author: I «SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Benjamin JACKSON.
    No. 04-KA-306.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis (Appellate Counsel), Churita Hansell, Jacqueline Maloney (Trial Counsel), Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant, State of Louisiana.

      F. Evans Schmidt, New Orleans, LA, for Defendant/Appellee, Benjamin Jackson.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and JAMES C. GULOTTA, Pro Tempore.
   I «SUSAN M. CHEHARDY, Judge.

This appeal presents a novel issue: Whether a district judge correctly quashed an indictment because the defendant was a juvenile not subject to district court jurisdiction during part of the stated date range for occurrence of the offense. The State has appealed, asserting the district court erred in refusing to allow the State to amend the indictment to limit the date range to a period after the defendant was old enough to be subject to the jurisdiction of the district court. We affirm.

On May 8, 2003, the Jefferson Parish grand jury returned an indictment alleging that Benjamin Jackson “on or between September 1, 2000 and March 13, 2003 ... violated R.S. 14:42 in that he did commit aggravated rape upon known juvenile (DOB 09/11/1993).” At arraignment, defendant entered a plea of not guilty.

Defense counsel filed a motion to quash the indictment on the basis the district court does not have jurisdiction. On November 6, 2003 the trial court granted the motion to quash. The State filed a motion for stay and a motion for appeal, which were granted.

LThe hearing on the motion to quash the indictment began on November 3, 2003 and carried over to November 6, 2003. At the November 3 hearing, defense counsel asserted the district court lacks jurisdiction to hear the matter because the indictment states the alleged criminal activity began on September 1, 2000, when defendant was only fourteen years of age. The defense introduced into evidence the original Certificate of Live Birth for defendant. It shows that defendant’s name is “Ben Jackson” rather than “Benjamin Jackson” and his date of birth is May 25, 1986 instead of May 25, 1985, as alleged in the indictment.

The State had no objection and the certificate was admitted into evidence. The prosecutor then said, “[T]he State will amend the Bill of Information [sic] to reflect the Defendant’s correct name, Ben Jackson, and to reflect that the dates of abuse, instead of September 2000, we’ll amend it to go from 2001 through March 13, 2003.”

Defense counsel opposed the amendment, stating, “[T]his was a Grand Jury indictment. Though the State does have some limited authority to make amendments for misspellings and the like, the allegations herein are of a substantive nature, which cannot be amended and can only be handled by being quashed and another indictment being handed down by the Grand Jury.”

The prosecutor said the State did not dispute defendant’s name or date of birth, but reiterated the State’s position that it can amend the indictment to change the time of the alleged offense.

The hearing recommenced on November 6, 2003. On that day, the prosecutor argued that the State has authority to amend the indictment, pursuant to La.C.Cr.P. art. 487, and that it can amend the allegation regarding the time of the alleged offense to include from May 25, 2001 to the last incident in March 2003.

| ¿Asked by the trial judge how that would cure the jurisdictional problem, the prosecutor stated, “We’re of the belief.that this Court has jurisdiction because the law is clear that where the defendant is fifteen years of age or older and is charged with aggravated rape, this Court can exercise exclusive jurisdiction once an indictment has been filed.”

In effect, the State argued that if the indictment were amended to show the date abuse began as May 25, 2001, defendant would have been fifteen years old at that time and, thus, subject to the district court’s jurisdiction.

Defense counsel disagreed, responding that the indictment, on its face, alleges a crime over which the district court has no jurisdiction. There is a nine-month time difference between September 1, 2000 and May 25, 2001, when defendant turned fifteen. The defense argued this change goes not only to the substance- of the crime, but also to the fundamental jurisdiction of the district court: “This isn’t a Bill of Information where the District Attorney can go and made the changes as the District Attorney sees fit, it’s a Grand Jury Indictment. And if there’s going to be a substantive change, that has to be done only by the Grand Jury.”

Defense counsel asserted there is no prejudice to the State because “[t]hey can now view this case in the light and in the eyes that it should have been viewed originally, ... with a fuller understanding of what occurred.”

The prosecutor said the State had relied on representations made by defendant to the investigating officers with respect to his name and date of birth. She pointed out that the date of the occurrence is not an essential element to the crime of aggravated rape; therefore, it need not be alleged in the indictment. She reiterated that the State has authority to amend grand jury indictments prior to trial.

|fiThe trial judge granted the'motion to quash, with the following oral reasons’ for the ruling:

I would agree with you . that the date of the offense is not an essential element of the crime of aggravated rape. The question before this. Court, however, is one with regard to the jurisdiction of this Court over someone who, at the time of the offens.e, was a juvenile, and over which the Juvenile Court had exclusive jurisdiction. ■
Based upon the information provided to the Court and placed into the record, including the certified birth certificate, which has now been made a part of the record, the Court does grant the defense Motion to Quash the Indictment. •

ASSIGNMENT OF ERROR NUMBER ONE

The State’s only assignment of error is that the trial court erred in granting the Motion to Quash. The State contends it has authority under La.C.Cr.P. arts. 487(A) and 468.-. to amend the. dates of occurrence , on the . indictment to “on or between May 25, 2001 and March 13, 2003,” the period after defendant became fifteen years old. In accordance with La. Ch.C. art. 305, the amendment would subject defendant to the exclusive jurisdiction of the district court. ■ , .

Defendant argués the trial court properly granted the motion because he was fourteen years old at the time of the occurrence set forth in the indictment and, therefore, the district court had no jurisdiction over him. He Contends the State has no authority to amend the indictment because the change in date of occurrence is an error not in form, but in substance.

LAW AND ANALYSIS

La. Const. Art. 5, § 19 provides that special juvenile procedures apply to the “determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday.” However, the article authorizes the legislature to exempt juveniles arrested for ^having committed certain serious crimes, to lower the maximum ages of persons to whom the special juvenile procedures shall apply, and to establish a procedure by which the court of original jurisdiction may waive juvenile procedures in order to apply adult procedures in individual cases. The legislature acted on that authority in passing certain provisions, formerly part of the Revised Statutes but now included in the Louisiana Children’s Code.

La.Ch.C. art. 305 governs divestiture of juvenile court jurisdiction and original criminal court jurisdiction over children. It states, in pertinent part, that a child age fifteen or older at the time of commission of certain offenses, including aggravated rape, is subject to the exclusive jurisdiction of juvenile court until either an indictment charging one of these offenses is returned or the juvenile court holds a continued custody hearing and finds probable cause that he committed one of these offenses, whichever occurs first.

