text:
    Sheila MARTIN-CREECH and Carles A. Creech, Plaintiffs-Appellants v. Deidra ARMSTRONG and J.D. Lester, Defendants-Appellees.
    No. 42,649-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 2007.
    Rehearing Denied Oct. 1, 2007.

      Charles R. Joiner, for Appellants.
    John Clay Hamilton, Oak Grove, for Ap-pellee, Deidra Armstrong.
    James Moore Miller, Rayne, for Appel-lee, J.D. Lester.
    Before GASKINS, CARAWAY and DREW, JJ.
   CARAWAY, J.

hA four-month-old child was brought to Louisiana by his aunt and uncle, the plaintiffs, while his mother remained in jail in West Virginia. Upon the mother’s release from jail, plaintiffs filed this custody action against her, bringing into application the Uniform Child Custody Jurisdiction Law (“UCCJL”), which has been adopted in Louisiana as La. R.S. 13:1700, et seq. Plaintiffs also named as defendant the alleged father of the child, who is also a West Virginia resident. The trial court ruled that West Virginia was the proper jurisdiction under the UCCJL, yet initially, this proceeding was only stayed pending the filing of an action in West Virginia by the mother. Upon suit being filed in West Virginia, the case was dismissed and this appeal followed. Finding that the trial court correctly followed the UCCJL, we affirm.

Facts

This custody proceeding was instituted in Louisiana in July 2007 when the child was seven months old. The mother, Dei-dra Armstrong, was incarcerated in West Virginia when she gave birth on June 8, 2006. Armstrong alleges that she met the alleged father of the child, J.D. Lester, at a work release program. Lester was not named on the birth certificate because he was absent from the birth.

Because she did not anticipate release from prison immediately, Armstrong surrendered temporary custody of the child to her maternal aunt 12and her husband, Sheila Martin-Creech and Carles A. Creech. Armstrong and Sheila executed a document entitled “Agreement of Care of Minor Child.” A West Virginia social worker gave Armstrong the agreement to help the non-parents receive state services for the child.

Although the Creeches previously resided in Oklahoma for six years, they came to West Virginia because Carles had obtained work there in November of 2005. Sheila suffered from heart problems and Armstrong’s mother, Lisa Miller, assisted with her sister’s recuperation. The Creeches agreed verbally to take the child to the jail for weekend visitation and did so from June until August. In August 2006, they told Armstrong of a proposed trip to Iowa to obtain an RV and take care of business responsibilities in Oklahoma. Armstrong was under the impression that the Creech-es would soon return to West Virginia.

The Creeches went back to West Virginia once, on October 22, 2006, to allow visitation between the child and his mother. The Creeches told Deidra at that time that they were going to live in Louisiana. Carles lost his job and Louisiana is the state where his family still resides. Nevertheless, according to Armstrong, the three of them agreed that the couple would bring the child back to visit Armstrong once each month until her release.

The Creeches instituted the present custody proceedings against Armstrong and Lester on January 12, 2007, the same day Armstrong was released from prison. That day, the trial court also issued a “status quo” | sorder granting the Creeches the care, custody and control of the minor child pending further orders of the court. Counsel was appointed to represent the absent defendants, and a hearing date was set for determining custody.

Armstrong and Lester’s appointed counsel filed exceptions to the jurisdiction. Subsequently, Armstrong obtained separate counsel, who filed a supplemental exception regarding jurisdiction and an exception of no cause of action. Armstrong also moved to vacate the “status quo” custody order.

A hearing on the issue of jurisdiction under the UCCJL was held on February 23, 2007. Following trial, the trial court denied the exception of no cause of action but sustained the exception of lack of jurisdiction, finding that West Virginia was the proper place for determining custody. Accordingly, the “status quo” order was vacated and the Creeches were ordered to surrender custody to Armstrong immediately. The Creeches were given visitation with the child in West Virginia on alternating weekends.

The trial court ruling also stayed the Louisiana proceedings pending Armstrong’s custody proceedings in West Virginia within sixty days. Later, Armstrong filed a true copy of a pleading entitled “Petition to Establish Paternity and to Award Custody” from the Family Court of Harrison County, West Virginia, naming the Creeches and Lester as parties and requesting a hearing within sixty days. On April 4, 2007, the Louisiana trial court vacated the stay and dismissed this action. This appeal by the Creeches ensued.

On appeal, the Creeches raise four specifications of error regarding |4the trial court’s rulings. They contend that the court erred in sustaining the exception of lack of subject matter jurisdiction, in granting Armstrong time to file custody proceedings in West Virginia, in adjudicating custody after declining jurisdiction and in ultimately dismissing the proceedings without a notice or hearing.

The Uniform Child Custody Jurisdiction Law

Broadly speaking, the Louisiana Code of Civil Procedure allows jurisdiction in Louisiana over the minor’s status through this proceeding. It is “a proceeding to obtain the legal custody of a minor” where the minor is “domiciled in, or is in, this state.” La. C.C.P. art. 10(A)(5) (emphasis added). Although a court’s general subject matter jurisdiction is established by either the state constitution or by legislation, the UCCJL functions to “graft a second tier of inquiry onto the question of jurisdiction” in custody cases. Stelluto v. Stelluto, 05-0074 (La.6/29/05), 914 So.2d 34; Amin v. Bakhaty, 01-1967 (La.10/16/01), 798 So.2d 75. The UCCJL imposes jurisdictional limitations that require a court with general subject matter jurisdiction to decline to exercise it. Id. These limitations further the UCCJL’s stated purposes of avoiding jurisdictional competition, assuring that custody litigation takes place in the most convenient forum, promoting a stable home environment, deterring abductions, and encouraging cooperation among the courts of different states. La. R.S. 13:1700(A); Revere v. Revere, 389 So.2d 1277, 1279 (La.1980).

Under the UCCJL, home state means in pertinent part, the state in which the child, immediately preceding the time involved, lived with his ^parents, a parent, or a person acting as a parent, for at least six consecutive months. La. R.S. 13:1701. Person acting as a parent means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody. Id.

Consistent with these stated goals, the UCCJL provides in La. R.S. 13:1702 (“Section 1702”) four grounds for exercising jurisdiction in a custody case. Only two of those grounds, Sections 1702(A)(2) and (4), are relevant here since there is no “home state” -jurisdiction. The pertinent provisions of Section 1702 are as follows:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the.child because he has been subjected to or threatened with mistreatment or abuse or is;otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
1,;B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

Relevant to an inconvenient forum, the UCCJL provisions of La. R.S. 13:1706 provide:

A. A court which has jurisdiction under this Part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
B. A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a curator ad hoc or other representative of the child.
C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate, and
(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 1700.
D. Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
E. If the court finds that it is an inconvenient forum and that a court |7of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
⅜ ⅝ ⅜ ⅜ ⅜

Thus, although the UCCJL analysis is technically relevant to a court’s subject matter jurisdiction, the choice of the optimum jurisdiction under the UCCJL focuses on the strength of connections between the child and the competing states, more akin to a personal jurisdiction analysis. Amin, 798 So.2d at 80-81. The significant connection standard requires proof that Louisiana had the strongest connection to the child when the suit was filed. Stelluto, supra.

Our supreme court has articulated the standards of review for the analogous weighing of state contacts for the personal jurisdiction exception as follows:

In reviewing a judgment on an exception of lack of personal jurisdiction, we are mindful that the factual findings underlying the judgment are reviewed for manifest error. However, the application of the facts to established rules of law is a legal question, and thus, the legal issue of personal jurisdiction over a non-resident by a Louisiana court is subject to de novo review.

Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., U.S., 06-1736 (La.4/11/07), 954 So.2d 120, 125 (citations omitted). We find these same standards applicable for review of the trial court’s application of the facts of this case for the choice of jurisdiction under the UCCJL.

| ^Discussion

There is no argument that this young child had ever resided in any state for six months prior to the filing of this proceeding. As a result, “home state” jurisdiction does not serve as a basis for this custody action to proceed in Louisiana. The test, therefore, which the trial court applied, was to examine which of the two states, Louisiana or West Virginia, should assume jurisdiction to make a child custody determination in this case based upon the significant connections standard. The authority for that ruling appears from a reading of the two UCCJL provisions of Section 1702, subparts A(2) and A(4). The test concerns connexity of the child and the parents or contestant/custodian with the state and the availability of substantial evidence concerning the child’s present or future care, protection, training, and personal relationships in a given state. La. R.S. 13:1702(A)(2).

The Creeches argue that the child’s presence in Louisiana five-and-one-half months before the hearing and their connections with Louisiana were enough to allow a Louisiana court to elect making the custody determination for this child. That however does not compare with the significant connections and interests of West Virginia which under Section 1702(A)(4) and the general purposes of the UCCJL is the jurisdictional choice.

The Creeches are not the parents and their actual physical custody of the child prior to this suit was not the result of any legal proceeding or |gadoption. The Creeches acknowledge that they understood their arrangement with the child was temporary, pending Armstrong’s release from prison. On the other hand, both parents reside in West Virginia, where the child was born. The child’s maternal grandmother, who accompanied Armstrong to Louisiana for the hearing, resides in West Virginia. The Creeches have connections with West Virginia, although it is apparent that they have had difficulty establishing steady residence in any one state since moving from Oklahoma. We agree with the trial court that a four-month period in Louisiana prior to this action is insufficient to satisfy the connection requirement of the UCCJL when compared to the connections of the child with the State of West Virginia. In these circumstances, the trial court correctly concluded that under the UCCJL, the best interest of the child would be served by custody proceedings conducted in West Virginia.

The remaining assignments of error concern the trial court’s actions in awarding temporary custody to Armstrong, and later dismissing the suit upon Armstrong’s ex parte filing of evidence of the institution of an action in West Virginia. In making these arguments, however, the Creeches do not dispute the fact of the filing of the West Virginia proceeding. Therefore, we find these assignments of error moot.

The initial custody award to Armstrong took effect immediately. An ordinary appeal of a judgment awarding custody does not suspend execution of the judgment. La. C.C.P. art. 3943. Therefore, the Creeches’ remedy would have been through emergency supervisory review and staying of the proceedings immediately following the ruling. La. C.C. P. art. 2201. |inCourts of appeal may exercise immediate supervisory jurisdiction if an error by the trial court may cause an applicant irreparable injury or if an appeal will not afford an adequate remedy. Woodward v. Gehrig, 99-242 (La.App. 3d Cir.12/22/99), 755 So.2d 927, writ denied, 00-0187 (La.2/2/00), 753 So.2d 840. The absence of a request for expedited supervisory review of the trial court’s award of temporary custody, and the fact of the existing West Virginia custody proceeding, make any appellate review of the trial court’s custody award at this late date moot. Relief regarding custody to which the Creeches may be entitled is now readily available in the West Virginia action.

Likewise, the procedure employed by the trial court insuring that a custody proceeding begin in West Virginia should no longer be questioned. Nevertheless, the authority for the trial court’s action appears recognized in the UCCJL, La. R.S. 13:1706(E), supra. A remedy of any perceived procedural problem with the trial court’s ruling would involve further action by Louisiana courts in conflict with the ongoing custody proceeding in West Virginia, in violation of the purposes of the UCCJL. Because we affirm the trial court’s recognition of West Virginia as the state with UCCJL jurisdiction over this custody dispute, these additional assignments of error are moot.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court at appellants’ costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, DREW and LOLLEY, JJ.

Rehearing denied.

      . Armstrong served four years and ten months in prison for the crimes of grand larceny, involuntary manslaughter and contributing to the delinquency of a minor committed when she was eighteen years old.

      . Also spelled “Carlos” in the record.

      . Armstrong testified that the Creeches knew that she would be released from prison eight months after the birth of the child.

      . Carles Creech grew up in Louisiana, he has relatives here, and the Creeches have occasionally resided here before.


source: Caselaw Access Project

author: MOORE, J. STEWART, J., CARAWAY, J.,

license: Public Domain

text:
    Christi Lynn Fowler COOK, Plaintiff-Appellant v. Porter Alan COOK, Defendant-Appellee.
    No. 42,587-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Susan D. Scott, Shreveport, for Appellant.
    Stewart & Stewart, by Jonathan M. Stewart, for Appellee.
    Before WILLIAMS, STEWART, CARAWAY, PEATROSS and MOORE, JJ.
   MOORE, J.

[t The mother, Christi Cook, appeals a judgment that modified a prior stipulated joint custody implementation plan (“JCIP”) for the custody of her four children by designating their father, Porter Cook, as the domiciliary parent, and found her in contempt of court for violating a specific provision of the JCIP. For the reasons expressed, we reverse in part, affirm in part, and render.

Factual and Procedural Background

Christi and Porter were married in 1987; they lived in Ringgold, Louisiana, and had four children: Haylee, born in 1990, Aubree in 1994, Abram in 1998 and Jered in 2000. They separated in early 2001 and Christi filed for an Art. 102 divorce. By consent, they entered a JCIP that provided 50-50 sharing of the children, two weeks with each parent alternatively. The crux of the case, then and now, was Christi’s lesbian relationship with a 19-year old woman, Shannon Maloney. The JCIP included a provision referred to at trial as “the Shannon clause”:

Neither parent shall allow Shannon Maloney to be associated with the minor children and thereby not allowing her to live or visit in the home at 2961 Highway 4, Ringgold, Louisiana.

When they divided the community property in March 2002, Porter received the house and Christi moved out. In July 2003, Porter filed a petition to modify the JCIP because Christi had moved to Caddo Parish. He also alleged that Christi had allowed Shannon to “freely associate” with the children, even to live in the house with them; on this basis he moved to hold her in contempt of court. The rule was continued several times and in March 2004 the court appointed James Fullilove, a mental health counselor 12in Shreveport, to examine the parties and the children. His report recommended that the children should live primarily with Christi if she got a larger house (she was by then living in a trailer park near Ringgold).

The hearing on Porter’s motions was set for June 17, 2004; however, after a pretrial conference the parties entered a stipulated judgment in which Christi admitted she had violated the JCIP by allowing Shannon to visit her while the children were there. The court imposed a six-month sentence, suspended on the condition that Christi pay various court costs, relocate to “at or near Coushatta” within 90 days or else return to Bienville Parish, and fully comply with the JCIP. Christi refused to sign this judgment, although her attorney at the time (not current counsel) approved it as to form.

In April 2005, Porter filed the instant motion to hold Christi in contempt for refusing to sign the judgment and for violating the Shannon clause. He enumerated 18 incidents with Shannon and asked to be named the domiciliary parent, subject to supervised visitation on alternating weekends at Christi’s parents’ house. Christi responded with her own motion to modify custody. She asked the court to revoke the Shannon clause and to make her the primary domiciliary parent. The motions were set for April 12, 2006.

On the first day of trial, Christi admitted on cross-examination that she was romantically involved with Shannon (who was by then 24 years old); during the two-week intervals when the children were with Porter, ^Shannon would stay with her at the trailer. At other times, Shannon lived in the trailer next door. Christi described her plan to find a larger place to live, but admitted this could be financially difficult as long as she was giving Shannon transportation to and from her job at the Roadhouse Grill in Shreveport. Christi insisted that since the June 2004 stipulated judgment, Shannon had never been at the trailer while the kids were present.

Christi also denied each of the violations that Porter had alleged, most of which involved the children’s athletic events. Even when they were staying with Porter, Christi attended their basketball and softball games (there was also a church fair); Shannon, who is described as athletic in build, often accompanied her. The couple never sat with or next to Christi’s children, but on certain occasions one of them would approach Christi to talk, thus coming within close proximity to Shannon. On one occasion, Shannon was videotaping Hay-lee’s basketball game and stood in the exit as the team filed through.

