACTS

In January 2002, the parties signed a “lease/purchase” agreement, which provided that the lessees, William Sanders and Deborah Sanders, would make monthly rental payments of $495 to the lessor, Jason Hughes, for a mobile home located at # 97, 6900 Buncombe Road in Shreveport, Louisiana. Hughes acknowledged receipt of a “down payment” of $2,000 and agreed to surrender title to the mobile home to the lessees at the end of the five-year lease term, if their obligation had been fulfilled. The lease provided that the rental payments were due by the tenth day of each month, that lessees would be considered in default after missing one payment, and that their failure to comply with the lease conditions would allow the lessor to either declare all remaining payments immediately due and payable or declare the lease terminated.

On August 13, 2002, the plaintiff, Jason Hughes, filed a petition for eviction from the premises against the defendants, William Sanders and all occupants. Attached to the petition was a photocopy of a document entitled “Five Day Notice to Tenant/Oecupants to Vacate” addressed to the defendants and dated August 5, 2002, stating that the “right of occupancy was terminated” because of defendants’ failure to pay the rent when due.

| ¡.According to the Shreveport City Court minute sheet, the court clerk issued an “eviction for non-payment” citation to defendants with notice to appear at a hearing on August 20, 2002. The minute entry of August 16, 2002, states that Sanders was “personally” served with the citation by a deputy city marshal. The marshal’s return of service has been included in the record and shows that the citation was served by attachment to a door of the premises.

The court minutes indicate that on the date of the eviction hearing, the plaintiff was present, but the defendants did not appear. The proceedings were not recorded and so the record does not contain a transcript of the hearing. The city court rendered a judgment of eviction ordering defendants to vacate the premises at 6900 Buncombe Road. The defendants appeal the judgment. The plaintiffs motion to dismiss the appeal was denied by this court. Hughes v. Sanders, 36,968 (La.App.2d Cir.12/23/02).

DISCUSSION

The defendants contend the city court erred in rendering a judgment of eviction despite the lack of proper service of process. The plaintiff argues that defendants waived their right to allege insufficient service of process by failing to file an exception in the lower court raising the objection.

Generally, an objection to the sufficiency of service of process is raised by the filing of an exception. LSA-C.C.P. art. 925. All objections which may be raised by declinatory exception are waived unless pleaded therein. LSA-C.C.P. art. 925(C). Where a judgment has been entered | «¡against a defendant, the question of sufficiency of service of process may not be raised for the first time on appeal. Rather, the issue should be raised in a suit to annul the judgment. Sharff v. Tanner, 486 So.2d 1047 (La.App. 2d Cir.1986); Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2d Cir.1985).

The nullity of a final judgment may be demanded for vices of either form or substance. LSA-C.C.P. art.2001. A final judgment shall be annulled if rendered against a defendant who has not been served with process as required by law. LSA-C.C.P. art. 2002(A)(2). Except as otherwise provided, an action to annul a judgment on the grounds listed in this Article may be brought at any time. LSA-C.C.P. art. 2002(B).

In the present case, the defendants did not file a declinatory exception of insufficient service of process or a suit to annul the judgment. Instead, they have appealed the eviction judgment challenging the sufficiency of the service of process. Although this court is aware of cases in which the nullity of a judgment has been considered on direct appeal without a prior action to annul, this appears to be an exception limited to situations where there was a complete lack of any proof of service in the record. See Rando v. Rando, 31,366 (La.App.2d Cir.12/9/98), 722 So.2d 1165; White v. White, 398 So.2d 1257 (La.App. 4th Cir.1981). However, the present case does not involve such an omission, since- the record includes a photocopy of a document entitled “EVICTION FOR NON-PAYMENT CITATION,” which contains the marshal’s return of service indicating that the citation was served upon the defendants by attachment of the notice “on [the] door.”

RBased upon this record, and without considering any grounds for nullity of the judgment or the merits of the arguments presented, we conclude that defendants should have raised the allegation of insufficient service of process in a suit to annul the judgment. Consequently, we are constrained from addressing the issue of improper service in this appeal and we affirm the judgment.

CONCLUSION

For the foregoing reasons, the city court’s judgment of eviction is affirmed. Costs of this appeal are assessed to the appellants, William Sanders and all occupants.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

|¡CARAWAY, J.,

dissenting.

I respectfully dissent from the majority’s ruling.

The petition for eviction and order setting the rule to show cause was filed August 18. The marshal’s return of service was executed the next day. Defendant, who did not attend the August 20 hearing, now claims that he received no notice of these proceedings and that the judgment rendered against him on August 20 is a nullity.

The city court’s printed form for the service return in this case gave the marshal two options for service of the rule for eviction. One form allowed the marshal to fill in the name of “a person of suitable age and discretion, residing at the dwelling” of the defendant to evidence that domiciliary service was made. The second form was for the service of “the Defendant in person,” and on that form, the deputy marshal simply wrote “taped on door” in the blank provided for the defendant’s name.

