text:
    Thomas Hartman PALMER, II, Plaintiff-Appellee v. AMERIQUEST MORTGAGE COMPANY, True Title, Inc., and John Christian Shidler, Defendants-Appellants.
    No. 41,576-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Rehearing Denied Jan. 18, 2007.

      Jack M. Bailey, Jr. for Appellant & Plaintiff-in-Reconvention John C. Shidler.
    Shuey Smith, L.L.C., by Richard E. Hil-ler, for Appellee & Defendants-in-Recon-vention Thomas Hartman Palmer, II, Richard E. Hiller, and Shuey Smith, L.L.C.
    Law Office of Paul Rumage, by Paul Rumage, Herschel C. Adcock, Jr., for Third-Party Plaintiff Appellee Ameriquest Mortgage Co.
    The Hand Law Firm, by G. Patrick Hand, Jr., for Plaintiff-Appellee True Title, Inc.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

|! John Shidler, a notary public in Bossier City, appeals a summary judgment that dismissed his claims of defamation, abuse of process and related matters against Thomas H. Palmer II, Palmer’s attorney, Richard E. Hiller, and a law firm, Shuey Smith LLC. Shidler also contests the trial court’s failure to grant his own motion for summary judgment against Palmer and other parties. For the reasons expressed, we reverse in part, affirm in part and remand.

Factual Background

Palmer, a homeowner in Bossier City, went online in 2002 to refinance his home loan. He received an offer from Ameri-quest Mortgage for a loan of $131,000 at 9.7% APR, and accepted it. Ameriquest, a California corporation, used the New Orleans-based company True Title Inc. to perform the title examination. True Title in turn hired John Shidler to notarize the transaction. The closing was set for September 26, 2002, at Palmer’s house on Hickory Ridge Drive.

Shidler arrived at the appointed place and time carrying a FedEx box from Am-eriquest. The box, however, contained only one set of documents, so there was no copy to be left with Palmer. Eager to process the loan, Palmer signed the only set; Shidler advised him that Ameriquest would forward his copies in a few days. With Shidler’s approval, Palmer’s wife, Brandy, signed various documents as a witness; the house was Palmer’s separate property.

Ameriquest issued two checks covering the loan proceeds and, sometime in November sent Palmer a copy of the mortgage and settlement | ¡.statement. Palmer made his first scheduled payment of $1,130.61 in December 2002, but made no further payments because of a dispute with Ameriquest over the amount of his monthly note.

Palmer did not receive a complete copy of the loan documents until January 13, 2003. This included an adjustable rate note (“ARN”) marked “ne varietur” and notarized by an attorney other than Shi-dler, and the statutory notice of right to cancel within three days. Palmer signed this notice and returned it to Ameriquest on January 16, 2003. Apparently Ameri-quest deemed this notice untimely and disregarded it. In February, Ameriquest sent Palmer a notice of intention to foreclose.

Procedural History

In September 2003, Palmer filed this suit against Ameriquest, True Title and Shidler, seeking rescission of the loan and mortgage, together with general damages. With respect to Shidler, he alleged:

(a) at the conclusion of the closing on September 26, 2002, Petitioner did not receive any copies of the refinance loan closing documents, and specifically did not receive the required notice to rescind his loan;
(b) since Mrs. Palmer should have executed the mortgage as an intervening spouse, and not as a witness, Shidler in effect closed this loan with only one witness on the mortgage;
(c) the settlement statement reflects a settlement date of October 3, 2002, when in fact, the settlement occurred on September 26, 2002; further the settlement statement indicated that this date was “estimated”; also the payoff figures used on the settlement statement and the disbursement of funds to Petitioner did not match;
(d) the Adjustable Rate Note is notarized by a completely different notary than Shidler who, in fact, notarized the mortgage itself; in other words, the notary who put his signature on the note as |shaving witnessed Petitioner’s signature on September 26, 2002 was not present when Petitioner signed the note; further, in an attempt to correct this obvious illegality, Ameriquest and Shidler subsequently marked up the Adjustable Rate Note by scratching out the original “Ne Varietur” language and notary’s signature, and then, by a hand-written method, Shidler inserted his own “Ne Varie-tur” language and signature.
(Emphasis added.)

The petition was signed by “Shuey, Smith, Reynolds, Rios & Hiller, LLC” and Richard E. Hiller as attorney for Palmer.

Shidler answered the petition and averred that supplying copies of the loan package was Ameriquest’s duty, not his, and denied that he altered or falsified any of the loan documents. He reconvened against Palmer and Hiller on grounds of defamation, abuse of process, negligent infliction of emotional distress and other claims. Alleging his damages would exceed $50,000, he demanded a jury trial. Later, Shidler amended his reconventional demand to add Hiller’s law firm, now known as Shuey Smith LLC.

Palmer and Hiller initially responded with an exception of no cause of action. They contended that Shidler could have moved for summary judgment or for sanctions, but there was simply no relief afforded by the law of defamation or abuse of process.

At a hearing in June 2005, the district court overruled the exception of no cause of action but suggested that each party file a motion for summary judgment. On the date of the hearing, Shidler filed a motion in limine, essentially seeking to prohibit Palmer and Hiller from testifying or Larguing many of the allegations raised in their original petition. In support, Shidler attached a copy of Palmer’s deposition. In this, Palmer admitted that all his own signatures on the loan documents were genuine; he did not know whether the ARN was improperly notarized; and Shidler’s actions did not prevent him from receiving the loan proceeds. Palmer also admitted that he was financially strapped at the time of the refinance because his overtime had ended, and was displeased that Ameri-quest had increased his monthly note by $200 in December and January. However, he conceded that the increase was probably to cover a shortfall in his escrow account due to a hike in homeowner’s insurance. He repeatedly admitted having no idea what if anything Shidler had done wrong, and that filing the suit was Hiller’s idea.

As requested, Shidler filed a motion for summary judgment (actually part of a longer pleading called “omnibus motions”) urging that Palmer, Ameriquest and True Title failed to show any law or duty that Shidler had breached. After the discovery deadline, Shidler filed a “statement of established facts,” reiterating that he breached no duty and that Palmer was not harmed by any of his actions. To this, he attached a copy of the notice of right to cancel (signed September 26, 2002) and another copy of Palmer’s deposition.

Palmer and Hiller, joined by Shuey Smith LLC, filed their own motion for summary judgment, urging that Shidler had asserted 16 causes of actions. Some of these (negligent infliction of emotional distress, false light |Kto public, negligent information) were not recognized in Louisiana; others (damage to credit, damage to reputation, damage to business reputation) were not causes of action but elements of damage. On the substantive claims — defamation, abuse of process and malicious prosecution — they argued there was no genuine issue of material fact. In support, they attached a statement of uncontested facts which tracked verbatim the allegations in the original petition. They also attached the affidavits of Brandy Palmer and Lois Ann Dawson, who signed the closing documents as witnesses. Finally, they attached the affidavits of Hiller himself and Julio Rios II, the managing member of Shuey Smith LLC. These latter affidavits asserted that Hiller had never been employed by the firm.

Action of the District Court

At the hearing on the motions, Hiller (representing both himself and Palmer) announced that Palmer and Ameriquest had settled all claims between them, pending finalization of the settlement documents; counsel for Ameriquest confirmed this.

Shidler restated his position that Palmer and Hiller accused him of committing various notarial errors in the closing documents, but they failed to show that he breached any duty or that Palmer was harmed. Hiller responded that Palmer’s deposition was not in the record, and thus Shidler’s motion for summary judgment had no factual support; Ameriquest joined this argument. Hiller offered that Shidler breached the general duty to “handle the closing properly,” and contended that Shuey Smith LLC was not his employer.

|fiThe district court admitted it was not “up to speed on the way loans are being closed now,” but considered it “pretty risky” to send the notary out of the office to close the loan elsewhere. Because of this risk, the court could not “conclude that this is a completely frivolous lawsuit,” so it denied Shidler’s motion for summary judgment.

As for the opposing motion, the court stated that Hiller and Shuey Smith LLC were not the proper parties as the object of the reconventional demand. It therefore granted their motion for summary judgment, but added, “If you got a malicious prosecution claim[,] that can be * * * raised at another time.” When asked by Shidler’s counsel, the court declined to state which law or duty Shidler had violated.

The judgment granted Palmer, Hiller and Shuey Smith LLC’s motion for summary judgment, dismissing all of Shidler’s claims against them, and denied Shidler’s motion for summary judgment against Palmer, Ameriquest and True Title.

Shidler has appealed.