Mr. Fullilove, the mental health counsel- or, reiterated that the children have a good life with Christi, but noted that Porter’s house was four times larger than her trailer. Digressing from the text of his original report, Mr. Fullilove opined that the best custody plan would be for the children to stay at Porter’s house and the parents take turns living there; he admitted he had never seen this happen. He sharply criticized Christi for seeing “nothing wrong with co-parenting with Shannon,” and warned that the children would suffer greatly if brought up in a homosexual environment. This view was informed by his belief that a lesbian partner would distort the children’s [ ¿(especially the girls’) perception of female role models.

Surprised by the new direction of the expert testimony, Christi asked for a continuance. She secured her own expert, Dr. Sally Thigpen, a psychologist'from Ru-sten, Louisiana. Dr. Thigpen wrote a 35-page report detailing her MMPI assessments of Christi, Porter and the children, as well as her critique of Mr. Fullilove’s report.

When the trial resumed on June 12, Dr. Thigpen roundly disagreed with Mr. Fulli-love’s assessment of “the Shannon situation.” She testified that there was no reliable clinical evidence showing that children raised by lesbian couples were more likely to grow up lesbian or to have more psychological problems than the general population. She admitted, however, that the situation had been unfavorable in that Christi had instructed the children not to tell Porter that Shannon was living next door. Dr. Thigpen reiterated that Christi was the more capable and involved parent.

Porter’s pastor, Gary Hahler, admitted that Christi took the children to Springhill Baptist Church more often than Porter did, but he fervently disapproved of homosexuality as a sin, as well as exposing children to it. Although he never personally observed Christi and Shannon engaged in any immoral conduct, he recalled that three unnamed church members had voiced displeasure over Christi’s lifestyle. Because of this, Christi’s volunteer position as a preschool VBS teacher “may change.”

Porter testified that as he understood the JCIP, Shannon was not supposed to be present at any school games or anywhere near the children; |Bhe felt that Christi had repeatedly violated the spirit of the Shannon clause. He opined that homosexuality is a choice and a sin, that kids raised by lesbian parents are more likely to grow up lesbian, and he disagreed with Dr. Thigpen’s professional opinion to the contrary. He requested primary domiciliary custody, allowing Christi all the supervised visitation she wanted. On cross-examination, he carefully recalled each of Christi’s infractions of the Shannon clause, admitting that on no occasion did Shannon approach the children or speak to them.

Shannon testified that although she lived next door to Christi for several years, she had recently (May 2006) gotten her own place in Bossier City. She was adamant that since the stipulated judgment holding Christi in contempt, she had never been at Christi’s trailer or in her car when the children were present. She promised that she would always comply with the judgment. She denied any public displays of affection with Christi in public places, and expressed her view that a gay couple could raise kids just as well as a straight one.

On direct examination, Christi again disputed, one by one, each alleged violation of the Shannon clause. She admitted that Shannon had been present at various ballgames but denied she associated with the children. She stated that she wants to maintain her relationship with Shannon but also comply with the judgment. The court extensively questioned Christi, suggesting its view that she was not sufficiently discreet with Shannon and had harmed the children by telling them to conceal from their father the facts about the relationship.

| (¡Action of the District Court

By written opinion, the court cited the best-interest factors of La. C.C. art. 134 and summarized the evidence as to each. The court rejected Christi and Shannon’s testimony that they had honored the Shannon clause, noting that in the prior proceedings, Christi had admitted letting Shannon associate with the children and deceiving the court about where Shannon lived. The court found it “extremely hard” to believe that while Shannon was living next door she had no contact with the children. Further, being subjected to an openly lesbian relationship “could very well be destructive emotionally” for the children since it would place them in conflict with “the ordinary morays [sic] of society.” Purportedly on the strength of Mr. Fullilove’s and Dr. Thigpen’s testimony, the court found that Christi and Shannon simply could not be discreet in their relationship. The court accepted Rev. Hahler’s testimony that the lifestyle violated Baptist standards; he found the children needed “stable predictable living in a conflict free environment” which Porter was better able to provide. It therefore named Porter the primary domiciliary parent.

In a final paragraph, the court found Christi in contempt:

[F]or violating the previous orders of this court as to the ‘no Shannon rule’ in that the court feels that she did violate the order by allowing Ms. Maloney to place a trailér next to hers and then deceiving not only her ex-husband but also trying to deceive the court in her testimony!.]

The court sentenced her to six months, suspended, and two years’ supervised probation.

|7Christi has appealed, raising three assignments of error, challenging both the change of custody and the finding of contempt. Porter replies that the judgment should be affirmed in its entirety.

Modification of Custody

By her first assignment of error, Christi urges the district court erred in modifying the existing JCIP without finding a change in circumstances materially affecting the children’s welfare and that the proposed change would be in the children’s best interest. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. Aside from the fact that she moved back to Bienville Parish in 2004, nothing else in anybody’s situation has. materially changed. As to Art. 134(6), she contends that the “limited jurisprudence concerning homosexuality and moral fitness” holds that just because a parent is gay does not make him or her unfit; this happens only if the relationship adversely affects the child. Scott v. Scott, 95-0816 (La.App. 1 Cir. 12/15/95), 665 So.2d 760, writ denied, 96-0181 (La.2/2/96), 666 So.2d 1106. She also cites Peyton v. Peyton, 457 So.2d 321 (La.App. 2 Cir.1984), for guidelines regarding the effect of an illicit sexual relationship upon parental fitness. She concludes that even though the court’s factual findings are protected by manifest error, there is no evidence that the relationship with Shannon has harmed the children.

Porter responds that Christi’s continued violation of the JCIP in allowing Shannon to associate with the children was a change in circumstances warranting the change in custody. He submits that 'Christi and Shannon’s testimony denying any.violations of the JCIP was selfjserving8 and not worthy of belief, in light of their documented efforts to mislead him and the court. He disputes Christi’s reliance on Scott v. Scott and Peyton v. Peyton, supra, as in those cases the children were truly unaware of their mothers’ lesbian liaisons, and such is simply not the case here. Finally, he argues the district court was not plainly wrong to find that the plan naming him the primary domiciliary parent was in the children’s better interest than the JCIP with its 50-50 split.

The JCIP, as well as the June 2004 judgment on rules, were stipulated judgments. The party seeking to modify such a judgment must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, supra; Ketchum v. Ketchum, 39,082 (La.App. 2 Cir. 9/1/04), 882 So.2d 631. On close examination, we are constrained to hold that the district court’s written reasons contain no finding of (indeed, not even a passing reference' to) the first essential element, a material change of circumstances. This is legal error requiring us to review the evidence de novo. Evans v. Lungrin, supra.

This record overwhelmingly shows that the circumstances affecting the children and parents are unchanged before and after the JCIP and 2004 stipulated judgment. Christi has her same job as a teacher at Ringgold Elementary; Porter has his same job as a radiation therapist at Schumpert Medical Center (since 2002, he has worked additional weekends at a hospital in Coushatta). When Porter has the children, Christi’s mother looks after them on school afternoons until Porter gets home from work. The l9children still attend Riverdale Academy in East Point; when they are with Porter, they still frequently phone Christi for help with their school work. The children, especially Haylee and Aubree, are greatly involved in team sports at school; before and after the JCIP, Christi has attended virtually all their games, and Porter as many as his schedule would permit. Both parents continue taking the children to Springhill Baptist Church. The children have, of course, grown older; at the time of trial, Haylee had just gotten her driver’s license and a cell phone. In short, we have searched in vain for any change materially affecting the welfare of these children.

