author: STEWART, J.

text:
    Jeanna PHILLIPS, Plaintiff-Appellant v. VANGUARD RESOURCES, INC. and Kenneth Gray, Defendants-Appellees.
    No. 41,589-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      Gregory G. Elias, Charles B. Racer, for Appellant Jeanna Phillips.
    Hayes, Harkey, Smith & Cascio by John C. Roa, for Intervenor Appellee St. Francis Medical Center.
    Snelling, Breard, Sartor, Inabnett & Traseher by Donald J. Anzelmo, for Appel-lee La. Ins. Guaranty Association.
    Lunn, Irion, Salley, Carlisle & Gardner by Ronald E. Raney, for Appellees Vanguard Resources, Inc. and Kenneth Gray.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

|) Plaintiff Jeanna Phillips appeals from a judgment dismissing her action against defendants Vanguard Resources, Inc. (“Vanguard”) and Kenneth Gray on summary judgment. We affirm.

FACTS

Jeanna Phillips was employed at the Physician and Surgery Center of St. Francis Medical Center in Morehouse Parish. On November 9, 1999, Ms. Phillips was passing through an adjoining pair of large metal doors that divide an operating room from the pre-op area when the doors closed on her hand, injuring her. Her hand was in between the doors when the doors closed, not in the hinge area. Ms. Phillips made a workers’ compensation claim against St. Francis; she also filed a tort action against the maintenance contractor, Vanguard, and the Vanguard employee in charge of maintaining the facility, Gray. In her petition, Phillips alleged that:

The exterior rubber lining of the twin metal doors had been allowed to completely erode causing the full weight of the twin doors to crush upon the fingers and hand of the plaintiff, without cushion or padding, causing her injury.

Phillips alleged that the erosion of the rubber lining was due to the negligence of Vanguard and Gray. As noted, the trial court released Vanguard and Gray on summary judgment. Whether the doors were unsafe due to inadequate maintenance is the primary concern in this lawsuit.

These doors were manually operated, not automatic, and one of the doors had a metal astragal (a vertical molding) to block light and sound from passing through the gap between the doors when they were closed. |j>When the doors closed, the metal astragal struck the wood on the other door face and made a noise that annoyed some of the hospital employees. To eliminate this noise, Gray obtained some quarter-inch thick foam weatherstripping and installed it on the back of the astragal. Gray said that this modification of the doors eliminated the noise altogether and that it was done solely for that purpose, not to make the doors safer. Gray sought and obtained authority from Vanguard to perform the modification.

Over time and due to the use of the doors, this piece of weatherstripping apparently became worn, although the degree of wear is not clear from the record. Gray received no complaints of noise, so he did not replace the weatherstripping at any point prior to the accident. Neither Gray nor another hospital employee, Eddie Rhymes, were aware of any other injuries caused by the doors, and Ms. Phillips was likewise unaware of any injuries caused by the doors prior to or after her accident. Gray replaced the weatherstripping after the accident, but he said that “it wasn’t really worn much. I mean, it still cushioned the door. There was no noise when the door shut, so I had no need to replace it.”

The details of the accident itself are not apparent from the record.

The defendants’ motion for summary judgment states in part:

Specifically, plaintiff alleges that, seconds after she manually opened one of the “double doors” separating an operating room from a waiting area, her attention was diverted when someone called her name, at which time she turned around and inadvertently placed her hand on the opposite door. Thereafter, the door she had opened closed on her hand, causing her injury.

This description of the accident is little supported by the appellate record. Neither of the plaintiffs’ petitions alleges that the accident happened this |sway. Attached to the defendants’ motion for summary judgment were five black-and-white photos of the doors, the deposition of Kenneth Gray, the deposition of Eddie Rhymes, and a two-page excerpt from Ms. Phillips’ deposition. In his deposition, Rhymes said that he saw Ms. Phillips immediately after the accident and that she “claimed an injury resulting from one of the doors having closed on her hand.” The excerpt from Ms. Phillips’ deposition did not describe the accident. Also attached to the motion for summary judgment was a statement of undisputed facts from the defendants which provided, in part:

3. Plaintiff was injured on November 9, 1999, when, by her own admission, she inadvertently placed her hand in the path of a door which had been opened by her seconds before and which was in the process of shutting.

In opposition to summary judgment; Phillips offered an affidavit from Linda Holyfield, CEO of P & S Surgical, who stated that she had been employed at the hospital since 1999 and was familiar with the doors. Holyfield said that Vanguard, and its employee Gray, were responsible for the upkeep and maintenance of the doors, and had they noticed that the “cushion and / or gasket” had become worn, it was their duty to maintain it. Holyfield did not say that the weatherstripping had become worn. Plaintiff also' included the entirety of the deposition of Kenneth Gray, who did not see the accident occur.

The trial court held a hearing and heard argument on the motion for summary judgment on April 6, 2006. The court concluded that there | ¿remained no genuine issues of material fact and that the plaintiff had no evidence that the door was unreasonably dangerous, so the court granted summary judgment. Plaintiff now appeals.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783; DeBrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App.2d Cir.04/06/05), 900 So.2d 253. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgmént shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

The burden of proof on a motion for summary judgment remains with the mov-ant. La. C.C.P. art. 966(C)(2). However, when the movant will not bear the burden of proof at trial on the matter before the court on the summary judgment motion, the burden does not require the movant to negate all essential elements of the adverse party’s claim, but rather to point out that there is an absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966(C)(2). If the adverse party then|sfails to produce factual support sufficient, to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. Id.

As provided in La. C.C.P. art. 967(B), the adverse party may not rest on the mere allegations or denials of his pleading in response to a properly made and supported motion for summary judgment; rather, his response, by affidavits or otherwise, must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment shall be rendered against him, if appropriate. La. C.C.P. art. 967(B).

Phillips argues that she had no need to show that the doors were unreasonably dangerous; instead, she argues that Vanguard and Gray negligently failed to maintain the “cushion” on the doors and that this was the cause of her injury. Assuming arguendo that a pure negligence standard applies (the analyses are now very similar, see Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266), a duty-risk analysis is conducted. Under the duty-risk analysis, a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and, the risk of harm was within the scope of the protection afforded by the duty breached. Smith v. AAA Travel Agency, 37,278 (La.App.2d Cir.10/29/03), 859 So.2d 286, writs denied, 03-3248, 03-3329 (La.02/06/04), 865 So.2d 731, 735.

|fiIn this case, the plaintiff presented no evidence that the weatherstripping — even if newly installed and without flaw — would have prevented her injuries when the door shut on her hand. The record contains little to no evidence about how this accident actually happened, and in particular there is no evidence about the position of the plaintiffs hand in relation to the doors when they closed. There is likewise essentially no evidence to show whether the gap between the doors was sufficient to fit the plaintiffs hand even when the doors closed such that the weatherstripping would have been the only point of contact between the doors and the plaintiffs hand. There is no evidence to show what part of which door hit the plaintiffs hand and whether the weatherstripping was at the point of contact. The photos in the record show that the weatherstripping was applied only to the astragal; the edges of the doors themselves were unprotected and remained as they had come from the manufacturer.

Likewise, we reject the plaintiffs argument that there is a material question of fact about the defendants’ exercise of reasonable care. According to Gray, the weatherstripping was designed to prevent the doors from making noise; Gray did not intend or design the small piece of foam to be a “cushion” to protect the hands of those passing through the doors. As pointed out by the defendants, it would have been possible to make the doors safer by various means, but in the absence of any evidence that the doors presented a hazard merely by closing normally, the defendants had no duty to take additional steps to prevent injury to persons using the doors. .

^CONCLUSION

Accordingly, we affirm the judgment of the district court at plaintiffs cost.

AFFIRMED.

      . She later added the Louisiana Insurance Guaranty Association ("LIGA”) as a defendant; Vanguard's insurer, Phico Insurance Company, was declared insolvent in 2001.

      . Color photos are attached to the appellee's brief, but attachments to briefs are not part of the record and may not be considered by this court.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of J.M., Plaintiff-Appellant v. Robin BROOKS, Defendant-Appellant.
    No. 41,952-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      David Handelman, Counsel for Appellant, Robin Brooks.
    Pam Harper-Jacobs, Audie L. Jones, for Appellant, State of Louisiana.
    Michael Cox, for Appellee, Ted Malant.
    W. Eugene Golden, for J.M.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

11Robin Brooks, along with the Department of Social Services, has appealed from a juvenile court judgment removing J.M, from the custody of the State of Louisiana and awarding custody to his father,. Ted Malant. In addition, appellants take issue with the juvenile court’s lifting of a protection order prohibiting the father from making recorded interviews with the child. For the following reasons, we affirm.