Thus, under La.Ch.C. Art. 305, defendant would be subject to the district court’s jurisdiction if he were fifteen at the time of the alleged offense. That means defendant also would be subject to the penalties provided for adult offenders. In this case, in which the victim is under the age of twelve, the penalty for aggravated rape is either death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:42(D)(2)(a). Although defendant would not be subject to execution due to his age at the time the crime was committed, he would be subject to life-long incarceration in an adult prison.

La.Ch.C. art. 857 covers transfers for criminal prosecution. It provides:

A. The court on its own motion or on motion of the district attorney may conduct a hearing to consider ^whether to transfer a child for prosecution to the appropriate court exercising criminal jurisdiction if a delinquency petition has been filed which alleges that a child who is fourteen years of age or older at the time of the commission of the alleged offense but is not otherwise subject to the original jurisdiction of a court exercising criminal jurisdiction has committed any one or more of the following crimes:
* * *
(4) Aggravated rape.
* * *
B. Notwithstanding any other provision of law to the contrary, a fourteen-year-old who is transferred pursuant to this Article and subsequently convicted shall not be confined for such conviction beyond his thirty-first birthday. [Emphasis added.]

Under La.Ch.C. art. 857, if defendant was fourteen at the time of the alleged offense, the juvenile court may transfer him to the district court for prosecution as an adult, but only after a hearing in which the State is required to prove certain facts to the juvenile court. La.Ch.C. 862.

| slmportantly, a fourteen-year-old transferred to the district court is subject to much different penalty than a fifteen-year-old subject to original criminal jurisdiction: the fourteen-year-old may not be confined beyond his thirty-first birthday. The fifteen-year-old, if convicted, is subject to life imprisonment in an adult prison.

The State must observe the burden of proving the standards or criteria for the transfer of a juvenile to adult jurisdiction. State v. Everfield, 342 So.2d 648, (La.1977). The standards for transfer of a juvenile to adult jurisdiction are of constitutional magnitude. State v. Collins, 29,-368, p. 2 (La.App. 2 Cir. 5/7/97), 694 So.2d 624, 625.

La.C.Cr.P. art. 487 deals, with handling of a defective indictment, as follows in pertinent part:

A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to . be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

The district attorney has the power and authority to amend grand jury indictments, as to both form and substance. State v. Sanborn, 02-257, p. 13 (La.App. 5 Cir. 10/16/02), 831 So.2d 320, 328, writ denied, 02-3130 (La.9/26/03), 854 So.2d 346. Where the defense can show prejudice as a result of the amendment, the trial court may grant a continuance. Id.

IsUnder La.C.Cr.P. arts. 61 and 62, the district attorney has entire charge and control of each criminal prosecution in his district, and he decides whom, when and how to prosecute. For -example, the district attorney has the sole discretion to choose under which law he will prosecute. State v. Boss, 03-133, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 77, writ denied, 03-1968 (La.5/14/04), 872 So.2d 508.

The district attorney has the power to dismiss an indictment or a count in an indictment, in his discretion without obtaining consent of the court. La.C.Cr.P. art. 691. The district attorney may make the dismissal orally in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. Id.

La.C.Cr.P. art. 468 provides the date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense; further, “[i]f the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.”

The date is not essential to the crime of aggravated rape; therefore, it need not be alleged in the indictment. State v. Glover, 304 So.2d 348, 350 (La.1974). When the date is not an essential element of the offense charged, a mistake respecting the date on which the offense occurred is only a defect as to form, which may be corrected at any time without leave of court. State v. Brockel, 98-1089, p. 14 (La.App. 5 Cir. 3/30/99), 733 So.2d 640, 648, writ denied, 99-1516 (La.10/15/99), 748 So.2d 469.

In the instant case, the crucial issue is whether the trial judge erred by quashing the entire indictment rather than only a portion of it. The issue presented is res nova because of the jurisdictional issues involved.

| ,nWe conclude the district court did not err in granting the motion to quash the indictment. Defendant was indicted for aggravated rape of a juvenile occurring on or between September 1, 2000 and March 13, 2003. The indictment indicates that defendant’s date of birth is May 25, 1985; however, defendant’s birth certificate shows that defendant’s date of birth is May 25, 1986. As such, defendant was only fourteen years old when he allegedly committed the offenses from September 1, 2000 until May 25, 2001. Therefore, the district court did not have jurisdiction over the offenses occurring during this time period. La.Ch.C. art. 305.

Additionally, the State was not prejudiced by the granting of the motion to quash because it has two options available to it. First, the State can reinstitute prosecution by obtaining a new grand jury indictment, whereby it could present the date of occurrence as on or between May 25, 2001 and March 13, 2003, the period of time after defendant became fifteen years old. Or, the State could file a delinquency petition in juvenile court and conduct a hearing to determine whether defendant should be transferred to district court pursuant to La.Ch.C. art. 857.

The State cites State v. Taylor, 525 So.2d 1118, 1119-1121 (La.App. 5 Cir.1988), writ denied, 536 So.2d 1212 (La.1989), and Brockel, supra, to support its position that the trial court erred by not allowing it to amend the indictment. However, Taylor and Brockel are distinguishable and, therefore, inapplicable to the instant case. In Taylor and Brockel, the district courts had jurisdiction when they allowed the State to amend the indictments, unlike here, where the district court did not have jurisdiction when the State moved to amend the indictment, at least over some of the offenses.

We distinguish the recent case of State v. Havis, 03-2490 (La.4/30/04), 874 So.2d 153. In that case, the defendant was charged in the district court for Terrebonne Parish with aggravated rape of a child under the age of 12, allegedly | n committed when the defendant was 14 years old. At the time he was arrested and indicted, the defendant was 21 years old. He moved to quash the indictment on the ground the state had treated him according to his age at the time of his arrest, rather than his age at the time of commission of the offense. The district court denied the motion to quash, the court of appeal denied review, and the supreme court affirmed the judgment of the trial court.

The supreme court concluded that as a general rule the state may not bypass the transfer provisions of the Children’s Code, and the juvenile court’s exercise of its informed discretion, by instituting prosecution of a juvenile offender who was 14 years old at the commission of the offense directly in a district court exercising criminal jurisdiction. Under the circumstances of the case, however, the court found that the district court properly assumed criminal jurisdiction over the case' at the outset. Because Terrebonne Parish does not have special juvenile courts exercising exclusive original juvenile jurisdiction, the district attorney could have proceeded by charging the relator as a delinquent and then asking the court, sitting as a court exercising original juvenile jurisdiction, to transfer the case to itself sitting as a court exercising criminal jurisdiction.