Porter asserts that Christi’s “continued violation” of the JCIP constituted a material change of circumstances, but on de novo review we find precious little record evidence to support this. Porter testified that he thought the Shannon rule meant she could not be present at any of the children’s games or near them at any time. However, in both the JCIP and the June 2004 judgment, the Shannon rule states that neither parent shall allow Shannon “to be associated with the minor children.” A violation must be premised on the text of the court order, not one party’s interpretation of it. Smith v. Smith, 35,378 (La.App. 2 Cir. 9/26/01), 796 So.2d 726. The record shows that Shannon attended several ballgames with Christi but turned aside if the children approached Christi to talk; this indicates a studied effort to avoid associating with them. On de novo review, we cannot find that these incidents constituted a material change of circumstances.

|inPorter also contends that Christi violated the JCIP by allowing Shannon to move next door; given her close proximity, Christi must have allowed her to visit while the children were there, thus violating the letter of the Shannon clause. We will not dispute the district court’s assessment of the women’s credibility, but must observe that there is no positive evidence to support the conclusion that violations occurred. No witness confirmed seeing Shannon at Christi’s trailer with the children, and notably, neither Dr. Thigpen nor Mr. Fullilove uncovered any such incidents despite their extensive interviews with the children. Although we would share the district court’s reservations about Christi and Shannon’s credibility, this record will not support a finding that repeated violations occurred.

Without sufficient evidence of the first essential element of Evans v. Lungrin, supra, the modification must be reversed and any consideration of the second element, whether the proposed change is in the best interest of the children, would appear to be redundant. We would note, however, that the district court found many of the best-interest factors of La. C.C. art. 134 evenly balanced between the parties. Porter could provide a larger house and outside activities, but that Christi “was more responsible for the care and rearing of the children than [Porter] for many reasons.” In short, the current situation of the JCIP is eminently in the children’s best interest. The court was mainly concerned that as they became aware of their mother’s lesbian relationship, they would be embarrassed by the “socially unacceptable situation” and conflicted in their Baptist faith. The record, however, contains not one scintilla of evidence that the children have been ^embarrassed or treated badly by their peers on account of their mother’s relationship. As for the pastor’s testimony, this shows only by hearsay that certain unnamed church members felt that Christi should not be teaching VBS. It does not establish that anybody has ostracized the children because of the mother’s state of “sin,” and we are reluctant to ascribe such rank prejudice to Rev. Hahler’s parishioners.

Christi’s first assignment of error has merit. The judgment modifying the JCIP is reversed, and the prior judgment is reinstated.

The Shannon Clause

By her second assignment of error, Christi urges the district court erred in refusing to remove the Shannon clause or at least refine it such that the proscribed conduct is clearly defined. Restrictions on a parent’s custody or visitation should not be imposed except in unusual circumstances. Cronier v. Cronier, 540 So.2d 1160 (La.App. 3 Cir.1989). Christi submits that in the absence of evidence that Shannon was a drug abuser or a criminal, had ever harmed the children or would be a bad influence on them, there was no reason for this clause except to penalize Christi by thwarting the relationship and giving Porter leverage in custody matters.

Porter responds that Christi agreed to the Shannon clause during the pretrial conference leading to the stipulated judgment, so she knew precisely what conduct it prohibited.

Porter’s position has merit. “A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made the confession.” La. C.C. art. 1853. A | ^stipulated judgment or consent decree governing child custody and support is deemed a judicial confession. State v. Blankenship, 41,107 (La.App. 2 Cir. 6/28/06), 935 So.2d 793, writ denied, 2006-2293 (La.ll/22/Q6), 942 So.2d 561, cert. denied, — U.S. —, 127 S.Ct. 2135, 167 L.Ed.2d 869 (2007); Dronet v. Dronet, 96-982 (La.App. 5 Cir. 4/9/97), 694 So.2d 426, writ not cons., 97-1263 (La.9/5/97), 699 So.2d 82. The record is abundantly clear that both in the JCIP and in the stipulated judgment of June 2004, Christi agreed to this provision. It may be revoked only for error of fact, La. C.C. art. 1853, and ■ such has not been shown. Moreover, any stipulated judgment of custody may be modified upon a showing of the dual criteria of Evans v. Lungrin, supra, but for the reasons already discussed we find insufficient proof of a material change of circumstances.

This assignment of error lacks merit.

Contempt Order

By her third assignment of error, Christi urges the district court erred in holding her in contempt. She contends that the grounds cited by the court, willful disobedience of any lawful judgment and deceit or abuse of process, are acts of constructive contempt, La. C.C.P. art. 224(2), (4), but the statutory process for punishing such contempt, La. C.C.P. art. 225 A, was simply not followed. She adds that the Shannon clause is too vague to support a finding that she violated it “intentionally, knowingly and purposefully, without justifiable excuse.” Smith v. Smith, supra. Finally, she contends she did not receive the due process protections of criminal law. Midyett v. Midyett, 32, 208 (La.App. 2 Cir. 9/22/99), 744 So.2d 669.

|13Porter responds that Christi’s attempt to mislead Mr. Fullilove “could constitute direct contempt under C.C.P. art. 222(1).” In Porter’s view, the Shannon clause was not vague and Christi’s infractions were therefore intentional.

Contempt may be civil or criminal. Civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard; neither a jury trial nor proof beyond a reasonable doubt is required. Johnson & Placke v. Norris, 38,300 (La.App. 2 Cir. 5/12/04), 874 So.2d 340, unit denied, 2004-1478 (La.9/24/04), 882 So.2d 1137, and citations therein.

By contrast, a contempt sanction is criminal if the sentence is punitive, to vindicate the authority of the court. “A fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a completed act of disobedience such that the contemnor cannot avoid or abbreviate the confinement through later compliance — the defendant is furnished no key and he cannot shorten his term by promising not to repeat the offense.” Id., at p. 9, 874 So.2d at 346. Criminal penalties may not be imposed on someone who has not been afforded the protections that the constitution requires of such criminal proceedings. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). These protections include proof beyond a reasonable doubt. International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 2557, 129 L.Ed.2d 642 (1994); Johnson & Piache v. | uNorris, supra. The instant judgment imposes jail time (albeit suspended) for past, completed conduct, and appears to be intended to vindicate the authority of the court. We therefore view it as a criminal sanction.

A direct contempt of court is one committed “in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” La. C.C.P. art. 222.

The district court held Christi in contempt, in part, for “deceiving not only her ex-husband but also trying to deceive the court in her testimony[.]” However, the court is not allowed to make a finding of contempt based on perjury “without affording the witness the usual due process protections of the criminal justice system.” Winston v. Winston, 41,766, p. 6 (La.App. 2 Cir. 1/24/07), 951 So.2d 448, at 452. As in Winston, we find that Christi’s evasiveness and reluctant testimony do not satisfy the constitutional burden of proof beyond a reasonable doubt that she committed perjury. Thus there was no basis for finding her in direct contempt of court and ordering her “punished therefor by the court forthwith.” La. C.C.P. art. 223.

The court also held Christi in contempt, in part, for her past violation of the Shannon rule “by allowing Ms. Maloney to place a trailer next to hers[.]” Contrary to Christi’s assertion, Porter filed a motion for contempt on April 1, 2005, listing 18 alleged infractions, an order issued, and Christi obviously received service, as she later filed a motion to fix the matter for hearing. On this record, she received adequate notice of the contempt rule as required by La. C.C.P. art. 225 A.

11sHowever, the court’s finding was not based on the 18 incidents in which Shannon allegedly came into close contact with the children at sporting events and church fairs. It was instead based on the fact that Shannon was living next door. For the reasons already expressed, this fact alone does not prove beyond a reasonable doubt that she allowed Shannon to associate with the children. As noted, both Christi and Shannon denied it; no other witness saw it; and the experts, who spent a great deal of time with the children, did not establish that Shannon had associated with them since the June 2004 stipulated judgment. Without more, the circumstantial evidence that Shannon lived next door is simply not sufficient to prove a violation beyond a reasonable doubt. The judgment of contempt will be reversed.

