author: | TRAYLOR, J. 11 JOHNSON, J.,

text:
    Christine Maynard BREWTON, et ux. v. UNDERWRITERS INSURANCE COMPANY, et al.
    Nos. 2002-CC-2852, 2002-CC-2853.
    Supreme Court of Louisiana.
    June 27, 2003.

      Joseph P. Williams, Metairie, Robert S. Wright, Counsel for Applicant.
    Larry A. Stewart, Andrew P. Texada, Alexandria, Stafford, Steward & Potter, Joseph J. Bailey, Albín A. Provosty, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, Counsel for Respondent.
   | TRAYLOR, J.

Plaintiff, Christine Maynard Brewton, individually, and on behalf of her three minor children, seeks review of the decision of the court of appeal, which reversed the trial court judgment and found that defendants are entitled to a jury trial on the issues regarding Mrs. Brewton’s employment status. After reviewing the record and the applicable law, the judgment of the court of appeal is affirmed.

FACTS AND PROCEDURAL HISTORY

This matter arises from a single vehicle accident that occurred on March 22, 2000, on 1-49 in St. Landry, Louisiana, when Christine Brewton and her husband, Mickey Brewton, were returning from Baton Rouge after attending a business dinner. Mrs. Brewton sustained injuries while riding as a passenger in a vehicle driven by her husband, when he fell asleep at the wheel and lost control of the vehicle, causing it to overturn.

As a result of the accident, Mrs. Brew-ton, individually, and on behalf of her three minor children, filed suit against Mr. Brewton; his employer, L.L. Brewton | ^Lumber Company, Inc. (L.L. Brewton); and its two insurers, Underwriters Insurance Company (Underwriters) and First Specialty Insurance Corporation (First Specialty).

In answer to Mrs. Brewton’s petition, defendants admitted that Mr. Brewton was an employee of L.L. Brewton and that he was in the course and scope of his employment at the time of the accident. Defendants further alleged that Mrs. Brewton was also an employee of L.L. Brewton and that she, too, was in the course and scope of her employment at the time of the accident. As such, defendants asserted Mrs. Brewton is precluded from bringing a suit in tort against defendants for damages sustained in the accident. Defendants further prayed for a jury trial on all the issues, including whether Mrs. Brewton was employed by L.L. Brewton and whether she was in the course and scope of her employment at the time of the accident.

Subsequently, Mrs. Brewton filed a motion in limine seeking a judgment from the trial court declaring that defendants were not entitled to a jury trial on the issues regarding Mrs. Brewton’s employment status.

The trial court granted Mrs. Brewton’s motion in limine. The court of appeal granted defendants’ writ applications and made peremptory its order that the issues surrounding Mrs. Brewton’s employment were to be presented to the jury. This court granted certiorari to review the correctness of that decision.

DISCUSSION

In her application to this court, Mrs. Brewton argues that the court of appeal erred in reversing the trial court judgment, which found the issues surrounding her employment should not be tried by a jury. In support of her argument, Mrs. Brewton relies on Solet v. K-Mart Corp., 555 So.2d 35 (La.App. 1 Cir.1989), writ denied, 558 So.2d 572 (La.1990) and Lemaire v. CIBA-GEIGY Corp., 99-1809 (La.App. 1 Cir. 6/22/01), 793 So.2d 336, writ denied, 01-2153, 802 So.2d 608 (La.11/16/01). Additionally, Mrs. Brewton relies on Matrana v. Argonaut Great Cent. Ins. Co., 01-640 (La.App. 5 Cir. 12/12/01), 806 So.2d 732, which she contends supports the Solet holding, Further, she argues that defendants are not entitled to a jury trial on issues relating to her employment status as La.Code Civ. P. art. 1732 expressly provides that “[a] trial by jury shall not be available in ... [a] workers’ compensation ... proceeding....”

In opposition, defendants contend the court of appeal correctly applied La.Code Civ. P. art. 1732. Defendants concede the article prohibits a jury trial in a workers’ compensation proceeding; however, they assert this matter is clearly not a workers’ compensation proceeding. As such, defendants contend that in this tort proceeding they are entitled to a jury trial on issues relating to Mrs. Brewton’s employment status. Further, defendants contend the cases relied upon by Mrs. Brewton do not have precedential value.

Unlike in criminal matters, there is no constitutional right to trial by jury in a civil 14case in Louisiana courts. Riddle v. Bickford, 2000-2408 (La.5/15/01), 785 So.2d 795. The right to jury trials in civil cases is not so fundamental to the American system of justice as to be required of state courts by the due process clause of the Fourteenth Amendment. Blanchard v. City Parish of East Baton Rouge, 95-2011 (La.App. 1 Cir. 4/20/96), 674 So.2d 317, citing, Melancon v. McKeithen, 345 F.Supp. 1025, 1025 (E.D.La.1972), affirmed, 409 U.S. 943, 93 S.Ct. 289, 290, 34 L.Ed.2d 214 (1972). However, the right to a jury trial in a civil ease is a basic right and should be protected in the absence of specific authority for its denial. Champagne v. American S. Ins. Co., 295 So.2d 437 (La.1974).

La.Code Civ. P. art. 1731(A) provides that “[ejxcept as limited by Article 1732, the right of trial by jury is recognized.” In Pugeau v. Hebert, 00-0875 (La.5/12/00), 760 So.2d 325, this court stated, “The right to a jury trial is favored in the law and any doubtful statutory provision should be liberally construed in favor of granting a jury trial.” La.Code Civ. P. art. 1732, however, places limitations upon civil jury trials and, as it specifically applies to the instant matter, provides that “[a] trial by jury shall not be available in ... [a] worker’s compensation ... proceeding.”

Mrs. Brewton filed a tort action in a district court, where she alleged in her petition that she was injured in an automobile accident and sustained the following damages:

(A) Past, present and future medical expenses;
(B) Past, present and future mental pain and suffering;
(C) Past, present and future physical pain and suffering;
(D) Scarring and disfigurement;
(E) Loss of earning capacity.
As a result of the injuries to Christine Maynard Brewton her minor children suffered a loss of consortium in which they are entitled to recover damages.

IfiA review of Mrs. Brewton’s petition clearly reveals this is not a workers’ compensation proceeding as she is not seeking workers’ compensation benefits. Thus, exclusive jurisdiction lies with the district court. As such, in the instant case, a jury trial is available to determine disputed factual issues regarding her employment status. If she were seeking workers’ compensation benefits, she would be required to file a claim -with the office of workers’ compensation administration as Louisiana Constitution Article V, Section 16 provides for exclusive jurisdiction with the Department of Labor for all “workers’ compensation matters.” La. R.S. 23:1310.3.

^Citing Solet, Lemaire, and Matrana, Mrs. Brewton contends that the issues of employment status in a non-workers’ compensation proceeding cannot be decided by a jury. Rather, she asserts such issues must be presented to a judge. However, we note Solet was decided prior to the 1990 amendment to the La. Const. Art. V, Section 16, which removed workers’ compensation cases from the district court’s original jurisdiction. As a consequence, an employee’s claim filed prior to the 1990 amendment could be asserted in district court against an employer in tort or, in the alternative, for worker’s compensation benefits. Prior to the 1990 amendment, there was never any justification to extend Solet to the issue of statutory immunity in a clear tort suit by plaintiff, where all other procedural requirements to obtain a jury trial have been met. The justification for Solet was removed by the amendment to the Louisiana Constitution and the enactment of an administrative law system for workers’ compensation matters. Essentially, Solet and its progeny have no precedential value as the district court will never be presented with a tort suit coupled with a workers’ compensation suit, in the alternative.

Today, district courts no longer have subject matter jurisdiction in workers’ compensation matters; rather, Office of Workers’ Compensation has exclusive jurisdiction over workers’ compensation proceedings. La. R.S. 23:1310.3; La. Const. Art. V, Section 16 (excepting workers’ compensation matters from the jurisdiction of district court). The post-Solet cases relied upon by Mrs. Brewton fail to acknowledge the impact of the changes that have taken place in Louisiana law regarding original jurisdiction over workers’ compensation matters. To the extent that So-let and its progeny hold that a party is not entitled to a jury trial on the issues of employment status in a tort suit filed in a district court, the court of appeal in the instant case was correct in declining to follow Solet considering the posture of the 17issues before the district court.