Facts and Procedural Background

On January 12, 2006, the juvenile court in Caddo Parish issued an instanter order removing the minor child, J.M., from the custody of his mother, Robin Brooks, and placing him in the custody of the State Department of Social Services, Office of Community Services (“OCS”). At this time, the child was six years old and living in Caddo Parish with his mother. The father lived in Bossier Parish and had made repeated allegations of sexual and physical abuse by the mother of the child.

The juvenile court held a custody hearing on January 18 and 19, 2006. The court continued J.M. in the custody of OCS, pending the filing of a petition to adjudicate the child in need of care, which was filed- on February 15, 2006. The matter came to trial on March 3, 2006, and a disposition hearing was held on March 27, 2006, to determine the future course of the case. OCS submitted a case plan which was based on psychological evaluations of the parents and child. The juvenile court maintained custody of J.M. with the OCS and ordered the parents to comply [ ¡¡with the case plan in order to “facilitate the safe return of J.M. to the family.”

Thereafter, on August 8, 2006, the court found that both parents had substantially completed their case plans and that reunification with his parents would be appropriate and in the best interest of the child. The court further observed that J.M., who was six years old, had been the subject of a custody dispute for the majority of his life, had been extremely unhappy in foster care, and needed a respite from the repetitive uncertainty as to where he would live.

The juvenile court awarded custody to the father, with Robin being given visitation every other weekend, plus one evening in between the weekend visitations. The juvenile court considered past circumstances, including the sexual abuse of J.M. by Brad Fairchild, the mother’s brother, physical abuse by the mother, her past failure to provide immediate medical treatment or appropriate parental concern after J.M. suffered a serious head injury, J.M.’s insecurity around his mother, and J.M.’s strong desire to live with his father. We note that the father had a 1990 conviction for sexual assault of a minor in Texas.

The trial court ordered the parents to be civil to each other and not to demean the other parent in front of J.M. The trial court continued the protective order but specifically omitted the prohibition of the father engaging in forensic photography, videography, and audiotaping of the child. Further, the trial court ordered that J.M. was not to be taken within |3300 yards of Brad Fairchild, Robin’s brother. The judgment was signed on August 17, 2006.

It is from this judgment that Robin and the Department of Social Services, Office of Community Services, have appealed.

Discussion

Custody

Appellants first argue that the trial court committed manifest error by awarding custody to the father based upon its finding that he had substantially complied with the terms of his case plan and by finding that he no longer posed a risk of abuse toward J.M.

The paramount consideration in any determination of child custody is the best interest of the child. In the Interest of J.B.A. and J.B.A., 40,567 (La.App.2d Cir.10/26/05), 914 So.2d 654. The manifest error standard is a strict one, especially in custody determinations, where deference to the trial court’s factual findings is due. For an appellate court to reverse a trial court’s custody determination, it must find that the record does not supply a reasonable factual basis for the ruling, and that the record establishes that the ruling is manifestly wrong. Id.

A trial court may give whatever weight it deems appropriate to the testimony of any and all witnesses, including that of experts. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094.

Nowhere in the record or on appeal has the mother either referred to any evidence or set forth an argument that she did not physically abuse the child. The juvenile court determined from witness testimony and medical 14expert opinion that the abuse occurred. In addition, the lower court found that the father had not harmed J.M. and was not likely to pose a danger to J.M. in the future; indeed, all of the experts agree that J.M. showed great trust and affection for his father.

The juvenile court, however, found that the father’s documenting, via visual and audio recordings, examples of the abuse suffered by J.M. at the hands of his mother in an effort to exacerbate J.M.’s preexisting sense of insecurity with his mother was inappropriate. The juvenile court correctly warned both parents against any further attempts to alienate J.M. from the other parent. The court found that the best interest of the child is for J.M. to live with his father but subject to visitation with his mother to restore both J.M.’s sense of security with her and life in a stable and safe family home. This judgment is based on the evidence, is clearly in the best interest of J.M., and we find no manifest error on this record.

Protection Order

Appellants also argue that the juvenile court erred by not including a provision in its protective order prohibiting the father from creating photographs, video records, or audio records of or interviews with J.M.

As noted above, the juvenile court gave both parents a strong warning against any more private interviews with J.M. with the intent to alienate the other parent from the child. Further, J.M. is no longer in his mother’s sole custody. These being the facts, the father could only weaken his argument for sole custody of J.M. by violating such a provision, and therefore we ^cannot say that the juvenile court committed manifest error in omitting this provision from the protection order.

Conclusion

For the reasons stated above, we affirm the juvenile court’s judgment granting Ted Malant custody of J.M. Costs of this appeal are assessed to appellant, Robin Brooks.

      . The mother had custodial rights pursuant to a November 3, 2005, judgment rendered in the 26th Judicial District Court for Bossier Parish. The father appealed that judgment and this court reversed and remanded in an unpublished opinion. Malant v. Broolcs, 41, 133 (La.App.2d Cir.05/19/06), 929 So.2d 297 (unpublished).

      . The protection order put into effect of May 26, 2006, included such a provision.

      . Ted asked this court to amend that part of the juvenile court’s judgment which granted Robin unsupervised visitation with J.M. Though he filed an opposition brief to Robin’s appeal, he did not file an answer; thus we are not permitted to address this argument due to the restrictions of La. C.C.P. art. 2133. However, we note no abuse of the trial court’s discretion in this respect.


author: CARAWAY, J.

text:
    STATE of Louisiana DEPARTMENT OF SOCIAL SERVICES OFFICE OF FAMILY SUPPORT in the Interest of C.C.H. and K.D.H., Minor Children of Dianna Jones, Plaintiff-Appellant v. Terry HAWKINS, Defendant-Appellee.
    No. 41,646-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      The Malone Law Firm, LLC by Mary E. Winchell, for Appellant/Intervenor, Dianna Jones.
    Office of Family Support by Rudy W. York, J. Schuyler Marvin, District Attorney, for State of LA, Dept, of Social Services.
    Terry Hawkins, In Proper Person.
    Before BROWN, GASKINS and , CARAWAY, JJ.
   CARAWAY, J.

_JjThis action by the Department of Social Services successfully established the paternity of an assisted child and imposed the support obligation on the delinquent father in 1998. In 2002, the father received an allowance from the court to “carry child on income tax” for every other year. In 2005, this dispute arose based upon the father’s claim that the mother was interfering with his right to claim the dependency deduction for federal income taxes. Following a court-ordered tax audit, the trial court found that the father had lost $5,868 in the refunds because of the mother’s actions and ordered that amount to be offset by accumulating the monthly child support payments of the father. The mother appeals the ruling. Finding inadequate proof and explanation of the father’s tax losses, we reverse the trial court’s ruling.

Facts

The State of Louisiana through the Department of Social Services (“DSS”) initiated this support enforcement proceeding pursuant to La. R.S. 46:236.1.1, et seq., against Terry Hawkins (“Hawkins”) in 1997, asserting paternity for two biological children of Dianna N. Jones (“Jones”). Paternity for the minor child, K.D.H., was excluded by DNA testing of blood samples. At an interim support hearing, the trial court signed a judgment of paternity acknowledging Hawkins as the natural father of C.C.H., born on December 13, 1992. Pursuant to the court order, monthly child support payments to the Twenty-Sixth Judicial District Court Child Support Fund began in January 1998.

|2The initial pleading taking this action down a much different path was filed in May 2002 by Hawkins, in proper person. On a form pleading entitled, “Motion to Decrease Child Support,” Hawkins moved the court as follows, with the italicized language as his handwritten claim:

The undersigned hereby moves to decrease his/her child support payments of $_per month as set in a previous order, as there has been a substantial change of circumstances namely: To carry my daughter on my Income tax return.

The order signed, by the trial court included with the motion directed notice to the DSS, through the District Attorney’s Office, and to Jones as recipient of the support payments. Thus Jones, who was not technically a party to this action between the State and Hawkins, was purportedly made a defendant to Hawkins’ rule to show cause.

After a hearing on Hawkins’ motion, the hearing officer recommended that Jones continue claiming C.C.H. as her dependent. Hawkins appealed the ruling to the district court, praying for permission to claim the child at least for alternating years beginning in 2002. On July 22, 2002, the trial court ruled that Hawkins could claim C.C.H. for even years and Jones during odd numbered years.

In February 2005, Hawkins in proper person filed another “Motion to Decrease Child Support” using the same form. This time, Hawkins alleged a “substantial change in circumstances, namely: [Jones] still claiming child every year.” The court order again directed service on the DSS and Jones.

The February 16, 2005 hearing excerpt in the juvenile docket minute entry showed the following:

laTerry R. Hawkins, present. Dianna Jones, present. Tax review. Ms. Jones is to file amended tax return for 2002 and 2004. Father was to carry for those years. Copy of amended tax returns are to be sent to case worker llene Patrick.

The district court adopted the hearing officer’s recommendations.