Conclusion

For the reasons expressed, the judgment is reversed insofar as it modified the joint custody implementation plan by making Porter the primary custodial parent; judgment is rendered reinstating the provisions of the JCIP. The judgment is also reversed insofar as it found Christi in contempt of court. However, the judgment is affirmed insofar as it retained the Shannon rule. Trial and appellate costs are to be paid one-half by Porter and one-half by Christi.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

STEWART, J., dissents with written reasons.

CARAWAY, J., concurs in part and dissents in part with written reasons.

STEWART, J.,

dissenting.

hFor the following reasons, I respectfully dissent from the majority’s reversal' of the trial court’s modification of custody.

Contrary to the majority’s opinion that there is no material change in circumstances as required to modify a stipulated custody judgment, the trial court’s thorough, considered reasons point to Ms. Cook’s continual failure to abide by the “no Shannon rule” as the material change supporting modification of custody.

Ms. Cook agreed to the rule in 2001, as part of the stipulated 50/50 custodial arrangement. The trial court concluded that Ms. Cook failed to abide by the agreed-upon rule and disbelieved her testimony and that of Shannon Maloney about the discretion .they exercise in the conduct of their relationship. The trial court also discounted their testimony claiming the children were shielded from association with Shannon even though she lived next door to Ms. Cook and attended many of the children’s school events with their mother. The language of the “no Shannon rule” could have been more explicit in setting forth what was specifically prohibited, but common sense dictates that Shannon’s presence at school events is an association with the children regardless of whether' she turns away while -Ms. Cook speaks with any of them. While the majority finds “precious little record evidence” in support of the contention that Ms. Cook violated the rule, the trial court’s credibility determinations, findings, and conclusions in that regard are supported by the record and should not be cast aside by the majority in favor of their own interpretation of the evidence.

| ¡/The trial court also determined that modification of custody would be in the children’s best interest. The record supports this determination. Based on expert testimony and the past actions of Ms. Cook, the trial court found that she would not be discreet in her relationship with Shannon and that this would be likely to adversely affect the children. Moreover, Shannon would not be a beneficial influence in their lives. The trial court believed that Mr. Cook was in the best position to foster a close relationship between the children and their mother, particularly since Ms. Cook had hidden from him the fact of Shannon living next door to her for two years. Also significant was the trial court’s consideration of the parties’ respective residences. Mr. Cook resides in the former family home where there is adequate room for all four children. Ms. Cook resides in a two bedroom trailer where she shares her room with the two youngest boys. These factors as well as the other considerations made by the trial court show modification to be in the children’s best interests.

The trial court did not abuse its discretion in naming Mr. Cook the primary domiciliary parent. Under La. C.C. art. 134, the court is instructed to consider all relevant factors in determining the best interests of the children. In addition to the factors mentioned above, the court rightfully considered the values of both the community and the children’s religion in making the best interest determination. The children’s pastor, Gary Hahler testified that the relationship between Ms. Cook and Shannon is a well-known fact among church members, the parents at the children’s school, and in the community of Ringgold. It is a subject of discussion. Some church ¡..¡members had commented on it, and he had heard some derogatory remarks made at a school function. Hah-ler’s daughter, who is a good friend of one of the Cook children, had learned of the relationship on her own. While Ms. Cook’s expert, Dr. Sally Thigpen, suggested that a discreet homosexual relationship would not be harmful to the children, the evidence established that Ms. Cook is not involved in a discreet relationship. Rather, it is open and well-known in the community in which the children reside.

The fact that Ms. Cook is involved in a lesbian relationship is not the dispositive factor. Rather, it is the conduct and effects of the paramour relationship on the parent’s fitness for custody and the impact on the children’s best interests that are determinative. Ms. Cook’s deceptions and continued involvement with her paramour in the presence of the children, e.g., by attending school functions with Shannon in tow, maintaining neighboring abodes where Shannon is often at Ms. Cook’s trailer and lives there at times, and involving the children in concealing her living arrangements from their father, show her efforts and intent to have Shannon associated and involved in the children’s lives contrary to what she agreed to with their father. Her testimony regarding the discretion she exercises in her relationship with Shannon in the children’s presence is simply unbelievable. It cannot be said that Ms. Cook has abided by the “no Shannon rule” or will do so in the future. It should also be noted that the relationship is what broke up the Cook family. The adverse impacts this relationship has had and will likely have on the children, in light of the social mores of their town, should not be discounted.

¡¿Though the trial court modified the judgment to make Mr. Cook the primary domiciliary parent under a joint custody arrangement, the judgment recognizes Ms. Cook’s close relationship with the children and affords her ample time, including any additional time worked out with Mr. Cook, to be with the children.

The trial court’s determinations in child custody matters are entitled to great weight, and the court’s discretion will not be disturbed on review in the absence of a clear showing of abuse of that discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756; Seamster v. Nelson, 40,510 (La. App.2d Cir.10/26/05), 914 So.2d 1124. I find that no abuse of discretion has been shown and would affirm the trial court’s modification of custody.

CARAWAY, J.,

concurring in part and dissenting in part.

¡¡I concur with the majority in the reversal of the trial court’s modification of custody, but respectfully dissent regarding the reversal of the contempt ruling. I likewise agree with all members of the court that the so-called Shannon clause need not be excised from the judgment of custody.

In Peyton v. Peyton, 457 So.2d 321 (La. App. 2d Cir.1984), this court discussed the issue of a parent’s moral fitness in a custody dispute where the mother was found to be engaged in a discreet lesbian relationship. The opinion, by then judge and later Justice Pike Hall, first cited the principle, still applicable under Civil Code Article 134(6), that “a parent’s lack of moral fitness can rebut the presumption favoring joint custody when the evidence shows that the parent’s moral values and behavior are detrimental to the child’s interests.” Id. at 324. The court then listed the factors involved in determining whether a parent’s sexual lifestyle is damaging to a child, as follows:

1. Is the child aware of the illicit relationship?
2. Has sex play occurred in the presence of the child?
3. Was the sexual misconduct notorious, bringing embarrassment to the child?
4. What effect has this conduct had on the family home life?

Id.

The Peyton ruling is this court’s legal perspective in a custody setting of the measure of a parent’s sexual lifestyle. The joint custody of these children was first stipulated by these parents six years ago with the Peyton constraints applicable to the mother’s lesbian relationship. The Shannon |aclause of the initial consent judgment did not require the end of the lesbian relationship. The father does not ask this court or any court for sole custody or supervised visitation of the mother with the children because of the lesbian relationship. The trial court’s joint custody judgment which is the subject of this appeal still affords the mother 120 days of unsupervised custody of the children during each year despite the ongoing lesbian relationship. Therefore, not only was there no material change in circumstances shown to have occurred, allowing the trial court’s slight alteration of the existing joint custody, the trial court’s new joint custody order does not alter, or in any manner attempt to end, the perceived material problem to the children’s welfare from the lesbian relationship.

The test for the father’s proof of the alleged material change of circumstances in this case should be, in my opinion, the same four-factor test from Peyton listed above. He did not show any harm to the children’s welfare under those factors. The trial court’s ruling did not rest on those factors. Most significantly, the father did not request the court to consider the testimony of the oldest child who, at sixteen years of age, might reveal to the trial court in chambers any problems pertaining to the Peyton factors associated with her mother’s prior years of custody.

Regarding the trial court’s contempt ruling against the mother, I respectfully disagree with the majority ruling and would allow the contempt judgment against her to stand. The mother’s deceit and abuse of process before the court was contemptible. The majority’s conclusion that a criminal punishment or jail time was imposed by the suspended sentence is laincorrect. “Jail time (albeit suspended)” is not jail time. With the keys to imprisonment still in the mother’s hands based upon her future conduct, she only received a civil, coercive punishment making this purely a matter of civil contempt.