As to Mrs. Brewton’s argument that La.Code Civ. art. 1732 serves to prohibit a jury trial on issues relating to Mrs. Brewton’s employment status in the instant case because these issues directly involve the workers’ compensation statute, we find this argument to be without merit. La. Code Civ. P. art. 1732 clearly and unambiguously prohibits a jury trial in “[a] ... workers’ compensation ... proceeding.” When legislation is clear and unambiguous, the law must be applied as written and no further interpretation can be made in search of the intent of the legislature. La. Civ.Code art. 9; Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268. In the instant case, the La.Code Civ. P. art. 1732 prohibition of trial by jury in workers’ compensation proceedings does not apply in this instance to deprive defendants of its statutory right to a jury trial to decide disputed issues in a tort suit that happens to raise issues regarding a party’s employment status.

Accordingly, based upon the procedural posture of the instant case, the court of appeal did not err in reversing the trial court judgment and finding defendants are entitled to a jury trial on disputed facts regarding Mrs. Brewton’s employment status.

DECREE

For the foregoing reasons, the judgment of the court of appeal is affirmed.

JOHNSON, J., concurs and assigns reasons.

11 JOHNSON, J.,

Concurring.

The majority opinion finds that defendants are entitled to a jury trial on disputed facts regarding plaintiffs employment status. If it is determined that plaintiff was in fact in the course and scope of her employment at the time of the accident in question, she would be limited to the remedies provided under workers’ compensation (La. R.S. 23:1021 et seq.) and would, therefore, be barred from proceeding with her tort claim.

In my opinion, allowing a jury trial without a determination of plaintiffs employment status is an unnecessary burden on the judicial system. Judicial economy is better served if there is a determination as to whether the case is properly in tort or workers’ compensation before exercising the right to a jury trial.

      . La.Code Civ. P. art. 1732, in its entirety, provides:
      A trial by jury shall not be available in:
      (1) A suit where the amount of no individual petitioner's cause of action exceeds fifty thousand dollars exclusive of interest and costs.
      (2) A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want, or failure of consideration.
      (3) A summary, executory, probate, partition, mandamus, habeas corpus, quo war-ranto, injunction, concursus, workers’ compensation, emancipation, tutorship, interdiction, curatorship, legitimacy, filiation, annulment of marriage, or divorce proceeding.
      (4) A proceeding to determine custody, visitation, alimony, or child support.
      (5) A proceeding to review an action by an administrative or municipal body.
      (6) All cases where a jury trial is specifically denied by law.

      . We note the matter is presented to this court in a somewhat unusual posture because Mrs. Brewton filed a motion in limine seeking to preclude the jury from hearing issues surrounding her employment status. Typically, the underlying issue of whether an accident is work related is resolved in a pre-trial motion or exception, such as an exception of no right of action or lack of subject matter jurisdiction or a motion for summary judgment. Any of these pre-trial methods would have resolved the issue. However, because the parties involved elected not to use a more appropriate procedural vehicle, this case is limited to its procedural facts.

      . La. Const. Art. V, Section 16(A) provides:
      Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

      . La. R.S. 23:1310.3 E provides, in pertinent part:
      Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers' compensation insurance coverage disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers for indemnification or contribution.


source: Caselaw Access Project

author: h SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Michael Lyndal CUROLE v. Grace Yin-Yee Wong CUROLE.
    No. 02-CA-153.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 26, 2002.
    Writ Granted July 29, 2002.

      Mitchell F. Hoffman, Ellen Widen Kes-sler, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA and Lila Molai-son Samuel, Gretna, LA, for Grace Yin-Yee Wong, Plaintiff-in-Rule/Appellant.
    Lee W. Rand, New Orleans, LA, for Michael Lyndal Curóle, Defendant-in-Rule/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   h SUSAN M. CHEHARDY, Judge.

|gThis is a child custody matter, in which the mother appeals a judgment that denied her request to relocate. We reverse and remand.

Grace Yin-Yee Wong Curóle and Michael Lyndal Curóle are parents of two children, ages six and two at the time of the proceeding in the trial court. The parents divorced in March 2001. They have joint custody of the children by consent judgment. Grace, the mother, is domiciliary parent. On October 10, 2000, Grace notified Michael that she wished to relocate with the children to Cleveland, Ohio. Michael filed an objection to relocation of the children.

After two days of hearing evidence, the trial court rendered judgment on August 25, 2001. The court denied the relocation proposal, finding that Grace did not prove by a preponderance of the evidence that the proposed relocation is in the best interest of the children and that application of the La.R.S. 9:355.12 criteria does not favor the proposed relocation. Grace appeals.

Grace seeks to relocate to Pepperpike, Ohio, which is in the Cleveland area, to participate in a business financed by her brother-in-law, Saul Seigel, husband of | ^Grace’s sister Ann. The business would import high-end Italian furniture to be sold at a sizeable markup to the large market in the Cleveland area, as well as over the Internet. Grace would earn an equity interest in the business as well as a salary of $50,000.00 per year and benefits.

Grace and the two children, Noelle and Evan, would initially live with her sister and brother-in-law, who own a very large home in an affluent area. Grace presented research showing the Cleveland area has excellent schools, medical facilities, and other amenities.

Grace stated the reasons for her desire to move are that it will be a better environment for her children and that she wants to start over and escape the strain of her relationship with Michael. She denied that she was trying to remove her children from contact with their father.

The evidence established that Grace and Michael had a long relationship prior to the births of their children and that their relationship was always stormy. There were many battles, occasionally physical. Prior to Evan’s birth, on two occasions Grace left Michael and took Noelle with her for visits to Texas and California that lasted several months. On both occasions she returned and she and Michael reconciled. However, the strife between them continued. Grace and Michael separated for the last time in June 2000, after a physical altercation that left Grace with numerous bruises.

Grace worked for Southwest Airlines for 18 years prior to having her younger child, Evan, but she quit work to stay home with Evan when he became ill as an infant. Both Grace and Michael have been closely involved in parenting their children, although Grace has been the primary caretaker. Grace admitted she |4has not looked for work in the New Orleans area and acknowledged that she could probably get a good job in the New Orleans area because she is a hard worker and has extensive experience at Southwest Airlines.

Under the parties’ visitation schedule, Michael is entitled to visitation with his children every weekend, with an extra day on alternating Fridays. Michael has exercised his visitation regularly and conscientiously. Following Grace’s announcement of her desire to relocate and Michael’s filing of his objection to the move, but prior to the trial, Michael began to experience difficulty in getting Noelle to come with him for visitation. This became a major issue between the parents. Michael was convinced that Grace was encouraging Noelle to resist visiting with him; Grace was convinced that Michael was doing something to make Noelle not want to be with him.

There was an incident on May 26, 2001, when Noelle resisted going with her father so stubbornly that Michael called for police assistance, thinking an officer could help him enforce his visitation rights. The officer who arrived refused to take action because he found no criminal violations and the sheriffs office does not get involved in civil domestic matters.

After Grace decided she would like to relocate, she had Noelle evaluated by Dr. Amy Dickson, a clinical child psychologist, to ascertain whether such a move would affect Noelle adversely. Dr. Dickson advised her that Noelle seemed well-adjusted to the idea. Later, Dr. Dickson began seeing Noelle in therapy sessions after Noelle began manifesting reluctance to visit with her father.

At trial Dr. Dickson testified as Noelle’s treating therapist. Dr. Dickson felt the relocation would not be detrimental to Noelle, would be positive in her development, and in her best interest.

Grace drafted a relocation proposal, as required by La.R.S. 9:355.4(B)(5). In it she offered to pay for roundtrip airfare for Michael to fly to Cleveland every other weekend (26 visits) to visit the children, as well as other visitation periods of longer duration during the first year after the relocation.

Dr. Karen Van Beyer, appointed by the court to perform a custody evaluation, was the only one of the three experts testifying at trial who had interviewed all parties to the case. Dr. Van Beyer testified that she interviewed the parents together and individually and she interviewed Noelle individually, but did not interview Evan individually because of his young age. She also talked to family members of both parents. She noted that she has been involved in relocation cases since the Ramos case and this was the first time she felt a move would be in the children’s best interest.