General Principles

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Foley v. Sportran, 40,624 (La.App. 2 Cir. 5/17/06), 930 So.2d 368. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion should 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 of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

Despite the favored status of summary judgment procedure since the 1996 and 1997 amendments to art. 966, summary judgment is seldom appropriate for determinations based subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002, and citations therein. Appellate review of the grant or denial of a summary judgment is de novo. Id.

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706. Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. The fault requirement is often described in the jurisprudence as malice, actual or implied. Id.

Defamatory words are, by definition, those which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or | ¡¡otherwise expose a person to contempt and ridicule. Id. Words which convey an element of personal disgrace, dishonesty or disrepute are defamatory. Fitzgerald v. Tucker, supra. Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. Costello v. Hardy, supra; Kosmitis v. Bailey, 28,585 (La.App. 2 Cir. 12/20/96), 685 So.2d 1177. When a plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Kosmitis v. Bailey, supra. If malice is not presumed, it must be proved as a lack of reasonable belief in the truth of the statement giving rise to the defamation. Costello v. Hardy, supra.

An action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. Loew’s Inc. v. Don George Inc., 237 La. 132, 110 So.2d 553 (1959); Steed v. St. Paul’s United Methodist Church, 31,521 (La.App. 2 Cir. 2/24/99, 728 So.2d 931), writ denied, 99-0877 (La.5/7/99), 740 So.2d 1290. Not only the party, but also his attorney, may be liable for defamation if the attorney makes defamatory statements “maliciously or without reasonable basis.” Freeman v. Cooper, 414 So.2d 355 (La.1982); Calvert v. Simon, 311 So.2d 13 (La.App. 2 Cir.1975).

The elements of a malicious prosecution action are (1) the commencement or continuance of an original criminal or civil judicial | nproceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. Jones v. Soileau, 448 So.2d 1268 (La.1984); Rogers v. Ash Grove Cement Co., 34,934 (La.App. 2 Cir. 11/2/01), 799 So.2d 841, writ denied, 2001-3187 (La.2/8/02), 808 So.2d 351.

Abuse of process involves the misuse of a process already legally issued whereby a party attempts to obtain a result not proper under the law. Waguespack, Seago & Carmichael v. Lincoln, 99-2016 (La.App. 1 Cir. 9/22/00), 768 So.2d 287. The two essential elements of an abuse of process are an ulterior purpose and a willful act in the use of process not proper in regular conduct of the proceeding. Hall v. Lilly, 27,891 (La.App. 2 Cir. 1/24/96), 666 So.2d 1328. Unlike claims of defamation and malicious prosecution, a claim for abuse of process may be asserted prior to the termination of the litigation in which the allegations were made. Wag-uespack, Seago & Carmichael v. Lincoln, supra.

Discussion: Admission of Palmer’s Deposition

By his fourth assignment of error, Shi-dler urges the district court erred in rendering judgment without identifying any law, statute, regulation, duty or obligation that he ever violated. He further contends that affidavits are not the only discovery device allowed to support a motion for summary judgment; depositions are expressly allowed under art. 966 B. Specifically, he contends the district court erred in refusing to consider Palmer’s | indeposition, which Shidler filed in the record on June 20, 2005.

The appellees contend that Shidler failed to attach a copy of this deposition to his motion for summary judgment, or even to present it to the district court at the hearing on October 10, 2005, so this court should disregard all references to it in Shidler’s argument. In support, they cite the letter of Shidler’s counsel, written the day after the hearing, admitting a “misrepresentation to the court” and that in fact “the deposition had not been filed into the record as I represented to the court.” Finally, they submit that the record does not conclusively show that the district court declined to consider the deposition.

Counsel for Shidler attached a complete copy of Palmer’s deposition to the “omnibus motions” filed into the record on June 20, 2005. He did not attach it to his motion for summary judgment, but at the hearing he referred to the deposition and advised the court that it was in the record. This was sufficient to direct the court’s attention to a deposition that was already on file within the meaning of art. 966 B. Moreover, although the transcript is not entirely clear on this point, the deposition and other factual assertions raised in the omnibus motions may well have influenced the district court to deny the exception of no cause of action and instead ask the parties to raise these issues by motions for summary judgment. Under the circumstances, the deposition was on file and its existence was clearly pointed out to the court. On de novo review, this court will consider it.

We would nonetheless caution counsel that standards of professionalism will normally require that summary judgment evidence be |n attached to the motion for summary judgment or to a timely memorandum in support thereof. Courts cannot be expected to sift through voluminous (and in this case, diffuse) pleadings in search of depositions and affidavits. Counsel’s letter to the district court, seeking to correct a perceived misrepresentation, was not particularly helpful as the deposition was already on file. With this admonition, the court will consider the deposition on the substantive issues presented.

Grant of Appellees’ Motion for Summary Judgment

By his first assignment of error, Shidler urges the court erred in granting Palmer, Hiller and Shuey Smith LLC’s motion for summary judgment; by his third assignment, he urges the court should have found their original petition “an unfounded frivolous lawsuit.” He contends that Palmer, as plaintiff, and Hiller and Shuey Smith LLC, as attorneys, accused him of four acts of professional misconduct in closing the loan, all of which were either patently false or not Shidler’s actions. He cites and discusses various state laws and federal regulations, concluding that the appellees offered no evidence to create a genuine issue of material fact as to whether he violated any of them.

The appellees respond that they supported their motion with a statement of uncontested facts that “clearly and definitively set forth the unfrivolous nature” of their claims. They also filed four affidavits which | n,,supported such points as that Shidler delivered only one copy of the closing documents at the closing and allowed Palmer’s wife to sign the mortgage as a witness; a final affidavit asserted that Hiller was never a member of the Shuey Smith LLC law firm. By contrast, they contend, Shidler filed nothing in opposition, thereby showing to the exclusion of any genuine issue of material fact that their original petition was not frivolous. They conclude that in point of fact, it was Shidler’s reconventional demand that is frivolous and without any basis in fact.

While Shidler’s pleadings are no model of artful draftsmanship, we are constrained to find that they create genuine issues of material fact. The gist of the matter is that Palmer’s original petition accused Shi-dler of four acts of professional misconduct. Most strikingly, it alleged that he altered or falsified the ARN by scratching out the original notary’s signature and inserting his own. This is not the generic “plain vanilla” allegation of professional misconduct that was deemed nondefamato-ry in Costello v. Hardy, supra. It is a direct accusation of serious professional misconduct which could easily harm Shi-dler’s business reputation by discouraging other lenders from using his services and strongly implies criminal acts. The allegation of defamation per se creates a presumption of falsity and malice; at the very least, it creates a genuine issue as to whether these elements were present.

_[i2Palmer also accused Shidler of incompetence by allowing Brandy Palmer to sign as a witness instead of an “intervening spouse,” but there is no substance to this claim. Finally, Palmer complained of not receiving sufficient copies of the loan package, but did not directly accuse Shidler of this deficiency. In short, Shidler alleged that the appellees uttered words that are defamatory, and perhaps defamatory per se. He further alleged unprivileged publication in the appellees’ original petition and resultant damages.

Finally, Shidler showed that Palmer and Ameriquest have settled all underlying claims. This satisfies the requirement that the original action must be terminated before the plaintiff can proceed with his defamation or malicious prosecution claim. Palmer steadfastly maintained that Shidler was Ameriquest’s agent; if the rescission claim has been resolved favorably to Am-eriquest, this strongly suggests that Shi-dler committed no professional errors. At the very least, the genuine issue remains as to what independent claims, if any, could be pursued against Shidler.

As noted, the appellees’ statement of uncontested facts tracked the allegations of their original petition. Their affidavits confirmed that Shidler delivered only one set of documents and allowed Brandy Palmer to sign as a witness; an affidavit from the managing member of Shuey Smith LLC denied that Hiller was employed by that law firm. These documents dispute Shidler’s claims that the original petition contained defamatory statements.

In opposition to the motion for summary judgment, Shidler offered h ¿Palmer’s deposition, plainly showing that Palmer was unaware of any wrongdoing on Shidler’s part; despite any alleged irregularities, the loan was completed. This evidence suggests that the original petition was filed with knowledge that the allegations therein were false.

Simply put, this record leaves open genuine issues of material fact with respect to Shidler’s defamation claim, i.e., whether the allegations of misconduct were false, and whether the appellees knew they were false. Moreover, to the extent that the appellees’ motives and intent in filing the suit may be relevant to defamation, these are matters that are simply not amenable to summary judgment disposition. Jones v. Estate of Santiago, supra.