One month later, on March 23, 2005, Hawkins moved “to review her amended taxes,” again using the standard “motion to decrease child support” form. The district court set the matter for hearing and ordered that the DSS, District Attorney and Jones be notified likewise. In response, following a hearing on June 22, 2005, the hearing officer made the following recommendation, confirmed by the trial court on June 28, 2005:

Court appoints Mike Wise if he accepts to review 2002 and 2004 tax returns.

The minute entry reflected “[r]eview taxes. Mike Wise is appointed to review taxes for 2002 and 2004. To bring to Trade Ketchum in DA office within one week. Diana (sic) Jones advised that she owed money to Mr. Hawkins and it will be paid.”

In response to this action by the hearing officer, Michael W. Wise, CPA (hereinafter “Wise”), reported to the court by letter dated August 23, 2005, as follows:

Pursuant to your request, we have prepared and enclosed copies of the corrected 2002 and 2004 Federal and Louisiana individual income tax returns for Mr. Terry Hawkins assuming a filing status of Head of Household with his daughter, [C.C.H.], claimed as a dependent eligible for the earned income credit.
As a result, Mr. Hawkins is entitled to the following refunds or liable for the amount due.
I ^Federal Louisiana (Refund) Amount Due
2002 Individual Income Tax Returns ($2,790) $125
2004 Individual Income Tax Return ($3,078) $185
It appears that Mr. Hawkins paid income taxes on his original 2002 U.S. Individual Income Tax Return of $548, therefore this amount may need to be taken into consideration in addition to the $2,790 refund he was entitled to above.

In September 2005, the District Attorney as counsel for DSS moved by rule to show cause why Jones as custodial parent should not be ordered to pay Wise’s professional fees. Additionally, the District Attorney prayed for further court review of the tax matter. At the hearing on rule in October, the hearing officer recommended the following:

Mother is to claim child as dependent in 2005 and future. Refix March 1, 2006 on tax issue.

This recommendation was adopted as the judgment of the district court on October 31, 2005, and Hawkins appealed immediately on the following grounds:

The mother of my child continue[s] carrying the child on her income tax return after I was appointed to carry the child, and also was told she would have to repay me for the years she carr[ied] the child.

In response, the appeal was heard before the district court and the minute entry therefor reports the following ruling:

Judge reinstated the original agreement whereby Ms. Jones is to claim odd years and Mr. Hawkins is to claim even years on State and Federal income, tax. Ms. Jones to appear on 12/14/05 in non support Court to either agree with figures provided by the court appointed expert, Mike Wise, or disagree with said calculation by providing her own expert witness/accountant on said date or the court would find that she had interfered with Mr. Hawkins’ claiming of the child as a dependent in the even numbered years and in question, that the calculations of Mr. Wise would be accepted as fact and that she would be found to IfiOwe those amounts to Mr. Hawkins. Judge further indicated he would direct the court to devise a means by which she would begin to pay Mr. Hawkins sums due to him beginning January 1, 2006.

The court-ordered hearing on December 14, 2005, is the first transcribed hearing in the record dealing with this tax dispute and was held before the hearing officer. As ordered by the trial court, Jones, in proper person, appeared with her tax preparer, Gail Cothern. Hawkins was also present in proper person, along with an assistant district attorney, and William Til-ley, the support enforcement officer. Hawkins never questioned Cothern. Instead, she was cross-examined by the hearing officer. Jones was never instructed during the hearing that she could question Cothern.

In Cothern’s testimony, she informed the court that she was “an enrolled agent with the IRS” and “qualified to testify before the IRS courts.” She was later identified in the trial court’s written ruling as “a tax preparer for H & R Block.” In the questioning, the hearing officer never asked whether Jones had filed an income tax return for the year 2002 claiming C.C.H. as a dependent. Cothern expressed an opinion that Hawkins would be entitled to the dependency exemption for any tax year in which the court had withdrawn that right from Jones. However, she stated that Hawkins would not be entitled to the earned income credit or other credits for such year’s taxes.

The December 14 hearing likewise did not produce any evidence of Hawkins’ 2002 tax return, which, according to Wise’s report, needed correction. Additionally, although Hawkins claimed he was penalized by the IRS for his 2002 return, he produced no evidence thereof or any 1 sexplanation for the penalty. Furthermore, when he was asked, Hawkins denied any personal knowledge of the penalty amount in 2002. He did admit that he was not penalized by the IRS for the year 2004. During the hearing, as the hearing officer and Jones requested that Hawkins produce such proof of the 2002 IRS penalty, Tilley, the support enforcement officer, offered that an entry in his records showed that Hawkins once claimed a penalty of $1,500 for 2002 taxes. Seizing upon that unsupported claim, the hearing officer made the following ruling:

... Ms. Jones reimburse Mr. Hawkins for fifteen hundred dollars ($1500.00) and I’m going to note for the record that in the 2004 tax year he would not legally have been entitled to claim the child and is not legally entitled to claim the child now, because she makes more than he does.

When Hawkins took issue with that ruling, the hearing officer allowed an automatic appeal to district court and instructed Hawkins to produce the missing evidence of the IRS penalty in district court. She also indicated that the district court would receive additional testimony from Wise.

On January 23, 2006, the appeal was heard in district court. The transcript shows that Hawkins, Jones and Wise testified. No counsel represented the parties. Jones told the court that neither she nor her mother carried C.C.H. on their 2002 tax returns, and she was unaware of the reason for the IRS assessing Hawkins with any $1,500 penalty. Jones admitted carrying C.C.H. as a dependent for 2004, but reminded the court that Hawkins had not claimed any penalty for 2004, the year in which he received a refund. Hawkins presented no evidence of the IRS penalty, the letter he was directed to bring to the hearing, or any evidence regarding Jones’ tax returns.

The trial court called Wise as a witness and questioned him. In his testimony, Wise acknowledged receipt of instructions from the court to examine Hawkins’ actual tax returns for 2002 and 2004. He was asked to verify the calculations submitted to the IRS on those returns. Wise reviewed with the court information from his August 23, 2005 letter quoted above concerning his revisions to Hawkins’ returns. Wise reported no information regarding Jones’ tax returns. Wise next discussed generally the IRS child dependency regulations for dependency exemptions and tax credits. He indicated that the IRS would consider the amount of support provided by parents to a child, whether or not joint custody arrangements existed for the child, and whether the parents had voluntarily agreed to assign the dependency exemption to one another or whether the dependency exemption had been assigned by court order. When Jones specifically asked Wise on cross-examination about the earned income credit, he testified that entitlement to such credit required Hawkins to file with “head of household” status and that the “child has ... to live the majority of the time with that particular parent.”

After taking the matter under advisement, the trial court in a written ruling found that Jones was indebted to Hawkins for $5,868.00. This amount, as explained in Wise’s August 23, 2005 letter, represents the refunds for 2002 and 2004 which Hawkins could have received from the IRS. The trial court ordered that Hawkins’ child support payments be offset | sby the amount of Jones’ $5,868.00 debt beginning April 1, 2006, and set the monthly child support obligation at $175.35/month. The trial court also ordered that future dependency exemptions would be determined pursuant to the IRS rules and regulations. Jones appeals the trial court’s judgment.

Discussion

This action was instituted as a child support enforcement proceeding under La. R.S. 46:236.1.1, et seq. Accordingly, the DSS proceeded under La. R.S. 46:236.1.2 which reads, in pertinent part, as follows:

A. The department is hereby authorized to develop and implement a program of family support in FITAP cases, Title IV-E Foster Care cases, Medicaid only cases, and any other category of cases to which the state is required by federal law or regulation to provide services, designed to do the following:
(1) Enforce, collect, and distribute the support obligation owed by any person to his child or children and to his spouse or former spouse with whom the child is living if a support obligation has been established with respect to such spouse or former spouse.
(3) Establish paternity.
(4) Obtain and modify family and child support orders.
D. (1) The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subrogation, tutorship proceedings, or divorce proceedings take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, in any court of competent jurisdiction, to obtain an order, judgment, or agreement of support against the responsible person in any case in which the department is providing services under this Subpart. The amount of such support shall be set only by order |9of the court or by the consent of the parties, but in either case the department shall be designated as payee. Additionally, the department may take direct action to modify an order or judgment of support, including actions to increase or decrease support, in any case in which the department is providing services pursuant to this Sub-part. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.

Though the action is “separate and distinct” from actions between parents to fix child support in divorce and custody proceedings, the courts have utilized the child support guidelines, La. R.S. 9:315, et seq., in fixing the amount of support in actions by the State. State ex rel. Gilbert v. Gilbert, 34,203 (La.App.2d Cir.12/20/00), 775 So.2d 1182; State ex rel. H.B. v. Blair, 40,140 (La.App.2d Cir.8/17/05), 909 So.2d 710, unit denied, 05-2392 (La.3/17/06), 925 So.2d 548.

