author: SUSAN M. CHEHARDY, Judge.

text:
    Jewell K. KLINE, Individually and on Behalf of Her Minor Child, Jennifer Marie Kline v. FARM BUREAU INSURANCE COMPANIES, Government Employers Insurance Company and/or GEICO General Insurance Company and/or GEICO Indemnity Company and/or GEICO Casualty Company, and Barry L. St. Pierre.
    No. 06-CA-129.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Michael L. Hebert, Baton Rouge, Louisiana, for Appellants, Jewell K. Kline, Individually and on Behalf of Her Minor Child, Jennifer Marie Kline.
    Richard T. Reed, Baton Rouge, Louisiana, for Appellee, Farmers Insurance Exchange.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and JAMES C. GULOTTA, Judge, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

pin this appeal, plaintiffs challenge the trial court’s judgment granting summary judgment in favor of defendant and dismissing defendant from the litigation. For the following reasons, we affirm.

Facts and Procedural History

On January 27, 2003, seventeen-year-old John Walters was driving an automobile owned by Amy Jones when he was involved in an accident in St. James Parish, Louisiana with Barry St. Pierre. Walters’ fifteen-year-old girlfriend, Jennifer Kline, was a passenger in the automobile at the time of the accident. Jennifer sustained injuries to her arm, neck, back, and head, which required hospitalization.

On July 7, 2003, Jennifer’s mother, Jewell Kline, filed suit individually and on behalf of her daughter against St. Pierre; his insurer, Farm Bureau Insurance Companies; and Amy Jones’ uninsured/under-insured motorist coverage carrier, GEICO. In their petition, plaintiffs alleged that Jennifer’s injuries were caused by St. Pierre’s negligence. Plaintiffs sought damages for personal injuries sustained by Jennifer as well as loss of consortium and lost wages sustained by Jennifer’s mother, Jewell. Plaintiffs contended that St. Pierre was underinsured by his policy with Farm Bureau and, thus, plaintiffs were entitled to maintain a direct action against Amy Jones’ underinsured motorist carrier, GEICO. GEICO answered | ¡¡denying coverage on the basis that use was not permitted since the vehicle was stolen. St. Pierre and Louisiana Farm Bureau answered denying the plaintiffs’ allegations and alleging Walters’ negligence caused the accident.

On December 1, 2004, GEICO filed a Motion for Summary Judgment denying underinsured motorist coverage on the basis that the vehicle was taken without permission by John Walters on the date of the accident. After a hearing on the matter, GEICO’s motion was subsequently denied.

On January 24, 2005, plaintiffs filed a supplemental petition adding Farmers Insurance Exchange (“Farmers”) as a defendant. In the petition, plaintiffs alleged that on the date of the accident, Farmers had in effect a comprehensive automobile liability insurance policy, in-eluding uninsured/underinsured motorist coverage, issued to Jody Duhe, which provided coverage for plaintiffs. Farmers answered denying coverage to the Klines under Jody Duhe’s policy.

On October 20, 2005, Farmers filed a Motion for Summary Judgment denying coverage for the Klines under its policy with Jody Duhe. Farmers specifically contended that neither of the Klines are an “insured” under this policy because they are not “family members” of the named insured. In support of its motion for summary judgment, Farmers introduced five exhibits, which are part of the appellate record: 1) the original petition; 2) the first amending and supplemental petition; 3) the insurance policy issued by Farmers to Jody Duhe; 4) the deposition of Jody Duhe; and 5) the deposition of Jewell Kline.

Plaintiffs filed a memorandum in opposition to defendant’s motion for summary judgment alleging that Jennifer Kline is a “foster child” of Jody Duhe and, thus, an insured under the policy in effect on the date of the accident. In support of their position, plaintiffs introduced sixteen exhibits, which are part of this appellate record: 1) the insurance policy in question; 2) the affidavit of Jody |4Puhe; 3) a letter from a St. James Parish School system employee; 4) 2004 tax return of Jody Duhe; 5) 2003 tax return of Jody Duhe; 6) 2002 tax return of Jody Duhe; 7) 2001 tax return of Jody Duhe; 8) life insurance policy of Jennifer Kline; 9) life insurance policy of Jody Duhe; 10) life insurance policy of Jewell Kline; 11) Father’s Day card from Jennifer to Jody; 12) congratulations cards from Jody’s relatives on Jennifer’s pregnancy; 13) congratulations cards from Jody’s family on Jennifer’s baby’s birth; 14) the affidavit of Jewell Kline; 15) an excerpt from Jennifer Kline’s deposition; and 16) an excerpt from Jewell Kline’s deposition.

On December 2, 2005, the trial court heard and granted defendant’s motion for summary judgment, dismissing Farmers from this litigation. On December 29, 2005, the trial judge signed the judgment to that effect, which the judge declared as a final judgment.