We also note that the issue of Hiller’s status with Shuey Smith LLC was unsuited for summary judgment. The signature on original petition strongly suggests his membership in the firm:

Shuey, Smith, Reynolds,
Rios & Hiller, LLC,
ATTORNEYS AND COUNSELORS AT LAW
[Address and phone number given]
s/ Richard E. Hiller
RICHARD E. HILLER
[Louisiana Bar Roll No. given]

Julio Rios’s affidavit denied that Hiller was ever a member of the firm, but the capacity of the parties signing a document is a matter of intent to be determined by the circumstances of the transaction. Wirthman-Tag Const. Co. v. Hotard, 2000-2298 (La.App. 4 Cir. 12/19/01), 804 So.2d 856. Being a matter of intent, this is not suited for summary judgment disposition.

11f,Because of these conclusions, we pre-termit discussion of the numerous other claims asserted in Shidler’s reconventional demand. We would agree with appellees that many of Shidler’s claims do not state recognized causes of action, or carelessly label items of damage as causes of action. Nevertheless, there are genuine issues of material fact as to the defamation claim and the closely related claims of malicious prosecution and abuse of process. Because we must reverse the summary judgment, we decline to analyze these voluminous pleadings any further. The remaining issues are to be litigated on remand.

Denial of Shidler’s Motion for Summary Judgment

By his second assignment, Shidler urges the district court erred in denying his own motion for summary judgment. He contends, in essence, that because the appel-lees failed to identify any wrongful conduct on his part, there is no genuine issue of material fact as to the claims raised in his reconventional demand.

The appellees urge that Shidler “committed several careless and negligent acts in the performance of his duties in closing the loan,” which they summarize as “failure to have the mortgage properly executed.” They seek affirmance.

Ameriquest contends that the ruling denying Shidler’s motion for summary judgment was interlocutory and not subject to appeal. La. C.C.P. arts. 968, 2083. Even if the matter were appealable, Ameriquest submits the court was within its discretion to deny Shidler’s motion as his status (merely a notary or Ameriquest’s agent) was a genuine issue of material fact for 11 ¡¿rial.

Ameriquest’s position has merit. An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment. La. C.C.P. art. 968; Thomas v. Albertsons Inc., 28,950 (La.App. 2 Cir. 2/11/96), 685 So.2d 1134, writ denied, 97-0391 (La.3/27/97), 692 So.2d 395. We decline to take this case under our supervisory jurisdiction because, for the reasons already discussed, this record leaves open several genuine issues of material fact as to Shidler’s claims. This assignment of error lacks merit.

Conclusion

For the reasons expressed, we reverse the portion of the judgment that granted summary judgment in favor of Thomas H. Palmer II, Richard Hiller and Shuey Smith LLC, and dismissed all of John C. Shidler’s claims against these parties. We affirm the portion of the judgment that denied John C. Shidler’s motion for summary judgment. The case is remanded to the district court for further proceedings. All costs are to be paid one-half by the John C. Shidler and one half by Thomas H. Palmer II, Richard Hiller and Shuey Smith LLC.

REVERSED IN PART, AFFIRMED IN PART, REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.

Rehearing denied.

GASKINS, J., would grant rehearing.

      . After Palmer filed the instant suit, Ameri-quest reconvened for the unpaid principal of $137,358.75 plus legal interest and attorney fees.

      .“We will be considerate of the time constraints and pressures on the courts and court staff inherent in their efforts to administer justice.” The Code of Professionalism in the Courts (Supreme Court Rules, Part G, § 11, ¶ 21). "I will not file or oppose pleadings, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment of any other counsel or party.” The Louisiana Code of Professionalism, Rule 6 (La.Dist.Ct. R. 6.2).

      . “We will not knowingly misrepresent, mis-characterize, misquote, or miscite facts or authorities in any oral or written communication to the court.” Id.., ¶ 23.

      . The copy of the ARN included in this record, while only a reproduction, does not show any obvious signs of being "marked up” or "scratched out” as alleged in petition.

      . La. R.S. 14:72 C(l)(a) makes it a felony to "alter, make, complete, execute, or authenticate any writing so that it purports * * * to be the act of another who did not authorize that act [or] to have been executed at a time or place or in a numbered sequence other than was in fact the case.” La. R.S. 14:133 A(2) makes it a felony to file or deposit any "wrongfully altered document.”

      . The wife's consent was formerly required before the husband could sell or mortgage the family home, but this requirement was abolished by La. Acts 1980, No. 237, § 1.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana in the Interest of S.L.J.
    No. 41,808-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Darrell R. Avery, Jonesboro, for Appellant, T.J. (Father of S.L.J.).
    Henry P. Garner, Jr., for Appellee, K.M.S.J. (Mother of S.L.J.).
    James E. Beal, Jonesboro, for Appellee, Confidential Party, S.L.J.
    Pamela Harper-Jacob, for Appellee, State of Louisiana Department of Social Services.
    Before BROWN, LOLLEY, SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

| TPIaintiff, T.J., appeals from a decision of the Second Judicial District Court, Parish of Claiborne, State of Louisiana, which after a hearing, terminated his parental rights as to his daughter, S.L.J. For the following reasons, we affirm.

FACTS

T.J. is the father of S.L.J., a female child born July 14,1992. In June 2001, T.J. was charged with and pled guilty to the aggravated incest of S.L.J. Pursuant to a plea agreement, T.J. received concurrent 10-year hard labor sentences imposed without benefit of parole or “good time.” According to the record, T.J. is prohibited from having any contact with his minor children.

S.L.J. was adjudicated a child in need of care on April 18, 2001, and placed in the custody of the Louisiana Department of Social Services (“LDSS”) at that time. In April 2005, LDSS filed a petition to terminate T.J.’s parental rights. Citing La. Ch. C. art. 1015(8), LDSS alleged that it was in the best interest of S.L.J. for the trial court to terminate T.J.’s parental rights.

In November 2005, T.J. was evaluated by a counseling psychologist, Dr. John C. Simoneaux. Simoneaux conducted an extensive interview with T.J. and based upon the results of the tests and T.J.’s criminal history, he classified him as a pedophile and a paranoid schizophrenic under the Diagnostic and Statistical Manual — TV (DSM-TV). The diagnosis further noted that T.J. had an antisocial personality disorder and a schizoid personality disorder. Simoneaux concluded that T.J. “could [not]

| ¡.conceivably] serve as an adequate parent to his children” and noted that he saw:

virtually no chance that [TJ’s] condition will improve any time in the near future to significantly and positively affect his ability to serve as a positive force for [SLJ]. Psychological testing, along with the clinical interview, suggest that [TJ] is very unstable, that his attitudes about parenting are worrisome, and that he may even suffer from a thought disorder. The medication that he is taking is not effective. At this time I cannot recommend any contact whatsoever.

Despite the fact that T.J. was ordered not to have contact with his children, less than 30 days after Simoneaux interviewed him, T.J. unsuccessfully attempted to send a disturbing Christmas card to the children. A copy of the card was introduced into evidence.

On June 15, 2006, the trial court held a hearing to determine whether to terminate T.J.’s parental rights. At the close of the hearing, the state and attorneys for S.L.J. argued that T.J.’s parental rights should be terminated; the state noted that this would free S.L.J. to be adopted. T.J. argued against termination, noting Simo-neaux’s alleged equivocation about whether termination would be in S.LJ.’s - best interest and noting that T.J.’s avenues for contact with S.L.J. were cut off because of his closely monitored incarceration. Finally, T.J. argued that S.L.J. would be 18 years old when T.J. got out of prison and could decide at that time, as an adult, whether to have contact with T.J.

The trial court concluded that the evidence was sufficient to terminate T.J.’s parental rights, noting that T.J. had admitted to the rape of the child, the psychologist had specifically recommended T.J.’s parental rights be | ¡¡terminated, and termination would be beneficial to the child’s mental and emotional stability. This appeal ensued.

LAW AND DISCUSSION

T.J. complains that the trial court erred in finding that the state proved by clear and convincing evidence that the termination of his parental rights was in the best interest of S.L.J. In State ex rel. J.A., 99-2905 (La.01/12/00), 752 So.2d 806, 811, the supreme court explained the procedure for terminating a person’s parental rights:

Title X of the Children’s Code governs the involuntary termination of parental rights. La. Child. Code art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, La. Child. Code art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Child. Code art. 1039. (Citation omitted.) Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Child. Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof in termination of parental rights cases is clear and convincing evidence).

Louisiana Ch. C. art. 1037 provides, in part:

B. When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the eviden-tiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child’s attachment to his current caretakers.

Louisiana Ch. C. Art. 1015 provides, in part:

The grounds for termination of parental rights are:
I A3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(c) Aggravated incest.
(i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.