One of the rights of an illegitimate child is a claim for support. La. C.C. art. 240; State in the Interest of Poche v. Poche, 368 So.2d 175 (La.App. 4th Cir.1979), writ de nied, 370 So.2d 577 (La.1979); Starks v. Powell, 552 So.2d 609 (La.App. 2d Cir. 1989). Louisiana’s paramount public policy of promoting the welfare of children protects a minor child’s right to continuing support from his parents. La. R.S. 9:315(A); Bass v. LaPorte, 95-867 (La. App. 1st Cir.2/14/97), 691 So.2d 138; writ denied, 97-646 (La.4/25/97), 692 So.2d 1088. Child support is modified subject to the circumstances and the best interest of the child. La. C.C. art. 142; In re: J.A.B., 04-1160 (La.App. 1st Cir.9/17/04), 884 So.2d 678, writ denied, 04-2963 (La.12/14/04), 888 So.2d 848.

1 mlnitially, we note that the child support guidelines contain specific provisions for allotting the dependency tax deduction between parents. La. R.S. 9:315.18. Nevertheless, the present proceeding is a separate and distinct action in favor of DSS and not a suit between the parents. The DSS action involves only indirectly the custodial parent who, along with the child, is furnished public assistance. An income tax fight or tax dependency allotment challenge generally would not be expected to become even an ancillary matter in this setting, at least until the assisted custodial parent obtained employment. In those cases which have occurred, the DSS has “assisted” on the side of the custodial parent, unlike the present matter. State, Dept. of Social Services v. Burkett, 02-1128 (La.App. 5th Cir.4/29/03), 845 So.2d 1183; State ex rel. Dillashaw v. Brinson, 02-0896 (La.App. 1st Cir.4/2/03), 843 So.2d 1154. The injection of such tax dispute into this action transformed the previously adjudicated child support enforcement relief into a large money judgment against the custodial parent, effectively discarding the child’s support.

While we do not wholly reject Hawkins’ tax dependency deduction claim as representing a no cause of action, we find troubling that his claim was never made directly against Jones by naming her as a party defendant, alleging a factual basis for his alleged loss at the hands of the IRS, and praying for a money judgment against her. She -nevertheless effectively intervened in her defense. More disturbing, the governmental assistance offered by DSS for the benefit of Jones and her child drastically shifted in this action. Upon Hawkins’ failure to obtain an attorney and prove his tax Inclaim, he received a court-ordered tax review by a CPA, with the DSS petitioning the court to levy the CPA’s fee against Jonfes. Again, while we do not view Hawkins’ tax claim as irrelevant, it was nevertheless incumbent upon him to pursue the claim against Jones using proper procedure, garnering his own evidence, and following the strict test of La. R.S. 9:315.18. While such claim might conceivably be allowed as ancillary to a support enforcement action, the burden of proof was on Hawkins. From our review, we find that Hawkins never met it.

The evidence contained in Wise’s report quoted above stated that Hawkins could have filed “corrected” tax returns for 2002 and 2004 and realized refunds totaling $5,868.00. Jones was ordered to pay these unrealized refunds back to Hawkins by an offset against his monthly child support payments. Wise’s testimony and his report, however, never explained why Hawkins was prevented from correctly filing his returns for those refunds in the first place. There is no evidence suggesting that the IRS audited Hawkins or assessed any penalty for his actual returns. The evidence of what Jones did to cause the alleged problem with the IRS is unclear.

The testimonies of both Wise and Coth-ern indicate that with proof of the prior court order in his favor granting him the child dependency deduction, Hawkins should not have been penalized regardless of any contrary action by Jones allegedly claiming such deduction for herself. Additionally, Wise’s large refund calculations for Hawkins were apparently based upon Hawkins’ entitlement to the earned income credit which was | i¡>never a specific focus of the prior ruling allowing Hawkins “to carry child on income tax.” The prior court ruling arguably addressed only the child dependency deduction in relation to the tax exemption and not the earned income credit. Moreover, the testimony of the tax experts indicated that entitlement to the earned income credit required C.C.H. to live the majority of the time with Hawkins for him to qualify for that filing status. The evidence indicates that C.C.H. resides with Jones and that Hawkins has only a small amount of visitation with the child. How the tax exemption and earned income credit may be interrelated was not sufficiently explained by Wise, and again, how Jones’ actions caused Hawkins to lose the dependency exemption and/or the earned income credit was also not adequately explained.

Our law indicates the possibility that the IRS may not acknowledge or “maintain” the dependency deduction allotted to a parent by a Louisiana court, and in such event, the other parent “who receives the benefits of the exemption for such tax year shall not be considered as having received payment of a thing not due.” La. R.S. 9:315.18(C). This provision in the law confirms Hawkins’ duty to prove the circumstances for the IRS denial of his tax benefits and whether such denial resulted from the IRS rules and regulations, interference by Jones in filing her tax returns, or failure by Hawkins to properly prepare his returns. Hawkins’ tax preparer never testified, and from his meager participation in the hearings which resulted in this harsh penalty on Jones and her child, Hawkins demonstrated no | ^understanding of why his filing of tax returns in 2002 and 2004 did not result in payment of the refunds calculated by Wise.

Conclusion

Accordingly, we find that the record contains no support for the ruling of the trial court in this complicated, tax-related matter. The judgment allowing the offset in favor of Hawkins, effectively ending the child support payments, is reversed. Costs of appeal are assessed to Hawkins.

REVERSED.

      . The action was instituted by the DSS in 1997 pursuant to former La. R.S. 46:236.1(F) to establish filiation and child support. Following 2003 revisions to the law, that section is now La. R.S. 46:236.1.2(D)(1).


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Janet SUMMAGE, Appellant.
    No. 41,610-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.
    Louisiana Appellate Project, by G. Paul Marx, Janet Summage, for Appellant.
    Don M. Burkett, District Attorney, Michael Daniel, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

11 Defendant, Janet Summage, pled guilty to possession of Schedule II CDS and was sentenced to four years at hard labor. Defendant’s appellate counsel filed a motion to withdraw as counsel of record, together with a Benjamin brief in support of the motion. The state did not file an appellate brief in this matter. On August 10, 2006, this court notified the appellant that she could file a brief in this appeal within 30 days of its order. The 30-day period has long since lapsed, and the defendant has not requested the record and has not filed any brief. The motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

The defendant was originally charged by bill of information on September 29, 2005, with one count of possession of a Schedule II CDS, cocaine, in violation of the provisions of La. R.S. 40:967(C).' On May 2, 2006, the defendant withdrew her plea of not guilty and pled guilty as charged. A pre-sentence investigation report was ordered, and the state agreed not'to file a habitual offender bill. The trial court thoroughly advised the defendant of her rights as per Boykin, and made a thorough inquiry as to her competency, literacy, and understanding.

At the sentencing, proceeding held May 2, 2006, the trial court discussed the defendant’s pre-sentence investigation, which detailed the defendant’s adult criminal record and revealed that the defendant has a prior felony drug possession conviction, for which crime she was placed on supervised probation, which was later revoked.

|2The court allowed the defendant to speak at the sentencing proceeding. She indicated that since her release in February, she has been employed and “clean” from drug use. The defendant also stated that she was taking anger management classes. The court noted that the defendant had made “a good start.” After reviewing the pre-sentence investigation report, the trial court sentenced the defendant to imprisonment at hard labor for a term of four years, one year less than the maximum. She was advised of her right to post-conviction relief, including the applicable time limitations.

This court has reviewed the appellate record and finds no errors patent.

Although the defendant received a sentence near the maximum for this crime, she. derived great benefit from the plea bargain agreement whereby the state agreed not to charge her as a habitual offender.

The motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990).


text:
    Eleanor A. SMITH, Plaintiff-Appellee, v. Richard LONG, Defendant-Appellant.
    No. 41,850-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 27, 2006.

      Richard Long, in Proper Person.
    Eleanor Á. Smith, in Proper Person.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

11 Eleanor A. Smith filed suit against Richard Long, asserting that a tree on Long’s property fell onto a fence on Smith’s property and that Long had refused to repair the damages. Smith sought recovery of all costs involved in replacing the fence. Long then filed an answer asserting that the fence belonged to Long, not Smith. On the day of trial, June 15, 2006, Long was not present. The trial court noted that notice of trial had been mailed to Long by certified mail to the address that he gave in his answer, but was returned unclaimed. Smith then put on,.her evidence, including her testimony as well as several exhibits, and the trial court awarded Smith $2,008.70 plus interest and costs. This appeal followed.

Long has filed a one-page letter which this court has accepted as his appellate brief. The letter states that he is appealing for the following reasons (verbatim):

1. I didn’t receive written document to appear in court.
2. The said property (fence) was owned by Richard Long and both parties share the fence together.
3. The tree is on the edge of the property line and covers both properties.
4. The storm blew the tree down.

We affirm in all respects.