Dr. Van Beyer stated the conflict between Grace and Michael arises out of both their contrasting personalities and different cultural upbringing. She described Grace as “sensitive and emotionally reactive”; she described Michael as someone “convinced of the correctness of his own opinions,” who “tends to hold forth on those opinions quite assertively and sometimes aggressively.” Michael sees Grace as overly emotional and overly excitable; Grace regards Michael’s aggressiveness as being badgering, belittling, and critical.

|fiDr. Van Beyer noted that Grace comes from an Asian culture and grew up with beliefs that in some respects are alien to Michael’s cultural beliefs. (Specifically, Dr. Van Beyer referred to Grace’s belief in numerology, the practice of feng shui, the ghosts of ancestors, and that malignant spirits can infest objects.) Her adherence to these beliefs has been another source of conflict between her and Michael, to the extent that Michael insisted Grace see a therapist, Dr. Blocker, because of her beliefs and her emotionality. Dr. Van Beyer noted, however, that these are marital issues rather than “one party versus the other being insane.” She felt that these beliefs are not abnormal for a person brought up in an Asian culture.

Dr. Van Beyer said there is nothing in Grace’s family history that would cause the doctor concern about Grace being the primary custodial parent with the children in Ohio. She admitted, also, that she found nothing in Michael’s family history that would contribute to the move as being in the best interest of the children.

Dr. Van Beyer based her recommendation of the move on the high level of conflict between the parents, which is not just secondary to their divorce but goes back throughout the marriage. She testified that the conflict between the parents is very detrimental to the children’s well-being. Relocation would be beneficial by lessening the contact between the parents and, thus, reducing the extreme amount of conflict between them. She noted that Noelle is in danger of becoming alienated from her father because of her sensitivity to her parents’ issues. The child feels protective of her mother and has come to feel that her father is mean to her mother.

|7Pr. Van Beyer noted that Michael’s calling the police when Noelle refused to go on visitation with him subjected the child to the high degree of conflict between the two parents, which is very frightening for the child, and psychologically damaging. Dr. Van Beyer stated that action confirmed her opinion that Michael needs anger management therapy. Dr. Van Beyer stated that permitting the move to Cleveland would alleviate the triangulation of Noelle into the conflict between her parents.

Dr. Van Beyer stated that at present neither parent was doing a good job of supporting the children’s relationship with the other parent. She recommended that the parents attend Voices of Children co-parenting seminars. She noted that unless these parents go through “a lot of therapy” and make a lot of changes, they are not going to be able to get along well with each other if they’re in the same city. She stated they have a long pattern of conflict about deeply-held personal beliefs, their conflict resolution patterns are very dysfunctional, and she does not think they are going to get over it.

Dr. Van Beyer also noted that the children see their paternal grandparents frequently and have a close, loving relationship with them. However the children’s primary relationship is with their parents and that is what affects them most. The doctor noted that if there were no conflict between the parents, it would be preferable for the children to live here rather than move to Ohio.

Dr. Van Beyer recommended modification to Grace’s proposal that would give Noelle longer extended periods of time with her father on a less-frequent basis. Dr. Van Beyer felt that although Evan was only two, monthly visits, with | slonger visits on holidays and in summer, could sustain his attachment with his father.

There was testimony from Grace, Dr. Dickson, and Dr. Van Beyer about an incident reported by Noelle. Noelle told Dr. Dickson that during one of her visits with her father, he lost his temper. He allegedly shook and “head-butted” Noelle because she interrupted him while he was working at his computer.

Two of Grace’s sisters testified. Ann, the sister in Ohio, testified she and her husband are willing to provide Grace and the children with a place to live, as well as a social and financial support system, until they get on their feet. Eve, one of Grace’s sisters who lives in the New Orleans area, testified she and her other sisters are all close to Grace and believe the move would be a good thing for her and the children.

Michael Curóle testified that Grace impedes his visitation with his children by “holding on” to Noelle, with the result that Noelle will not leave as long as her mother is hugging her. He stated he did not call the police on Noelle, but called for assistance in enforcing his visitation rights. He denied telling the police officer to forcibly remove Noelle and place her in his car. He admitted that calling the police was a bad idea, but said he felt he was out of options. He did not feel Noelle was traumatized by the incident with the police officer or even seriously upset.

|9With regard to the so-called “headbutting” incident, Michael admitted he “grabbed” Noelle, but denied that he headbutted his daughter. He said she did get a spanking that weekend, but it was because she “terrorized” her little brother on the playground at a fast-food restaurant.

Michael also denied that he bullied, beat, or physically attacked Grace during their marriage. He stated the bruises shown on her in the photographs in evidence were offensive rather than defensive injuries because she lost her temper and attacked him. He said she was “back-handing” and “fore-handing” him. Michael did not believe his behavior had been out-of-line at all and stated he does not need anger management therapy.

Michael feared that with his children in Ohio, the amount of time they would be separated will result in their becoming unfamiliar with him and uncomfortable when they see him. He felt the basic conflict between him and Grace just arose due to the legal system in preparation for the trial; he felt that once the court made a decision the conflict would “go down considerably.”

He admitted that he has told Grace, in front of Noelle, that she should punish Noelle for refusing to go to visitation with him. He feels that Noelle sometimes is “playing the crowd” and “having fun,” “playing games” during these times. He stated that Noelle becomes “an absolutely different child” once they have driven away from her mother’s home.

Michael’s parents, the children’s paternal grandparents, and Michael’s brother, David, testified to the closeness of their family ties, their loving | ^relationship with the children, their frequent contacts with the children, and their desire to have the children remain in New Orleans in order to sustain the relationships.

Dr. Lynn Parker, a clinical child psychologist, was called as a witness by Michael as an expert on the general effect of young children being separated from their parents post-divorce. Dr. Parker stated she could not testify specifically as to the effect on Noelle and Evan; although she had met with both Grace and Michael, she had not done an evaluation of the children in this case. She said it would not be appropriate for her to testify about them. Counsel for Grace objected to Dr. Parker’s competence to testify under the Daubert criteria, but the objection was overruled by the court.

Dr. Parker stated she does not recommend relocation for small children, who need frequent and usually briefer contact with their parents. She said that lengthy periods between visits usually are insufficient to maintain a healthy parent-child relationship. She said that when there is visitation across state lines, parents usually stick to the schedule in the first year due to high guilt about the divorce. Eventually, however, the children suffer because the parent who is traveling to see them — usually the father — stops having as much contact. The father finds it’s too painful because visitation must take place in an artificial situation, such as a hotel room, and is just to have contact rather than to co-parent. The father is not involved with friends or with the children’s school and the children ^gradually stop wanting to come for visitation. The travel is arduous for the children. Over the years the relationships weaken and are adversely affected.

Dr. Parker admitted that there is literature showing that if a child is in a very high conflict situation for long periods, getting the child out of the conflict is important. However, she stated, she has never recommended relocation and doubts she ever will recommend it where there are very young children. Instead, she advises intervention to decrease the conflict, with the parents living in close proximity, rather than attempting to avoid the conflict by a move that does not really resolve it. Dr. Parker felt the best way to resolve conflicts is to have a court-appointed family therapist who sees the parties together, rather than dividing up the task between people who do not talk to one another.

La.R.S. 9:355.1-9:355.17 govern relocation issues in child custody cases. The relocating parent has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the children. La.R.S. 9:355.13. In deciding a contested relocation request, the trial judge must consider the factors set out in La.R.S. 9:355.12. If the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child, as long as the non-relocating parent remains in the state. La.R.S. 9:355.17.

In written reasons for judgment, the court found that Grace’s relocation proposal was made in good faith. The court listed and discussed each of the factors set out in La.R.S. 9:355.12 to determine contested relocation, as follows:

1. La.R.S. 9:355.12(1): “The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child’s |12life.” The court found that the diminished relationship the children would have with their father and paternal grandparents weighs heavily against relocation.

2. La.R.S. 9:355.12(2): “The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.” The court found that the probable injury to the children’s development and relationship with their father weighs against relocation.