In termination of parental rights eases, the trial court’s factual findings are subject to the manifest error standard of review. State in the Interest of S.D. v. Moore, 31,192 (La.App.2d Cir.08/19/98), 717 So.2d 265.

In this case, it was conclusively shown that T.J. perpetrated aggravated incest upon S.L.J. Simoneaux, accepted as an expert in the field of psychology, examined T.J. in connection with this proceeding and was of the opinion that T.J. was both psychotic and schizophrenic and had a very poor prognosis for recovery from those conditions, despite the multiple anti-psychotic medications he was taking. Si-moneaux further testified at the hearing about his evaluation of T.J and among other things, Simoneaux stated that:

Unless you can control all the parameters, then contact between a sexual abuse victim and a perpetrator almost always results in a negative ... impact on the victim. So, I typically don’t recommend that at all.

On the question of whether T.J.’s parental rights should be terminated as to S.L.J., Simoneaux said, “[i]t would seem the natural thing to think Labout termination and freeing the child up to go on and develop a more healthy lifestyle.” On cross-examination, Simoneaux opined that preventing contact between T.J. and S.L.J. would also have many of the benefits of terminating T.J.’s parental rights. He also noted that “I think it is very, very unlikely that there would be a scenario that would make it advantageous to not terminate parental rights.”

Carolyn McCharen, S.L.J.’s case manager, testified that S.L.J. was doing well, personally, academically and socially since August 2005 when S.L.J. was reunited with her mother. The final witness at the hearing was Annette Jefferson, a child welfare specialist who had worked with S.L.J.’s family. She testified that she had given a form “TPR2” to T.J. used to establish a plan for the child during the parent’s incarceration that included information about the termination of parental rights. See La. Ch. C. art. 1036.2. Jefferson said that T.J. had offered his parents and his sister as alternative care givers for S.L.J. during T.J.’s incarceration. LDSS conducted home studies of T.J.’s parents and sister and disapproved placement with T.J.’s parents. LDSS approved T.J.’s sister and T.J.’s children (including S.L.J.) were placed in her home briefly until T.J. was convicted, at which time the sister’s family requested that the children be removed. T.J. offered no other placement alternatives for his children.

We wholly reject T.J.’s argument that his incarceration until S.L.J. reaches the age of majority weighs against terminating T.J.’s parental rights. As pointed out in the appellate brief filed by S.LJ.’s mother, even during T.J.’s time in prison, S.L.J. would hypothetically be required in either | fitutorship proceedings or emancipation proceedings to respond to T.J. as a party unless T.J.’s parental rights are terminated. Further, even after S.L.J. attains majority, she could be responsible to T.J. for alimony under La. C.C. art. 229 unless their relationship is legally severed.

Despite the apparent present practical absence of T.J.’s ability to exercise his authority, we find that the LDSS proved conclusively that imposition of these duties upon S.L.J. would be a gross disservice to the child because of the persistent, severe and harmful nature of T.J.’s mental illness. After a thorough review of the record, we have no doubt that the state established clear and convincing evidence for the termination of parental rights.

The heinous nature of T.J.’s criminal conduct is the direct cause of injury to S.L.J. Termination of T.J.’s parental rights is the only certain method to remove even the scintilla of a possibility that T.J., a paranoid schizophrenic pedophile, could ever exercise authority over the very child, his own child, he so cruelly abused. We find no manifest error in the trial court’s conclusion that LDSS proved by clear and convincing evidence that termination of T.J.’s parental rights over S.L.J. was in the child’s best interest.

CONCLUSION

On review, we affirm the ruling of the trial court ordering the termination of T.J.’s parental rights as to S.L.J.

AFFIRMED.


author: GASKINS, J.

text:
    Polly Ann RUTLEDGE, Plaintiff-Appellee, v. John Price RUTLEDGE, Jr., Defendant-Appellant.
    No. 41,792-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      James A. Hobbs, West Monroe, for Appellant.
    Robert W. Kostelka, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

hln this child custody and support matter, the father, John Price Rutledge, Jr., appeals from a trial court judgment which designated the mother, Polly Ann Rutledge, as domiciliary parent of their two children, and ordered him to pay child support. We remand the matter to the trial court for implementation of a specific custody/visitation schedule. In all other respects, we affirm.

FACTS

The parties were married December 15, 1989. Two children were born of this marriage: Mallory, DOB 8/27/92, and John III (“Trey”), DOB 6/7/95. The mother filed suit for divorce in March 2002. She requested primary custody of the children, exclusive use of the family home, and child support.

On April 4, 2002, the court signed an order directing the parents to attend a mandatory co-parent education session and an interview with a psychologist, Dr. E.H. Baker.

On April 5, 2002, the father filed an answer and reconventional demand in which he asserted that he and the mother still lived in the matrimonial domicile. He requested sole custody of the children or joint custody with him being named domiciliary parent. He claimed that the mother was the primary financial support of the family and requested interim periodic spousal support, as well as child support.

Following a conference on April 15, 2002, the court issued an interim order directing the parents to alternate custody on a weekly basis. The mother was awarded use of the family home. Dr. Baker was ordered to ^evaluate the parents and the children. An order was issued mutually restraining the parents from abusing or harassing each other. As a result of the father’s accusation of alcoholism, the mother was directed to cooperate as needed to prove that she was free of alcohol abuse.

On August 22, 2002, the mother filed an answer to the father’s reconventional demand in which she asserted that the father lacked the mental suitability to have sole or primary custody of the children. The mother asserted that she had not consumed alcohol since May 2001 and argued that the father’s claim that she was incapacitated by alcoholism was inconsistent with his claim that she was the family’s primary financial support.

In October 2002, the father filed a motion for judgment of divorce. On November 20, 2002, a judgment of divorce was signed; the provisions of the interim order were continued. The father remarried in March 2003.

On April 15 to 17, 2003, the trial court tried issues of child custody and support. The court found that the parents were immature and did not communicate well with each other. The father was found to have a temper and had problems maintaining continuity of employment; the mother was described by the court as controlling, vindictive, and unwilling to admit any emotional or psychological issues. The court awarded joint custody with an equal sharing of custody, continuing the prior schedule of alternating one-week periods. As to child support, the court accepted the father’s worksheet and ordered that the mother pay monthly child support of 13$420.48. Judgment in conformity with the judge’s ruling was signed on September 18, 2003.

On September 23, 2003, the mother moved for a new trial. She complained of several issues including the trial court’s failure to consider the stepmother’s income in setting child support and Dr. Baker’s opinion that the children should be in one home during the school year in determining custody. The trial court granted the new trial to give each parent the right to claim one child as a dependent for tax purposes. In all other respects, the motion for new trial was denied.

In June 2004, the father filed a motion for modification of custody based upon the children’s emotional problems and the mother’s relationship with a man who allegedly stayed overnight while she had custody. He also requested psychological evaluations of both parents and both children.

In August 2004, the mother answered and reconvened. She alleged instability in the father’s household, including a pregnant teenage stepdaughter. In December 2004, the mother filed an amended recon-ventional demand in which she reported that family therapist Donna George of the YWCA had recommended the children live in one home which the children desired to be the mother’s. The mother also asserted that the daughter had called her in November 2004, asking to be retrieved from her father’s custody because he had “abandoned” her custody to the mother.

Also in December 2004, a judgment was signed partitioning the community property between the parties. The parties agreed that the father would forego child support as a set-off mechanism against the equalizing | ¿payments the father would have owed the mother. In the partition, the mother received the former family home.

A hearing officer conference was held on March 11, 2005. The hearing officer considered the report of Ms. George that the parents had differing parenting styles and that the children had more of a strained relationship with the father. According to Ms. George, the current custody arrangement was not working. While the daughter had emotionally pulled away from her father, Ms. George explained the son felt the need to lie to both parents and was very angry at being “in the middle.” Both children expressed to Ms. George the desire to live in one home, and they told her that they preferred to live with the mother. Ms. George opined that the children were unhappy and suffering because of the parents’ inability to get along. Finding that the present custody decree had become “very deleterious” to the children due to the conflict between the parents, the hearing officer recommended that the mother be designated the domiciliary parent with the father receiving visitation on alternating weekends and holidays and custody during the summer.

On March 16, 2005, the mother filed a second amended reconventional demand requesting child support should the court award her domiciliary custody. She also filed an objection to the recommendation that the father have summer custody because of his work schedule. On the same date, the father filed an objection to the custody recommendations because they did not meet the heavy Bergeron burden.

|BOn March 17, 2005, the trial court issued an interim order that the hearing officer’s recommendations be implemented pending the court’s final disposition of issues.