The sheriffs or marshal’s return is pri-ma facia evidence of service. La. C.C.P. art. 1292. The record reveals therefore, on its face, that neither personal nor domiciliary service was made. These are the two primary methods of initial service on an individual required for a summary proceeding or rule to show cause. La. C.C.P. arts. 1232, 1234 and 2594. The proceeding at hand is the rule to show cause for eviction specifically addressed in La. C.C.P. art. 4731. The special method for service of process under La. C.C.P. art. 4703 in eviction proceedings provides as follows:

If the premises are abandoned or closed, or if the whereabouts of the lessee or occupant is unknown, all notices, process, pleadings, and orders required to be delivered or served on the lessee or occupant under this Title may be attached to a door of pthe premises, and this shall have the same effect as delivery to, or personal service on, the lessee or occupant.

If that additional mode of service applies to the rule to show cause for eviction, then the marshal’s return on the face of the record before us contains prima facia evidence of his attempt to effect such service.

Where the defendant makes no appearance at the proceeding in the trial court and the sufficiency of service of process is raised on appeal, the issue is whether the record facially shows no proof of service as required by law. La. C.C. art. 2002(A)(2). If the record standing alone shows that service was contrary to law or that no service occurred, the appeal court can declare the nullity of the judgment without the need for a separate action for nullity. Rando v. Rando, 31,366 (La. App.2d Cir.12/9/98), 722 So.2d 1165. If the record is insufficient to make a determination of the propriety of service, the defendant should bring a separate action for nullity whereby additional evidence concerning the service process can be presented. Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2d Cir.1985), writ denied, 468 So.2d 1211 (La.1985).

In this case, the record presents undisputed evidence regarding the method for service of process utilized by the marshal. The majority should therefore address the merits of the service dispute instead of insisting that the defendant raise an exception of insufficiency of service of a rule for which he never received prior notice. Since I believe the condition necessary for perfecting service under Article 4703 was not present in this case, the marshal utilized a mode of service which is not authorized by law, resulting in the nullity of this proceeding.

laThe Code of Civil Procedure’s provision for eviction contemplates two notices that the lessor must deliver to or serve upon the defendant in order to regain possession — the five day notice to vacate and the summary rule and court order for the eviction hearing. Thus, when the defendant responds to the notice to vacate or, even without notice, otherwise abandons the premises, the law and jurisprudence hold that the lessor may lawfully regain possession of the premises without further judicial process. La. C.C.P. art. 4731(B); Gibbs v. Harris, 35,239 (La.App.2d Cir.10/31/01), 799 So.2d 665. The notice to vacate, which may be waived in the lease, does not require the defendant to appear in court. Article 4703’s “tacking” method of service is, therefore, sufficient for this extrajudicial process. It contemplates that the lease premises are abandoned or closed or the whereabouts of the defendant is unknown. The jurisprudence has noted that this does not mean that defendant must be an absentee or one “who cannot be found and served after a diligent effort.” La. C.C.P. art. 5251(1); Fairfield Property Management Stone Vista Apartments v. Evans, 589 So.2d 83 (La.App. 2d Cir.1991). Particularly for the delivery of the notice to vacate, if the lease premises are abandoned or closed or the defendant cannot be found, the notice to vacate may be attached to the door.

When the defendant does not abandon the premises, the lessor must utilize judicial process with the special rule for eviction provided by Article 4731. This is a summary process and the provision for service of process under Article 2594 applies. Likewise, the accepted mode of personal or domiciliary service is applicable. La. C.C.P. art. 2596. The city court Reviction form utilized by the deputy marshal in this case indicates that those two forms of service are preferred.

My reading of Article 4703 is that the “tacking” procedure is an exception to “personal service” which the article specifically mentions. The condition which must be met for the utilization of this exception is that “the whereabouts of the lessee ... is unknown.” The other condition precedent for the use of the Article’s “tacking,” the abandonment of the lease premises, is never present when the rule for eviction, becomes necessary. The rule for eviction rests upon the fact that the premises are not abandoned. Likewise, if the premises are not abandoned, the whereabouts of the lessee are not as likely to be unknown. Therefore, personal and domiciliary service, two modes of service that clearly pass the requirements of due process, are still the preferred modes of service.

The jurisprudence, nevertheless, holds that tacking under Article 4703 can be utilized in order to hail the lessee into court for the eviction ruling. Fairfield, supra; Alaimo v. Hepinstall, 377 So.2d 889 (La.App. 4th Cir.1979). See also, Ernest Joubert Co. v. Tatum, 332 So.2d 553 (La.App. 4th Cir.1976), which found the special tacking procedure constitutional. This dissent is not a failed attempt at overruling this court’s decision in Fairfield Property Management. In that case, the defendant appeared at the hearing and evidence of defendant’s unknown whereabouts was produced so as to justify the “tacking.” While I agree that Article 4703 “tacking” can be used for service of the rule to show cause, I would hold that some repeated attempts at personal or domiciliary service must be Rshown to have occurred. Such efforts are clearly lacking on the face of this record.