However, that procedure was no more than a matter of supererogation under present circumstances because the district court, in fact, possessed no discretion to retain original juvenile jurisdiction over the case. Because relator was over the age of 21 years when arrested, he was no longer a child for purposes of delinquency proceedings conducted in a court exercising original juvenile jurisdiction .... By virtue of relator’s age alone, clear and convincing proof exists in the present ease that “there is no substantial opportunity for [his] rehabilitation through facilities available to the [juvenile] court-” ... Moreover, the discretion of the court under La.Ch.C. art. 857(A) is not unfettered because its findings under the criteria spelled out in La.Ch.C. art. 862 are subject to summary review “by the appropriate court of appeal.” La.Ch.C. art. 863(B). Sitting as a court exercising.original juvenile jurisdiction, the district court would have |i2had no choice other than to transfer the present case to itself as a court exercising original criminal jurisdiction even if the state had initiated juvenile proceedings at the outset by filing a petition to have relator adjudicated delinquent. The same result necessarily would have followed if the state had initiated juvenile delinquency proceedings in the city Courts of Houma, Louisiana, and then filed a motion to transfer the case into the 32nd Judicial District Court exercising criminal jurisdiction ....
■ The state acknowledged below that although it has charged relator with an offense carrying a sentence of death or life imprisonment at hard labor, it may not incarcerate him beyond his 31st birthday as a matter of the limit imposed by La.Ch.C. art. 857(B) for cases which have been transferred under the authority of La.Ch.C. art. 857(A) to a court exercising criminal jurisdiction. Under these circumstances, the path taken by the state in this case, initiating criminal prosecution of relator in the district court, did not prejudice relator by depriving him of the opportunity for the court to retain original juvenile jurisdiction over the case in the exercise of its discretion, or by exposing him to greatly enlarged penalties than otherwise would have been applicable if this case had been initiated as a juvenile delinquency proceeding:
Because relator’s motion to quash challenged not the subject matter jurisdiction of the district court but the procedural mechanism by which the state invoked the original criminal jurisdiction of that court under circumstances in which relator did not suffer actual prejudice, the court correctly denied the motion and asserted its jurisdiction over the case. The judgment below is therefore affirmed.

State v. Havis, 03-2490, pp. 4-6 (La.4/30/04), 874 So.2d 153, 155-156. In Havis, not only was there no separate juvenile court in the parish, but also the defendant was too old to benefit from juvenile court programs. In this case, however, there is a separate juvenile court in Jefferson Parish and defendant is under the age of 18, young enough for a juvenile court to determine whether he would benefit from “substantial opportunity for [his] rehabilitation through facilities available to the [juvenile] court....” La.Ch.C. art. 862(A)(2).

[ 1sFor the foregoing reasons, we affirm the judgment that granted defendant’s motion to quash the indictment.

AFFIRMED.

      . As applicable here, La.R.S. 14:42 defines aggravated rape as a rape committed where the sexual intercourse is deemed to be without lawful consent of the victim because the victim is under the age of thirteen years.

      . The U.S. Supreme Court has held that the Eighth Amendment prohibits execution of a juvenile offender less than 16 years old at the time of the offense. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).

      . La.Ch.C. art. 862 states:
      A.In order for a motion to transfer a child to be granted, the burden shall be upon the state to prove all of the following:
      (1) Probable cause exists that the child meets the requirements of Article 857.
      (2) By clear and convincing proof, there is no substantial opportunity for the child’s rehabilitation through facilities available to the court, based upon the following criteria:
      (a) The age, maturity, both mental and physical, and sophistication of the child.
      (b) The nature and seriousness of the alleged offense to the community and whether the protection of the community requires transfer.
      (c) The child’s prior acts of delinquency, if any, and their nature and seriousness.
      (d) Past efforts at rehabilitation and treatment, if any, and the child's response.
      (e) Whether the child’s behavior might be related to physical or mental problems.
      (f) Techniques, programs, personnel, and facilities available to the juvenile court which might be competent to deal with the child’s particular problems. .
      B. The court shall state for the record its reasons for judgment.
      C. (1) The court shall transmit the order rendered after the hearing or a certified copy thereof, without delay, to the clerk of court having jurisdiction of the offense.
      (2) Any party may request the court to provide a complete or partial transcript of the testimony of the witnesses; however, neither the record of the hearing nor the reasons for the transfer shall be admissible in evidence in any subsequent criminal proceedings, except for the purpose of impeachment of a witness.


source: Caselaw Access Project

author: [JAMES C. GULOTTA, Judge, Pro Tempore.

license: Public Domain

text:
    DIRECT GENERAL INSURANCE COMPANY OF LOUISIANA as Subrogee for Erica Johnson v. Courtney MONGRUE and Louisiana Farm Bureau Casualty Insurance Company.
    No. 04-CA-248.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.
    Kim Segura Landry, Gonzales, LA, for Plaintiff/Appellant.
    James S. Thompson, Chauntis T. Jenkins, Porteous, Hainkel & Johnson, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and JAMES C. GULOTTA, Pro Tempore.
   [JAMES C. GULOTTA, Judge, Pro Tempore.

Direct General Insurance Company of Louisiana (Direct General), the subrogee of its insured, Erica'Johnson, appeals from the granting of a summary judgment in favor of Southern Farm Bureau Casualty Insurance Company (Southern Farm) dismissing Direct General’s suit. This dispute arises out of an automobile accident involving Courtney Mongrue (Mongrue) and Erica Johnson (Johnson). The issue is whether Southern Farm, Mongrue’s automobile liability insurer, effectively canceled Mongrue’s insurance prior to the accident. Because Southern Farm failed to meet its burden of proving that the policy was properly canceled prior to the accident, we reverse the trial court’s judgment and remand for further proceedings.

On April 28, 2001, a collision occurred involving the automobiles driven by Johnson and Mongrue. Pursuant to its obligation in the insurance policy, Direct General paid a total of $20,398.10 to Johnson and to a guest passenger. Direct | ¡¡General filed suit in subrogation against Southern Farm and Mongrue. Southern Farm and Mongrue filed a motion for summary judgment, claiming that the insurance policy between Southern Farm and Mongrue was canceled before the 'date of the accident. The basis for the cancellation was for non-payment of the premium.

■ Appellate review of a grant or denial of a motion for summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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.” Id. at 231 (quoting LSA-C.C.P. art. 966(B)). The burden of proof remains with the mover. LSA-C.C.P. art. 966(C)(2).