Plaintiffs are appealing that judgment. In their sole assignment of error, plaintiffs argue that the trial court erred in finding that Jennifer Kline was not an insured under the Farmers policy because “[ujnder the undisputed facts of this case and the commonly understood meaning of the term ‘foster child,’ Jennifer Marie Kline was the foster child of Jody Duhe.” Farmers responds that the trial court correctly granted summary judgment in this case where the plaintiffs failed to submit sufficient factual evidence with their opposition to summary judgment to establish that plaintiffs will be able to satisfy their evidentiary burden of proof at trial.

Summary Judgment

Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is | ¿favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2); Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610. The mover is, thus, entitled to summary judgment. La. C.C.P. art. 966(C)(2); Jones, supra.

Summary judgments are reviewed on appeal de novo. Id. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

In Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 26-27 (La.7/5/94), 639 So.2d 730, 750-751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material:

LA “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Blount v. East Jefferson General Hosp., 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 537, citing Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Thus, we turn to a discussion of the applicable law.

In Cadwallader v. Allstate Insurance Company, 2002-1637 (La.6/27/03), 848 So.2d 577, 580, the Louisiana Supreme Court recently reiterated the principles regarding the interpretation of insurance contracts:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts as set forth in the Louisiana Civil Code.... The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract....
Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning... .An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion .... The rules of construction do not authorize a perversion 17of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent....
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage.... Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer... .That strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable....
If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written.... Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms.... The determination of whether a contract is clear or ambiguous is a question of law. (Citations omitted.)

In Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/2000), 774 So.2d 119, 124, opinion correction on rehearing, 00-0947 (La.3/16/01), 782 So.2d 573, the supreme court noted that where a contract cannot be construed based on its language due to some ambiguity, then the court may look to extrinsic evidence to determine the parties’ intent. Any ambiguities in the policy are to be construed in favor of the insured to effect, not deny, coverage. Id. With these principles in mind, we must now determine whether the trial court erred in finding that there was no coverage for the Klines.

Under “Part C-Uninsured Motorists Coverage” of its policy with Jody Duhe, Farmers agreed to “pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ because of bodily injury ... sustained by an ‘insured’ ... and caused by an accident.” The policy defines “insured,” in relevant part, as “you or any ‘family member.’ ” The policy defines “family member” as “a person related to you by blood, | ¡¡marriage or adoption who is a resident of your household. This includes a ward or foster child.” The policy does not define “ward” or “foster child.”

In its motion for summary judgment, Farmers argued that the policy does not cover Jennifer Kline because she is neither the “named insured” nor the family member of the named insured. In support of its motion for summary judgment, Farmers submitted depositions from Jody Duhe and Jewell Kline in which both attested that Jody Duhe was the named insured on the policy as well as the sole owner of the vehicle covered by the policy. Further, both stated that they were not and never had been married in Louisiana nor had they resided together outside of Louisiana. Further, both Duhe and Jewell Kline stated that her daughter, Jennifer Kline, was a minor who was unmarried on the date of the incident. The plaintiffs did not submit documentation to establish a material factual dispute about this issue. It is, thus, undisputed that neither Jewell nor Jennifer Kline was the named insured nor the spouse of the named insured.

Moreover, the deposition testimony reflects that Duhe is not Jennifer’s biological father nor has he adopted Jennifer as his daughter. The plaintiffs did not submit documentation to establish a material factual dispute about this issue. Thus, the documentation reflects that Duhe and Jennifer Kline are not related by “blood, marriage, or adoption.”

The sole issue for review is whether the trial court erred in granting summary judgment on the basis that Jennifer Kline is not the named insured’s “foster child” and, thus, not covered under his uninsured motorist policy. Defendant, Farmers, relies on the depositions, affidavits, and other documentation to support its claim that there is no legal “parent-child” relationship in this situation. Farmers argues that the generally understood meaning of the term “foster child” denotes a legal relationship in which a child is placed by the State of 19Louisiana in the temporary, physical custody of an adult— the “foster parent” — that is not their biological parent. Farmers points out that La. R.S. 46:286.1 defines a “foster parent” as “any person with whom a child in the ... custody ... of the office of community services is placed for temporary ... care.... ” Farmers further notes that, at the time of the accident, Jennifer Kline was not in the custody of the office of community services but rather was a minor in the custody of her biological mother.

In support of their claim that Jennifer is Duhe’s “foster child,” the plaintiffs submitted affidavits from Jody Duhe stating that Jewell and Jennifer Kline have lived with him without paying rent or utilities since October of 1999. Duhe stated that he has also paid for medical expenses, school supplies, clothing and food for both Klines since 1999. The plaintiffs also submitted Duhe’s tax returns from 2000, 2001, 2002, 2003, which reflect that he has claimed Jewell Kline and her minor children, including Jennifer, as dependents for each of those years. Further, plaintiffs submitted Father’s Day cards from Jennifer to Duhe indicating that she thought of him as her father.

“Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning.” Cadwallader, 848 So.2d at 580. As further noted, above, “[a]n insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion.” Id. “The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent.” Id. In the |inabsence of a conflict with statutes or public policy, insurers have the same rights as individuals to limit their liability and enforce whatever conditions they impose upon their obligations. Cadwallader, 848 So.2d at 583; Marcus v. Hanover, 98-2040 (La.6/4/99), 740 So.2d 603, 606.

Here, although it is evident that Duhe has taken financial responsibility for Jennifer Kline, that endeavor does not establish Jennifer as Duhe’s “foster child.” We are not inclined to expand the technical term “foster child,” which is a legal relationship established by the State, to include this situation.

After thoroughly reviewing the pleadings, depositions, and affidavits, we cannot say that the trial court erred in finding that Farmers was entitled to judgment as a matter of law. We agree with the trial court that Farmers pointed out an absence of factual support for one or more elements essential to the Klines’ claims, specifically whether Jennifer was a “family member” under Duhe’s policy. Further, the Klines did not produce factual evidence sufficient to dispute this absence. Therefore, we find that the trial court correctly granted summary judgment in favor of Farmers.

Conclusion

For the above and foregoing reasons, the trial court’s judgment granting summary judgment in favor of Farmers Insurance Exchange is affirmed. Costs associated with this appeal are assessed to plaintiffs.

AFFIRMED.

      . Jewell Kline stated that her husband and her children’s biological father, Eli Kline, passed away in 1998.


source: Caselaw Access Project

author: CLARENCE E. MCMANUS, Judge.

license: Public Domain

text:
    Jeanmarie Finn DERBES v. Lawrence DERBES.
    No. 06-CA-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Marc D. Winsberg, Maria G. Marks, Schonekas, Winsberg, Evans & McGoey, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    S. Guy Delaup, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and JAMES C. GULOTTA, Judge, Pro Tempore.
   CLARENCE E. MCMANUS, Judge.

I statement of the case

Jeanmarie Finn (“Finn”) married Lawrence Derbes (“Derbes”) in 1990 in California. The couple had one daughter, Monica, in 1992. The couple physically separated in 1993. On October 18, 1995, a California court entered a judgment dissolving the marriage and ordering Derbes to pay Finn spousal support and child support. Derbes was ordered to pay $1,800.00 per month from August 1, 1995 until December 3, 1995. As of January 1, 1996, Derbes was to pay $1,600.00 per month in child support, plus health insurance and certain other expenses. Finn and Monica moved to St. Louis, Missouri following the divorce.

Derbes paid support until October 1998. Finn obtained a judgment in California on December 14, 2000, ordering Derbes to pay $34,000.00 in arrearages and ordering an income assignment of $2,400.00 per month, which was the $1,600.00 per month for child support plus $800.00 per month in arrearages.

Derbes failed to pay the support. In 2002, Finn learned Derbes was employed at Tulane Medical Center in New Orleans, LA as a physician. She then, through Louisiana counsel, filed a Petition to Make Foreign Judgments Executory on June 24, 2002, in Jefferson Parish. Derbes’ last known address was 209 |3Magnolia Dr. in Metairie, LA and his office address was at Tulane University Hospital and Clinic.

On June 27, 2002, the 24th Judicial District Court rendered a judgment making the 1995 and 2000 California judgments and the income assignment order executo-ry in Louisiana. Derbes’ wages from Tulane were garnished $2,400.00 per month under the California Wage Assignment Order beginning in August 2002.

On August 8, 2002, Finn filed a Rule to Determine Child Support Arrearages, to Make Arrearages Executory, to Increase Child Support, to Suspend Licenses and for Contempt and Attorney’s Fees and Costs. Finn also filed a Motion for Judgment Debtor Examination. Hearings on both the Rule filed by Finn and the motion for judgment debtor examination were set, but Finn repeatedly filed motions to continue. On September 20, 2002, Finn filed an Ex Parte Motion to Appoint Private Process Server in order to serve Derbes with the Motion for Judgment Debtor and the Motion to Determine Child Support, Arrearages, to Increase Child Support and to Suspend Licenses. Finn argued that she had requested service by the sheriff and several attempts had been unsuccessful. The trial court appointed a private process server.

On November 5, 2002, a Consent Judgment was executed and ordered Derbes to appear for a deposition on November 13, 2002 and to produce certain documents at the deposition pertaining to his finances. At the deposition, Derbes testified that he was employed at Tulane Medical Center, and had started in March 2001 with a salary of $360,000.00 per year, and at the time of the deposition, he was earning $475,000.00 per year. He worked twelve hours per day, five days a week, and was on call twenty-four hours a day, seven days a week.

Finn and Derbes allegedly entered into an agreement at the deposition that Derbes would answer written discovery and produce specific documents. Derbes Lfailed to produce the discovery, so Finn filed a motion to compel. Derbes provided responses. Finn then filed a request to supplement the responses, but Derbes refused.