The service return in this- case was attempted to be expressed in the printed language of the personal service form. As such, it does not constitute a complete and coherent sentence describing the method of service. Yet, it reveals that personal service was not made and implies that “tacking” occurred instead. The key fact for me, which could not have been adequately excused by any evidence shown at the trial of this case, is that the “tacking” service occurred within twenty-four hours after filing the rule. It can hardly be said that the whereabouts of the lessee who has not abandoned the lease is unknown after only one day’s attempted service. Even assuming in this case that the deputy marshal attempted personal service several times on August 14, the decision to use “tacking” at 4:00 p.m., as indicated on the return, cannot be based upon sufficient knowledge of the lessee’s unknown whereabouts, when the premises still appear to be occupied.

In conclusion, I believe that all of the evidence of the service procedure is before the court and it should be used to decide whether Article 4703 service was proper. From my review of the law of eviction, utilization of “tacking” service under the facts of this case was improper and the judgment of eviction should be annulled.


author: jy?EATROSS, J.

text:
    The ESTATE OF Mary Jacqueline LEVITZ, Plaintiff-Appellant, v. Joe E. BROADWAY and Don R. Broadway, Defendants-Appellees.
    No. 37,246-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Mulhearn and Smith by Leroy Smith, Jr., Tallulah, for Appellant.
    Hamilton & Hamilton by Orlando N. Hamilton, Jr., Oak Grove, for Appellees.
    Before BROWN, PEATROSS & KOSTELKA (Pro Tempore), JJ.
   jy?EATROSS, J.

This appeal arises from a summary judgment granted by the trial court in favor of the defendants, Joe E. Broadway and Don R. Broadway (collectively “the Broadways”), and against the plaintiff, Tiki Shivers, as the executrix of the Estate of Mary Jacqueline Levitz (“the Executrix”), dismissing plaintiff’s claims with prejudice. The Executrix now appeals. For the reasons stated herein, we reverse and remand.

FACTS

On April 17, 1995, the Broadways executed a promissory note in favor of their sister, Mary Jacqueline Broadway Levitz, in the amount of $70,000. The note was payable in 120 equal monthly installments in the amount of $849.80 each. The amount included interest amortized at the rate of eight percent per annum on the unpaid principal balance until the full amount of the note was paid. The first payment was due on May 1, 1997, with payments continuing until the final payment on April 1, 2007. The proceeds of the loan were used to purchase certain immovable property in Stone County, Arkansas. The note provided that the property in Arkansas would be transferred to Mrs. Levitz in the event the loan was not paid.

In November 2000, Mrs. Levitz died and, subsequently, her estate was opened. The Broadways’ promissory note was listed as one of Mrs. Levitz’s assets and was apparently never destroyed or delivered to the Broadways prior to the death of Mrs. Levitz. On June 26, 2001, the Executrix filed suit against the Broadways claiming that the estate was entitled to judgment because the Broadways had made no payments on the note. The Executrix asked the court to award the estate judgment for the | ¿fall amount of the promissory note, including interest and all costs of the proceedings. In the alternative, the Executrix asked the court to order the Broadways to transfer title to the Arkansas property to the estate, free and clear of all liens and encumbrances.

The Broadways answered the Executrix’s lawsuit by asserting the affirmative defense of remission of the debt by Mrs. Levitz prior to her death. The Broadways subsequently filed a motion for summary judgment, contending that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law because the debt had been extinguished by remission.

In support of their argument, the Broadways attached to their motion for summary judgment affidavits executed by both of them and the affidavits executed by eight other family members which stated that Mrs. Levitz had declared to them, or in their presence, during late October or early November 1995, that she had forgiven payment of the promissory note at issue.

In opposition to the motion for summary judgment, the Executrix filed an affidavit executed by her stating that she did not hear the conversation attested to by the other family members. The Executrix further stated in her affidavit that Mrs. Levitz had stated the following to her in November 1995, to wit:

I just think it is so cute that the guys go up there to work on their little cabin. Kinda like Green Acres with their telephone on a poll [sic]. I told the guys not to worry about paying me right now, just to use the money to improve their little cabin. We will worry about the money later.

| ¡¡The Executrix also filed an affidavit of Mitchell Broadway, another brother of Mrs. Levitz, which stated that Mrs. Levitz had informed him that he should not be concerned about the transaction with the Broadways because she would either be paid or she would seize the property and sell it to recover her money.