3. La.R.S. 9:355.12(3): “The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.” The court found that the feasibility of preserving the relationship between the father and the children is remote if relocation is permitted and the difficulty of long-distance transitions for visitation would certainly have an adverse impact on the preservation of the children’s relationship with their father, weighing heavily against relocation.

4. La.R.S. 9:355.12(4-): “The child’s preference, taking into consideration the age and maturity of the child.” The court gave no weight to this factor because the children are too young to consider their preferences.

5. La.R.S. 9:355.12(5): “Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party. ” The court found that the mother has exhibited a subtle course of conduct that, intentionally or unintentionally, discourages consistent and healthy visits of the children, particularly Noelle, with their father, which weighs “clearly and heavily” against relocation.

|136. La.R.S. 9:355.12(6): “Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity. ” The court found that relocation to Cleveland will enhance the quality of life for both the mother and the children because it is safe, has better schools and recreation to offer, and the mother anticipates a good career there, all of which favor relocation.

7. La.R.S. 9:355.12(7): “The reasons of each parent for seeking or opposing the relocation.” The court found that the mother’s primary reason for wanting to move is to avail herself of a promising, although not certain, business opportunity, but there is no reason to believe her eventual permanent residence there will be “so significantly better than Metairie” as to justify relocating the children so far from their father. The court found that father’s reasons for opposing the relocation are that he does not want to lose frequent contact with his children and he fears alienation from them, which the court found reasonable.

The court stated,

The court is convinced that this move, if permitted, would lead to the nearly complete deterioration of Michael’s close relationship with Evan, and of a potentially equally close relationship with Noelle, which outweighs the benefits of relocation.
If the children remain here, with cooperation from Grace, they can enjoy a healthy relationship with both parents and grandparents. While there are significant immediate benefits to moving, they are outweighed by the long-term detrimental effects on the children and the alienation of their father and paternal grandparents.

8. La.R.S. 9:355.12(8): “Any other factors affecting the best interest of the child.” The court noted it was “very impressed with the testimony and credentials | uof Dr. Lynn Parker”and that Dr. Parker “testified emphatically that she thought that this relocation is unhealthy for the children.” The court cited testimony (from Grace) that Michael’s temper had improved in recent months and that Grace had been heard by neighbors (Rafael Miranda and William Sturm) to yell and scream at the children and at Michael, when the parents were still living together. Finally the court found the testimony of the mother’s expert witness, Amy Dickson, Ph.D., to be “very, very biased and somewhat defensive on cross-examination....She clearly was there to be favorable to Grace.”

The trial judge ultimately concluded:

Grace clearly is a wonderful mother, and the court does not doubt that the community she wants to move her children to will be, at least initially, superi- or. But that is only one of many factors which the law requires this court to consider. As mover, Grace bears the difficult burden of proving that this relocation, a dramatic change in living arrangements, is in the best interest of the children according to the numerous factors above. Although there are certainly benefits to this relocation proposal, having applied these factors, the court is convinced that relocation is not in the children’s best interest, and the relocation must therefore be denied.

On appeal, Grace asserts that the trial court misunderstood or mischaracterized the evidence and disregarded the testimony of the court-appointed expert. Grace contends the judge erred because he found she was in good faith about the move, had good reason to relocate, and that the proposed business opportunity was real and viable, yet he denied her relocation request. She asserts the trial court’s characterization of her was clearly unreasonable based on all the evidence.. She argues that the court’s findings are self-contradictory because he said she is a wonderful mother, yet he also stated that she causes the | ^transition problems and that she could prevent them. She opposes the court’s characterization of her in that statement, as well as in other comments.

In addition, she contends his characterization of Michael and his behavior is contradicted by the evidence and the record. She states the court ignored, discounted and even contradicted more damaging evidence about Michael, by dismissing his anger, aggression and poor judgment as mere “occasional temper and impetuousness.” She also pointed to Michael’s denial that he is in need of anger management training, despite Dr. Van Beyer’s recommendation of it.

Grace contends the trial court committed “stigmatizing error” that led to unreasonable conclusions and resulted in injustice.

Grace also asserts that “the judge unreasonably disregarded the recommendations and reasons of the Court-appointed evaluator, despite corroborating evidence of her findings and even though she was the only unbiased witness who knew and evaluated both parents, the children, and the extended families.”

Because Dr. Van Beyer was appointed as the court’s own expert, Grace argues the trial court erred in rejecting her recommendation the relocation should be permitted. Grace contends that not only was Van Beyer appointed by the court, but also she was the only expert who had interviewed all the concerned parties. Grace asserts that it was unreasonable of the court to accept only part of her findings and reject almost all others.

Further, Grace argues,

The judge unreasonably allowed the court appointed mediator, who hardly knew Grace and had never met the children, to testify about the effects of the move; his erroneous deference to her theoretical opinions [1fiwas compounded by his failure to require any professional therapy in his judgment, especially for Michael Curóle.

We note, first, that although Grace points out on appeal that Dr. Parker briefly served as a court-appointed mediator earlier in this case (on a conflict about whether Evan should have overnight visitation with Michael), at trial Grace’s counsel failed to object to Dr. Parker’s testimony on the ground that she had served as mediator. Rather, counsel objected that Dr. Parker did not satisfy the Daubert standards to qualify as an expert in this matter.

The trial judge stated he was impressed with Dr. Parker, accepted her general testimony about the effects on small children of post-divorce separation from parents, and noted her opinion that living away from their father is “almost certain” to injure the children’s relationship with him.

After weighing and evaluating medical and lay testimony, the trial court may accept or reject the opinion expressed by any medical expert. Goodwin v. Goodwin, 618 So.2d 579, 586 (La.App. 2 Cir.1993). The trial judge has the discretion to substitute his common sense and judgment when such a substitution appears warranted upon the record as a whole. Goodwin, 618 So.2d at 586; Lloyd v. TG & Y Stores Co., 556 So.2d 629, 636 (La.App. 2d Cir.1990). However, the weight to be given expert testimony is dependent upon the professional qualifications and experience of the expert and the facts upon which the opinion is based. Lloyd, 556 So.2d at 636.

We agree with Grace. The trial court erred in failing to give weight to the testimony of Dr. Van Beyer, who had been appointed by the court and who had interviewed all persons involved in the matter. The court erroneously stated, in |17the written Reasons for Judgment, “No independent mental health expert was appointed by the court to perform evaluations pursuant to R.S. 9:355.8 B.”

Instead, the court relied on the testimony of Dr. Parker, who could not testify specifically as to the parties m this case, but only generally as to the effects of relocation in custody situations. That was both error by the judge and an abuse of the court’s discretion. Dr. Parker’s testimony, which could only be general, should not have been given greater credence than that the testimony of Dr. Van Beyer. Dr. Van Beyer had been appointed by the court, her testimony was specific, and her recommendation was based on in-depth evaluation of the individuals involved.

Finally, Grace contends that the trial court’s conclusions are inconsistent with the facts and the record. Specifically, she asserts that the statutory criteria of La. R.S. 9:355.12 are inapplicable to this case and that the analysis is erroneous and clearly wrong.

Grace argues that La.R.S. 9:355.12 should not have been applied here because there was a restraining order in effect. She argues that the pre-enactment standards should have been applied, which merely require proof by the parent seeking permission to relocate that there is “good reason for the move and that the move is in the children’s best interest.” Stewart v. Stewart, 525 So.2d 218, 223 (La.App. 1 Cir. 4/19/88). She argues that, under these standards, the trial court’s findings that Grace has been offered a legitimate business opportunity and is in 11sgood faith in contending she could provide a better home for the children would require granting of Grace’s request to relocate.

Grace admits, however, that even if the criteria of La.R.S. 9:355.12 do not apply here, the court’s analysis based on those factors would not necessarily be reversible error, except that the court in this case relied on “uncorroborated conclusions,” “improper inferences,” and “distortion of the record” to support his decision.

The parties both initially obtained temporary restraining orders preventing each from abusing or harassing the other. The order in favor of Michael was issued on June 14, 2000; the order in favor of Grace was issued on July 5, 2000. On July 17, 2000, a consent judgment issued modifying the temporary restraining order issued on June 14, 2000, to prohibit Grace and Michael mutually from removing the children from Louisiana on a permanent basis without complying with the Louisiana statute on relocation. The modification was approved and signed by counsel for both parties. Accordingly, there is no merit to Grace’s argument that the custody relocation statutes do not apply.