With respect to Long’s assertion that he did not receive notice of trial, we observe, as previously noted, that the trial court indicated notice of trial was mailed by certified mail to Long at the address he gave in his answer, but was returned unclaimed. In an analogous situation in Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2d Cir.1985), writ denied, 468 So.2d 1211 (La.1985), a copy of a petition and citation was sent to the defendant by certified mail pursuant to the Louisiana Long Arm Statute, but was returned as “unclaimed.” After rendition of a default judgment, the defendant appealed, arguing that he had no knowledge of the suit until the notice of judgment and that the trial court had no authority to enter a default judgment against him because of failure to comply with the requirements for proof of service under the Long Arm Statute. This court held that the question of sufficiency of service could not be raised for the first time on appeal; instead, we held the issue should be raised in a suit to annul the judgment. We also noted that a defendant cannot be allowed to defeat valid service by merely refusing to accept a certified letter containing a citation, and we observed that the practical effect behind requiring a defendant to bring an action in nullity is to permit the introduction of additional evidence as to the mode and execution of service of process. Accordingly, we dismissed the appeal.

See also Williams v. Doctors’ Hospital of Shreveport, Inc., 39,609 (La.App.2d Cir.5/11/05), 902 So.2d 1187, in which this court held that the sufficiency of service of a motion for summary judgment on a nonresident may not be raised for the first time on appeal, but must be raised in a suit to annul the judgment.

As in Decca, supra, and Williams, supra, we now hold that the question of sufficiency of notice of trial herein may not be raised for the first time in this appeal, but would have to be raised in a suit to annul the judgment. We observe that while adequate notice of trial is a minimum | .^requirement for reasons of due process, a defendant cannot be allowed to avoid having a judgment rendered against him by simply refusing to accept a certified letter containing notice of the trial date. Long will have the opportunity through an action in nullity to introduce whatever evidence he might have to attempt to prove that a certified letter containing notice of trial was not sent to his address as indicated by the court.

With respect to Long’s assertions that both parties shared the fence, and that the tree was on the edge of the property line covering both properties, we hold that it is too late for Long to now attempt to introduce evidence contrary to that presented at trial. Smith produced evidence that the tree was on Long’s property and that she owned the fence. The trial court accepted her evidence and these questions are now foreclosed.

Finally, Long’s assertion that the storm blew the tree down essentially is an argument against causation. We note that Smith’s testimony established that the tree was dead and that Smith had warned Long that the tree was “in diré need of being removed.” We hold that this unrefuted evidence was sufficient to allow the trial court to find that the proximate cause of the tree falling was Long’s failure to cut it despite Long’s knowledge of the tree’s state of decay; force majeure was not a factor.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is hereby AFFIRMED at appellant’s costs.

      . See Official Revision Comment to La. C.C.P. art. 1571.


text:
    STATE of Louisiana In The Interest of C.M., H.W., JR., and L.B., Plaintiffs-Appellees v. Chiquita WILLIS, Defendant-Appellant.
    No. 41,908-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 27, 2006.
    John B. Smitherman, for Chiquita Willis.
    Glen Mangham, Assistant District Attorney, for State of Louisiana, Doss.
    Eugene Golden, for C.M., H.W., Jr., and L.B.
    John W. Wilson, Shreveport, for Harold Willis, Sr.
    Wilbert D. Pryor, for Lemale James.
    Before STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

hln this juvenile court proceeding, guardianship of three children was awarded to their maternal grandmother. The children’s mother appeals the ruling on the grounds that the trial court erred in allowing the discontinuance of reunification efforts without proof that such efforts were not required and that the placement was not shown to be either in the children’s best interests or the least restrictive disposition. For the following reasons, we affirm the juvenile court’s judgment.

FACTS

C.W. is the mother of three boys — C.M. (age 16), H.W. (age 14), and L.B. (age 11). The Louisiana Department of Social Services, Office of Community Services (“OCS” or “the department”) removed the children from their home on May 28, 2006, in response to reported physical abuse by their mother. The affidavit in support of the instanter order relates that C.W. was “acting crazy.” She bit C.M. and H.W. She also beat H.W. with an extension cord and hit him on the head with a bat. Prior to the abusive episode, she told her boys to put furniture in front of the doors, because she feared someone was coming to get them. When H.W. did not act fast enough, she became angry and beat him to make him move faster. The mother was taken to Louisiana State University Medical Center, and the three boys were taken into custody by OCS and placed with their maternal grandmother.

H.W. reported the beatings as an ongoing problem due to anger his mother feels toward his father. Both H.W. and L.B. said they had not |?attended school for three months. The oldest child, C.M., reported that his mother bit him on his finger when he tried to stop her from beating H.W. To protect his younger brother, H.W., from their mother, C.W. had not finished school and had quit a job to stay home.

The children were adjudicated in need of care at a hearing on July 17, 2006, and they were continued in OCS’s custody while residing with their grandmother. The trial judge ordered the mother to undergo a psychiatric evaluation and granted her supervised visits with C.M. and L.B., but not with H.W.

C.W. testified at the hearing regarding the paternity of her sons. She testified that C.M.’s father was deceased. She identified the father of H.W. and gave the name of the man she believed to be the father of L.B. H.W.’s father had already been involved in the proceedings and was allowed reasonable unsupervised visits, including overnight visits, with his son.

Both fathers were present at the dispo-sitional hearing on August 17, 2006. The court appointed an attorney to represent L.B.’s father, who requested a DNA test to confirm paternity. The hearing was then continued to August 23, 2006. When the hearing resumed, two OCS reports were admitted ' into evidence along with two CASA reports.

The first OCS report of July 7, 2006, related that C.W. had not been cooperative and that the children did not wish to visit their mother. OCS recommended that guardianship of the three boys be given to their maternal grandmother with whom they were residing. ‘ Permanency plans for the | .¡children, as indicated by their case plans and related reports, included reunification or guardianship with a relative.

. The second OCS report on August 16, 2006, indicated that the mother had completed her social assessment, substance abuse assessment, and her court-ordered psychiatric evaluation. She had been referred for parenting classes. C.M. and L.B. had visited her at their grandmother’s home, and the .visits seemed to be going fine. ■ However, H.W. was not willing to visit her.' The report included the same recommendation for guardianship of the children.

The psychiatric evaluation attached to the OCS report did not make any specific recommendation regarding C.W.’s ability to care for her children without resort to physical abuse. In discussing the events that led to the children being removed from the home, C.W. described her son, H.W., as much larger than her and “very oppositional and ungovernable.” She admitted biting him twice, though she claimed she felt physically threatened by him and stated that he was trying to kick her leg out from under her. C.W. had one leg amputated after being shot in 1994; she blames the incident on H.W.’s father. The shooting incident led to depression. She was under the care of a psychiatrist from 1998 to 2005, when he moved out of state. Following the incident of May 28, 2006, she was hospitalized for twelve days, diagnosed with Schizoaffective Disorder, and prescribed medications. She was referred to Shreveport Mental Health for services, but she preferred to be followed by a private psychiatrist. She contacted her former psychiatrist, Dr. Islam, who referred her for continued treatment with |4her primary care doctor. Dr. Islam also discontinued the anti-psychotic medications prescribed to her and informed Shreveport Mental Health that she is not psychotic but suffers from Atypical Depression. C.W. reported that the medications are helping her and that she has much less stress living on her own without having to care for her children. She lives alone in an apartment and supports herself with a disability check. Although she tested positive on a drug-screen for marijuana, she attributed the result to secondhand smoke from friends. The report concluded that C.W. needs to be seen regularly by a psychiatrist and that she would be more likely to participate in treatment if she does not feel forced into it. Because she preferred to see a private psychiatrist, she was given a referral with an appointment set for October 5, 2006.

The CASA report of July 14, 2006, related that the children appeared to be thriving in their grandmother’s care where they felt content and secure. Though C.W. was willing to work with CASA, she was uncooperative with OCS and her attorney. She indicated to CASA a willingness to work on her case plan and to visit with C.M. and L.B. However, she did not want to see H.W., and he did not want to see her. CASA related that C.W. began screaming obscenities and hateful words at H.W. when she saw him at her mother’s home where the boys reside. She told CASA that she believes he is evil. CASA reported that C.W. blames H.W.’s father for the shooting and takes her anger out on H.W.; however, H.W.’s father has denied involvement in the incident. Although C.W. expressed a desire to reunify with C.M. and L.B., CASA’s recommendation |fiwas for the boys to be permanently placed under their grandmother’s guardianship with scheduled visitations for C.M. and L.B. in another location as C.W. should not be allowed around H.W. CASA’s report of August 22, 2006, related to the boys paternity and made the same recommendation that the boys remain with their grandmother.