On August 29, 2005, the mother filed a motion for, among other things, the setting of trial and immediate custody, as well as her third amended reconventional demand. She asserted that the father told the daughter that, if she wanted to live with her mother, the girl was not to return to his house. The mother also complained that the father refused to allow her any visitation with the son during the summer and refused to return him at the end of summer; she requested that the father be held in contempt. The court ordered the immediate return of the son to the mother.

In September 2005, following several incidents in which the judge was personally contacted by the father, the paternal grandfather and the parties’ 10-year-old son, the court ordered the parties and the children to attend a court hearing. The court informed the parties that no such contact was to occur in the future and that the parties and the children were to comply with the custody plans.

A hearing officer conference was held on December 9, 2005. The hearing officer recommended that the father be held in contempt and ordered to pay $500 in attorney fees to the mother’s attorney. He also recommended that the father be ordered to pay child support of $669 per month, retroactive to the date of judicial demand, March 16, 2005. On December 15, 2005, the father filed an objection to the hearing officer’s recommendations. By order signed December 21, 2005, the trial court | fiadopted the recommendations as its interim order.

Trial was held over a three-day period in late January and early February 2006. The trial court concluded that the week-to-week arrangement had failed, causing instability in the children’s lives. The court found that more factors under La. C.C. art. 134 were in the mother’s favor than the father’s. The mother was awarded custody during the school year and the father during the summer with the noncustodial parent having visitation. The father was ordered to pay child support of $669 per month retroactive to the date of judicial demand on March 16, 2005. He was also ordered to pay attorney fees of $500 to the mother. The court declined to hold either party in contempt but admonished them about future improper conduct. Each party was directed to bear his or her own costs. Judgment was signed March 11, 2006.

The father appealed, complaining primarily about the mother’s designation as domiciliary parent and the retroactivity of the child support award.

The mother answered the appeal. She requested that the trial court judgment be modified to clearly establish the father’s summer custody period and to allow her a summer vacation period with the children. She contends that the attorney fees award of $500 was inadequate and that she is entitled to more attorney fees for defending the judgment in what she describes as a “frivolous” appeal.

[.DOMICILIARY PARENT

Law

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 1997-0541 (La.2/6/98), 708 So.2d 731.

In determining the best interest of a child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Hoskins v. Hoskins, 36,031 (La.App.2d Cir.4/5/02), 814 So.2d 773.

According to La. C.C. art. 134, the relevant factors to be considered in determining the best interest of the child 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.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

|sThe 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. The 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. Hoskins v. Hoskins, supra. Moreover, 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.

The trial court’s finding that joint custody is in the best interest of the child does not necessarily require an equal sharing of physical custody. Collins v. Collins, 36,629 (La.App.2d Cir.10/23/02), 830 So.2d 448. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Jones v. Jones, 38,790 (La.App.2d Cir.6/25/04), 877 So.2d 1061.

Underlying the trial court’s great discretion in child custody cases is its opportunity to better evaluate the credibility of witnesses. Accordingly, the trial court’s determination of custody issues is afforded great weight and will not be disturbed on appeal absent an abuse of discretion. Hoskins v. Hoskins, supra.

Regarding the testimony of an expert in a custody matter, after weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. Peacock v. Peacock, 39,950 (La.App.2d Cir.5/4/05), 903 So.2d 506.

|9The ultimate “best interest of the child” decision remains squarely in the exclusive province of the trial court, a decision which necessarily focuses on all of the evidence and testimony presented. Peacock, supra.

Discussion

Our careful review of the record reveals no abuse of the trial court’s discretion in awarding primary domiciliary custody of the children to the mother during the school year.

Both parties sought modification of the alternating week custody arrangement because it proved to be too difficult for the children. Not only did this schedule cause the children great stress, but it became increasingly unworkable due to the lack of communication between the parents. Instead of settling down over time, the level of conflict between the parents apparently escalated and became more traumatic for the children.

The father placed considerable emphasis upon the mother’s past alcohol abuse. However, the record is devoid of evidence that the mother has had any alcohol-related problems since she admitted herself for treatment in 2001. The record indicates that she has sufficient support groups within both her church and family. The mother, a software engineer, works at home and is readily available to the children. She is engaged to be married to a man with whom the children generally get along. She lives in the family home where each child has his or her own bedroom and bathroom.

|inThe father has remarried a woman who has two children. His stepdaughter is married and has never lived with her mother. The stepson is about three years younger than Trey and lives primarily with his mother. The father and stepmother have a son of their own who is now about two years old. They live in a four-bedroom house where the father and stepmother have one bedroom and each of the three male children (the son, his stepbrother, and his half-brother) has his own bedroom. When she is at her father’s house, the parties’ 14-year-old daughter shares a bedroom with her infant half-brother.

The father is currently employed as a railroad signalman. He previously worked for the West Monroe Police Department and he was employed by the Ouachita Parish Sheriffs Office on three separate occasions. He quit all of these law enforcement jobs, usually due to conflict with other officers or because of disciplinary issues. In several reports related to his law enforcement career, the father was described as having an “explosive” temper, being immature and experiencing problems with authority.

The parties have been unable to adequately communicate about the children, and both refrain from contacting the other unless absolutely necessary. In fact, when the father moved, he failed to give the mother his new address and phone number, instead relying upon their daughter to convey this information to the mother.

Each child has experienced strife with the parent of the opposite gender. The daughter felt that the father was unduly critical of her and | n tended to take out his feelings toward the mother on her, especially when the girl agreed with her mother or held a view similar to her mother’s. During the 2004 Thanksgiving holiday, the father became irate with the daughter when she indicated that she did not wish to live with him. He told her to call her mother to come get her and then to wait outside for her arrival. He instructed the daughter to leave and not return to his house. However, he also required her to leave her clothes there. She was sent back to her mother in old clothing that no longer fit her. Since that incident, the daughter has been extremely reluctant to visit or live with her father. She refused to spend the summer with him in 2005.

When the son went to spend the summer of 2005 with his father, the mother was to be allowed weekend visitation. However, the son — who was only 10 years old — informed his mother in a telephone conversation that he would not. see her again until she signed papers giving his custody to his father. The mother was not allowed to see the child for the entire summer, and the father failed to return him to her at the beginning of the school year. The mother went to the school and retrieved the boy who then ran away, returning to his father’s house. The father then kept him out of school for two weeks. The boy was only returned to the mother when the judge threatened to jail the father. When the child first came back to his mother, he was hostile and physically violent toward her. The mother testified that he gradually improved, eventually returned to his “very loving” self.

There were several incidents involving improper contacts with the judge who was assigned to the case at that time. When the judge attended 1 iahis own child’s sporting event, he ran into the paternal grandfather at a playing field. After the men initially shook hands in greeting, the judge described the man as holding his hand in a tight, firm grip for several minutes while he tried to talk to the judge about the case. The judge explained to him that he could not discuss the case, and the man finally released him. While the paternal grandfather denied detaining the judge for the two to three minute period described by the judge, he conceded that he briefly held onto the judge’s hand so that the judge would understand that he wanted the judge’s “full attention.” On another occasion, the judge received two telephone messages from the father. Shortly thereafter, the son telephoned the judge, asking why the judge had placed him with his mother without first asking him about it. The father testified that the boy looked up the judge’s phone number on his own but called him in his presence. He also said the boy took off for the playing field where they had previously seen the judge to look for him. The father apparently made no effort to stop the boy from these activities; in fact, he admitted telling him that it was all right to call the judge.

During the course of the divorce proceedings, the children were seen by Donna George, a family therapist, on numerous occasions. She recommended that the alternating week custody schedule be terminated in favor of the children living primarily with the mother during the school year. She concluded that the situation was placing too much stress on the children. It is noteworthy that, early in her interaction with the children, 113Ms. George accurately predicted the serious problems that the parties’ son later manifested with lying.

After the boy returned from spending the summer with his father, he was “totally ... different,” according to Ms. George. He was violent and extremely hostile toward the mother and claimed to not care about her anymore. He told Ms. George that he lied all the time to his mother to “confuse” her and would do whatever it took to make the judge give him to his father. Previously he had been able to talk to Ms. George about what bothered him; he told her he didn’t want to talk to her anymore because his father did not want him to do so. In Ms. George’s opinion, the boy seemed to have turned against his mother to please his father. He expressed fear that his father would love his stepson more than him. He even told her that his father had threatened to give his things to the other boy if he went to live with his mother. (The daughter had recounted a similar threat by the father to give her things to the Salvation Army.) Ms. George saw improvement in the boy after the judge told him his actions would not affect the custody issue; he seemed relieved and did not feel he had to behave badly anymore to try to force his mother to give him to his father.