The hearing on the original Rule filed by Finn was set and continued, at her request, several more times. A status conference was held on June 18, 2003. As a result of that conference, the trial court issued an Order that witnesses’ names be disclosed and any motions challenging foreign judgments must be filed by July 10, 2003. The trial court also ordered that Derbes’ current wife, Linda, file any motions regarding the use of her separate property to satisfy Derbes’ child support and all expert reports by August 10, 2003. The Order further provided that all depositions be complete by August 30, 2003 and another status conference was scheduled for September 3, 2003, at which time a trial date would be selected.

Derbes filed a Motion to Annul the California Judgment on July 15, 2003. Derbes then filed a Rule to Reduce Child Support on September 5, 2003, claiming he was unemployed and no longer working at Tulane Medical Center. On September 15, 2003, Finn submitted Interrogatories and Request for Production of Documents to Derbes and also requested supplemental responses to previous discovery. Derbes did not respond, so Finn again filed a Motion to Compel.

The trial court entered a judgment on November 10, 2003, granting Finn’s motion to compel and ordering Derbes to respond to the discovery requests within twenty days. Derbes did not comply with the order. On October 29, 2003, Derbes filed a motion to continue the October 30, 2003 hearing on the motion to compel and the November 10, 2003 hearing on the original Rule filed by Finn. Derbes stated a continuance was necessary because of a significant medical illness requiring adequate recuperation and his inability to participate and assist counsel. Derbes attached a letter from his treating physician in Hawaii, where he was presiding at the time. Dr. Doris Bullen’s letter was dated October 11, 2003, stating “I have advised Dr. Derbes that he must discontinue active participation in his legal affairs until he has made a full recovery. I have made this decision because the stress of legal negotiations undermines his health and is a threat to his recovery.” Dr. Bullen also stated that Derbes would require at least two months for recovery.

According to the letters, Derbes suffered from a major depressive disorder which is triggered by stress. The trial court granted a continuance but warned Derbes that if further continuances were sought, he would have to provide competent medical evidence of his illness and not just unauthenticated, hearsay letters. Derbes filed another motion to continue on January 9, 2004 contending the January 20, 2004 hearing should be continued by agreement of the parties resulting from a recent child support payment and continuing efforts to settle the matter. Both parties consented to a continuance and the hearing was rescheduled for March 23, 2004.

On March 19, 2004, Derbes filed another motion to continue arguing he required a continuance because of continuing medical problems, and medical problems of his wife, who was a crucial witness. Derbes also stated in the motion that Finn had received a substantial sum in January 2004 towards child support resulting from the sale of his wife’s separate property. The trial court continued the matter until May 7, 2004, with May 15, 2004 as a backup.

On May 7, 2004, the day of the hearing, Derbes, through his counsel, sought another continuance attaching a medical narrative report from Dr. Patricia Patrick in Hawaii arguing that Derbes was unable to proceed with the trial due to severe and ongoing depression. Derbes argued he was not capable of making judgments necessary for legal purposes. Derbes submitted several letters from Dr. Patrick, | ^stating his current medical condition and suggesting that the matter be continued until the next year. The trial court refused to admit the letters from Dr. Patrick and other physicians in Hawaii, because they were unauthenticated and hearsay, but the trial court allowed Derbes to proffer the letters. The trial court also denied Derbes’ request for a continuance and the hearing was held on May 7, 2004.

Finn was present on May 7, 2004 for the hearing, having traveled from St. Louis. The court heard arguments of counsel and testimony on that date. The trial court issued oral reasons on some issues in open court at the hearing. On June 4, 2004, Derbes filed a Notice of Intent to Apply for Writs with this Court regarding the actions of the trial court on May 7, 2004. An Order signed on June 10, 2004 gave Derbes until July 9, 2004 to file writs.

The trial court then issued a written Judgment on June 10, 2004. The Judgment listed the motions which were before the Court at the hearing, including: 1) Finn’s Rule to Determine Child Support Arrearages, to Make Arrearages Executo-ry, to Increase Child Support, for Contempt, to Suspend Licenses and for Attorney’s Fees and Costs, 2) Rule to Reduce Child Support of Lawrence Derbes, Jr., M.D., 3) Finn’s Rule for Contempt, to Strike Defenses, and Limited Evidence for Failure to Comply with November 10, 2003 Discovery Order, and for Attorney’s Fees and Costs, 4) Linda Derbes’ Motion to Strike and Motion in Limine, 5) Derbes’ Motion to Annul Judgment, and 6) Derbes’ Motion to Continue all Rules and Motions. The trial court denied Derbes’ Motion to Continue and denied Linda Derbes’ Motion to Strike and Motion in Limine. The court also denied Derbes’ Motion to Annul Judgment and his Motion to Decrease Child Support. Finn’s Rule for Contempt for Derbes’ failure to provide discovery in compliance with the court’s order of November 10, 2003 was granted. The trial court held Derbes’ in contempt and awarded Finn attorney’s fees and costs, with l7the appropriate fíne for the attempt and quantum of attorney’s fees and costs to be determined on August 4, 2004. Finn’s Motion to Increase Child Support was granted and the 1995 California Judgment was modified and Derbes’ was ordered to pay $2,376.00 per month. This increase in child support was retroactive to, August 8, 2002, the date of the filing of the Rule to Increase.