In addition to the reports admitted into evidence, C.W. called Janet Murray, her caseworker, to testify. Ms. Murray related the steps C.W. had taken toward completing her case plan. Ms. Murray stated that the visits with the boys went fine, but she noted that C.W. had missed the last visit. She also noted that removal of the boys from state custody might adversely impact C.W.’s ability to obtain services beneficial to reunification with her sons. However, Ms. Murray acknowledged on cross examination that C.W. had chosen to seek private psychiatric care.

The trial judge determined that guardianship would be the permanent plan for the boys and granted guardianship to their maternal grandmother until each child’s eighteenth birthday. In doing so, the judge rejected the argument of C.W.’s counsel that it was premature to award guardianship. The judge noted that C.W. would not be precluded from following through on her plan and asking the court for custody at a later date. The judgment gave her supervised visitation. C.W. appeals this judgment.

DISCUSSION

On appeal, C.W. argues that the juvenile court judge erred in awarding guardianship of the boys without requiring OCS to show by clear and convincing evidence that reunification efforts were not required as | provided by La. Ch. C. Art. 672.1. She further asserts that OCS did not show that reunification efforts had been attempted and either failed or would not be in the children’s best interests.

Our review of the juvenile court’s permanent placement determination is governed by the manifest error standard. State ex rel. J.B. v. J.B., 35,846, p. 11 (La.App.2d Cir.2/27/02), 811 So.2d 179,187.

Article 672.1(A) states, “At any time in a child in need of care proceeding when a child is in the custody of the department, the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required.” The department must then prove by clear and convincing evidence that reunification efforts are not required. La. Ch. C. art. 672.1(B). Reunification efforts are not required if the court finds the parent(s) subjected the child to egregious conduct or conditions; committed murder or manslaughter of another child of the parent or aided, abetted, attempted, conspired, or solicited the murder or manslaughter; committed a felony that resulted in serious bodily injury to the child or another child of the parent; or had parental rights to a sibling terminated involuntarily. La. Ch. C. Art. 672.1.(C).

C.W. cites State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79, a termination of parental rights case in which the department made no effort to assist the mother in obtaining housing even though lack of suitable housing was the major obstacle to reunification. In discussing the state’s failure to make reasonable efforts to remove the obstacles to family reunification, the supreme court observed:

|7In fact, Article 672.1 sets out the only circumstances under which reunification efforts are not required and even then, the State must file a motion for a judicial determination that efforts at reunification are not required and prove as much by clear and convincing evidence.

State ex rel. A.T., 2006-0501 at p. 8, 936 So.2d at 84.

Neither the facts nor the above-cited passage from State ex rel. A.T., supra, suggests error on the part of the trial court. Article 672.1 permits, but does not require, the state to file a motion for a judicial determination that reunification efforts are not required. State ex rel J.B. v. J.B., 35,846 at p. 3, 811 So.2d at 183. The department did not file such a motion and was not required to do so. Nor did it assert in the various proceedings that reunification efforts were not required due to any of the circumstances set forth in Article 672.1.

In fact, the record shows the efforts made toward reunification, the minimal progress made by C.W. on her case plan, and the lack of progress in correcting the abusive behavior that led to the removal of the boys from her custody. Though C.W.’s mental instability was a factor in the episode of May 28, 2006, the primary reason for removal of the boys was her physical abuse of H.W., which the boys reported as an ongoing problem. Her abuse of the child required the older brother to leave both school and a job to protect H.W. from their mother. The record shows no progress by C.W. in recognizing or controlling her seemingly irrational animosity toward H.W. Instead, her mental health evaluation shows that she rationalized her abusive actions by casting blame on H.W. for the incident that led to the boys’ removal from her custody. In working her case plan, C.W. expressed to CASA her unwillingness to see H.W., and her feelings |stoward this child led CASA to conclude that he would be in danger in her presence. The psychiatric care provided C.W. thus far has not resulted in any apparent improvement in her attitude toward H.W., nor does the record indicate that she desires to have a relationship with this son. This is a significant factor favoring the judgment of the juvenile court judge.

We are not persuaded by the argument that it would be a hardship on C.W. if forced to pursue the services required by her case plan without assistance by the state. She rejected such assistance by choosing private psychiatric care rather than availing herself of services offered by Shreveport Mental Health which could have been provided to her in a more expedient manner. This choice reflects her ability to utilize her resources to obtain needed care and services

C.W. also argues that granting guardianship of the children to her mother runs afoul of La. Ch. C. Art. 683, which requires the court to impose the least restrictive disposition available under the circumstances. She asserts that guardianship is one of the most severe alternatives for placement and suggests that the court should have continued the children in the custody of a relative while efforts to reunify the family continued.

La. Ch. C. Art. 683 directs the court to impose the least restrictive disposition of the alternatives set forth in Article 681, which the court finds consistent with the circumstances of the case, the health and safety of the child, and the best interest of society. A preference for placement with a relative is indicated by Article 683(B).

|3La. Ch. C. Art. 681 provides that the child’s health and safety is the paramount concern when there has been an in need of care adjudication and lists the following dispositional alternatives:

• Custody with a parent or other suitable person;
• Custody with a private or public institution or agency;
• Commitment of a mentally ill child to an institution;
• Guardianship to an individual; or
• Some other disposition or combination of the above that is in the child’s best interest.

The 1991 Comment to Article 681 indicates that the alternative of guardianship is a “permanent placement” which will eliminate the need for further periodic case reviews or dispositional reviews. The definition of “permanent placement” in La. Ch. C. Art. 603(15) includes placement with a legal guardian.

Also with regard to placement, La. Ch. C. Art. 702, which governs permanency hearings, lists the placement priorities as:

• Return to the legal custody of the parent(s);
• Adoption;
• Placement with a legal guardian;
• Placement in the legal custody of a relative; and
• Placement in the least restrictive, most family-like alternative permanent living arrangement.

This article requires the court to determine whether reasonable efforts have been made to reunify the family or to finalize placement in an alternative safe and permanent home while considering the child’s health and safety as hpthe paramount concern in determining his permanent plan. La. Ch.C. art. 702(E). The court is directed to consider the child’s need for continuing contact with any relative with whom the child has an established and significant relationship as a factor in determining the permanent plan that is most appropriate and in the child’s best interest. La. Ch. C. Art. 702(D).

In the judgment, the juvenile court judge determined that guardianship would be the permanent plan and the least restrictive disposition considering the children’s heath, safety, and best interests. We find no error in this determination and no merit to C.W.’s arguments. Our review of the record and judgment shows that the trial court considered the best interests of the three boys and whether reasonable efforts were made to reunify the family in determining that guardianship should be awarded to the maternal grandmother in whose care the boys had remained since being removed from their mother’s home on May 28, 2006. Determination of a permanent placement occurred a relatively short time from the in need of care adjudication, but the Children’s Code allows disposition hearings to be conducted immediately after adjudication and mandates that they be conducted within thirty days thereafter. La. Ch. C. art. 678. As previously noted, guardianship is a dispositional alternative under La. Ch. C. Art. 681 and considered a permanent placement. Thus, a permanent placement may be determined in a short time frame if in the best interests of the children.

The record establishes that the boys are thriving in their grandmother’s care and that they feel safe and secure with her. Their close relationship to their grandmother is an important factor favoring the court’s 11! disposition. The three boys share a close sibling relationship, and guardianship will preserve this important bond. While C.W. has visited C.M. and L.B. and expressed the desire to be reunited with them, she has not expressed interest in salvaging her relationship with H.W. Her attitude toward her children evidences disregard of their love for one another. This attitude and her tendency to project whatever anger she feels for H.W.’s father toward H.W. provides additional support for finding that further reunification efforts would be futile. While under their grandmother’s guardianship, C.M and L.B. will have the opportunity to preserve their bond with their mother through supervised visits, H.W. will be protected from her animosity and abuse, and the three brothers will not be separated.

CONCLUSION

Finding no error in the juvenile court’s judgment making guardianship with the maternal grandmother the permanent placement for C.M., H.W., and L.B., we affirm the court’s ruling. Costs of appeal are assessed to the appellant.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    Michelle L. GARDNER, Plaintiff-Appellant, v. John Blackwell GARDNER, Defendant-Appellee.
    No. 41,655-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 27, 2006.

      Geary S. Aycock, West Monroe, for Appellant.

      Linda K. Ewbank, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, Judge.

' hThe plaintiff, Michelle Gardner, appeals a judgment awarding defendant, John Gardner, child support of $523 per month during the ten-month school year. For the following reasons, we amend and affirm as amended.

FACTS

Michelle and John Gardner were married in 1988 and resided in Monroe, Louisiana. One child, J. G., was born of the marriage on July 28, 1995. Michelle Gardner (“Michelle”) filed for divorce in September 1995. By stipulated judgment, Michelle was named the primary custodial parent and John Gardner (“John”) agreed to pay child support of $360 per month. The parties were divorced in February 1996. In December 2003, Michelle married her current husband, Cohn Moon, a captain in the Army who had been deployed to Iraq. Shortly thereafter, Michelle quit her job at Waste Management. In 2004, John agreed to pay child support of $400 per month.