Ms. George also saw the parents on a few occasions. She reported that joint sessions to work on the parents’ communication skills were unsuccessful, mainly due to the father’s inability to put aside his hostility toward the mother. After Ms. George rendered her report recommending that the children live with the mother, the father angrily called and yelled at her. He refused to continue to see her for therapy.

| uThe father hired Dr. Mark Vigen, a psychologist, to see the children without the mother’s knowledge. Dr. Vigen particularly noted the strained relationship between the father and the daughter and suggested counseling. When informed of the 10-year-old son’s activities in trying to call and go find the judge, Dr. Vigen found those actions “unusual.” Dr. Vigen’s personality testing of.the father suggested that he had an “intellectual oppositionism” that caused him to be overly defensive, to perhaps not listen, to not look for alternatives, and to not clearly understand someone else’s point of view before disagreeing with them. However, Dr. Vigen expressed surprise when told about the father’s angry call to Ms. George about her report.

The father claimed that the mother’s lack of supervision resulted in the son being injured on several occasions, including a four-wheeler accident and an incident when the son received a rope burn when he and other children were playing with a lasso. However, these were minor incidents. The father also accused the daughter of beating up and kicking the son to the point of leaving bruises on him. The daughter freely admitted that she and her little brother had engaged in a kicking, punching, tackling scuffle over the way he treated her puppy; however, she testified that he was not injured in any way and that she had never inflicted bruises on him.

The trial court did not err in concluding that the alternating week schedule was detrimental to the children. The high level of confrontation between the parents, particularly on the father’s part, was distressing and stressful. The children’s relationship with the father particularly suffered as |1fia result of the chaotic environment caused by this arrangement. The evidence demonstrates that it was in the best interest of the children to modify the custody plan to one in which one parent had domiciliary custody for the school year.

As to the determination of domiciliary custody, the mother appears to have a substantially better relationship with both children. She and the daughter enjoy a relationship devoid of the overwhelming conflict and strife found in the girl’s relationship with the father. While the mother and the son have had contentious moments in their relationship, it unfortunately appears that the father has been a major contributing factor in their problems. The daughter’s problems with the father emanate from his behavior toward her; likewise, the son’s behavioral problems with the mother appear to stem from the father’s influence. The mother has also been more involved in the children’s schooling, obtaining tutoring for the son when necessary, and in their health care, providing them with dental care which the father dismissed as unnecessary in his opinion. Consequently, we cannot find that the trial court erred in finding that it was in the best interest of the children to designate the mother as the domiciliary parent for the school year.

|1fiThe father complains of the trial court’s use of a checklist in reviewing the factors for determining the best interest of the child under La. C.C. art. 134. While a strictly mechanical use of this checklist could be troublesome, the record shows that in the instant case the trial court gave due consideration to all of the relevant factors and rendered an appropriate custody disposition for the Rutledge children.

Clarification of Custody Dates

Both parties requested clarification of the dates for the school/summer custody periods. The father also requests greater specificity on the times when the children are to be with him. Due to the length of time that has passed since the rendition of judgment and the possibility of changing circumstances, we remand this matter to the trial court on this issue with the following instructions. The trial court is directed to provide for a detailed visitation schedule setting forth specific dates for the school year and summer custody periods. It is also to provide for custody on birthdays and holidays, as well as Mother’s Day and Father’s Day. In view of the poor relationship between the father and the daughter, who is of an age to have her reasonable preferences considered, the trial court is directed to review the visitation and custody periods she is ordered to spend with the father.

J^CHILD SUPPORT

Law

An award of child support shall be retroactive to the date of judicial demand, except for good cause shown. La. R.S. 9:315.21. The burden is on the obligor parent to show good cause for not making; the award retroactive to the date of judicial demand. Welborne v. Welborne, 29,479 (La.App.2d Cir.5/7/97), 694 So.2d 578, writs denied, 97-1800 (La.10/13/97), 703 So.2d 621, and 97-1850 (La.10/13/97), 703 So.2d 623; Holdsworth v. Holdsworth, 621 So.2d 71 (La.App. 2d Cir.1993). The trial court is vested with much discretion in fixing awards of child support. The court’s reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. Curtis v. Curtis, 34,317 (La.App.2d Cir.11/1/00), 773 So.2d 185; Holdsworth, supra.

Discussion

The father argues that the trial court erred in ordering that the child support award against him and in favor of the mother be retroactive to the date of judicial demand. He argues that the award should be retroactive only from September 2005 when the mother had custody of both children. However, the father has failed to articulate good cause for not making the award retroactive to the date of judicial demand. Many expenses associated with the domiciliary parent’s care of the children, such as housing and clothing, do not abate during the summer. We find no abuse of the trial court’s great discretion in the setting of the child support award.

^ATTORNEY FEES

The father contends that, since the trial court failed to follow the hearing officer’s recommendation that he be held in contempt, it was inappropriate to award attorney fees of $500 to the mother.

Part of the mother’s case against the father involved the enforcement of child visitation with the son during the summer period when the father had custody of the boy. Consequently, we will allow the award of attorney fees to the mother, the prevailing party, to stand pursuant to La. R.S. 9:375.

CONCLUSION

We affirm the court’s order that the mother have domiciliary custody during the school year, and remand this matter to the trial court for implementation of a specific custody/visitation schedule pursuant to our instructions as set forth above.

In all other respects, we affirm the trial court judgment. Costs of this appeal are assessed against the father.

REMANDED IN PART; AFFIRMED IN PART.

      . The daughter testified that she gets along well with the man and that her brother got along with him too "most of the time.” The mother testified that her fiancé had never spent the night at her home.

      . At oral argument, counsel for both parents indicated that, since each parent requested modification of the alternating week custody plan, the heavy burden rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), was not "on the table.” The Bergeron rule states that when a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child. However, even if Bergeron, supra, were applicable, we believe that the situation here was sufficiently deleterious to mandate modification. Also, the advantages of stability and reduced confrontation available to the children under a school year/summer plan substantially outweighed any harm to the children.


author: MOORE, J.

text:
    Alice M. LEE, Plaintiff-Appellant, v. Howard L. LEE, Jr., Defendant-Appellee.
    No. 41,748-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      James M. Johnson, Baton Rouge, for Appellant.
    Kitchens, Benton, Kitchens & Black by Clinton C. Black, Minden, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

|! Alice Lee appeals a judgment dismissing her rule for final periodic support. The district court found that a divorce agreement executed by Alice and her former husband, Howard Lewis Lee, Jr., waived any claim for final periodic support. We affirm.

Factual Background

After 32 years of marriage, the parties separated and Alice filed for Art. 102 divorce. Lewis later filed for Art. 103(1) divorce. By an amending petition, Alice alleged that “through threats and coercion” Lewis had “persuaded” her to execute a divorce agreement or else he would flee the country and leave her destitute. The agreement provided, in extenso:

DIVORCE AGREEMENT
This AGREEMENT, made this 7 day of July, 2003, between Howard Lewis Lee, Jr. and Alice Moore Lee, states that we have decided to end our 31 year marriage, [and] agree to the following:
1. Howard Lewis Lee, Jr. agrees to donate his half of the property located at 5220 Highway 2 West and all improvements on it to Alice Moore Lee and from this day forward will not be community property.
2. Lewis and Alice agree that for the next 6 months Lewis will be responsible for all of the household bills.
3. For the 6 months after the divorce is finalized Lewis has agreed to pay temporary alimony of one half of his salary.
4. For the next year, Lewis has agreed to pay one weeks [sic] salary per month to Alice.
5. Lewis will continue to pay the payment on Alice’s car and will donate it to her. It will not be considered as community property.
(Signed, witnessed and notarized.)

|aThe district court granted Lewis’s Art. 103 divorce in April 2004.

In October 2005, Alice filed the instant petition in rule for permanent spousal support (now referred to in Arts. Ill and 112 as “final periodic support”). She alleged that under the divorce agreement, she had received the stipulated 18 months’ interim periodic support, but was now destitute, in necessitous circumstances, and free from fault in the dissolution, so she demanded final periodic support.

Lewis filed a peremptory exception of res judicata, urging that the divorce agreement completely settled all claims for spousal support.

At a hearing in May 2006, the district court found that the parties had agreed to “certain contractual amounts,” starting with six months at one-half his monthly salary, followed by 12 months at one week’s salary. Although the agreement contained “no formal language of alimony or waiving alimony,” the court found it expressed the parties’ complete agreement that alimony would terminate after 18 months. The court therefore sustained Lewis’s exception of res judicata and dismissed Alice’s rule with prejudice. Alice has appealed.