On October 81, 2002, the trial judge granted the motion for summary judgment in favor of the Broadways finding that the affidavits offered by the Executrix did not clearly contradict the affidavits offered by the Broadways. Specifically, the trial judge found that Mrs. Levitz’s statements to the Broadways, “not to worry about paying me right now” and “we will worry about the money later,” did not clearly contradict the reported remission of the debt as stated in the Broadways’ affidavits. Based on this finding, the trial judge concluded that no genuine issue of material fact existed and the Broadways were entitled to judgment as a matter of law. The Executrix now appeals, raising the following assignments of error (verbatim):

1. The trial court erred when it concluded there was no genuine issue as material fact;
2. The trial court erred in granting the motion for summary judgment.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the |4affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

The initial burden of proof in summary judgment remains with the mover to show that no genuine issue of material fact exists. Johnson v. Sunbelt Builders, Inc., 02-0959 (La.App. 3d Cir.2/5/03), 838 So.2d 907. Under La. C.C.P. art. 966(C), once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Id.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049. The court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. Summary judgment should be denied if (1) there is a genuine issue of fact and (2) it is material to the case. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

|rA “genuine” issue is a triable issue. Smith, supra. An issue is genuine if reasonable persons could disagree. Id. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788 (La.App. 3d Cir.1988).

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith, supra. “Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375 (La.App. 3d Cir.1991), writ denied, 596 So.2d 211 (La.1992). A material fact is one that would matter on the trial on the merits. Smith, supra. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345 (La.1993).

In the instant case, the Broadways had the initial burden of making a prima facie showing that no genuine issue of material fact existed. The Broadways argue that they met this burden by presenting to the trial court ten affidavits which alleged that Mrs. Levitz had remitted the debt they owed to her. They further assert that, having satisfied their burden, the Executrix failed to offer evidence that a genuine issue of material fact existed. On the other hand, the Executrix argues that, when the burden |fishifted to her to prove that summary judgment was not proper, she produced evidence that proved that a genuine issue of material fact remained. We agree.

As previously stated, an issue is genuine if reasonable persons could disagree. The affidavits offered by the Executrix contradict the affidavits offered by the Broadways. Mrs. Levitz’s alleged comments to the Executrix that she would worry later about the money the Broadways owed to her contradicts the alleged comments she made to the affiants who claimed she told them she had forgiven the debt. Further, the continued existence of the promissory note in the possession of Mrs. Levitz when she died tends to indicate that the debt may not have been remitted. Moreover, Mrs. Levitz allegedly told her brother that she was not worried about loaning the money to the Broadways because she would either be paid back or she would get the property. The evidence of these statements also suggests that reasonable persons could disagree as to whether or not Mrs. Levitz remitted the debt.

In addition, the possible lack of remission of the debt by Mrs. Levitz is a fact that is “material” because the nonexis-fence of the remission of the debt is essential to the Executrix’s cause of action in this case. After careful preview of the record herein and in light of the affidavits presented by the Executrix and the fact that the promissory note was still in existence and among Mrs. Levitz’s possessions when she died, we find that a genuine issue of material fact remains.

CONCLUSION

For the foregoing reasons, the judgment of the trial court against Plaintiff, Tiki Shivers, as the executrix of the Estate of Mary Jacqueline Levitz, is reversed and remanded to the trial court for further proceedings. Costs of this appeal are assessed to the defendants, Joe E. Broadway and Don R. Broadway.

REVERSED AND REMANDED.

      . In addition, the Broadways cite Arledge v. Bell, 463 So.2d 856 (La.App. 2d Cir.1985), in support of their argument that summary judgment was proper; however, we find that Ar-

        ledge is distinguishable in certain respects from what occurred in the case sub judice. The issue in Arledge was not whether or not a genuine issue of material fact existed to determine whether summary judgment was appropriate; but, instead, it was whether certain evidence was admissible during the trial. Also, the loan made in Arledge was not in the form of a promissory note like in the case sub judice. For these reasons, we find Arledge to be inapposite to the resolution of the case before us. We do find, however, that Arledge is correct in its premise that Louisiana law sets forth that an out-of-court statement made by a person now deceased, which would normally be excluded as hearsay, is, nevertheless, admissible as an exception to the hearsay rule if such declaration was against the person's interest. See also La. C.E. art. 804(B)(3). We also find that, regardless of the donative intent of the person making a remission of a debt, no particular form or even a writing is required. Arledge, supra. See also La. C.C. art. 1888 and Comment (B) to La. C.C. art. 1888. While a remission of a debt may involve donative intent on the part of the creditor, the authentic form requirements do not apply.

      . See La. C.C. art. 1889, which provides:
      An obligee's voluntary surrender to the obli-gor of the instrument evidencing the obligation gives rise to a presumption that the obligee intended to remit the debt.


author: | t CARAWAY, J.

text:
    James Hugh STEPHENSON, Sr., Plaintiff-Appellant, v. Nancy STEPHENSON, nee Savage, Defendant-Appellee.
    No. 37,323-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Donald L. Kneipp, Monroe, for Appellant.
    Loomis & DeMent, by Albert E. Loom-is, III, Jeffery L. Dement, Monroe, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   | t CARAWAY, J.