An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). A child custody matter must be viewed within the context of its own particular set of facts. A trial court’s determination in such matters is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Connelly v. Connelly, 94-0527, pp. 4-5 (La.App. 1st Cir.1994), 644 So.2d 789, 793. The primary consideration and prevailing inquiry is whether a |1flcustody arrangement is in the best interest of the child. Deason v. Deason, 99-1811, p. 6 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 222.

The weight to be given expert testimony depends, ultimately, on the facts on which it is based, as well as the professional qualifications and experience of the expert. Meany v. Meany, 94-0251, p. 11 (La.7/5/94), 639 So.2d 229, 236. For an expert opinion to be valid and merit much weight, the facts upon which it is based must be substantiated by the record; if the facts are not substantiated by the record, the trial court may reject the opinion. Gould v. Gould, 28,996, p. 7 (La.App. 2 Cir. 1/24/97), 687 So.2d 685, 690.

For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable. Theriot v. Lasseigne, 640 So.2d 1305, 1310 (La.1994).

In the lengthy reasons for judgment, the trial court addressed each relevant factor of La.R.S. 9:355.12 before concluding that the proposed relocation was not in the best interest of the children. See Franklin v. Franklin, 99 1738, p. 7 (La.App.5/24/00), 763 So.2d 759, 763. However, the judge made several misstatements of fact. Further, the reasons are internally contradictory.

Because the trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses, his decision should not be disturbed on review absent a clear showing of abuse. State in the Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir.1988); Deason v. Deason, 99-1811, p. 2 (La.App. 3 Cir. 4./5/00), 759 So.2d 219, 220; Brisbois v. Brisbois, 00-203, p. 11 (La.App. 5 Cir. 8/29/00), 767 So.2d 887, 893.

The weight which is to be given expert testimony is dependent upon the professional qualifications and experience of the expert and the facts upon which the opinion is based. The trial judge also has the discretion to substitute his common sense and judgment when such a substitution appears warranted upon the record as a whole. [Citations omitted.]

Ramos v. Ramos, 97-143, p. 4 (La.App. 5 Cir. 6/2/97), 697 So.2d 280, 283.

The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).

We conclude, looking at the record as a whole, that the trial judge clearly abused his discretion. He should have given weight to Dr. Van Beyer’s recommendation — which was specific to the parties to this case and based on direct evaluation of them — over Dr. Parker’s recommendation — which was non-specific to these parties and based on general theories rather than direct evaluation of these parties.

Reviewing the issue of the children’s best interest, we conclude the evidence and testimony support that it is in the children’s best interest to allow their mother to relocate to Ohio as she has requested. The friction and conflict between the parties will thereby be reduced to a minimum, yet the children would be able to continue to have frequent and extensive visitation with their father under the plan developed by Grace, as modified by Dr. Van Beyer’s suggestions. Accordingly, we reverse the trial court’s ruling.

| ^We also find merit in Grace’s argument that the trial court erred in following Dr. Parker’s recommendation against relocation, while ignoring Dr. Parker’s recommendation that there be intervention or family therapy toward resolving the parental conflict. It is clear that this family is in dire need of counseling and guidance. Therefore, we remand for the trial court to provide appropriate instructions for therapeutic family counseling for the parties.

For the foregoing reasons, the judgment of the district court is reversed. Grace Wong Curole’s request to relocate is granted and it is ordered that the relocation proposal prepared by Grace be implemented with the changes suggested by Dr. Van Beyer. The matter is remanded and the trial court is ordered to provide for family counseling for the parties as indicated by both Dr. Van Beyer and Dr. Parker. The appellee, Michael Lyndal Curóle, is cast for costs of this appeal.

REVERSED AND REMANDED.

      . Ramos v. Ramos, 97-143 (La.App. 5 Cir. 6/2/97), 697 So.2d 280, writ denied, 97-1770 (La.9/19/97), 701 So.2d 176.

      . In contrast, the police officer who came out on the call, Deputy Stephen Caravella, testified that he asked Michael if he expected the deputy to take his daughter and physically place her in Michael’s car. Caravella said Michael replied yes, because if he did it they would say he was abusing his child. Caravel-la then told Michael that he could see no violation of the law, so it was not a police matter. Michael then asked Caravella to write a police report on the incident stating that his wife refused to allow his daughter to see him. Caravella said that Grace was upset but cooperative while he was on the scene and that she did not appear to him to be keeping Noelle from going with her father. Rather, Grace was trying to get her daughter to go, but the child apparently just did not want to go.

      . Asked by Grace's attorney to describe their relative sizes, Michael said that he weighs 170 pounds and is five feet ten inches tall, while Grace weighs 110 pounds and is five feet four-and-one-half inches tall.

      . Daubert v. Merrell Dew Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), sets out the factors a trial judge must consider as “gatekeeper” for admission of expert evidence.

      . La.R.S. 9:355.2(C)(2) states that the provisions of Title 9, Ch. 1, Part III, Subpart E ("Relocating a Child's Residence") — i.e., La. R.S. 9:355.1 through 9:355.17 shall not apply when an order pursuant to Domestic Abuse Assistance, Post-Separation Family Violence Relief Act, or any other restraining order, injunction or protective order prohibiting a spouse from harming or going near or in the proximity of the other spouse is in effect.

      . For example, he erroneously stated that no independent expert had been appointed by the court to evaluate custody. Further, he stated that Grace had been a flight attendant, an apparent misunderstanding derived from her statement that she had worked for an airline.


author: I «PER CURIAM.

text:
    Joseph FONTENOT v. ALLSTATE INSURANCE COMPANY, et al. Jill Yakubik, et al. v. Angelo Lindesay Williams, et al. Michael R. Allen v. Lakeside Imports, Inc. d/b/a, Lakeside Toyota. Ruth LeBlanc v. Charles D. Fridge, III and Liberty Mutual Insurance Company, et al.
    Nos. 02-C-899, 02-C-900, 02-C-1076, 02-C-1077.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 20, 2002.

      Coleman T. Organ, New Orleans, LA, for Relator, Allstate Insurance Company.
    James H. Minge, New Orleans, LA, for Respondent, Jospeh Fontenot.
    Vincent L. Bowers, New Orleans, LA, for Respondent, Jill Yakubik.
    Victor A. Dubuclet, III, Metairie, LA, for Relators, Lakeside Imports, Inc., d/b/a Lakeside Toyota, Charles D. Fridge, and Liberty Mutual Insurance Company.
    Warren G. Deagano, JR., Orleans, LA, for Respondent, Michael R. Allen.
    Paul J. Galuszka, Thomas R. Schmidt, Metairie, LA, for Respondent, Ruth Le-Blanc.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD, JAMES L. CANNELLA, THOMAS F. DALEY, MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. MCMANUS, and WALTER J. ROTHSCHILD.
   I «PER CURIAM.

WRITS GRANTED.

The common issue presented in the above captioned Writ Applications is whether the trial court erred in summarily denying a jury trial to the defendants who made a jury trial demand in their answer, but made no allegation that the petitioner’s claim exceeded $50,000.00. Upon review, we find that the trial court erred in summarily denying the demand for jury trial at this preliminary stage of the proceeding.

In order to be entitled to a jury trial a party must timely file a pleading demanding a jury trial (La.C.C.P. art. 1733), and a general allegation must be made by a party that the petitioner’s cause of action exceeds $50,000.00, exclusive of interest and costs. (La.C.C.P.arts.893, 1732).

La. C.C.P. art. 893 prohibits the inclusion of a specific dollar amount of damages in the petition, but provides that, “if the specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial ... a general allegation that the claim exceeds ... the

requisite amount is sufficient.” The right to a jury trial does not come into existence unless a petitioner’s cause of action exceeds the requisite jurisdictional amount. May v. Winn Dixie Louisiana, Inc., 92-62 (La. 3rd Cir. 2/3/93), 613 So.2d 1026. A “general allegation that the claim exceeds or is less than the requisite amount” is sufficient for jurisdictional 1 ¿purposes. May, Id. at 1028. La. C.C.P. art. 893A(1) provides that either side can make this general allegation and thereby establish the right or the absence of the right to a jury trial.