The Parties’ Contentions

By one assignment of error, Alice urges the district court erred in sustaining the exception of res judicata and dismissing her rule. Referring to the divorce agreement, she contends that at no point did the parties address the issue of permanent periodic spousal support. She further contends that there is no authority holding that when the parties enter an agreement regarding interim spousal support, this fact precludes the |3receiving spouse from exercising her right to seek final spousal support.

Lewis responds that the divorce agreement was a valid interspousal contract with provisions for permanent alimony under Langley v. Langley, 94-726 (La.App. 3 Cir. 12/7/94), 647 So.2d 640. He also submits there is no public policy against waiving permanent alimony. McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85. He further contends that the agreement gave Alice specified amounts of interim periodic support for 18 months, roughly the normal allowance under La. C.C. art. 113, and Lewis paid every installment. He concedes that the agreement is “not as specific” as it could have been, but that ¶ 3 was the equivalent of interim periodic support and ¶ 4, final support. He concludes that unless the agreement is construed to cover all claims for spousal support, he would not have obtained any benefit from entering it.

Discussion

In McAlpine v. McAlpine, supra, the court held that permanent alimony is a law enacted not for the public interest but for the protection of individuals; thus, the parties are free to waive it by marital agreements. The court further held that the rules applicable to the validity of such agreements are the same as for other contracts. Id., 679 So.2d at 93. “Permanent alimony” is now known as final periodic support. La. C.C. art. 112.

The divorce agreement was a transaction or compromise under La. C.C. art. 3071. Moore v. Moore, 05-628 (La.App. 3 Cir. 12/30/05), 920 So.2d 297, writ denied, 2006-0574 (La.5/26/06), 930 So.2d 24. The scope of the transaction or compromise is regulated by La. C.C. art. 3073:

|/Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.

In applying the rule of construction set forth by Art. 3073, courts are guided by the principle that the contract must be construed as a whole and in light of the attending events and circumstances. Brown v. Drillers Inc., 93-1019 (La.1/14/94), 630 So.2d 741. A general release does not necessarily bar recovery of those aspects of a claim not intended by the parties to be covered by the release. Id., 630 So.2d at 749. Courts have allowed the introduction of parol evidence upon a showing “(1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present, or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim.” Id. In Brown, supra, the court found that a general release executed by an injured worker and his wife prior to his death was not intended to cover wrongful death claims accruing to the wife upon his death.

We have closely examined the divorce agreement and agree with the district court that it could have been more specific; it makes no direct reference to final periodic support or permanent alimony. In fact, the failure to mention permanent alimony in a consent judgment was found to undermine a waiver in deMontluzin v. deMontluzin, 464 So.2d 948 (La.App.g 4 Cir.1985). However, deMontluzin was decided before the court firmly established the right to contract with respect to final periodic support in McAlpine v. McAlpine, supra. deMontluzin also predated the court’s pronouncements with respect to the interpretation of compromises in Brown v. Drillers Inc., supra. We therefore do not consider deMontluzin dispositive of the instant case.

Instead, we analyze the agreement as a whole, in accordance with Brown v. Drillers Inc., supra, and Moore v. Moore, supra. The agreement first allocates the community property, with Lewis transferring all his interest in the immovable property and the car to Alice. It then provides that for the first six months, Lewis will cover all the household bills and pay Alice one-half of his monthly salary. Finally, for the next 12 months, Lewis will pay Alice one week’s salary per month.

We view this as a graduated payment schedule that roughly follows the traditional scheme of interim and final support of La. C.C. arts. Ill and 112. The amounts of payments, as a percentage of Lewis’s salary, are such that the agreement reasonably comprises the totality of his support obligation. In addition, he effectively donated to Alice his interest in immovable property and a car. He would receive no benefit from this generous agreement if the parties had intended to relitigate the issue of final support.

In light of the attending events and circumstances, this agreement is valid. Moore v. Moore, supra; McAlpine v. McAlpine, supra; Langley v. (Langley, supra; Unkel v. Unkel, 29,728 (La.App. 2 Cir. 8/20/97), 699 So.2d 472.

Conclusion

For the reasons expressed, the district court did not err in finding that the parties provided for 18 months’ graduated payments of periodic support and nothing further. The judgment sustaining Lewis’s exception of res judicata and dismissing Alice’s rule is therefore affirmed. Costs are to be paid by Alice M. Lee.

AFFIRMED.


text:
    GUARANTY BANK AND TRUST COMPANY OF DELHI, Delhi, Louisiana, Plaintiff-Appellant, v. COMMERCIAL CAPITAL BANK, Michael Sanders, D/B/A Sanders Livestock And Lana H. Sanders, Defendants-Appellees.
    No. 41,721-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Theus, Grisham & Lee, By Edwin K. Theus, Jr., Monroe, Counsel for Appellant.
    Felix J. Bruyninckx, Monroe, Pettiette, Armand, Dunkleman, Woodley, Byrd & Cromwell By Joseph S. Woodley, Shreveport, Counsel for Appellees.
    Before STEWART, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

h Guaranty Bank and Trust Company of Delhi, Delhi, Louisiana (“Guaranty Bank”), appeals a judgment of the Fifth Judicial District Court, Parish of Richland, Louisiana, in favor of Commercial Capital Bank (“Capital Bank”). For the following reasons, we affirm.

Facts

This case stems from the sale of cattle by Mike Sanders and Lana Sanders, husband and wife, on December 10, 2003, at Delhi Livestock Auction, Inc. (“Delhi Livestock”), which is a livestock auction company in Delhi, Louisiana. The parties stipulated to the following facts:

1. Guaranty Bank is a banking corporation, organized and existing under the laws of the State of Louisiana, domiciled in Richland Parish, Louisiana.
2. Capital Bank is a banking corporation, organized and existing under the laws of the State of Louisiana, domiciled in Richland Parish, Louisiana.
3. Mike Sanders is a resident of the full age of majority and domiciled in West Carroll Parish, Louisiana, who has done business under the name of Sanders Livestock.
4. Lana Sanders is a resident of full majority and domiciled in West Carroll Parish, Louisiana.
5. Sanrob Farms, Inc. (“Sanrob”) is a Louisiana corporation domiciled in
West Carroll Parish, Louisiana.
6. Delhi Livestock is a Louisiana corporation domiciled in Richland Parish, Louisiana.
7. On July 30, 2001, Capital Bank made an initial loan (“Loan”) to Sanrob to purchase cattle from various individuals. That Loan was renewed, resulting in a Promissory Note executed by Sanrob dated August 1, 2003, in the amount of $190,027.88. As of December 15, 2003, the balance due on that Note was $193,942.97.
|a8. As security for the Loan, Sanrob executed three Commercial Security Agreements, and a UCC-1F on “farm products, livestock and offspring thereof.”
9. On December 10, 2003, Mike Sanders sold cattle at Delhi Livestock in the name of Sanders Livestock for the net proceeds of $55,575.45, in payment of which Delhi Livestock issued a check payable to Sanders Livestock drawn on its account on Capital Bank (the “Sanders Livestock Check”).
10. On December 10, 2003, cattle were sold at Delhi Livestock in the name of Lana Sanders for the net proceeds of $49,642.91, in payment of which Delhi Livestock issued a check payable jointly to Lana Sanders and Farm Service Agency drawn on its account at Capital Bank (the “Lana Sanders Check”).
11. Mike Sanders maintained a business checking account using the trade name of Sanders Livestock (the “Sanders Livestock Checking Account”) at Guaranty Bank. On December 11, 2003, Mike Sanders deposited the Sanders Livestock Check into the Sanders Livestock Checking Account.
12. Lana Sanders had what is commonly referred to as a “supervised account” at West Carroll Community Bank (the “FSA Account”). Such an account is customarily used by the Farm Service Agency of the United States Department of Agriculture (“FSA”) as a means of disbursing loan proceeds, and no check can be drawn on a supervised account unless a representative of FSA has countersigned and thus authorized the issuance of that check.
13. On December 11, 2003, Lana Sanders and the FSA endorsed the Lana Sanders Check and deposited it into the FSA Account.
14. On December 15, 2003, Lana Sanders issued a check drawn on the FSA Account (and properly countersigned by the FSA) payable to Lana Sanders in the amount of $36,535.00 (the “FSA Check”), which Sanders Livestock endorsed and which was deposited into the Sanders Livestock Account.
|g15. On December 15, 2003, Capital Bank contacted Delhi Livestock and requested that it issue stop payment orders on the Sanders Livestock Check and Lana Sanders Check. Delhi Livestock refused Capital Bank’s request, but agreed to issue the stop payment orders pursuant to a court order.
16. On December 15, 2003, Capital Bank instituted a suit styled “Commercial Capital Bank v. Sanrob Farms, Inc., Michael Sanders, Lana H. Sanders, Mike Sanders, d/b/a Sanders Livestock Company, Delhi Livestock Auction, Inc., and John Doe,” Docket No. 37,691, on the doek-et of the Fifth Judicial District Court, Richland Parish, Louisiana (the “Capital Bank Suit”). Pursuant to the petition, the Court entered an Order on December 15, 2003, ordering that Delhi Livestock stop payment on both the Sanders Livestock Check and the Lana Sanders Check (collectively, the “Delhi Livestock Checks”). In compliance with that Court Order, stop payments were issued and signed by Delhi Livestock and payment was stopped on the Delhi Livestock Checks in accordance with the stop payment orders.
17. Shortly after 8:00 A.M. on December 16, 2003, Guaranty Bank received a telephone call from Capital Bank stating that payment had been stopped on the Sanders Livestock Check, and that it was being returned to Guaranty Bank.
18. Guaranty Bank charged the Sanders Livestock Check back to the Sanders Livestock Checking Account and returned as “drawn on insufficient funds,” a check that Mike Sanders had drawn on the Sanders Livestock Checking Account payable to Red River Livestock in the amount of $51,130.00.
19. On December 17, 2003, Guaranty Bank received a telephone call from West Carroll Community Bank advising that the FSA Check was being returned as drawn on insufficient funds, and in due course the FSA Check was returned to Guaranty Bank for that reason. When the FSA Check was again placed for collection, it was returned because payment on it had been stopped.
20. On December 22, 2003, Capital Bank filed a motion to dissolve the temporary restraining order entered in the Capital Bank Suit as to Lana Sanders and the Lana Sanders Check.
D21. Pursuant to that motion, an order was entered by the Court on December 22, 2003, dissolving the temporary restraining order with respect to the Lana Sanders Check.
22. On December 23, 2003, Capital Bank filed a motion to dissolve the remainder of the temporary restraining order entered in the Capital Bank Suit. Pursuant to that motion, an order was signed by the Court on December 23, 2003, dissolving the remainder of the temporary restraining order.
23. As a result of the foregoing, the Sanders Livestock Checking Account was overdrawn in the amount of $36,405.15. The Checking Account remains overdrawn in that amount.
24. Delhi Livestock issued the following checks (“Replacement Checks”) to replace the Delhi Livestock Checks on which payment had been stopped:
a.Check drawn on Delhi Livestock’s account at Capital Bank, dated December 23, 2003, payable to the order of Sanders Livestock Co. and Red River Livestock, L.L.C., in the amount of $51,130.00.
b. Check drawn on Delhi Livestock’s account at Capital Bank, dated December 23, 2003, payable to the order of Sanders Livestock Co. and Commercial Capital Bank, in the amount of $4,445.45.
c. Check drawn on Delhi Livestock’s account at Capital Bank, dated December 23, 2003, payable to the order of Lana Sanders & Farm Service Agency, in the amount of $49,642.91.
25. Lana Sanders delivered her replacement check to the FSA, but applied it to pay her debt to the FSA rather than to pay the outstanding FSA check issued on the FSA account.

Guaranty Bank filed suit against Capital Bank, Michael Sanders, d/b/a Sanders Livestock and Lana Sanders to recover the shortfall caused when Lana Sanders used her replacement check to pay her FSA debt rather | Bthan to honor the FSA Check she had previously deposited in the Sanders Livestock checking account at Guaranty Bank. Guaranty Bank argued that Capital Bank was responsible for its loss, because Capital Bank set off the series of events that led to Guaranty Bank’s eventual loss of $36,405.15. Guaranty Bank asserted that Capital Bank violated La. R.S. 10:4-403 by instigating a legal proceeding that resulted in a court order to stop payment on the Delhi Livestock checks. After a trial of the matter, the trial court determined that Capital Bank had no way of knowing that Lana Sanders had issued the check for $36,535.00, because that check was written on her FSA account with West Carroll Community Bank and deposited at Guaranty Bank— Capital Bank had no connection to that transaction. The trial court ultimately concluded that the actions of Capital Bank were not the legal cause of Guaranty Bank’s eventual loss. Judgment was entered in favor of Capital Bank and against Guaranty Bank. The appeal by Guaranty Bank ensued.

Discussion

In its sole assignment of error, Guaranty Bank argues that the trial court erred in determining Capital Bank’s duty did not extend to protect Guaranty Bank from its loss incurred as a result of Capital Bank’s actions. Specifically, Guaranty Bank argues that Capital Bank, the drawee bank on the two checks, improperly obtained a court order stopping payment on the Delhi Livestock checks. Guaranty Bank maintains that, as a result, Capital | fiBank owed a duty to exercise reasonable care to protect Guaranty Bank. We disagree.

Considering the circumstances of this case, we agree with the trial court that Capital Bank’s duty to Guaranty Bank did not extend to protect it against a loss that Capital Bank had no knowledge of or any ability to anticipate. When determining the scope of a defendant’s duty to a plaintiff, it is necessary to inquire into and analyze the circumstances of the particular case. See Whatley v. Caddo Parish Sheriff’s Dept., 27,321 (La.App.2d Cir.09/27/95), 661 So.2d 557, writ denied, 1995-2842 (La.02/02/96), 666 So.2d 1097. Here, Capital Bank’s duty to protect Guaranty Bank centers around the connection between Capital Bank and Guaranty Bank and whether Capital Bank had any knowledge of Guaranty Bank’s situation as a result of Capital Bank’s actions.

As the stipulated facts state, Lana Sanders was issued a check by Delhi Livestock, which she deposited into her FSA account at West Carroll Community Bank. She then issued a check from the FSA account in the amount of $36,535.00 (i.e., the FSA Check), depositing that amount into the Sanders Livestock account at Guaranty Bank. When the FSA Check proved to be no good, Guaranty Bank suffered its loss. However, as the record reflects, Capital Bank had no connection with the transactions made by and between Lana Sanders, West Carroll Community Bank, and Guaranty Bank. Thus, the trial court reasonably concluded that the evidence did not show that Capital Bank, which had no knowledge of that specific transaction or |7Guaranty Bank’s loss, was in a position to protect Guaranty Bank from a loss.

Specifically, the trial court weighed the contradictory testimony of representatives of each bank and obviously found the testimony of the Capital Bank representative, Phillip Stafford, more credible. Stafford confirmed that Guaranty Bank never provided written confirmation of the amount of its shortfall; nor did Stafford receive a request to make Guaranty Bank a joint payee on the replacement check from Delhi Livestock. Stafford also testified that he never gave an assurance to Guaranty Bank that it would be made whole.

The trial court’s Reasons for Judgment in this matter were quite detailed and extremely well-reasoned. After conducting a thorough analysis of the facts and their application to Louisiana’s general liability concepts, the trial court ultimately determined that:

[sjince none of the transactions between Lana Sanders, FSA, Guaranty Bank and West Carroll Community Bank were clearly known and understood by Commercial Capital Bank, it cannot be said that it was reasonably foreseeable by [Capital Bank] that Lana Sanders would choose to use her replacement check to pay her debt to FSA and stop payment on the $36,535.00 FSA check held for payment by Guaranty Bank. While it seems that good banking practice would have alerted Commercial Capital Bank that it .... include Guaranty Bank as a joint payee on one or both replacement checks in light of Mr. Richards’ statement to Mr. Stafford about [Guaranty Bank]’s intent to pursue its overdraft claim, this court finds that, in the final analysis, this omission fell outside the ambit of [Capital Bankj’s duty to protect [Guaranty Bank] when Delhi Livestock reissued the $49,642.91 check in the original format.

So considering, the trial court concluded that Capital Bank’s actions were not ultimately the legal cause of Guaranty Bank’s loss. Notably, where two permissible views of the evidence exist, the factfinder’s choice between 1 sthem cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Here, the trial court was reasonable in relying on Stafford’s testimony — even if it did contradict that of the Guaranty Bank representative. We see no error in its determination.

ConClusion

Therefore, for the stated reasons, the judgment in favor of Commercial Capital Bank and against Guaranty Bank and Trust Company of Delhi, Delhi, Louisiana is hereby affirmed. Costs of this appeal are assessed to Guaranty Bank.

AFFIRMED.

      . The record reflects that Lana Sanders was the majority stockholder of Sanrob Farms, Inc.

      . As to the claims of Guaranty Bank against Mike and Lana Sanders, judgment was entered against the Sanders and in favor of Guaranty Bank. That portion of the judgment is not at issue in this appeal.