The memorandum in support of the motion for summary judgment lists the following statement of uncontested facts:

.1. Southern Farm Bureau Casualty Insurance Company issued á policy of insurance to Courtney Mongrue.
2. Prior to April 28, 2001, Courtney Mongrue failed to make timely payment of her insurance premium, therefore, 'her policy of insurance was canceled by Southern Farm Bureau Casualty Insurance Company effective March 13, 2001.
3. On or before April 28,’ 2001, the date of the subject accident, Courtney Mongrue did not renew her policy of insurance with Southern Farm Bureau Casualty Insurance Company.

(Emphasis added).

Direct General filed an opposition to the motion for summary judgment in which it pointed out that the documents submitted with Southern Farm’s motion for summary judgment did not contain a notice of cancellation! In response, Southern Farm filed a supplementaFmemorandum in support of the motion for summary judgment and attached a document entitled, “NOTICE OF | CANCELLATION” dated March 14, 2001, stating that the cancellation date was March 29, 2001 and that the adcount due date was also March 29, 2001.

Direct General argues that Southern Farm failed to prove that the nonpayment occurred prior to the cancellation date because the due date for payment and the cancellation date were the same, March 29, 2001.

LSA-R.S. 22:636.1 sets out the requirements for an insurance company to effect a proper cancellation of a policy for nonpayment of a premium:

B. (1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(a) Nonpayment of premium.
D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given. In the event of nonpayment of premiums for a binder, a ten day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail. Unless the reason accompanies the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer within six months after the effective date of cancellation, the insurer will specify the reason for such cancellation. This Subsection shall not apply to nonrenewal.

(Emphasis added).

LSA-R.S. 22:636.1 mandates strict compliance with its statutory provisions for a valid notice of cancellation of an insurance policy. Johnson v. Williams, 35986, p. 3 (La.App. 2 Cir. 9/18/02), 828 So.2d 90, 92. Notice is required to make the insured aware that his policy is being terminated and to afford him time to obtain other insurance protection. Id.

Southern Farm consistently maintained in its motion for summary judgment that March 13, 2001 was the cancellation date. Southern Farm claims that it | ¡/‘explained to the trial court that the premium due date was actually March 13, 2001 as evidenced by the April 19, 2001 invoice.” However, the record contains no evidence to support Southern Farm’s assertion. Further, there is no provision in LSA-R.S. 22:636.1 for retroactive cancellation of an automobile liability insurance policy.

Southern Farm also asserts that a March 14, 2001 notice was nevertheless effective to cancel the policy because it was mailed ten days prior to the cancellation date of March 29, 2001.

In response, Direct General argues that the notice of cancellation was ineffective because the notice was not unambiguous. Specifically, Direct General urges that non-payment of the premium did not occur before the notice of cancellation was issued, considering that the cancellation date was the same as the account due date. We agree.

The notice sent to Mongrue on March 14, 2001 (attached as an exhibit to this opinion) listed March 29, 2001 as the “ACCOUNT DUE DATE.” It also listed March 29, 2001 as the “CANCELLATION DATE.” The document stated that the amount due on Mongrue’s account had not been received but contained no date other than March 29, 2001 as the date upon which payment should have been made. Thus, based on the terms of the March 14, 2001 notice sent to Mongrue, her premium was not yet due.

The April 19, 2001 invoice (also attached to this opinion) contributes to the confusion. The invoice indicates a March 13, 2001 “transaction date” but does not state that March 13, 2001 was the date the premium was due. Additionally, there is a credit to the account dated April 17, 2001, which was prior to the April 28, | fi2001 accident. The invoice also indicates a balance of zero, but contains no indication that the policy had been canceled. Rather, the following notation appears next to the April 17, 2001 transaction date: “EXPIRATION PREMIUM EFF 3/13/01.”

Other indications of ambiguity in the conduct of Southern Farm are found in its internal documentation. Southern Farm submitted a “TERMINATION NOTICE LIST” in support of the motion for summary judgment. This list contains the types of notices mailed to its insureds on March 14, 2001. The list reflects that the individuals received either an “EXPIRE” notice or a “CANCEL” notice. The list further reflects that the type of notice sent to Mongrue was an expiration notice, not a cancellation notice. Further, the list indicates the payment due date was March 29, 2001.

It is well settled that an automobile liability insurer has the burden of proving that the policy has been canceled prior to the date of the accident giving rise to a claim under the policy, and the insurer must show facts which constitute positive and unambiguous proof of understanding of cancellation of the policy. Henderson v. Geico Gen. Ins. Co., 36,696, p. 7 (La.App. 2 Cir. 1/29/03), 837 So.2d 736, 741 (citing Johnson v. Williams, supra). The record considered, we find that Southern Farm failed to meet this burden of showing that the policy was effectively canceled prior to the April 28, 2001 accident.

Accordingly, we reverse the judgment of the trial court and remand for further proceedings. Costs of this appeal are assessed against defendant-appellant, Southern Farm Bureau Casualty Insurance Company.

REVERSED AND REMANDED.

      . Although the defendant insurance company was named as "Louisiana Farm Bureau Casualty Insurance Company" in the petition, the answer was filed in the name of "Southern Farm Bureau Casualty Insurance Company.” Further, the motion for summary judgment, as well as the trial court's judgment, refer to the defendant insurance company as "Southern Farm Bureau Casualty Insurance Company.”

      . In its original brief, Southern Farm asserted that Mongrue made a payment on April 17, 2001. Because the parties did not address the effect of the payment on the insurance policy, we requested supplemental briefs. Southern Farm responded in its supplemental brief that it had "accidentally” characterized the credit as a payment in the original brief. Rather, Southern Farm now asserts the credit represents an "expiration premium credit” to the account because Mongrue never paid her premium. In its supplemental brief, Direct General agrees that the premium had never been paid.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Kevin R. HARDAN a/k/a Thedore Harden.
    No. 04-KA-171.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Counsel of Record on Appeal, Thomas J. Butler, Appellate Counsel, Martin Bellanger, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, Pro Tempore.
   | JAMES L. CANNELLA, Judge.

The Defendant, Kevin Hardan a/k/a Theodore Harden, appeals his five year sentence after being convicted of second degree battery.