The court in May suggests that if the jurisdictional amount is not clear from the plaintiffs’ petition, the defendant has the right to propound interrogatories requiring the plaintiff to specify the amount sought as damages. This procedure, however, doesn’t solve the amount in controversy question in a timely manner since La. C.C.P. art. 1733 requires that “[t]he pleading demanding a trial by jury shall be filed no later than ten days after ... the service of the last pleading directed to any issue triable by jury....” Clearly, given the time constrains of La. C.C.P. art. 1733, the defendant does not have time to propound interrogatories, receive interrogatory answers, and then timely request a jury trial. So, the defendant is left in a problematic position, as noted in Louisiana Civil Law Treatise:

An allegation of the amount in controversy made for jury trial purposes should not be binding, or even admissible in evidence, against a party at the trial on the merits; however, the current status of the law is unclear and poses problems for practitioners.

Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1 § 11.2 (1999). Consequently defendants are reluctant to make an affirmative statement in their pleading about the amount in controversy.

In each of the cases currently being reviewed defendants made no general allegation concerning the amount of the asserted cause of action. When plaintiffs general allegations are not clear and the defendants make a demand for a jury trial, as required by law at this early stage of the proceedings, we find that to summarily deny the demand at the preliminary stage of the proceeding is premature.

The party making the jury trial demand must be given a reasonable opportunity to seek information concerning the amount sought as damages through | ¡jnterrogatories or other discovery; if necessary, a contradictory hearing should be conducted on the issue before final action is taken on the jury trial request. See. Arias v. Creekwood Property, 02-0799 (La.App. 5th Cir. 09/16/02), concurring reasons by Judge Daley with which Judge Cannel-la concurred.

Accordingly, based on the foregoing, we grant writs in the above captioned cases and reverse the trial court rulings, which summarily denied relators’ demand for a jury trial. We find that final action on the jury trial demand at this preliminary stage of the proceedings is premature, and we remand the cases for further proceedings consistent with the views expressed herein, including the requirement that a contradictory hearing be held, if necessary, before the jury trial demand is denied.


author: AMY, Judge. | THIBODEAUX, J.,

text:
    Nadine LANTHIER v. FAMILY DOLLAR STORE.
    No. 02-0429.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 8, 2003.
    Michael B. Miller, Post Office Drawer, Crowley, LA, for Plaintiff/Appellant, Nadine Lanthier.
    Azelie Ziegler Shelby, Ungarino & Ec-kert, L.L.C., Baton Rouge, LA, for Defen-dani/Appellee, Family Dollar Store.
    Before the Court En Banc: NED E. DOUCET, JR., Chief Judge, HENRY L. YELVERTON, ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

The claimant filed a Disputed Claim for Compensation, seeking penalties in the Office of Workers’ Compensation pursuant to La.R.S. 23:1208 due to what she contends were false statements made by the employer’s office manager in order to defeat her claim for compensation benefits. The workers’ compensation judge found that the Office of Workers’ Compensation lacked subject matter jurisdiction over the issue. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

In August 1999, the claimant, Nadine Lanthier, filed a workers’ compensation claim, seeking disability benefits, penalties, and attorney’s fees associated with a Janu-

ary 14, 1999 work-related accident. The workers’ compensation judge concluded that Ms. Lanthier was a part-time employee of the defendant, Family Dollar Store, and that she was not entitled to compensation benefits after July 26, 2000. Penalties and attorney’s fees were awarded for Family Dollar’s failure to reimburse the claimant for mileage associated with the claim. However, penalties and attorney’s fees were denied for the defendant’s improper calculation of wages and untimely payment of benefits. On appeal, a panel of this court reversed the workers’ compensation judge’s determination that Ms. Lanthier was not entitled to benefits after July 26, 2000. Further, additional penalties were awarded for the failure to provide the correct amount of indemnity benefits and for the failure to provide benefits after March 14, 2000. Additional attorney’s fees were also awarded. See Lanthier v. Family Dollar Store, 01-0437 (La.App. 3 Cir. 4/3/02); 813 So.2d 1212. The Louisiana Supreme Court denied Family Dollar’s Writ of Certiorari. See Lanthier v. Family Dollar Store, 02-1253 (La.8/30/02); 823 So.2d 951.

|/The instant matter arose when the claimant filed an additional Disputed Claim for Compensation on September 12, 2001. The claimant contended that she was entitled to penalties due to the “making [of] false statements in violation of 1208.” She asserts that at the original hearing of the merits of this case, the office manager for Family Dollar made false statements in violation of La.R.S. 23:1208. In her brief to this court, the claimant asserts that she is seeking recovery under Section D of the statute. Family Dollar filed an Exception of Res Judicita, arguing that the earlier ruling by the workers’ compensation judge was res judicata as to all issues raised by claimant in the disputed claim form. Following a hearing on the exception of res judicata, the workers’ compensation judge denied the exception of res judicata, but granted a sua sponte exception of lack of subject matter jurisdiction.

The claimant appealed the granting of the exception of lack of subject matter jurisdiction. A panel of this court considered La.R.S. 23:1208, finding the statute unconstitutional. See Lanthier v. Family Dollar, 02-429 (La.App. 3 Cir. 10/02/02); 827 So.2d 547. Pursuant to La. Const, art. V, § 5(D), the Attorney General of the State of Louisiana invoked the appellate jurisdiction of the Louisiana Supreme Court. The supreme court found the consideration of constitutionality issues procedurally improper. Lanthier v. Family Dollar Store, 02-2663 (La.11/27/02); 836 So.2d 5. Due to this finding, the supreme court vacated the court of appeal judgment and remanded the matter to this court for further proceedings. Id.

We now consider the claimant’s assignment of error, which was not originally addressed due to the constitutionality review. The claimant has filed the following, single specification of error with this court: “The hearing officer erred in finding that the Office of Worker’s Compensation had no jurisdiction to hear a claim under LSA R.S. 23:1208.” The claimant asserts that La.R.S. 23:1208(D) is that section applicable to the facts of this case and that the workers’ compensation judge is the proper authority to assess the penalty described.

Discussion

Article 2 of the Louisiana Code of Civil Procedure provides that: “Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. Code Civ.P. art. 3 further instructs that subject matter jurisdiction cannot be conferred by consent of the parties and that any judgment rendered by a court lacking subject matter jurisdiction is void. Id.

The broad scope of subject matter jurisdiction is established by the Louisiana Constitution. Article V, § 16 sets forth the parameters of the jurisdiction of district courts. It provides, in part:

Section 16. (A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases....

|4With regard to legislative authority for the determination of claims by the Office of Workers’ Compensation, La.R.S. 23:1310.3(E) provides:

Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers for indemnification or contribution.

(Emphasis added.) Insofar as the claim is limited to alleged conduct explicitly prohibited by La.R.S. 23:1208(D), we conclude that it is appropriately viewed as “arising out of this Chapter” as provided for by La.R.S. 23:1310(E).

In its entirety, La.R.S. 23:1208 provides:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
C. (1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.
(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.
(3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.
|k(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

(Emphasis added.) The identification of the workers’ compensation judge as the appropriate authority to impose the penalties of Section D is the type of legislative intent required by La. Const. Art. V, § 16. Section 16 describes the district court’s jurisdiction being that other than those “provided by law for administrative agency determinations in worker’s compensation matters.... ” Insofar as Section D of La. R.S. 28:1208 is concerned, subject matter jurisdiction is specifically assigned to the Office of Workers’ Compensation.

Due to these findings, we reverse the workers’ compensation judge’s granting of the exception of subject matter jurisdiction. We remand this matter for consideration under La.R.S. 23:1208(D).

| fiDECREE

For the foregoing reasons, the ruling of the Office of Workers’ Compensation is reversed. This matter is remanded for proceedings consistent with this opinion. All costs are assigned to the defendant, Family Dollar Store.

REVERSED AND REMANDED.

THIBODEAUX, J., dissents and assigns written reasons.

COOKS, J., concurs in the result.