The trial court also granted the motion to establish arrearages and to make those arrearages executory. The court found that Derbes owed $49,300.00 as of May 7, 2004 in arrearages, under the 1995 California Judgment. As a result of the granting of the rule to increase child support, the trial court found that Derbes owed additional arrearages of $776.00 per month, retroactive to August 8, 2002. The arrear-ages total $16,871.00, representing $575.00 for part of August 2002, plus $776.00 per month for September 2002 through May 2004. The arrearages totaled $66,171.00 as of May 7, 2004. The California rate of interest of 10% per annum was applied and the total amount of interest due as of April 30, 2004 was $21,299.33. The arrearages were also made executory.

The trial court granted Finn’s Motion for Contempt for Derbes’ failure to pay child support ordered by the 1995 California Judgment and the court awarded Finn attorney’s fees and costs. The trial court stated it would determine the appropriate fine for the contempt and the quantum of attorney’s fees and costs on August 4, 2004, along with Finn’s request for an award of arrearages consisting of direct expenses under the California judgment. Finally, the trial court denied the motion to suspend the licenses of Dr. Derbes. The judgment was designated final and the trial court stated the fact that the court would later consider the attorney’s fees, costs, arrearages on direct expenses, and the imposition of fines on a later date, shall not delay the enforceability or appealability of the judgment.

| ¡¡A writ application was filed with this Court on July 12, 2004 by Derbes. This Court denied the writ on July 26, 2004 finding no abuse of the trial court’s discretion. Derbes then filed a motion and order for appeal in the trial court on July 28, 2004. The trial court then executed a second judgment on August 24, 2004. The trial court found that Derbes owed Finn attorney’s fees and costs in the amount of $51,662.02, plus interest from the date of the judgment. The trial court stated that it reached this total amount by reducing the $53,252.02 sought by Finn by $1,590.00 in attorney’s fees that the trial court found not reimbursable. The trial court further found that Derbes owed Finn additional child support in the form of reimbursable expenses under the 1995 California Judgment in the amount of $2,444.00. The trial court applied the California rate of interest of 10% per annum to these arrearages and they were made executory.

Finally, the trial court ordered Derbes to serve a jail sentence of thirty days, to commence sixty days from the date of the judgment, as a result of his contempt. The trial court did state that if Derbes paid a fine of $500.00 and if the court determined that within sixty days he had made a substantial payment toward the arrearages, fees and costs, Derbes would be relieved of his obligation to serve the jail sentence.

Derbes then filed this appeal on September 8, 2004 asserting three assignments of error: 1) the trial court erred in refusing to continue the hearing on the rules for contempt, to increase child support and for child support arrearages, or to hold the hearing open until August 4, 2004, 2) the trial court erred in awarding attorney’s fees in the amount of $51,662.00, and 3) the trial court erred in sentencing Derbes to 30 days in jail.

\ .DISCUSSION

For the reasons discussed below, we affirm the trial court’s judgments of June 10, 2004 and August 24, 2004, which resulted from the May 7, 2004 hearing. First, we find that Derbes’ assignment of error number one, pertaining to the trial court’s denial of his motion for a continuance, is not properly before this Court on appeal. Further, we find no abuse of discretion in the trial court’s award of attorney’s fees and costs, and no error in the trial court’s sentence of 30 days for Derbes’ contempt.

Derbes’ assignment of error number one asserts that the trial court erred in refusing to continue the May 7, 2004 hearing. The trial court orally denied Derbes’ motion to continue the May 7, 2004 hearing, on the day of the hearing. The trial court includes this denial in its written judgment dated June 10, 2004. On July 12, 2004, Derbes filed supervisory writs with this Court seeking review of the trial court’s findings. On July 26, 2004, this Court denied the writ finding no abuse of the trial court’s discretion. The issue as to whether or not the trial court had abused its discretion in denying Derbes’ motion for continuance of the May 7, 2004 hearing was addressed in that writ application. Therefore, this Court has previously ruled on this matter. In addition, this is not an appealable issue. The denial of a motion for a continuance is an interlocutory judgment and is not appealable. Derbes took the appropriate action and filed a writ application with this Court regarding the denial of his motion for a continuance, and other issues. So, we will not address Derbes’ assignment of error number one regarding the trial court’s denial of the request for a continuance on appeal.

Next, we find the trial court did not abuse its discretion in awarding Finn attorney’s fees and costs in the amount of $51,662.00. LSA-R.S. 9:375 provides that a trial court shall, except for good cause shown, award attorney’s fees and |incosts to the prevailing party, when rendering a judgment making past due child support executory. The amount of attorney’s fees is within the sound discretion of the trial court. Burnette v. Burnette, 98-0498 (La.App. 4 Cir. 10/21/98), 720 So.2d 757, 763.