The Defendant was charged by bill of information on April 4, 2003 with aggravated battery, a violation of La.R.S. 14:34. He was arraigned on April 7, 2003 and pled not guilty. The Defendant was subsequently tried by a six-person jury on October 27 and 28, 2003. The jury returned a verdict of guilty of the lesser included offense of second degree battery, La.R.S. 14:34.1. On December 11, 2003, the Defendant was sentenced to five years imprisonment at hard labor. He orally moved for an appeal and filed a written Motion for Appeal on December 11, 2003, which was granted.

On February 4, 2004, the State filed a habitual offender bill of information, alleging the Defendant to be a second felony offender. On March 11, 2004, the Defendant admitted to the allegations in the habitual offender bill of information. The trial judge vacated the Defendant’s original sentence, and re-sentenced him to the enhanced sentence of six years imprisonment at hard labor without benefit of probation or suspension of sentence. The Defendant’s habitual offender finding and sentence are not before this Court because they occurred after this appeal was | ¡¿instituted.

Darryl Jordan, a cross-country truck driver, testified that he met with co-workers Darryl Webb (Webb) and William Childs (Childs) on the afternoon of February 22, 2003. The three men had completed their work for the week and decided to have some beers together at an establishment located on Helen Street, near the intersection of Causeway Boulevard and Jefferson Highway in Jefferson Parish. The men arrived at about 3:00 p.m. They were joined 20 to' 30 minutes later by another acquaintance named Lonnie. During this time, the Defendant walked past the group then returned indicating that he thought he knew Webb. Webb said “no.” The Defendant then began complaining about how bad his life was and Jordan, not wanting to hear the Defendant’s conversation, walked away. Jordan testified that he did not know the Defendant. Webb thought that Lonnie knew the Defendant because they were friendly to each other.

As Jordan walked away from the group, the Defendant became angry. He accused Jordan of having a “problem” with him and “attitude.” The Defendant drew very close to Jordan and Jordan began to feel threatened. He pushed the Defendant away from him. At that point, both men fell to the ground. Jordan got up and walked toward his pickup truck, which was parked nearby. The Defendant followed. He stood on the passenger side of the truck offering Jordan his hand to shake as friends. Jordan refused. The Defendant came around the truck, reached into his pocket and drew out a knife. As he lunged at Jordan, Jordan yelled that the Defendant had a knife and attempted to run. Jordan tripped and fell. The Defendant stabbed him in the lower back. Jordan testified that he got up, crossed the highway and asked for help from the clerk in a gun shop. The man refused. Jordan left the store. When he saw a police cruiser traveling his direction, he flagged it down.

14Webb testified that the Defendant seemed to panic after he stabbed Jordan. Webb said that the Defendant attempted to leave the area, moving in Webb’s direction. Webb tried to stop the Defendant from leaving the scene, but the Defendant slashed at him with the knife. Webb then pulled out his knife and waved it at the Defendant in order to prevent him from fleeing. The two slashed at each other until the police cruiser drove up. The two did not injure each other. Webb further stated that Jordan walked across the street to a gun shop. Childs testified that he and Jordan called the police using Jordan’s cellular telephone.

Deputy Ed Manix of the Jefferson Parish Sheriffs Office testified that he responded to the report of an aggravated battery. When he arrived at the scene, Jordan and others identified the Defendant as the perpetrator. At that point, the Defendant saw Deputy Manix, who observed the Defendant throw a knife under a pickup truck. This act, coupled with the witnesses’ accusations, prompted Deputy Manix to immediately attempt to handcuff the Defendant. The Defendant resisted violently, kicking Deputy Manix and spitting. The Deputy was eventually able to restrain the Defendant and place him in his police car. Deputy Manix inspected Jordan and saw that he had sustained a one-half to three-quarter inch laceration to the lower back, indicating that the victim had his back turned to the Defendant. Based on his experience, he stated that such wounds can be very serious.

Herman Eicke (Eicke), the gun shop clerk, was called as a defense witness. He testified that Jordan entered the store, bleeding from his back, and asked to borrow a gun so that he could “finish” the altercation. Eicke further testified that he refused to give Jordan a gun, but that he offered to call an ambulance. He claimed that Jordan refused Eicke’s offer of help before leaving the store.

On appeal, the Defendant asserts that trial counsel was ineffective at the sentencing hearing by failing to object to or file a motion to reconsider sentence in response to the unjustified imposition of the maximum penalty, for failing to offer _[¿mitigating circumstances at the sentencing hearing, and for failing to request a pre-sentence investigation report. The Defendant also contends that the maximum sentence of five (5) years is unconstitutionally excessive and was imposed without regard to the sentencing guidelines.

As noted above, the five-year sentence imposed by the trial court on December 11, 2003 was vacated on March 11, 2004 and afterward the enhanced sentence was imposed. Because the Defendant’s sole assigned error concerns a sentence that is no longer in effect, we have nothing to review and his arguments are moot as to that sentence. Any claims defendant might have regarding his habitual offender sentencing must be addressed in a separate appeal. See, State v. Gilbert, 99-2238 (La.2/4/00), 758 So.2d 779 (per curiam); State v. Parker, 00-1365, pp. 4-5 (La.App. 5th Cir.1/30/01), 778 So.2d 1167, 1168-1169, writ denied, 01-0615 (La.2/22/02), 809 So.2d 981.

ERRORS PATENT

The record was reviewed for patent errors, in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Perrilloux, 99-1314 (La. App. 5th Cir.5/17/00), 762 So.2d 198. We find one patent error requiring action by this Court.

The commitment incorrectly reflects that the jury found the Defendant guilty of aggravated battery, when he was actually found guilty of second degree battery. We will remand the case to the trial court with instructions to amend the commitment to correctly reflect the conviction.

Accordingly, the Defendant’s conviction is affirmed. The appeal relative to the original sentence is moot.

CONVICTION AFFIRMED; SENTENCE ISSUE MOOT.

      . The Defendant does not contest his conviction of second degree battery.

      . We note that the trial judge failed to advise the Defendant of the prescriptive period to file an application for post-conviction relief, in accordance with La.C.Cr.P. art. 930.8. However, the issue is moot since the Defendant's sentence was vacated in conjunction with the subsequent habitual offender proceedings.


author: JAMES L. CANNELLA, Judge.

text:
    Ethel MELERINE v. AMERICAN MULTI-CINEMA, INC. and ABC Insurance Company.
    No. 04-CA-292.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Glenn E. Diaz, Carlos Zelaya, II, Chal-mette, LA, for Appellant.
    Thomas G. Buck, Metairie, LA, for Ap-pellees.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, Pro Tempore.
   JAMES L. CANNELLA, Judge.