      . The decree also stated that if Christi should violate the Shannon clause, "there shall be a change of custody and Porter Alan Cook shall be designated as the primary domiciliary parent[.]” This court reversed the "automatic non-judicial change” provision. Cook v. Cook, 40,572 (La.App. 2 Cir. 1/25/06), 920 So.2d 981.


author: CARLSON, Justice, for the Court. DIAZ, Presiding Justice,

text:
    The JACKSON CLINIC FOR WOMEN, P.A., Mercer Lee, III, M.D., Darden H. North, M.D. and Paracelsus Woman’s Hospital, Inc. v. Linda P. HENLEY, Executrix of the Estate of Grace Polles Moore, Deceased, and Robert Alan Moore, Individually and as Personal Representatives and Wrongful Death Beneficiaries of Robert Alan Moore, Jr., Deceased.
    Nos. 2005-IA-01833-SCT, 1999-IA-01286-SCT.
    Supreme Court of Mississippi.
    Aug. 9, 2007.
    Rehearing Denied Oct. 11, 2007.
    Whitman B. Johnson, III, Gaines Spencer Beard, Jr., Joseph L. McNamara, attorneys for appellants.
    Dana J. Swan, Clarksdale, attorney for appellees.
   CARLSON, Justice, for the Court.

¶ 1. The plaintiffs filed a medical malpractice action for wrongful death against the Jackson Clinic for Women, P.A.; Mercer Lee, III, M.D.; Darden H. North, M.D.; and Paracelsus Woman’s Hospital, Inc., in the Circuit Court for the First Judicial District of Hinds County. The defendants filed a motion for summary judgment which was denied by the Hinds County Circuit Court, Judge Tomie T. Green, presiding. The defendants then filed a petition for interlocutory appeal, which this Court granted. After a thorough review of the record and the applicable law, we reverse the circuit court judgment and render judgment here in favor of the defendants.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On August 24, 1992, Grace Polles Moore (Moore), who was approximately thirty-four weeks pregnant at the time, visited Dr. Darden North, M.D. (Dr. North), at his office at the Jackson Clinic for Women, P.A., (the Clinic) complaining of abdominal pain. Moore had visited the Clinic complaining of abdominal pain on several occasions during her pregnancy. Dr. North advised Moore to take Tylenol # 3 and sent her home, but the Tylenol did not ease Moore’s pain. Dr. North admitted Moore to Paracelsus Woman’s Hospital (Paracelsus) later that same day because Moore complained that the pain radiated through her back.

¶ 3. The doctors considered Moore’s history of drug abuse and also ran several tests on Moore which turned out normal. Moore stayed in the hospital overnight and was given Demerol every three hours. At approximately 8:15 a.m. on August 25, 1992, Moore was taken to the x-ray room at the hospital and, while there, experienced hypotension. An abdominal exam was conducted, and Moore seemed tense; thus, a sonogram was conducted. It was then discovered that Moore’s baby had died in the womb due to sepsis, and a Cesarean section was performed. Additionally, Moore was diagnosed with mid-gut volvulus, and a resection of Moore’s small bowel, or small intestine, was performed in which Moore lost ninety percent of her small intestine.

¶ 4. While still in the hospital, Moore, a registered nurse, discussed what had happened to her with her sister, Dr. Alexis Polles (Alexis), a medical doctor. Moore testified in her deposition as to the conversation:

Q. Had you talked with Alexis any about needing to pursue a claim prior to the time you went to see a lawyer?
A. Oh, I — this is what I said. I was in the hospital, and I had not spoken to anybody about anything of that nature.
I looked at Alexis, and I said, “Something was wrong. Something was real wrong.”
And she said, “Grace, I’m glad you said that.” She said, “We’ve talked about it, the family, and we know it, but we didn’t want to say it to you because we didn’t know if you could handle it.”

Moore further testified in her deposition that her conversation with Alexis led her to believe that negligence had occurred.

Q. When you talked with Alexis and you said you were still in the hospital and you had this conversation that you described, did she get into any detail with what she thought has (sic) been done wrong?
A. No, she did not.
Q. After talking with her, did you believe something had been done wrong?
A. Yes,
Q. How about Dr. Yelverton?
A. The only thing that Dr. Yelverton has spoken of is that in retrospect it looked like this had been my problem all through my pregnancy.
A. And as a matter of fact, that was said to me by Alexis. Alexis had called and paged Dr. Yelverton when it happened, and he said those words to my sister, and my sister said them to me.
Q. Was this while you were still in the hospital?
A. Whit,[] I don’t remember. I don’t remember when that was said to me.

Moore then contacted attorney Michael Hartung (Hartung) to pursue a claim on her behalf in December, 1992. Hartung requested Moore’s medical records from Dr. North and Dr. Lee at the Clinic and Paracelsus on January 11, 1993; the records were sent on January 27,1993.

¶5. Hartung had Dr. Richard A. Nic-holls, M.D., (Dr. Nicholls), an expert, review Moore’s medical records. While Dr. Nicholls was in the process of his review, Moore compiled a “chronology of events and specifically the items she believes were negligent.” Dr. Nicholls concluded:

After reviewing Grace Polles’ medical records I have come to the following opinion as to Mrs. Polles (sic) care. Although Mrs. Polles presented at multiple times with abdominal pain during her pregnancy, she had a history of multiple gastrointestional (sic) problems and previous abdominal surgeries which alone could have accounted for her abdominal pain, manifesting the signs and symptoms that she presented with. Volvulus with gangrene of the bowel is an acute happening, not chronic. There was no way to diagnose this condition until it happened. It is unfortunate that the patient was pregnant at the time, because gangrene of the bowel did cause her baby’s death; however, she was very fortunate that her physicians recognized that she had an acute surgical abdomen and that they acted appropriately because had they not, she would also be dead. Her physicians are not guilty of malpractice, but they are responsible for saving her life.

(Emphasis in original). Following the review of the medical records, Hartung sent a letter to Moore, which is quoted in its entirety:

I have obtained medical records from virtually all sources, and I have had them reviewed by two separate medical doctors, one of which is an OB-Gyn surgeon. Additionally, your handwritten notes were reviewed by the doctors. Unfortunately, neither of these doctors found significant evidence of medical negligence. Arguably, certain procedures could have been done sooner, but under the circumstances, both doctors concluded that good medicine was practiced and if it had not been, you would have lost your life.
Based on the forgoing, we will not be pursuing a lawsuit on your behalf. I welcome you to seek a second opinion from another attorney, and I will gladly recommend attorneys to you for this purpose.
Give me a call when you have a chance and we can discuss this further.

¶ 6. Moore did contact Hartung and advised him that she wanted Alexis to review her medical records in an effort to find a doctor who would testify on Moore’s behalf that medical negligence had occurred. Hartung forwarded the records to Alexis. In a letter dated July 16, 1993, Hartung advised Moore of a possible problem with the statute of limitations:

As you know, there is a potential statute of limitations problem with your claims against doctors or other medical care providers in your possible medical malpractice case. I have not heard back from your sister to whom we sent all of your medical records. Has she found a doctor who is willing to testify as to medical negligence with regard to your care and treatment?
Please let me hear from you at your earliest convenience.

¶ 7. According to her testimony in her deposition, Moore did “[njothing at that point.” Moore also stated, “I just tried to accept my life and asked God to help me and go on.”