In this case, Finn’s counsel provided the trial court with an affidavit, billing statement, and summary of fees and costs. Finn has pursued this child support claim against Derbes since 1995, when the California judgment was entered. She has actively pursued this child support claim against Derbes here in Louisiana since 2002. She has been forced to file many motions to compel in order to get Derbes to answer simple discovery requests concerning his income and employment situation, even after he requested a decrease in his child support obligation. Derbes also prolonged this matter by filing many motions to continue and not making himself available for hearings here in Louisiana. Therefore, Finn was justified in seeking the advice of counsel and in filing the necessary motions to actively pursue this claim. The trial court had an in depth knowledge of this case, including the fact that Derbes had never personally appeared before the court in this matter. The trial court also reviewed the billing statements of Finn’s counsel before deciding on the amount of attorney’s fees to award. The trial court even chose to exclude $1,590.00 as non-reimbursable. Derbes presented no evidence to the trial court to dispute these statements or fees. Therefore, we find the trial court did not abuse its discretion in awarding $51,662.00 in attorney’s fees and costs.

Finally, we find the trial court did not err in imposing a thirty day jail sentence on Derbes for his contempt of the previous orders to pay child support. As of May 7, 2004, Derbes owed $66,171.00 in arrearages under the 1995 California judgment and the August 2002 judgment of the Louisiana court. Derbes had made no attempt to pay his child support obligation. Derbes did not respond to In discovery requests and was not forthcoming in sharing information with his ex-wife regarding his income.

La. C.C.P. art. 224(2) provides that the willful disobedience of a lawful judgment or order constitutes constructive contempt. Derbes was willful in his failure to pay child support as ordered. LSA-R.S. 13:4611(l)(d) provides that a person found in contempt of an order to pay child support may be punished by a fine of up to five hundred dollars and a term of imprisonment for up to three months or both.

We find the trial court was justified in ordering Derbes to pay the five hundred dollar fine and ordering the 30 day jail sentence for his obvious disregard of his obligation to his child. The trial court fairly allowed him sixty days following the judgment to pay a $500.00 fine and to make a substantial payment towards his child support obligation in order to be relieved of the jail sentence. On appeal, Derbes argues the trial court was too vague in its provision that he must make a “substantial” payment in order to be relieved of the jail sentence. He argues that he has no way of knowing what a “substantial” payment would be. We find that argument is irrelevant and premature. If Derbes pays the fine and makes any payment towards his child support obligation within sixty days following the judgment, he may request that the trial court relieve him of the jail sentence. At that time the trial court will make a determination of whether or not the payment is substantial.

Accordingly, we affirm the trial court’s judgments of June 10, 2004 and August 24, 2004, awarding Finn attorney’s fees and costs in the amount of $51,662.02, plus interest, and ordering Derbes to serve thirty days in jail.

AFFIRMED.

      . For ease of clarification, we will refer to Jeanmarie Finn Derbes by her maiden name of "Finn”.


author: THOMAS F. DALEY, Judge.

text:
    Wilfred MITCHELL v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 06-CA-226.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.
    Robert M. Becnel, Diane K. Zink, La-Place, Louisiana, for Plaintiff/Appellee.
    Stephen C. Resor, Michael M. Meunier, Jonathan Rosenberg, Sullivan, Stolier & Resor, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKS HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

12Pefendant, Kaiser Aluminum & Chemical Corporation, appeals a judgment against it finding that Kaiser failed to pay a workers’ compensation lump sum settlement to plaintiff, Wilfred Mitchell, within the time period prescribed in LSA-R.S. 23:1201(G). The judgment awarded statutory penalties and attorney’s fees against Kaiser.

On appeal, Kaiser argues that the delay in paying the settlement was directly a result of the disruptions caused by Hurricanes Katrina and Rita, and thus, was beyond Kaiser’s control. Further, Kaiser argues that the statutory time period to pay the settlement was suspended by Governor Blanco’s Executive Order KBB 2005-32 and as extended by KBB 2005-48, and they should not be cast with penalties and attorney’s fees.

In oral reasons given in open court, the trial court found that the fault in the delayed payment lay, not with Kaiser or defense counsel, but with the “people handling the payment schedule,” who were not located in Louisiana and were not adversely affected by the hurricanes.

| ¡¿Plaintiff argues on appeal that Broad-spire, Kaiser’s insurer and adjustor, is located in Illinois, and thus, was not affected or disrupted by the hurricanes, and thus, the delay in the settlement’s payment was not out of Kaiser’s control. Alternatively, they argue that the Executive Order does not apply to Broadspire, since it is not located in the affected parishes of Louisiana. And they further argue that the Executive Order was not designed to protect entities like Broadspire from “passing bad checks.”