In January 2005, Michelle filed a “Rule to Modify Visitation and Increase Child Support,” seeking to reduce the father’s visitation and to relocate .with the child to Fort Riley, Kansas, where her husband was stationed. She later changed the request to relocate to Fort Rucker, Alabama, where Moon was subsequently assigned. John, who had moved to El Dorado, Arkansas, filed an opposition to the mother’s proposed relocation of the child and a motion to modify custody, seeking designation as the domiciliary parent.

After a hearing, the trial court issued a ruling in May 2005, designating John as the primary domiciliary parent and granting him the | ¿right to relocate the child to Arkansas. In September 2005, the court rendered judgment ordering Michelle to pay child support of $523 per month during the ten-month school year from August through May, retroactive to June 1, 2005. Michelle appeals the child support judgment, designating that portion of the record pertaining to the child support issue.

DISCUSSION

In several assignments of error, Michelle contends the trial court erred in ordering her to pay child support of $523 per month for the ten-month school year. She argues that the record does not provide a sufficient basis for the child support award because the trial court failed to explain the method it used to determine her child support obligation.

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. LSA-R.S. 9:315, et seq.; Reeves v. Reeves, 36,259 (La.App.2d Cir.7/24/02), 823 So.2d 1023. The guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children in an efficient, consistent and adequate manner. Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762; Reeves, supra. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. LSA-C.C. art. 141.

In the present case, each parent submitted to the court a child support worksheet stating the parties’ monthly adjusted gross income and their suggested child support amounts under the statutory guidelines. In her original worksheet, Michelle listed John’s monthly adjusted gross income of |s$8,000 based on an annual salary of $96,000, and imputed to herself a monthly adjusted gross income of $4,583 based on a salary of $54,996 from her prior employment. In addition, Michelle provided the court with alternative worksheets to illustrate various options for the court in calculating her income potential.

In its written “Ruling, Judgment and Order,” the court’s one-sentence analysis stated that considering “the needs and means of the parties hereto, the ability to pay and the opportunity to pay, the resources of the parties and the possible impediments to those resources, the usability of available resources as well as the overall economic impact visited on the parties, child support in the amount of $523 per month should be paid to Mr. Gardner by Mrs. Gardner.” Additionally, the court ordered Michelle to pay this child support amount only for the ten months of the school year.

The trial court did not explain the manner in which it applied the child support guidelines in determining Michelle’s support obligation and failed to identify for the record the amount of her earning potential. However, because the record in the instant case contains sufficient information upon which to make a child support determination under the guidelines, a remand to the trial court is not necessary. See Holdsworth v. Holdsworth, 621 So.2d 71 (La.App. 2d Cir.1993).

In her brief, Michelle contends the trial court could have applied benefit sharing to attribute a portion of her husband’s income to her for the purpose of setting child support, imputing to her an income of $750 per month. First, we note that pursuant to LSA-R.S. 9:315(C)(5), in | ¿determining the benefits of expense sharing the court shall not consider the income of another spouse except to the extent that such income is used directly to reduce the cost of a party’s actual expenses. In this case, Michelle did not present evidence to demonstrate the amount of her husband’s income that was used to reduce her actual expenses. Thus, Michelle’s contention lacks merit.

Michelle also argues that imputing the income from her prior job to her for purposes of setting child support would not be fair because she acted in good faith and was relocating to Alabama to join her husband. She asserts that her child support payments should not exceed $100 because she will likely be working part time at minimum wage.

Pursuant to LSA-R.S. 9:315.11, in calculating a child support obligation, if a party is voluntarily unemployed or underemployed, child support shall be based on a determination of income earning potential, unless the party is mentally or physically incapacitated. Glover v. Glover, 28,-493 (La.App.2d Cir.6/26/96), 677 So.2d 659; Holdsworth, supra. Absent evidence that work is not available or is available only at a lower salary, the wage earned prior to voluntary unemployment is the best estimate of an obligated party’s potential income. Havener v. Havener, 29,785 (La. App.2d Cir.8/20/97), 700 So.2d 533; Holds-worth, supra.

In this case, Michelle testified that she was voluntarily unemployed so that she could spend more time with her child and be available to receive communications from her husband, who had been deployed overseas. There was no showing that she was incapacitated and unable to work. Thus, |fiMichelle’s potential income should be considered in calculating her child support obligation. Although Michelle testified that she might work part time for minimum wage, she failed to produce evidence of the availability of work and the prevailing wage for employment in the area surrounding Fort Rucker, Alabama, where she planned to move with her husband. In the absence of evidence that work is unavailable or is available only at a lower salary, we must find that Michelle’s income earning potential is $54,996 per annum, the salary earned at her last job.

The guidelines provide that child support obligations are to be determined by the combined adjusted gross incomes of the parties. The record indicates that the parents’ combined adjusted gross monthly income is $12,583 and Michelle’s income constitutes 36% of this amount. According to the child support guideline schedule, the child support obligation for one child is determined to be $1,295 per month. LSA-R.S. 9:315.19. Michelle’s child support obligation is 36% of this amount, or $466 per month. Therefore, we shall amend the judgment to order Michelle to pay $466 in child support during the ten-month school year.

Failure to Plead for Child Support

Michelle argues that the trial court erred in ordering her to pay child support because John failed to request child support in his custody pleading. In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide support for a child based upon the needs of the child and the ability of the parents to provide support. LSA-C.C. art. 141. The court has discretion to allow enlargement of the pleadings to conform to |fithe evidence. LSA-C.C.P. art. 1154. A final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. LSA-C.C.P. art. 862.

In the present case, John’s pleading contained a prayer for all relief to which he was entitled under the law, which provides that parents have an obligation to support their children. Under LSA-R.S. 9:315.8(D), Michelle, the nondomiciliary parent, was required to pay child support to John, the domiciliary parent. In addition, during an August 2005 court appearance, Michelle’s attorney did not object when John’s attorney requested that the court award child support to the father. The record shows that after John was designated the domiciliary parent, the issue of Michelle’s child support obligation was tried by the parties. Thus, the court was authorized to render judgment awarding child support to John. The assigned error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court judgment awarding John Gardner child support for ten months of the year is amended to order Michelle Gardner to pay child support in the amount of $466 per month during the ten-month school year, effective June 1, 2005, subject to a credit for any previous payments. The judgment is otherwise affirmed. Costs of this appeal are assessed to the appellant, Michelle Gardner.

AMENDED AND AFFIRMED AS AMENDED.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Cleon C. FLOYD, Jr.
    No. 06-KA-657.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.
    Rehearing Denied Jan. 12, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡.Defendant, Cleon C. Floyd, appeals from his guilty plea conviction for possession of cocaine and his sentence to four years imprisonment at hard labor. For the reasons which follow, we vacate the plea and remand.

The Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession of cocaine, a violation of La. R.S. 40:967(C). The Defendant pled not guilty at arraignment. Thereafter, numerous counseled and pro se pre-trial motions, including a motion to suppress evidence were filed. On December 23, 2003, the Defendant filed a “Motion To Proceed Pro Se.” On April 19, 2004, the minutes reflect that the trial judge allowed the Defendant to represent himself with the assistance of co-counsel.

On April 22, 2004, the trial court began a hearing on the motion to suppress. The only facts regarding the case come from Officer Brent Donovan’s testimony at the motion to suppress hearing.

| ^Officer Donovan testified that at approximately 2:00 a.m. on November 8, 2002, he was on patrol on 31st Street in Lincoln Manor, an extremely high crime area, when he observed a vehicle heading east on 31st Street. Officer Donovan stated he followed the vehicle as it continued to proceed “with the left tires on the center lane.” The vehicle then “swerved back to the right, almost to the shoulder.” When Officer Donovan was approximately one-half block away from the vehicle, it made an abrupt U-turn in the intersection, and appeared to pick up a passenger on the corner. Officer Donovan followed the vehicle as it headed west and activated his overhead lights to stop the vehicle for improper lane usage.

After the vehicle stopped, Officer Donovan started to approach the driver’s side of the vehicle, until he saw the passenger, later identified as the Defendant, duck his head down several times. Because of the Defendant’s erratic movements, he approached the vehicle from the passenger’s side. Officer Donovan testified the Defendant was bent over with both of his hands in his jacket pockets. Officer Donovan instructed the Defendant to remove his hands from his jacket, and the Defendant complied. When Officer Donovan opened the door and asked the Defendant to exit, the Defendant complied, but put his hands back into his jacket pockets. Officer Donovan again told the Defendant to remove his hands from his pockets. When the Defendant refused, Officer Donovan reached out to grab the Defendant’s hands. The Defendant then threw a brown paper bag on the grass in front of Officer Donovan. After handcuffing the Defendant, the officer picked up the bag and said, “What’s in here, Cleon?” According to Officer Donovan, the Defendant replied, “I did not throw that down.” Officer Donovan testified that the discarded bag contained rocks of crack cocaine.