The Plaintiff, Ethel Melerine (Melerine), appeals from the trial court ruling in favor of the Defendants, Gulf States Theaters and Charter Oak Fire Insurance Company (Gulf States), granting their exception of prescription and dismissing her case. For the reasons which follow, we affirm.

On September 2, 2001, Melerine was a patron of the Palace Theater-Clearview, attending a movie. As she was entering the seating row of the theater, she fell and sustained an injury. On August 29, 2002, Melerine filed suit against the owner of the theater at the time suit was filed, American Multi-Cinema, Inc (AMC). However, AMC had purchased the theater on March 9, 2002, after her fall. AMC notified Mele-rine that it was not the owner of the theater at the time of her fall. On October 10, 2002, Melerine amended her petition to add Gulf States and its insurer as Defendants. On January 9, 2003, Gulf States filed an Exception of Prescription, Answer and Jury Trial Request. On March 7, 2003, AMC filed a motion for summary judgment which was granted on April 24, 2003, dismissing AMC from the suit. On October 9, 2003, Gulf States filed a second exception of prescription. Following a hearing on the exception, the trial court rendered judgment on December 9, 2008, granting the exception of prescription in favor of DGuIf States and dismissing Mele-rine’s case with prejudice. It is from this judgment that Melerine appeals.

It is well settled that when the petition itself evidences the fact that the action is prescribed, that is, the claim is prescribed on its face, the plaintiff bears the burden of showing why prescription has not run. Drake v. Sarpy Properties, 01-1823 (La.App. 5th Cir.4/10/02), 817 So.2d 209; Sperandeo v. Sydran Food Services, II, L.P., 01-0675 (La.App. 5th Cir.12/12/01), 806 So.2d 724.

Melerine herein argues that prescription has not run because the amending petition, filed after the prescriptive period had run, naming Gulf States as a Defendant, relates back to the timely filing of the original petition.

La. C.C.P. art. 1153 permits an amendment to relate back to the filing of the original petition when “the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to -be set forth in the original,pleading.” In Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983), the Supreme Court established the following criteria to determine whether Article 1153 allows an amendment which changes the identity of the party or parties to be sued to relate back to the date of the filing of the original petition:

(1) The amended claim must arise out of the same transaction or occurrence set • forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institu- • tión of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be | tantamount to assertion of a new cause of action which would have otherwise prescribed.

The article does not authorize the addition of a new or unrelated defendant as an “amendment” which would relate back to the filing of the original petition when such a defendant did not receive notice of the action from the original petition. Sanders v. Schwegmann Supermarkets, 96-0849 (La.App. 4th Cir.6/4/97), 696 So.2d 264; Lowe v. Rivers, 448 So.2d 848 (La.App. 2nd Cir.1984). If an amendment is to relate back, a plaintiff cannot sue a new and unrelated defendant. The original and the new defendant must have an identity of interest. An identity of interest has been found between a parent corporation and a wholly owned subsidiary and between corporations with interlocking officers. Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990). The relationship must be such that there is an inference of notice. Hardy v. A+ Rental Incorporated, 95-2176 (La.App. 4th Cir.5/8/96), 674 So.2d 1155, writ denied, 96-1945 (La.11/1/96), 681 So.2d 1268. See also Buffinet v. Plaquemines Parish Commission Council, 93-0840 (La.App. 4th Cir.7/27/94), 645 So.2d 631, writs denied 95-100, 105, 109 (La.3/17/95), 651 So.2d 269, 270.

After reviewing the entire record in this case, it is clear that Melerine has not met her burden of proving that her case against Gulf States is not prescribed because she has not established that this case came within the Ray v. Alexandria Mall criteria for relation back of the amended petition. Gulf States, sought to be added by amended petition after the prescriptive period had run, is wholly unrelated to the original named Defendant, AMC. As evidenced by the record the two companies are separate corporate entities with no joint ownership. Further, Mele-rine has made no showing that Gulf States was in any way notified of the filing of the lawsuit prior to service of the amended petition after the prescriptive | ¡^period had run. Gulf States established by affidavit that it had no notice of the filing of the suit until after the prescriptive period had run.

While we agree with Melerine that we do not readily see any prejudice suffered by Gulf States, that is not the sole inquiry. There are four parts to the Ray v. Alexandria Mall criteria which have simply not been met.

Gulf States cites and relies on the case of Sanders v. Schwegmann Supermarkets, 96-0849 (La.App. 4th Cir.6/4/07), 696 So.2d 264, in support of its exception. In Sanders, the plaintiff slipped and fell in the grocery store. She filed an amended petition to substitute the current owner of the store with the owner of the store at the time of her fall, after the prescriptive period had run. In granting the prescription exception, the court noted that the two companies were separate legal entities with no connection other than the purchase and sale of the grocery store. Moreover, there was no evidence that the substitute defendant had knowledge or notice of the suit prior to the running of the prescriptive period. We find Sanders to be on point. Just as in Sanders, Gulf States had no notice of the suit until after the prescriptive period had run and was a completely separate legal entity from the original defendant, which was dismissed on summary judgment.

Based on the foregoing, we find no error in the trial court ruling granting Gulf States’ exception of prescription and dismissing Melerine’s claims with prejudice and we affirm that judgment. Costs of appeal are assessed against Melerine.

AFFIRMED.

      . There is no showing in the record that the first prescription exception was acted upon.


author: | .PEATROSS, J.

text:
    Bridget Lyons KETCHUM, Plaintiff-Appellant v. Chad Daniel KETCHUM, Defendant-Appellee.
    No. 39,082-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 1, 2004.

      Susan D. Scott, for Appellant.
    Smith & Jacobs, APLC, by.E. Charles Jacobs, for Appellee.
    Before GASKINS, PEATROSS & DREW, JJ.
   | .PEATROSS, J.

In this modification of custody action, the father, Chad Ketchum, sought modification of an existing Joint Custody Implementation Plan, or stipulated judgment, providing for joint custody of his two-year-old daughter, Katelin. After a hearing, the trial court found that modification of the custody arrangement was warranted and awarded shared custody with alternating week physical custody. The trial court further ordered that the mother, Bridget Lyons (Ketchum) Stanford, who was named domiciliary parent in the prior custody plan, be removed as domiciliary parent and that she and Chad be “co-domiciliary parents,” provided that Chad remain married and moved to the area where Bridget and the child reside. Bridget now appeals. For the reasons stated herein, we reverse and remand.