In this child custody and support dispute, the trial court granted joint custody of the eight-year-old child to the parents, with the mother being designated the domiciliary parent and the father having frequent visitation. The trial court also awarded the mother interim spousal support of $900 per month from the date of demand until one-hundred eighty days after the judgment of divorce and child support. From these rulings, the father appeals. Finding no abuse of the trial court’s discretion, we affirm.

Facts

James Hugh Stephenson, Sr. (“James”) and Nancy Savage Stephenson (“Nancy”) were married in 1991. Of the marriage, one son, James Hugh Stephenson, Jr. (“Jamie”), was born on August 15, 1994. Nancy’s daughter from a previous marriage, Carolyn, also lived with the couple. On July 19, 2001, James petitioned the court for a divorce from Nancy and requested his designation as domiciliary parent of Jamie under a joint custody plan. Nancy answered and reconvened, requesting that she be awarded the primary care, custody and control of Jamie under a joint custody plan as well as child support. Nancy also sought interim periodic spousal support. During the pendency of the proceedings, the court rendered an interim order granting alternating weekly interina custody of Janaie to the parties.

I ¡After a three-day hearing in March of 2002 on the issues of custody and support, the trial court orally granted the parties joint custody of Jamie and designated Nancy the primary domiciliary parent. A written judgment reflecting this ruling followed on July 17, 2002. The judgment granted James every other weekend and each Wednesday afternoon visitation during the school year and alternate weekly summer visitation.

In July, 2002, James sought a rehearing on the issue of child custody. In September, 2002, the trial court orally denied James’s motion for rehearing and additionally rendered judgment on the issues of support. Specifically, the court awarded Nancy $900 per month as interim spousal support from the date of her reconventional demand until 180 days after the judgment of divorce. On October 10, 2002, the court rendered a written judgment affirming the earlier interim spousal support award and granting Nancy child support in the amount of $412.50 per month from July 25, 2001 until October 15, 2001, $209.76 per month from October 15, 2001 until March 21, 2002 and $545.79 per month after March 21,2002. From these judgments, this appeal ensued.

Child Custody

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. La. C.C. art. 134 sets forth the factors the court should consider when determining the best interest of the child, as follows:

(1) The love, affection, and other emotional ties between each party and the child.
Ia(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.
(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 court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of these factors. Rogers v. Stockmon, 34,327 (La.App.2d Cir.11/1/00), 780 So.2d 386. The trial court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Id. A trial court’s assessment of the probative value of evidence is accorded great weight and will not be disturbed absent a clear abuse of discretion. Rogers, supra; Hodnett v. Hodnett, 36,532 (La.App.2d Cir.9/18/02), 827 So.2d 1205. The best interest of the child test under La. C.C. arts. 131 and 134 is a fact-intensive inquiry requiring the weighing and 14balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Hodnett, supra. 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. Id.

La. R.S. 9:335(A)(2)(b) provides that to the extent feasible and in the best interest of the child, physical custody of the children should be shared equally. Yet, when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Hodnett, supra; Craft v. Craft, 35,785 (La.App.2d Cir.1/23/02), 805 So.2d 1213; Shaw v. Shaw, 30,613 (La.App.2d Cir.6/24/98), 714 So.2d 906, units denied, 98-2414 (La.11/20/98), 729 So.2d 556, 98-2426 (La.11/20/98), 729 So.2d 558. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Id.

When parties are awarded joint custody, the court shall designate a domiciliary parent unless the implementation order provides otherwise or for other good cause shown. La. R.S. 9:335(B)(1). The naming of a domiciliary parent in the joint custody decree, without more, produces three legal results: (i) the child shall primarily reside with that parent; (ii) the other parent has physical custody during time periods that assure that the child has frequent and continuing contact with both parents; and (iii) the decision making authority of La. R.S. 9:335(B)(3) applies. See Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La.L.Rev. 103 [r/1994). The domiciliary parent is the parent with whom the child primarily resides, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents. La. R.S. 9:335(B)(2). The implication of La. R.S. 9:335(B)(1) and (2) is that most joint custody decrees will invariably result in the child primarily residing with one parent more than the other. Nevertheless, the goal of joint custody is upheld so long as the non-domiciliary parent is assured of frequent and continuing contact with the child. Shaw, supra.

On appeal, James specifically argues that the trial court erred in designating Nancy as Jamie’s domiciliary parent and, in the alternative, deprived him of visitation adequate to allow Jamie frequent and substantial contact with his father.