After testimony from the police officer, the trial judge held the matter open for possible defense witnesses. Following resolution of other pre-trial ministerial | ¿issues, the court re-set the open motion to suppress hearing for August 10, 2004. Prior to that date, however, on July 20, 2004, the Defendant appeared in court and, in accord with a guilty plea agreement with the State, withdrew his not guilty plea and entered a guilty plea expressly under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby, 338 So.2d 584 (La.1976). The State agreed not to multiple bill the Defendant and agreed to him receiving a four-year sentence at hard labor with credit for time served. The trial judge sentenced the Defendant in accord with the plea agreement. On November 8, 2005, the defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial judge granted. This appeal was lodged.

On appeal, defense counsel argues that because the Defendant’s plea was conditioned on his ability to obtain appellate review of the evidence suppression issue, which he cannot get due to the trial judge’s failure to rule on the motion, his guilty plea is rendered involuntary and should be vacated. Defense counsel contends that the discovery of the evidence resulted from an illegal traffic stop and should be suppressed. Where, as here, the vehicle in which the Defendant was a passenger, always remained in the lane, there was no probable cause for the stop.

The State contends the Defendant has waived his right to appeal the assigned errors on the motion to suppress, because he did not obtain a ruling on his motion prior to entering his guilty plea. Further, The State argues that the record does not reflect that Defendant reserved his right to appeal any specific pre-plea ruling, particularly, the suppression issue. Therefore, it is argued that he should not be able to have his plea set aside because of his inability now to have it addressed on. appeal. In support of its position that the Defendant waived appellate review, the State cites State v. Braquet, 95-602 (La.App. 5th Cir.10/6/05), 694 So.2d 288.

|f;A trial judge has the discretion to allow a guilty plea to be withdrawn at any time before sentencing. La.C.Cr.P. art. 559(A). See also, State v. Gross, 95-621 (La.App. 5th Cir.3/13/96), 673 So.2d 1058, 1059. Once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. Gross, at 1059-1060.

The Defendant has not filed a motion to withdraw his guilty plea in the district court. However, the Louisiana Supreme Court has held that a defendant’s failure to make a formal motion to withdraw a guilty plea does not prohibit a constitutionally infirm guilty plea from being set aside either by means of appeal or post-conviction relief. State v. Dixon, 449 So.2d 463, 464 (La.1984).

A plea is considered constitutionally infirm when a defendant is induced to enter the plea by a plea bargain, or by what he justifiably believes was a plea bargain, and that bargain is not kept. State v. Dixon, at 464; State v. Ebright, 04-0972 (La.App. 5th Cir.1/11/05), 894 So.2d 359, 360-361. In such cases, the defendant has been denied due process of law because the plea was not entered freely and knowingly. State v. Dixon, at 464; Accord, State v. Frisard, 566 So.2d 169, 170 (La.App. 5th Cir.1990), writ denied, 572 So.2d 61 (1991), (finding “due process may be offended both when there is a promise which is later broken and when the defendant justifiably believes that there is a promise which is later broken.”)

In State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196, the Louisiana Supreme Court stated that a defendant’s failure to specify which pre-trial rulings he desires to reserve on appeal as part of a Crosby plea should not totally preclude appellate review. In Joseph, the defendant failed to specify any pre-plea ruling, but challenged, on appeal, the trial court’s denial of his motions for a continuance and to suppress evidence. The Supreme Court reversed this Court’s determination that | ^the defendant .failed to preserve these issues for appellate review because he failed to specify which ruling he intended to challenge when pleading guilty under Crosby. State v. Joseph, 02-717 (La.App. 5th Cir.1/14/03), 839 So.2d 103, 106, writ granted, 03-315 (La.5/16/03), 847 So.2d 1196.

The Louisiana Supreme Court held that this Court should review the motion to suppress, but did not have to review the motion to continue. The Court noted:

A defendant’s failure to specify which pre-trial rulings he desires to reserve for appeal as part of a guilty plea entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976), may limit the scope of appellate review but should not preclude review altogether. See Crosby, 338 So.2d at 586 (“If we are not able to afford the accused their bargained-for appellate review, we must set aside the guilty pleas .... because of the nonperformance of the plea bargain (or the impossibility of the state to perform it) by virtue of which the plea was obtained.”) ... Absent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e., to preserve review of eviden-tiary rulings which “go to the heart of the prosecution’s case” that a defendant would otherwise waive by entering an unqualified guilty plea. Crosby, 338 So.2d at 591. Such rulings typically in-elude denial of a motion to suppress evidence or a confession and exclude rulings which may affect the conduct of trial but “which do not substantially relate to guilt, such as the denial of a continuance or severance.” Id. In the present case, to avoid jeopardizing the voluntariness of the defendant’s guilty plea, the court of appeal should afford defendant review of the trial court’s denial of his motion to suppress the evidence but need not address his second assignment of error relating to the trial court’s denial of his motion for a continuance.

State v. Joseph, 847 So.2d at 1196-1197. Accord, State v. Jackson, 05-527 (La.App. 5th Cir.12/27/05), 919 So.2d 779, 783.

In Braquet, relied on by the State, this Court held that the defendant was not entitled to appellate review of the validity of the search warrant where the trial court did not rule on the motion to suppress before the defendant entered a Crosby plea. However, there are two important distinctions between Braquet and the instant case. First, the defendant in Bra-quet told the trial judge before he was |7sentenced that there were no outstanding motions, and that they had all been waived. In contrast, the Defendant in the present ease told the trial judge numerous times that he intended to reserve his right to appellate review. Second, the defendant in Braquet did not seek to withdraw his guilty plea, as the Defendant does in the present case.

In contrast, in State v. Frazier, 618 So.2d 1217 (La.App. 5th Cir.1993), this Court held that the defendant’s Crosby plea had to be set aside where the defendant entered his guilty plea based on a promise that was not kept. In agreeing to plead guilty, the defendant expressly reserved his right to appeal, but the trial court failed to rule on the defendant’s motion to suppress, making appellate review impossible. The Frazier court concluded:

Since the defendant entered his plea upon the express belief that he keep his right to appeal, the plea must be set aside and the parties placed in their original positions; otherwise the defendant is not afforded his bargained-for appellate review.

Id. at 1219.

As in Frazier, the record in the present case indicates that the Defendant entered his guilty plea upon the express belief that he was reserving his right to appeal. At the inception of the colloquy, trial counsel and the Defendant told the trial judge that the Defendant tendered his guilty plea under Crosby, as well as Alford. Moreover, several times during the collor quy, the Defendant told the trial judge that he was not waiving his right to appeal. In particular, when the trial judge asked the Defendant if he understood he was waiving the right to appeal by pleading guilty, the Defendant responded: “No, ma'am. I’m not waiving my rights to an appeal.”

Additionally, we note that the colloquy was somewhat confusing because the trial judge was taking the plea of the Defendant and another unrelated person, Mr. IsThomas, at the same time. Thomas was not entering a Crosby plea, whereas Defendant herein was. During the colloquy, as the trial judge was going over the waiver of rights with the Defendant and Thomas, she referred to the waiver of the right to appeal, and the Defendant again informed the judge he was reserving his appellate rights. The trial judge remarked: “Right, I say this so much it just comes right on out.” Then, the trial judge went on, addressing both Defendant and Thomas together:

[To Defendant] And you actually are reserving your right to all the things that I’m going to tell you: [To Thomas] That you’re waiving your right to assert any allegation of defect, such as an illegal arrest, an illegal search and seizure, ....

Thus, the record establishes that the Defendant expressly pled guilty under Crosby, reserving his right to appellate review. We find the reservation of appellate review rights was an important part of the plea, evidenced by the fact that the Defendant continuously reminded the court that he was reserving his right to appeal. Further, considering the wording of the trial judge’s advisement, we find support for the Defendant’s position that he believed the appellate court would review his allegations of defect in the search and seizure. Appellate review is not possible in the absence of a trial court ruling on the motion to suppress. Since this Court cannot afford the Defendant his bargained for appellate review, as in Frazier, we find that the Defendant’s plea, based on an impossible condition, is involuntary and must be set aside.

ERROR PATENT DISCUSSION

The Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent regardless of whether a defendant makes such a request. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir. 1990). Upon review, we find no errors requiring corrective action by this Court.

Accordingly, for the reasons assigned, we vacate the Defendant’s plea and remand for further proceedings consistent with the views expressed herein.

GUILTY PLEA VACATED; CASE REMANDED.

      . It is noted that there is no transcript of the proceedings in the record for this date.

      . Defendant was awaiting a return on his subpoena duces tecum and then requested more time to prepare.

      . In the transcript herein, Mr. Thomas' first name is not provided.