FACTS

Bridget and Chad were married in 1999 and lived in Springhill, Louisiana. They separated in 2001 due to Chad’s infidelity. Bridget was pregnant at the time of the separation and Katelin Ketchum was born in October 2001. Chad filed for final divorce and for shared custody of the baby in January 2002. Days later, Bridget filed for final divorce, custody and child support and asked for an injunction against Chad to stop harassing and threatening calls. She also asked for supervised visitation due to Chad’s alleged erratic behavior and unstable emotional state. In March 2002, a Joint Custody Implementation Plan was approved by the trial court granting joint custody with Bridget as domiciliary parent and visitation in favor of Chad every other weekend, every Wednesday overnight, alternating holidays-and two to three weeks in the summer. At that time, Chad was | giving in Sarepta with his parents and was traveling to work in Ashdown, Arkansas. Bridget, a middle school teacher, still lived in the former marital home in Springhill.

Chad married Kelly in February 2003, at which time he moved into Kelly’s home in Shreveport. He continued to commute every day to work in Ashdown. In July 2003, after failed discussions with Bridget about reconciliation, Chad filed suit to obtain equal physical custody of Katelin by alternating weeks of physical custody. He also sought to modify child support and for he and Bridget to be “co-domiciliary parents” instead of Bridget holding the domiciliary parent status. At trial, Chad indicated that he and Kelly were planning to move to the Springhill area depending on the court’s finding regarding physical custody. The court imposed a gradual scale of shifting physical custody to work the child into an alternating week arrangement. Specifically, Chad’s period of physical custody was immediately increased to Wednesday through Monday every other week and was to increase one day every two months or so until, by June 1, Katelin would be on an alternating week living arrangement. The trial court further ruled that, if Chad was still married and had moved to the Springhill area by June 1, the parents would then become “co-domiciliary parents.”

Apparently, Chad and Kelly did, in fact, move to Sarepta in April 2004. Bridget also remarried- — -to a man she had known since high school and had dated for more than a year and a half prior to the marriage.

\ .DISCUSSION

On appeal, Bridget raises five assignments of error essentially challenging the trial court’s findings that a change in circumstances materially affecting the welfare of the child had occurred warranting a modification of the custody plan to an equally shared arrangement of alternating weeks of physical custody was in Katelin’s best interest. She argues that Chad failed to meet his burden of proof on either of those requirements and further submits that equally shared custody arrangements are not mandated by law, nor are they presumed to be in the child’s best interest. Bridget also challenges her removal as domiciliary parent and the re-designation of “co-domiciliary parents.”

Modification of custody

The nature of the original custody award dictates the burden of proof a party has when seeking to modify a prior permanent custody award. There are two types of custody awards. The first is a stipulated judgment, wherein the parties consent to a custodial arrangement. The second is a considered decree, which is rendered after the trial court has received evidence of parental fitness to exercise care, custody and control of a child. When the original custody decree is a stipulated judgment, the party seeking modification must prove that there has been a change in circumstances materially affecting the welfare of the child since the original decree and that the proposed modification is in the best interest of the child. White v. Kimrey, 37,408 (La.App.2d Cir.5/14/03), 847 So.2d 157, writ denied, 03-1943 (La.8/1/03), 849 So.2d 534, citing Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Touchet v. Touchet, 36,881 (La.App.2d Cir.1/29/03), 836 So.2d 1149; Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/7/01), 803 So.2d 975. See also Arbuckle v. Arbuckle, 36,616 (La.App.2d Cir.12/11/02), 833 So.2d 1119.

Generally, the determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Roberie v. Roberie, 33,168 (La.App.2d Cir.12/8/99), 749 So.2d 849; Warlick v. Warlick, 27,389 (La.App.2d Cir.9/29/95), 661 So.2d 706.

In the case sub judice, because the parties were subject to a joint stipulated custody decree, the burden of proof to change the agreement regarding Katelin’s custody would, therefore, be on Chad to show that (1) there has been a material change of circumstances affecting the welfare of the child since the original custody decree was entered and (2) the proposed modification is in the best interest of Kate-lin. Joint custody determinations are governed by La. R.S. 9:335 which provides, in pertinent part, that:

(A)(1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown. (2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents, (b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

A joint custody arrangement does not necessarily require an equal sharing of physical custody. Ellinwood v. Breaux, 32,730 (La.App.2d Cir.3/1/00), 753 So.2d 977; Nichols v. Nichols, 32,219 (La.App.2d Cir.9/22/99), 747 So.2d 120. The primary consideration should be substantial time rather than strict equality of time as mandated by the legislative scheme providing for joint custody of children. Ellinwood, supra; Boyd v. Boyd, 26,292 (La.App.2d Cir.12/7/94), 647 So.2d 414. As noted by the Ellinwood court, joint custody does not necessarily mean a 50/50 sharing of time. See also Nichols, supra. 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. Nichols, supra. Each case will depend on the child’s age, the parents’ situations and other factors relevant to that particular custody dispute. Brazan v. Brazan, 93-2369 (La.App. 1st Cir.6/24/94), 638 So.2d 1176.

To determine the best interest of the child for a feasible sharing arrangement under La. R.S. 9:335(A)(2)(b), the court must weigh and balance those factors enumerated in La. C.C. art. 134, which may include the following:

(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;
[ fj(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; and
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial 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 those factors. Moreover, 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. Rogers v. Stockmon, 34,327 (La.App.2d Cir.11/1/00), 780 So.2d 386. The factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. McIntosh v. McIntosh, 33,908 (La.App.2d Cir.8/31/00), 768 So.2d 219. Further, in determining what the best interest of the child is in a change of custody case, courts must examine all relevant factors including stability of environment, standard of living each parent can provide and the prior history of the child’s custody. Roberie, supra.

Continuity and stability of environment are important factors to consider in determining what is in the child’s best interest. Washkow v. Washkow, 33,-965 (La.App.2d Cir.8/23/00), 765 So.2d 1210; Roberie, supra. A change from a stable environment should not be made absent a compelling reason. Roberie, supra.

|7With these principles in mind, we turn to the evidence presented at the hearing on the modification of custody in the present case. Initially, we note that Chad argues that his remarriage and relocation to the Springhill area constitute a change of circumstances sufficient to warrant modification of custody. Chad did remarry and, in fact, Bridget has also remarried.