The matters of record show that after ten difficult years of marriage, James and Nancy physically separated in July of 2001. Throughout the marriage, James and Nancy entertained financial troubles. The couple moved to Monroe, Louisiana in 1992 and, there, Nancy received her college degree in general studies in 1993. After Jamie’s birth in 1994, Nancy did not work outside of the home. Finally, in 1998, she worked as a part-time substitute teacher with the Monroe City Schools. From August 1999 to April of 2000 Nancy obtained a full-time non-certified fifth grade teaching position with a salary of $18,500 per year and medical insurance benefits. After quitting this position, she remained unemployed until October of 2001, when she took her present position as a church financial secretary for which she earns $20,000 per year. She regularly attends the church where |fishe works. Nancy’s employment is located very close to Jamie’s school and she is able to pick him up after school.

From the time Jamie was born, James worked as an insurance salesman which required that he travel during the week. In 1997, however, he was terminated from his position with State Farm Insurance Company due to sexual harassment charges arising from an affair with a married co-worker. He was able to quickly obtain other insurance employment and eventually began working for his present employer, Conseco, in October of 1998. His salary with Conseco is based upon commissions and he is responsible for paying his own expenses. By June of 2001, he accepted a position as manager with the company, but resigned that job by January of 2002 due to personal problems. In his first year with Conseco, James was named rookie of the year and was top salesman in 1999. In the four years that he has worked for the company, he has been named the top agent in the state and has ranked as a top salesman nationally.

Initially, James’s job required him to be away from home approximately two to four nights twice a month. At the time of trial, James sold insurance and testified that he was able to work his schedule around Jamie. His territory covers the northern part of Louisiana and he can make day trips and come home at night. James’s boss, Fred Tutt, testified that his position normally requires two to three days of travel a week, but that the schedule can be adjusted and travel limited.

James admitted that during the marriage, he was treated for depression and took medication for the condition as recently as 2001. He |7admitted that he had suicidal thoughts although he never acted on them and had considered using a gun. He also acknowledged that separate sexual harassment charges were filed against him in California and that he periodically possesses and views pornographic magazines and internet websites, although he claims that Jamie was never exposed to such material.

Various neighbors and friends of the couple also testified at the hearing. The consensus of that testimony indicated that both parents love Jamie and were attentive to his needs. Notably, each of James’s witnesses also expressed positive regard for Nancy’s maternal abilities. Nancy’s witnesses were not so complimentary to James, although Susan Handy, a friend of the couple, conceded that Jamie and his father appeared to have a close relationship and that Jamie appeared to love his dad. Liz Hammett and Gloria Steele, good friends of Nancy, confirmed that during the marriage James traveled quite a lot. Both characterized James as controlling.

Two experts also testified. Bobby Stephenson, an expert psychologist, stated that he saw both Nancy and James professionally about five years before trial. James exhibited symptoms of depression at that time including tiredness, low energy, decreased appetite and sadness. He last saw the Stephenson family in March of 1997. Dr. James Dean Stockstill, an expert in family practice, first saw James for depression from 1995 until early 1997. However, in July, 2001, James returned to Dr. Stockstill complaining of depression symptoms relating to his divorce. James |sreceived an anti-depressant at that time, but never returned to the doctor for further treatment.

From this evidence, the court awarded domiciliary status to Nancy and granted James frequent visitation rights. Of the eight, relevant factors considered under Article 134, the court found that seven weighed in favor of the mother. In fashioning the custody ruling, the court specifically expressed concern over the spending habits of James as well as his moral fitness, mental and physical health and narcissistic and controlling tendencies. Additionally, the court found Nancy to have been Jamie’s primary care giver during the marriage and that she provided the child with a sense of stability. Finally, the court considered as an important factor the close relationship that Jamie had with his step-sister.

We can find no abuse of discretion in the custody determination appointing Nancy domiciliary parent. James admitted at trial that the interim equal custody award affected Jamie negatively. When questioned regarding Jamie’s adjustment to the interim alternating weekly custody, James stated that “by the time he really gets even with it, gets calm with it, it’s time to switch. Its time to go back and so there’s this shifting that the little guy is always in.” Undoubtedly, even James felt that Jamie needed more stability, conceding that Jamie’s grades had dropped during the alternating interim custody period. The record clearly shows that, in his present position, James is still required to travel out of town during the week. Although the record suggests that he has been moderately successful in working his schedule around Jamie and would be able to come home after |8day trips, the fact remains that James is still frequently required to be out of town during the week when Jamie is in school. Certainly, it is during the school year that stability and continuity are of utmost importance to an eight-year old’s well-being and school performance. Also relevant in this matter is Jamie’s stability through his continued residence with his sister Carolyn with whom he was raised and shares a close relationship. Finally, the symptoms of James’s bouts of depression, i.e. lack of motivation, tiredness, lack of sleep, oversleeping, while apparently less frequent at the time of trial, nevertheless remain a concern insofar as they relate to the day to day care of an eight-year-old child. For these reasons, we find that it is in Jamie’s best interest to primarily reside with Nancy.