SAUNDERS, J., dissents for the reasons assigned by Judge Thibodeaux.

WOODARD, J., concurs in the result.

| THIBODEAUX, J.,

dissenting.

Article 5, Section 16 of the Louisiana Constitution states: “Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.” In accordance with this constitutional provision, the workers’ compensation judge properly recognized that he lacked the authority to review a claim of fraudulent misrepresentation. Article 5, Section 16 limits the scope of the power and authority of an administrative tribunal like the Office of Workers’ Compensation.

While La.R.S. 23:1310.3(E) allows a workers’ compensation judge to adjudicate claims “arising out of this Chapter,” it does not allow the adjudication of a tort such as fraud. A tort does not “arise out of this Chapter.” Is the majority saying that a workers’ compensation judge may also hear and adjudicate third party tort claims?

In Albe v. Louisiana Worker’s Compensation Corp., 97-581, p. 1 (La.10/21/97); 700 So.2d 824, 825, the Louisiana Supreme Court addressed the issue of “whether hearing officers of the Office of Worker’s Compensation Administration (OWC) have subject matter jurisdiction to determine issues of constitutionality inj^claims arising under the Worker’s Compensation Act.” In its analysis, the court explained:

[Ajgencies have adjudicative and fact finding powers that mimic those exercised by the courts. Although we recognize the Office of Workers’ Compensation Administration constitutionally employs certain functions previously reserved to the judiciary in pursuit of its statutory duties, the exercise of these quasi-judicial functions does not make hearing officers judges under Art. V. Put simply, the hearing officers of the OWC are not authorized to exercise “judicial power” under Art. 5, § 1. Their power was properly restricted to administrative agency determinations by Art. V, § 16(A). The power of judicial review is the very essence of judicial duty. (Citation omitted) (Emphasis added).

The determination of tortious conduct by the Office of Workers’ Compensation under La.R.S. 23:1208 is violative of our constitution. Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97); 696 So.2d 73, writ denied, 97-1582 (La.10/17/97); 701 So.2d 1330 explained:

Thus, it appears that when an employee violates La.R.S. 23:1208, his actions are tortious in nature (the conduct may even be considered criminal in nature), rather than a workers compensation matter. At best, the conduct prohibited by La.R.S. 23:1208 presents a cause of action in tort for fraud or deceit.
In Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979), our Supreme Court recognized that La.C.C. Art. 2315 affords a broad ambit of protection for persons damaged by intentional and negligent acts of others. Further, Louisiana courts have long recognized that a party who is injured by the fraud and deceit of another has a cause of action against the offending party for damages. Swann v. Magouirk, 157 So.2d 749 (La.App. 2nd Cir.1963); White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2nd Cir.1974). In Altex Ready-Mixed Concrete Corp. v. The Employers Commercial Union Insurance Company et al, 308 So.2d 889 (La.App. 1st Cir.1975), writ refused, 312 So.2d 872 (La.1975), the court stated the following:
“Fraud exists if it can be shown that material misrepresentations have been made by one party ^designed to deceive another, ... to cause loss or inconvenience to the other.”
Deville v. Leonards, 457 So.2d 311, 313 (La.App. 3 Cir.1984). See also Cagle v. Loyd, 617 So.2d 592 (La.App. 3 Cir.1993) (footnote omitted).
In Coleman v. Sheraton Pierremont, 25,452 (La.App. 2 Cir. 1/19/94); 631 So.2d 50, 53, citing Sampson v. Wendy’s Management, Inc. 593 So.2d 336 (La. 1992), the supreme court noted “that a retaliatory discharge cause of action found in the chapter on worker’s compensation was not a worker’s compensation matter to be heard by administrative hearing officers, since the cause of action was in tort and/or a claim for civil penalties.” Following the reasoning in Sampson, we find that the penalties meted out by the hearing officer in accordance with La.R.S. 23:1208 against claimant clearly were not “directly asso-dated with the employee’s work-related injury,” Sampson, 593 So.2d at 339. Instead, the nature of the cause of action embodied in La.R.S. 23:1208 is tor-tious/delictual in nature, falling beyond the jurisdictional authority of the hearing officer as authorized by La. Const. Art V, § 10(A)(B), § 16(A), La.R.S. 23:1310.3. Clearly, the misconduct characterized by La.R.S. 23:1208 falls within a well recognized area of tort law (the tort of fraud/deceit), and thus we conclude that the hearing officer and the Office of Workers’ Compensation lacked jurisdiction to impose sanctions under La.R.S. 23:1208.

Additionally, La.R.S. 23:1291(B)(5), entitled “Creation, powers, and duties of the office of worker’s compensation administration,” states:

To establish and promulgate in accordance with the Administrative Procedure Act such rules and regulations governing the administration of this chapter and the operation of the office as may be deemed necessary and which are not inconsistent with the laws of this state.

(Emphasis added). To allow the Office of Workers’ Compensation power to adjudicate tortious conduct is antithetical to, and inconsistent with, the clear constitutional directions of Article 5, Section 1; Article 5, Section 16; and Article 2, Section 2 of the Louisiana Constitution. The constitution must take precedence.

For the foregoing reasons, I respectfully dissent.

      . Article V of the Louisiana Constitution provides, in part:
      § 5. Supreme Court; Jurisdiction; Rule-Making Power; Assignment of Judges

      (D) Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional or (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.


author: 1 ¡WALTER J. ROTHSCHILD, Judge.

text:
    John Paul SPARCELLO v. Gail HENO, Former Wife of John Paul Sparcello.
    No. 02-CA-317.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.

      Don C. Gardner, Harahan, LA, for John Paul Sparcello, PlaintiffiAppellee.
    Andree Cazenave-Carter, Assistant City Attorney, Joyce G. Joseph, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Mavis S. Early, City Attorney, New Orleans, LA, for City of New Orleans, Defendant/Appellee.
    George H. Jones, New Orleans, LA, for Gail Heno, Wife of John Paul Sparcello, Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   1 ¡WALTER J. ROTHSCHILD, Judge.

The sole issue presented by this appeal concerns the proper division of a community property asset between two former spouses. For the reasons stated more fully herein, we affirm the trial court’s judgment in this matter.

John Paul Sparcello and Gail Heno were married on December 12, 1962. Prior to and during the marriage, Mr. Sparcello was employed by the Orleans Parish Fire Department. On September 12, 1986, Mr. Sparcello filed a petition for divorce, and a judgment of divorce was subsequently rendered by the court on November 19, 1986.

On July 28, 1987, Ms. Heno filed a petition for partition of community property with a descriptive list. Mr. Sparcello answered this petition and submitted his own sworn descriptive list. In June of 1994, the parties entered into a Settlement of Community Property Agreement that was made judgment of the court on June 14, 1994. As part of this settlement, the parties agreed that Mr. Sparcello would remit payment to Ms. Heno representing one-half of all accumulated annual and sick leave acquired by him during the existence of the community as a result of his employment with the City of New Orleans. The I .-¡parties further agreed that the amount of this payment would be calculated by the City of New Orleans and paid when due upon Mr. Sparcello’s retirement or at the end of his employment with the City of New Orleans.

On May 11, 2000, Gail Heno filed a petition for enforcement of the June 1994 judgment. In this petition, Ms. Heno alleged that Mr. Sparcello retired from the Orleans Parish Fire Department in July of 1999 and that at that time he received payment of accumulated leave funds he acquired during his employment. Based on the previous agreement between the parties, Ms. Heno alleged that she was entitled to one-half of the community interest in these funds.

On July 13, 2000, the parties entered into a consent judgment in open court wherein Mr. Sparcello agreed to pay Ms. Heno $29,979.94 in full settlement of this matter. Shortly thereafter, Mr. Sparcello filed a motion for new trial arguing the judgment was contrary to law because the 1994 settlement agreement did not include annual or sick leave benefits. The trial court granted the motion for new trial, and the dispute was heard by the court on October 11, 2001.

Prior to trial, Ms. Heno discovered that Mr. Sparcello accumulated no annual leave during the period of existence of the community, and Ms. Heno therefore limited her demand to her share of the accumulated sick leave only.