¶ 8. Moore was hospitalized at Mississippi Baptist Medical Center in November 1993 for chronic abdominal pain, nausea, vomiting, bloating, and diarrhea as a result of her short bowel syndrome. She was then referred to the Mayo Clinic for treatment. Moore stated in her affidavit:

I went into the Mayo Clinic in Jacksonville, Florida on or about January 25, 1994. It was during this treatment at the Mayo Clinic that I was alerted to the fact that my treatment in August of 1992 may have been the cause of the death of my baby and of my short bowel syndrome.
After being discharged, I met with Attorney Richard B. Lewis on April 11, 1994 to once again discuss a possible malpractice claim against the Defendants. At that time, I thought I had all my medical records from Mr. Hartung, although there was a lot of duplication. I was told to check with my former attorney to make sure I had all the records and obtain Dr. Nicholls’ report so that a second review could be made. I believed that my former attorney had this letter and I requested that letter from him in April, 1994. When my husband went to his office to pick this up, he could not readily find it and said that it would be mailed. At the end of April of 1994,1 received a copy of the letter of Dr. Nicholls, but no other part of my file. I called Mr. Hartung on May 6, 1994, to make sure I had all the records and he said he had no other records. These records were forwarded to Dr. Charles Cesare. I met with Attorney Lewis on May 26, 1994, to discuss an initial report from Dr. Charles Cesare, M.D., which was inconclusive as to whether or not there was malpractice because my medical records were incomplete. I attempted to get my prenatal records, Woman’s Hospital records and other records that Dr. Cesare requested. To the best of my recollection, I was in and out of the hospital several times after my discharge from Mayo Clinic and I became physically unable to do so. However, sometime in June or July, I went to the Woman’s Hospital to obtain those records. One of the girls in records told me it would be quite expensive to obtain those records and I was told .that it would not cost me anything if I had the records sent to my doctor. I requested she do this and it was not until the end of August or the first part of September, 1994, that I received these records from my doctor.
On September 9, 1994, I met with Attorney Lewis in Clarksdale and provided him with the complete records which were requested. Subsequently, Dr. Ce-sare rendered an opinion based on these records.

Dr. Charles Cesare’s affidavit stated:

My initial impression was that this was a very unfortunate patient with serious complications arriving from an intestinal anomaly with probable loss of her baby secondary to low blood pressure and circulating infection in her blood stream. Based upon the medical records available at that time, it was impossible for me to render an opinion. Particularly, I needed the records of the Woman’s Hospital, prenatal records from the Jackson Clinic for Women and all prior hospitalization for similar complaints as well as documentation, tests and charts, describing how this patient was taken care of on August 24, 1992, and August 25, 1992. Subsequently, on or about September 15, 1994,' more complete medical records of Mrs. Moore were made available to me. Based upon the additional records of the hospital, I was able to determine that she did not receive the minimum standard of care from the treating physicians, and from the hospital, Paracelsus Woman’s Hospital. She was not properly evaluated and monitored during the night. Had a proper evaluation been done, her baby could have been- saved and her intestine could have been saved.
In my opinion, the type of injury sustained by Mrs. Moore resulting from the medical care given by her treating physicians, as well as Paracelsus Woman’s Hospital, Inc., was a latent injury whose cause could not be readily ascertained except by a thorough review of all the medical récords by a physician. I am aware that Mrs. Moore- is a registered nurse, however, this would not give her the expertise necessary to determine whether or not there was a causal relationship between her injuries and the care which she received on August 24, 1992.’
On October 8, 1995,[] I met with Mr. and Mrs. Moore and informed them of my opinion.

¶ 9. Moore filed her complaint against the Defendants in the Circuit Court of the First Judicial District of Hinds County on August 7, 1995, alleging negligence for her own injuries and the wrongful death of, her unborn child. Dr. Lee, Dr. North, and the Clinic filed a .Motion for Summary Judgment on November 15, 1995, asking the circuit court to dismiss the cause of action because Moore failed-to file suit within two years of when she discovered negligence pursuant to Miss.Code Ann. § 15-1-36 (Rev.2003). Paracelsus filed a similar motion on - December 4, 1995. The Hinds County Circuit Court, Judge . Robert Gibbs,, presiding, denied these motions. The defendants petitioned this Court for Interlocutory Appeal concerning the statute of limitations issue, and this petition was denied on May 22,1996.

¶ 10. The case then turned to the issue of the attorney-client privilege:

On February 20, 1997, Jackson Clinic issued a subpoena duces tecum to Mrs. Moore’s previous attorney, Michael Har-tung, to produce all files, correspondence,'- documents, or other things related to the representation of the Moores in this matter. The Moores filed a motion to quash the subpoena duces tecum, which was granted by the circuit court by order on March 10, 1997. A motion to reconsider was then filed, which was similarly denied.
On October 29, 1998, Jackson Clinic again filed, a motion for summary judgment, along with a motion for disclosure of records and other relief, which was denied by the circuit court on July 19, 1999. On April 28, 2000,[] Jackson Clinic again petitioned this Court for an interlocutory appeal, this time on the issue of waiver of attorney-client privilege, which this Court granted by order on April 13, 2000. See M.R.A.P. 5.

Jackson Med. Clinic for Women, P.A. v. Moore, 836 So.2d 767, 768 (Miss.2003). The issue this Court addressed in the -defendants’ interlocutory appeal was whether Moore’s voluntary use of advice and communications from her former attorney as a basis to avoid the defendants’ statute of limitations defense waived the attorney-client privilege so as to allow the defendants to conduct discovery regarding the former attorney’s file and advice. This Court held that it did, and reversed and remanded the case to the trial court, stating:

When Moore used confidential communications with her attorney to toll the statute of limitations, she used the attorney-client privilege as a sword; fairness requires that she not now be allowed to hide behind the shield of that attorney-client privilege. Therefore, we reverse the trial court’s decision to deny disclosure of attorney Michael Hartung’s communications with the Moores. Further, we remand with instructions to the trial court to order Hartung to produce for in-camera inspection all files, correspondence, documents, or other items pertinent to this matter, beginning with the Moores’ initial contact with Hartung and continuing through the decision that suit should not be filed, made after receiving Dr. Nieholls’ letter of April 5, 1993. These should be delivered to the Hinds County Circuit Court for an in-camera review by the trial judge to determine whether any of these items are relevant to the discovery rule and when the statute of limitations began to run. Jackson Clinic shall be permitted discovery of all such files, correspondence, documents or other relevant items, which the trial judge has determined to be discoverable.
We further direct the trial judge to make specific findings of fact and conclusions of law as to why each item reviewed in-camera is or is not relevant. Finally, the circuit court is instructed to allow Hartung to be deposed on the issues relevant to the discovery rule and the statute of limitations.

Id. at 773-74'. Thereafter, Hinds County Circuit Judge Tomie Green, presiding, duly complied with this Court’s mandate. With the newly discovered information, the defendants then filed another motion for summary judgment on March 18, 2005, based upon the statute of limitations pursuant to Miss.Code Ann. § 15-1-36 (Rev. 2003). Judge Green entered an Order denying the motion on September 7, 2005. The defendants then filed a Petition for Interlocutory Appeal with this Court, which this Court granted, staying all trial court proceedings.

DISCUSSION

¶ 11. “This Court has consistently held that review for summary judgment is de novo.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 188, 185 (Miss.2003); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000); Crain v. Cleveland Lodge 1532, 641 So.2d 1186, 1188 (Miss.1994)). “A summary judgment motion is only properly granted when no genuine issue of material fact exists.” Id. (citing Miller, 762 So.2d at 304); see also Miss. R. Civ. P. 56(c). “The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits.’ ” Id.; see also Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004) (noting that the court should review all evidence available to it when making its decision); Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (Miss.1998).

¶ 12. There is only one issue for this Court to decide in this case.

WHETHER THE DISCOVERY RULE APPLIES TO TOLL THE STATUTE OF LIMITATIONS

¶ 13. The defendants/appellants argue that the discovery rule does not apply because: (1) Moore’s injury was not latent; (2) Moore’s inability to find an expert witness to testify in her favor did not prevent her from filing suit; and (3) Hartung had given Moore actual notice of a potential statute of limitations problem. However, Moore argues that the discovery rule does apply because she used reasonable diligence in discovering wrongdoing. Moore further argues that the statute of limitations began to run only after she was advised by the Mayo Clinic that negligent conduct had occurred.