For the same reasons, we cannot say that an increase in visitation is warranted. James argues that the overnight visitation award amounts to less than 100 days of visitation yearly. He characterized this amount of visitation time as “grossly insufficient” given the fact that both parents live in Monroe. The summertime custody allows alternate weekly visitation. Therefore, it is only during the school year that James’s visitation has been restricted. Nevertheless, even during the school year, James is allowed weekly physical contact with Jamie which is adequate to assure the required contact with Jamie. At the same time, Jamie’s best interest is served by the stability he receives in Nancy’s home during the school week.

There is no requirement in our law that every joint custody plan award the non-domieiliary parent 100 days or more of overnight physical custody in order to ensure frequent and continuing contact. The legislative | inamendments to La. R.S. 9:335 in 1995 demonstrate that more flexibility in shaping the sharing of custody was intended. Act 463 of 1995; Shaw, supra at 910. Every child custody case must be viewed on its own peculiar set of facts and relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35. The present visitation scheme achieves that goal under the unique circumstances of this case.

Child Support

In support of their child support positions, each party submitted affidavits of personal expenses and income. Because James was self-employed, he also submitted business expense calculations into evidence. The trial court found that James had overstated both his personal and business expenses and that Nancy was not voluntarily unemployed for the three months prior to obtaining her present employment. James disputes these findings.

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children. La. C.C. art. 227. Both parents are obligated to contribute to the support of children. Schelldorf v. Schelldorf, 568 So.2d 168 (La.App. 2d Cir.1990); Osborne v. Osborne, 512 So.2d 645 (La.App. 2d Cir.1987). Children are entitled to support in an amount sufficient to maintain them in a style commensurate with the standard of living the family enjoyed before the marriage terminated. Schelldorf, supra. When reviewing an award of child support, an appellate court will not overturn the trial court’s factual | n determinations unless, in light of the record taken as a whole, they are manifestly erroneous or clearly wrong. Havener v. Havener, 29,785 (La.App.2d Cir.8/20/97), 700 So.2d 533.

The child support guidelines are set forth in La. R.S. 9:315, et seq., and are to be used in any proceeding to establish or modify child support. The measurement of “gross income” for determining the monthly amount of child support is set forth in La. R.S. 9:315(4). From this statutory guidance, the self-employed individual is entitled to deduct from the gross receipts of his business only those “ordinary and necessary expenses required to produce income.”

In this matter, the court divided the child support award into three separate awards. The first award included the time period from July, 25, 2001 until October 1, 2001 when custody was equally shared and Nancy was unemployed. The second period encompassed October 2, 2001 until March 21, 2002 when custody was shared and Nancy was employed. Thereafter, the award was for the final joint custody arrangement with both parents being employed.

For all of the child support awards, Nancy calculated James’s monthly adjusted gross income at $3,719.13 or a yearly income of $44,629.64. For the first period Nancy claimed no income for herself while James computed her income at $1,416.66 or a yearly earning potential of $17,000; both parties agreed that Nancy’s income for the second and third award periods was $1,666.66 or $20,000 a year. To the contrary, for all l^three periods, James measured his monthly adjusted gross income at $3,088.94 or a yearly income of $37,067.32.

To assist the court in calculating his 2001 gross income, James introduced tax records into evidence which reflected a gross yearly salary of $60,116.84. However, because he was considered self-employed, he deducted business expenses from this sum in the amount of $23,049.52. The business expenses included charges for cell phone, motels, meals, copies, gifts, supplies and mileage. Thus, for 2001, James calculated his gross income for support at $37,067.32.

In determining his income, however, the trial court questioned certain of the above-claimed business expenses as “excessive” and “tremendously inflated.” Regarding the personal expenses claimed by James, the court also described the amount of money spent on entertainment and dining out as “absolutely incredible.” Indeed, James estimated spending $4,800 per year on these personal expense categories despite the frequent time he spent on the road for his employment. The court also observed that incidentals and groceries listed as personal expenses in the yearly amount of $5,400 were hard to believe in light of the fact that James claimed to eat out all of the time. The court also rejected a $250 per month or $3,000 yearly loan expense finding that the money James received from his parents was not intended to be a loan. Finally, the court found that James was not credible regarding his current income. In calculating the yearly income of James at $3,719.16' per month or $44,629.64 per year, the amount utilized by Nancy |13in her child support calculations, the court characterized this income amount as “very generous” in favor of James.