At trial, the parties stipulated that Mr. Sparcello was employed by the fire department from October 1, 1957 until his retirement on June 9, 1999. Additionally, the parties stipulated that the gross amount of accumulated annual and sick leave received by Mr. Sparcello upon his retirement in 1999 was $105,237.07. Further, a stipulation was entered that a community of acquets and gains existed between the parties from December 12, 1962 until September 12, 1986, and that Mr. Sparcello’s work-service period amounted to 41.69 years, 23.75 of which occurred during the existence of the community property regime.

| ¿Raymond Armant, payroll supervisor for the City of New Orleans, testified that he prepared a calculation of the amount of accumulated sick leave acquired by Mr. Sparcello during his employment with the fire department. Mr. Armant testified that the amount of leave that Mr. Sparcel-lo had acquired as of the date of termination of the community, September 12, 1986, was $44,463.75. However, Mr. Ar-mant admitted that this figure included the leave acquired by Mr. Sparcello prior to his marriage, and that he did not calculate the amount of leave acquired by Mr. Spar-cello soley during the existence of the community. Mr. Armant also stated that the value of the Mr. Sparcello’s leave benefits increased over time based on Mr. Sparcel-lo’s daily rate of pay increases. Mr. Spar-cello’s daily rate of pay at the termination of the community and at the time of partition was $118.57. His daily rate of pay at the time his retirement was $154.28.

Sandra Gauthier, an employee of the city finance department, testified that she calculated the amount of sick leave benefits accumulated by Mr. Sparcello during the existence of the community property. She stated that 527.33 sick days were accumulated between 1962 and 1986, and that based on Mr. Sparcello’s 1986 daily rate of pay of $118.57, the total value of accumulated leave benefits amounted to $30,235.36. Both Ms. Gauthier and Mr. Armant agreed that no payments were made to Mr. Sparcello at this time however, as the payments only became due upon retirement or termination of employment.

After taking the matter under advisement and accepting post-trial memoranda, the trial court gave the following reasons for judgment:

The evidence supports that the parties’ benefits are to be calculated based upon the proceeds accumulated during their marriage through September 12, 1986. Thus, the percentage due each party is determined to be calculated upon the sum of Thirty thousand, two hundred, thirty five and 36/100 ($30,235.36) dollars. We find no basis in law to extend to Mrs. Sparcello leave accumulated by Mr. Sparcello beyond the date of September 12,1986.

|fiBased on that determination, the trial court divided Mr. Sparcello’s sick leave benefits totaling $30,325.36 in the following manner: 28.488% to Ms. Heno and 71.51% to Mr. Sparcello.

Ms. Heno now appeals from this judgment on the basis of a sole assignment of error. Appellant argues that based on the terms of the community property settlement agreement, the value of the funds in dispute here were to be calculated at the time of Mr. Sparcello’s retirement rather than valued at the time of the termination of the community. Appellant argues she is entitled to the increased value of these funds which accrued after the termination of the community, and she contends that the trial court erred in ignoring the holdings of Sims v. Sims, 358 So.2d 919 (La.1978) and Hare v. Hodgins, 586 So.2d 118.

In Sims, supra, the Supreme Court recognized that when the community is dissolved, the non-employed spouse is entitled to have recognized his or her one-half interest in the right to receive payments from employee benefit plans, in the proportion that these payments result from the employment or contributions during the community. The court also established the formula to determine a non-employee spouse’s interest in an employee benefit plan. Pursuant to that formula, the community interest in such a plan is expressed as a fraction with the numerator representing the number of years of creditable service that accrued during the existence of the community and the denominator representing the total years of creditable service. The fraction is then multiplied by one-half to determine the non-employee spouse’s share of the retirement benefits.

Although the present case does not involve pension rights, the parties applied the holding in Sims in the settlement agreement between them by recognizing the right of Ms. Heno to receive one half of the accumulated annual and sick leave due to Mr. Sparcello. Further, the trial court applied the Sims formula in determining that Ms. Heno was entitled to 28.488% of the accumulated [ fisick leave benefits, and the parties do not dispute this proportion. As stated in Sims, this figure represents one-half of the community portion of the entire amount of accumulated benefits. Further, the trial court valued the asset at the time the community was terminated, and not at the time of appellee’s subsequent retirement.

Appellant contends on appeal that the trial court erred in valuing this asset. Ms. Heno contends she is entitled to the increased value in these benefits which accrued after the termination of the community. In support of this argument, appellant relies on the case of Hare v. Hodgins, 586 So.2d 118 (La.1991). In that case, the original partition between the spouses did not allocate pension benefits based on the husband’s employment. When the husband retired, the wife filed a suit to partition these benefits. As there had been no previous partition of this asset, the court determined that the former spouses continued to be co-owners of the community even after the termination of the community. The court then considered the issue of whether the wife was entitled to the increased value of the pension benefits.

In the present case, the accumulated annual and sick leave benefits were made part of the partition agreement executed by the parties in 1994. Unlike the situation in Hare, the former spouses did not continue to be co-owners of this asset beyond the termination of the community. Rather, the Sparcellos agreed that this asset would be distributed when Mr. Spar-cello received payment for these benefits, i.e., at the end of his employment.

We therefore conclude that the holding in the Hare case cited by appellant is inapplicable to the facts of this case. We must therefore determine whether the trial court correctly valued this asset at the time the community was terminated.

Appellant argues that the settlement agreement between the parties shows that the parties agreed to value these benefits at the time of Mr. Sparcello’s |7retirement from employment. However, we have carefully reviewed the community property settlement agreement submitted into evidence in this case, and we are unable to agree with Ms. Heno’s assessment that she is entitled to the apply the increase in Mr. Sparcello’s daily pay after the termination of the community to value the amount accumulated during the existence of the community.

Exhibit A of the agreement contains the movable and immovable property to be allocated to Ms. Heno. Paragraph 4 provides for division of annual and sick leave as follows:

One-half of the accumulated and annual sick leave due John Paul Spareello, a/k/a John P. Spareello, from the City of New Orleans, relative to his employment as an New Orleans Firefighter, during the existence of the community, December 12, 1962 and September 12, 1986. These funds are to be calculated by the City of New Orleans and paid when due upon Mr. Sparcello’s retirement or end of employment with the City of New Orleans Fire Department.

In Exhibit B-l listing Mr. Sparcello’s assumption of liabilities, Paragraph 7 provides in part as follows:

The value of this annual sick and annual leave is to be determined when it becomes legally due, that is, at the time of Mr. Sparcello’s retirement, or end of his employment, whichever comes first.

We fail to find that these two provisions are conflicting, or that the agreement specifically provides that Ms. Heno is entitled to the benefit of the increases in Mr. Spar-cello’s salary after the termination of the community. Even assuming the provisions of the contract to be ambiguous, our review of the record indicates that the parties’ intent was that Ms. Heno would receive one-half of the accumulated annual and sick leave benefits which were attributable to the community. The testimony of Sandra Gauthier shows that prior to the partition agreement, Ms. Heno requested a calculation of the annual and sick leave benefits attributable to the community. Ms. Gauthier responded to Ms. Heno by letter |sdated June 18, 1992 that the amount attributable to the community was $30,285.36. Further, in the descriptive lists filed by Ms. Heno in 1988 and 1992, and in her pre-trial order, Ms. Heno did not claim that she was entitled to a portion of the entire sick leave benefit of Mr. Spareello upon his retirement, but rather claimed her portion of the amount of the funds attributable to the community.

Based on the applicable jurisprudence and on the clear intent of the parties in executing the community property settlement agreement, we conclude that Ms. Heno is entitled to the accumulated sick leave benefits attributable to the community. We further find that when this asset was divided in the partition agreement between the parties, the property ceased to be community property. Following the termination of the community, Ms. Heno no longer had an ongoing community interest in the separate earnings or income of her former spouse. Although Ms. Heno retained her right to receive one-half of the community portion of these benefits at some point in the future, she was not entitled to any additional earnings by Mr. Spareello which took place after the termination of the community.

Under these circumstances, we find that the trial court’s division of this asset based on the portion of the benefits attributable to the community to be correct. Accordingly, the judgment of the trial court is affirmed. Appellant shall bear all costs of this appeal.

AFFIRMED.