Regarding the relocation, we note that Chad and Kelly had not yet relocated to the Springhill area at the time of the hearing and each testified that them relocation depended on the court’s ruling on physical custody. Had the trial court denied the requested modification, Chad would not have moved to Springhill area to be closer to Katelin; rather, Chad and Kelly both testified that, in that event, they would probably move closer to Chad’s employment in Ashdown, Arkansas. It is also noteworthy that, at the time Chad and Bridget agreed to the original custody arrangement set forth in the Joint Implementation Plan, Chad was living in the Springhill area. He moved to Shreveport upon his marriage to Kelly, almost a year after the original custody arrangement was entered. His return to the Springhill area, therefore, is not actually a change from the circumstances in existence at the time the original custody arrangement was entered.

Under the particular circumstances of this case, we decline to hold that the evidence presented regarding Chad’s relocation constitutes a change in circumstances that materially affects the welfare of Katelin. Further, without establishing a bright line rule, we decline to hold, in this particular, case, that Chad’s. remarriage alone constitutes a change in circumstance that materially affects Katelin’s welfare so as to warrant the extreme change of | «physical custody ordered in this case. See Shaw v. Shaw, 30,613 (La.App.2d Cir.6/24/98), 714 So.2d 906, writs denied, 98-2414 and 2426 (La.11/20/98), 729 So.2d 556 and 558 (completion of school and new family bonds do not constitute material change of circumstances to justify modifying previous custody arrangement).

Our inquiry does not end, however, with the alleged change of circumstances. Assuming, arguendo, that there has been a sufficient change of circumstances, we find this record woefully lacking in evidence that the alternating week arrangement is in Katelin’s best interest. We do not doubt Chad’s sincerity in his desire to spend more time with his daughter, nor do we question his wife’s willingness to assist him in his efforts to be a good father to Katelin. By all accounts, Chad and Kelly included, Bridget is an excellent mother. She has provided a stable and loving home for Katelin since birth. Katelin is happy, well-adjusted and secure in her current custodia! arrangement. Neither Chad nor Bridget expressed extreme dissatisfaction with the current custodial arrangement. For the most part, the testimony reveals that Chad and Bridget have worked well together handling minor changes in visitations and both have been fairly accommodating in this regard.

The only testimony supporting the assertion that the week-to-week arrangement is best for Katelin came from Chad, who testified that he wanted to spend more time with-her so that he could “teach her things that her mother can’t.” On the other hand, Bridget testified that she was concerned about upsetting Katelin’s present stability and she expressed |9strong reservation about Katelin’s ability to adjust to separate households for a week at a time. Significantly, Bridget expressed well-founded concern over a child of such a young age being removed for a week at a time from her mother, who had been the child’s stable, primary caregiver since the child’s birth. Perhaps the most persuasive factor against the week-to-week' arrangement in this case is that, during Chad’s week of physical custody, Katelin will spend more time in daycare or in the care of persons other than her father. Both Chad and Kelly testified that Chad leaves home for his commute to work at 5:00 a.m. Kelly would be waking, feeding and dressing Katelin and taking her to daycare. Chad returns home from work at approximately 5:30 p.m. and either he or Kelly would pick Katelin up from daycare, whereas Bridget gets off work at 3:15 and can (and has for the last two years) picked Katelin up from daycare at that time. The net result is that Chad will see Katelin for a few hours each evening and the child will spend more hours in daycare or with Kelly. This is not in the child’s best interest.

In summary, the record indicates that Katelin is thriving in her present environment and is happy there. Absent a compelling reason to upset her present stability, we find it in her best interest to continue the same. While we are cognizant of the wide discretion afforded a trial court in making custody determinations, we believe that it was an abuse of that discretion to drastically alter the physical custody of a stable, healthy, happy and well-adjusted two-year-old by ordering an arrangement whereby the child would be taken from her mother, who has been her primary caregiver • since birth, |1(1every other week (for seven days at a time). In addition, we find no evidence in the record to suggest that spending more time in daycare or in the care of persons other than her father during periods of his physical custody would be in Katelin’s best interest, especially when the child’s mother is available to care for her.

The record also supports the conclusion that Bridget’s marriage is stable, whereas there exist some questions regarding Chad’s emotional stability concerning his break-up with Bridget and subsequent marriage to Kelly. There is no indication that spending time with Chad .and Kelly has had a negative impact on the child; however, the evidence suggests that Bridget’s home life is the more stable and permanent of the two at this time.

While .courts strive “to the extent feasible” to give the parents equal time with the child, the paramount concern in all custody situations is the best interest of that child. As previously suggested, in this particular case, the young age of the child, the present and past living arrangement, the length of time Katelin has lived in her mother’s stable home, maintaining continuity of the child’s environment and the permanence of the family unit she enjoys (the. home into which she was born and has lived since that date) all strongly favor maintaining the status quo as far as Katelin’s overnight custodial arrangement.

Having so held, we further find that Chad may be entitled to more visitation with Katelin and we express no reservations in awarding him more time with her, so long as the arrangement is in her best interest. An additional afternoon or evening visit' with Katelin (perhaps from 5:30 p.nnjjjto 7:30 p.m.) may be appropriate on one or more weekdays. In this way, the goal of substantial time with Chad can be achieved without sacrificing the stability and continuity of Katelin’s present living arrangement. Accordingly, we reverse the decision of the trial court ordering an alternating week custodial arrangement. In addition, finding that the trial court is in a better position to fashion the specific modification schedule in light of the parents’ current employment circumstances, etc., we remand the matter for further proceedings regarding additional visitation for Chad.

Domiciliary Parent Designation

In light of our findings discussed herein, we conclude that Bridget should not have been removed as domiciliary parent of Katelin. La. R.S. 9:335(B) requires the court to designate a domiciliary parent except when there is an implementation order to the contrary or for good cause shown. The parties agreed that Bridget was to be the primary domiciliary parent in the original implementation plan and there has been no good cause shown for her removal. There is no evidence in the record to suggest that Bridget has in any way failed to act appropriately as domiciliary parent; and, therefore, we see no reason to divest her of that status at this time. In addition, we note that, while a court can refuse to designate a domiciliary parent in an initial custody determination for good cause shown, we find no authority in the law for a designation of “co-domieiliary” parents.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this | ^opinion. Costs of this appeal are taxed 75 percent to Chad Ketchum and 25 percent to Bridget Lyons Stanford.

REVERSED AND REMANDED.

      . The record contains taped telephone conversations between Bridget and Chad wherein Chad states that he would come back to Bridget if she would agree to reconcile. Bridget submits that Chad's overtures to reconcile were numerous and came before and after he married Kelly. Chad maintains that he would not have cheated on or left Kelly to reconcile with Bridget, but that his statements to Bridget in this regard were made in an effort to get more time with Katelin.