We can discern no manifest error in the court’s conclusions. At trial, James admitted that he earned more money than that which he reported to the Internal Revenue Service. From this testimony, the court could reasonably conclude that James was not completely forthcoming about his actual earnings. The record also supports the court’s conclusions regarding the unreasonableness of the expenses reported by James. It is well-settled Louisiana law that it is within the trial court’s discretion to determine what is an inappropriate expense when determining gross income for purposes of calculating child support. Verges v. Verges, 01-0208 (La.App. 1st Cir.3/28/02), 815 So.2d 356, writ denied, 02-1528 (La.9/20/02), 825 So.2d 1179; Hudnall v. Hudnall, 00-0330 (La.App. 1st Cir.5/11/01), 808 So.2d 641; State in the Interest of Penn v. Penn, 97-1269 (La.App. 1st Cir.5/15/98), 712 So.2d 625. Therefore, we find no abuse of discretion in either the court’s determination that the personal and business expenses were inappropriate or in her calculation of income after a reasonable reduction of these expenses.

Citing La. R.S. 9:315.9, James also contends that because Nancy turned down a $17,000 a year job offer in June of 2001, for no apparent | ureason, her potential income due to her voluntary unemployment should be utilized for the period of July 2001 to October 2001, when she obtained her present employment.

Income under La. R.S. 9:315 includes the potential income of a voluntarily unemployed or underemployed party. Voluntary unemployment or underemployment for the purposes of calculating child support is a question of good faith on the obligor-spouse. State v. Battson, 36,-336 (La.App.2d Cir.9/18/02), 828 So.2d 132. A party is not 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. Id. Voluntary underemployment is a fact-driven consideration. On this issue, the trial court has broad discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Id.

In this case, Nancy admitted that she had declined a job offer in May or June of 2001. However, she indicated that the decision not to take the job was a mutual one made by the couple before their separation. Nancy also testified that James was very inconsistent in his desire for her to work and would alternate between putting pressure on her to either get a job or to stay home. Obviously, the trial court accepted Nancy’s reason for declining employment in June of 2001. We decline to disturb this credibility determination as it relates to the issue of her unemployment and find no manifest error in the court’s conclusion.

\ interim Spousal Support

On the issue of the $900 monthly spousal support award, James reiterates his complaint regarding the calculation of expenses and Nancy’s alleged voluntary unemployment. Additionally, he contends that the trial court improperly faded to consider that Nancy’s income was sufficient for her support and that he had no ability to pay after all of his monthly expenses were paid from his income.

The Louisiana Civil Code’s spousal support articles were amended in 1997 by La. Acts No. 1078, Regular Session, and went into effect on January 1, 1998. Pursuant to these amendments, the terms alimony pendente lite and permanent alimony were eliminated, and the terms interim and final periodic spousal support were substituted. La. C.C. art. Ill and its Revision Comments — 1997(a); Kenneth Rigby, The 1997 Spousal Support Act, 58 La. L.Rev. 887 (1998). See also, Thomey v. Thomey, 33,000 (La.App.2d Cir.4/7/00), 756 So.2d 698. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Defatta v. Defatta, 32,636, 32,637 (La.App.2d Cir.2/1/00), 750 So.2d 503; Reeves v. Reeves, 36,259 (La.App.2d Cir.7/24/02), 823 So.2d 1023. The trial court is afforded much discretion in determining an award of interim spousal support and that award will not be disturbed absent a clear abuse of discretion. Id.

| t 6From our review of the record, we find no error in the $900 monthly interim spousal support award. As we noted above, the actual income of James is difficult to calculate. We also agree with the trial court’s evaluation of James’s income as patently understated. Except for a short time of employment during the marriage, Nancy remained unemployed until after the parties’ separation, when she began earning $1,666.00 per month. Therefore, from the time of the separation, Nancy experienced a substantial decrease in the standard of living she enjoyed while living with James. Considering the interim spousal support policy of maintaining the status quo during the transitory period from marriage to divorce, Nancy is entitled to interim spousal support to offset the significant disparity between the parties’ income. Moreover, when reasonable monthly personal expenses and James’s child support obligation are subtracted from his income, the $900 per month obligation imposed by the trial court is well within his means to pay. We find no abuse of the trial court’s award.

Conclusion

For the reasons stated above, we affirm the judgment of the trial court. Costs of this appeal are assessed to James.

AFFIRMED.

      . At the time of the child custody hearing, Carolyn was fourteen years old.

      . A judgment of divorce was granted on March 18, 2002.

      . This provision is now contained in La. R.S. 9:315(C)(4) as amended in 2001 and applicable to actions filed after August 15, 2001.

      . At the time of trial, James had not yet filed either his 2000 or 2001 tax returns.

      . Indeed, our review of the record shows that the trial court would have been justified in excluding other expenses listed by James in his affidavit thereby possibly increasing his income even more. Notably, all of the expenses listed therein included Jamie’s monthly expenses. Additionally, other expenses that were duplicated by the parties included Nancy's automobile insurance, Jamie's school lunches, allowance and certain extracurricular fees. Finally, the expense category of “non-reimbursable” business expenses replicated previous income deductions.

      . This article was redesignated as La. R.S. 9:315.11 by Acts 2001, No. 1082 which applies to actions filed after August 15,2001.