¶ 14. Very recently, this Court addressed the discovery rule as applied to medical malpractice cases, in Sutherland v. Ritter, 2007 Miss. LEXIS 226 (Miss.2007) (r’hg denied July 26, 2007; mandate issued August 2, 2007):

The inquiry does not center on a latent injury, but rather on “the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.... ” Miss.Code Ann. § 15-1-36(2) (Rev. 2003).[] Thus, in medical negligence cases, we must focus our inquiry on when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury. In applying the unambiguous language of Miss.Code Ann. § 15-1-36(2), although a hidden or unseen injury might very well serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown. Furthermore, in the medical malpractice context, the discovery rule may apply in cases where the injury is not latent at all, but where the negligence which caused the known injury is unknown. For instance, a patient who undergoes a medical procedure may develop serious complications which are clearly known. However, if the patient has no reason to know that the doctor’s negligence in performing the procedure caused the complications, the discovery rule will apply, even though the injury itself is not latent at all.[]

Sutherland, **11-12, ¶ 12 (emphasis added). This Court further stated:

[I]n Hayes, we stated that our discovery rule will only toll the statute of limitations “until a plaintiff ‘should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.’ ” 868 So.2d at 1000-1001 (quoting Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001)). In PPG, we stated that “ ‘a plaintiff knew or reasonably should have known that some negligent conduct had occurred, even if they did not know with certainty that the conduct was negligent as a matter of law.’” 909 So.2d at 51 (emphasis in original) (citing Hayes, 868 So.2d at 1000).

Sutherland, *13, ¶ 14. We also stated in Sutherland:

According to the facts of today’s case, we find that Sutherland’s own suspicions and actions thereon, together with the passage of time from when Sutherland first recognized the adverse effects from the Zyprexa until Sutherland checked himself into the hospital in April, 2001, were enough to satisfy the statutory requirement of discovery of the alleged medical negligence on the part of Dr. Ritter. Sutherland originally knew or suspected that Dr. Ritter’s prescription of Zyprexa caused his undesirable side effects no later than the date of his discharge from St. Dominic on April 19, 2001, because he stated that “[t]he Zyprexa was destroying my life” and that “[i]t was not a belief, it was a knowing.”

Sutherland, *14, ¶ 15 (emphasis added).

¶ 15. In accordance with this Court’s recent decision in Sutherland, this issue has merit. Moore believed that some type of negligence had occurred while she was in the hospital talking with Alexis. She knew that “[sjomething was wrong. Something was real wrong.” Moore then proceeded to hire an attorney, obtain her medical records, and make an outline of all of the acts that she deemed negligent. This Court made clear in Hayes and PPG that the plaintiffs own suspicions regarding possible negligent conduct starts the clock running. Likewise, since Miss.Code Ann. § 11-1-58, Laws, 2002, 3rd Executive Session, ch. 2, § 6, effective from and after Jan. 1, 2003 (requiring that attorney certificate of expert consultation must accompany complaint commencing medical malpractice action), does not apply to this case. Moore did not need an expert’s opinion in order to file suit. Accordingly, Moore knew that negligent conduct might have occurred no later than the date of her conversation with her sister, Alexis, while still in the hospital, shortly after her surgery of August 25, 1992. The statute of limitations clearly began to run by late August, 1992. Therefore, by the time Moore commenced her suit on August 7, 1995, the applicable two-year statute of limitations had long since run.

CONCLUSION

¶ 16. For the reasons stated, and consistent with our recent decision in Sutherland, we find that the trial court erred in denying the defendants’ motion for summary judgment on the statute of limitations issue. Accordingly, the order denying summary judgment entered by the Circuit Court for the First Judicial District of Hinds County is reversed and judgment is rendered here for the Jackson Clinic for Women, P.A.; Mercer . Lee, III, M.D.; Darden H. North, M.D.; and Paracelsus Woman’s Hospital, Inc.

¶ 17. REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

DIAZ, Presiding Justice,

Concurring:

¶ 18. It is undisputed that Mrs. Moore knew very soon after the loss of her child that she might have a cause of action. The real issue, then, is when she discovered the cause of her injuries. Yet the majority insists upon relying on Sutherland v. Rit-ter, a case where a man claimed he could not discover the injuries he received. 2007 Miss. LEXIS 226 (Miss.2007). Accordingly, Sutherland is legally and factually distinguishable from the present case, as our case law and common sense differentiate between the two situations.

¶ 19. In our previous decision in this very case, we repeated our longstanding interpretation of the discovery rule found in Miss Code Ann. § 15-1-36(1) (Rev. 2003):

Mississippi has a two-year statute of limitations for medical malpractice claims. Miss.Code Ann. § 15-1-36 (Supp.2002). The action must be “filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” ■ Id. § 15-1-36(1). This Court has termed this the “discovery rule” and has interpreted the rule to mean that “the operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner Sarris v. Smith; 782 So.2d 721, 723 (Miss.2001) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)).

Jackson Medical Clinic for Women v. Moore, 836 So.2d 767 (Miss.2003), 836 So.2d at 770 (Cobb, J., writing for the majority. Pittman, C.J., Smith, P.J., Diaz, Carlson and Graves, JJ., concurring. Easley, J., dissenting without separate written opinion. McRae, P.J., and Waller, J., not participating) (emphasis supplied).

¶ 20. Accordingly, the statute of limitations may be tolled in medical malpractice cases under three scenarios: (1) where the plaintiff is unaware of the injury; (2) where the plaintiff is unaware of the cause of the injury; or (3) where the plaintiff is unaware of the causal connection between the injury and the physician’s conduct. Id.; see also Neglen v. Bredzeale, 945 So.2d 988, 990 (Miss.2006); Powe v. Byrd, 892 So.2d 223, 227 (Miss.2004); Fortenberry v. Memorial Hosp., 676 So.2d 252, 255 (Miss.1996). The determinative issue in this case is when Mrs. Moore reasonably could have discovered the causal connection between the physicians’ alleged breach and her injuries.

¶ 21. According to Mrs. Moore’s sworn testimony, she was immediately advised by Dr. Yelverton of the possible failure of her treating physicians to correctly diagnose her condition. She also testified that her first attorney “thought [she] had a case, but he just didn’t know enough medical people that he was centered in Jackson to send to.” Therefore, Mrs. Moore was aware of a possible cause of action but failed to file a complaint before the two-year statute of limitations ran.

¶ 22. Because the majority analysis is not based on the proper test, I concur in the result only.

      . Moore is now deceased, and Linda P. Henley is the Executrix of Moore’s Estate.

      . Paracelsus Woman’s Hospital, Inc. is now known as Woman's Hospital and is a division of River Oaks Hospital, Inc.

      . This is a condition where the small intestines twist, which effectively cuts off the blood supply to the unborn child.

      . Moore obtained a three-year diploma in nursing from Methodist Hospital School of Nursing in Memphis, Tennessee. Moore also attended classes at Delta State University in Cleveland, Mississippi, in pursuit of a Bachelor of Nursing degree, which she never obtained.

      . Alexis practices psychiatric medicine at Whitfield in Rankin County, Mississippi.

      . Whit Johnson is a lawyer for the defendants.

      . The correct date was October 8, 1994.

      . Robert Alan Moore, Moore’s husband, alleged loss of consortium in the complaint. Because this is his only claim, we will simply refer to the Moores as “Moore” for clarity.

      . The correct date of the filing of the petition for interlocutory appeal is August 3, 1999.

      . This is a consolidated case on appeal.

      . This is the date that Moore states in her summary of the argument in her brief. However, she also argues in her brief that "[t]he causal relationship was not finally determined until September 1994 when Dr. Charles Ce-sare rendered his opinion, and arguably at that time, the statute of limitations began to run.”

      . Two exceptions are found in section 15 — 1— 36(2) (foreign object left in patient’s body and fraudulent concealment of cause of action), neither of which apply in today’s case.

      . Even though Miss.Code Ann. § 15-1-36(2) applied in Sutherland, and while on the other hand, Miss.Code Ann. § 15-1-36(1) applies in today’s case since the claim accrued "on or before June 30, 1998,” Sutherland is still directly on point since the applicable language of sections 15-1-36(1) and 15-1-36(2) is identical.