The facts show that Mitchell and Kaiser entered into a settlement of his workers’ compensation claim on August 22, 2005 for $20,000.00. As related by defendant’s brief and attachments thereto, on August 25, 2005, Kaiser’s adjustor at Broadspire Claim Service, Daniel Lemon, mailed the settlement check to Mr. Resor, counsel for Kaiser, to Resor’s New Orleans office.

On August 29, 2005, Hurricane Katrina hit the New Orleans area, causing Mr. Resor’s office to evacuate and relocate to Lafayette, Louisiana, and further causing well-known destruction and disruptions in all basic services, including the mail. Further, on September 24, Hurricane Rita hit southwest Louisiana, causing additional business and mail disruptions, which affected Mr. Resor’s temporary office in Lafayette.

Kaiser’s brief relates that in the first week of October, Mr. Resor telephoned Mr. Lemon to request a second settlement cheek for Mr. Mitchell, because Mr. Resor never received the first check in the mail. According to his affidavit, on October 6, 2005, Mr. Lemon sent a second check to Mr. Resor’s Lafayette office via the U.S. Mail. He also put a stop-payment order on the first check, according to his affidavit. His affidavit, however, does not state whether he told Mr. Resor of the stop payment. Mr. Resor denied knowing that a stop payment order had been 14placed on that first check. Coincidentally, also on October 6, Mr. Resor finally received the first settlement check in a batch of mail forwarded from his New Orleans office. He forwarded that first check to Mr. Bec-nel, counsel for Mr. Mitchell.

Mr. Becnel received the check and deposited it into his office trust account, and on October 13th, Mr. Mitchell signed the settlement and release agreement. Mr. Becnel’s bank advised him that the check could not be negotiated due to the stop payment order. Mr. Resor’s brief states that Mr. Becnel called him on October 24th to advise him that the check had been returned. Meanwhile, the second check, mailed on October 6 to Mr. Resor’s Lafayette office, never arrived and has never been located.

On November 14, 2005, counsel for Mitchell filed a Motion and Order to Enforce Lump Sum Settlement Agreement and Assess Penalties and Attorney Fees Pursuant to LA. R.S. 23:1201(G). On November 16, 2005, Mr. Lemon’s affidavit states that he sent a third settlement check directly to Mr. Mitchell via Federal Express overnight mail, which, according to the tracking information, Mr. Mitchell received on November 17, 2005.

After receiving opposition from Kaiser, the motion was argued on December 12, 2005, and a written judgment was rendered in favor of Mitchell on December 19, 2005. Kaiser filed a Motion for Reconsideration, which was denied. Thereafter, Kaiser perfected this appeal.

LSA-R.S. 23:1201(G) states:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment | ^results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

Kaiser’s counsel argues that the settlement payment was delayed because of disruptions to his office and to the U.S. Mail caused by Hurricanes Katrina and Rita. He argues that Executive Orders KBB-2005-32 and KBB-2005-48 apply specifically to this case. KBB-2005-32 and 48 are reproduced as follows:

EXECUTIVE ORDER NO. KBB 2005-32
EMERGENCY SUSPENSION OF PRESCRIPTION, PEREMPTION AND OTHER LEGAL DEADLINES
“WHEREAS, the Louisiana Homeland Security and Emergency Assistance and Disaster Act, R.S. 29:721, et seq., confers upon the governor of the state of Louisiana emergency powers to deal with emergencies and disasters, including those caused by fire, flood, earthquake or other nature or man-made causes;
“WHEREAS, Hurricane Katrina struck the state of Louisiana causing severe flooding and damage to the southeastern part of the state, which has threatened the safety and security of the citizens in the affected areas, along with private property and public facilities;
“WHEREAS, pursuant to Proclamation No. 48 KBB 2005, a state of emergency was declared for the entire state and is currently in effect;
“WHEREAS, as a direct consequence of the disaster and evacuation, attorneys throughout the state have clients whom they cannot contact due to the client’s evacuation outside of their home parishes and in many cases, outside the state of Louisiana;
“WHEREAS, similarly, there are clients who can not contact their counsel due to counsel’s evacuation as well as the extreme challenges to communication networks resulting from the hurricane and subsequent flooding;
‘WHEREAS, in addition, attorneys from areas affected by Hurricane Katrina have clients and cases in parishes not directly affected by this extreme disaster, but because the attorney’s office is either destroyed or not accessible, the attorney is not reasonably able to timely file claims or responses on behalf of their clients;
|fi“WHEREAS, La. Constitution Art. I, Section 22 provides that all courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights;
“WHEREAS, Hurricane Katrina has also rendered several of the court houses temporarily inoperable and/or not fit for occupancy;
“WHEREAS, the destruction and disruption of services and infrastructure to our system of justice caused by Hurricane Katrina will have a profound impact on the basic rights to an untold number of persons unless action is taken to suspend the effects of the tolling of legal delays during the period of this emergency; and
‘WHEREAS, the Louisiana State Bar Association, the Louisiana Trial Lawyers Association, and the Louisiana Association of Defense Counsel jointly requested the governor to suspend all deadlines applicable to legal proceedings, including prescription and peremption, in all Louisiana state courts, administrative agencies and boards;
“NOW THEREFORE I, KATHLEEN BABINEAUX BLANCO, Governor of the state of Louisiana, by virtue of the authority vested by the Constitution and laws of the state of Louisiana, do hereby order and direct as follows:
“SECTION 1: All deadlines in legal proceedings, including liberative prescriptive and peremptive periods in all courts, administrative agencies, and boards are hereby suspended until at least September 25, 2005, including, but not limited to, any such deadlines set for in the following:
“A. Louisiana Civil Code;
“B. Louisiana Code of Civil Procedure;
“C. La. R.S. Title 9, Civil Code An-eillaries;
“D. La. R.S. Title 13, Courts and Judicial Procedure;
“E. La. R.S. Title 23, Chapter 10, Worker’s Compensation;
“F. La. R.S. Title 40, Chapter 5 Part XXI-A, Malpractice Liability for State Services; and
“G. La. R.S. Title 40, Chapter 5, Part XXIII, Medical Malpractice.
“SECTION 2: This Order is effective upon signature and shall apply retroactively from Monday, August 29, 2005, through Sunday, September 25, 2005, unless amended, modified, terminated, or rescinded by the governor, or terminated by operation of law prior to such time.
|7“IN WITNESS WHEREOF, I have set my hand officially and caused to be affixed the Great Seal of Louisiana, at the Capitol, in the city of Baton Rouge, on the 6th day of September, 2005.
“/S/Kathleen Babineaux Blanco
“GOVERNOR OF LOUISIANA
“ATTEST BY
“THE GOVERNOR
7S/A1 Ater
“SECRETARY OF STATE”
(Emphasis added.)
EXECUTIVE ORDER NO. KBB 2005-48
EXTENSION OF EXECUTIVE ORDER NO. KBB 2005-32
EMERGENCY SUSPENSION OF PRESCRIPTION, PEREMPTION AND OTHER LEGAL DEADLINES
WHEREAS, Executive Order No. KBB 2005-32, issued on September 6, 2005, suspended all deadlines applicable to legal proceedings, including prescription and peremption, in all Louisiana state courts, administrative agencies and boards;
“WHEREAS, Executive Order No. KBB 2005-32 is in effect until September 25, 2005; and
“WHEREAS, the Louisiana State Bar Association, the Louisiana Trial Lawyers Association, and the Louisiana Association of Defense Counsel jointly requested that Executive Order No.2005— 32 be extended for an additional thirty (30) days;
“NOW THEREFORE I, KATHLEEN BABINEAUX BLANCO, Governor of the state of Louisiana, by virtue of the authority vested by the Constitution and laws of the state of Louisiana, do hereby order and direct as follows:
“SECTION 1: Section 1 of Executive Order No. KBB 2005-32, issued on September 6, 2005, is amended as follows:
“A. All deadlines in legal proceedings, including liberative prescriptive and peremptive periods in all courts, administrative agencies, and boards are hereby suspended until at least October 25, 2005, including, but not limited to, non-constitutionally mandated deadlines in criminal proceedings and any such deadlines set for in the folloiving:
“1. Louisiana Civil Code;
“2. Louisiana Code of Civil Procedure;
“3. R.S. Title 9, Civil Code Ancillaries;
“4. La. R.S. Title 13, Courts and Judicial Procedure;
|s“5. La. R.S. Title 23, Chapter 10, Workers Compensation;
“6. La. R.S. Title 40, Chapter 5 Part XXI-A, Malpractice Liability for State Services; and
“7. La. R.S. Title 40, Chapter 5, Part XXIII, Medical Malpractice.
“B. The suspension of laws as provided in Subsection 1(A) of this Executive Order shall apply statewide and in all matters, except to the extent that the suspension of deadlines in legal proceedings may hereafter be shortened or lifted, in whole or in part, by an order issued by the Louisiana Supreme Court acting in accordance with the power vested pursuant to Article V of the Constitution.
“SECTION 2: This Order is effective upon signature and shall remain in effect until Tuesday, October 25, 2005, unless amended, modified, terminated, or rescinded by the governor, or terminated by operation of law prior to such time.
“IN WITNESS WHEREOF, I have set my hand officially and caused to be affixed the Great Seal of Louisiana, at the Capitol, in the city of Baton Rouge, on this 23rd day of September, 2005.
“/S/Kathleen Babineaux Blanco
“GOVERNOR OF LOUISIANA
“ATTEST BY
“THE GOVERNOR
(Emphasis added.)

Counsel for Kaiser, Mr. Resor, stated in his pleadings and at the hearing on this matter that prior to Hurricane Katrina, his office was located in downtown New Orleans, and that as a direct result of the effects of Katrina, he was forced to evacuate both his home and office, which was relocated to Lafayette, Louisiana. He further stated that he was prevented from visiting his New Orleans office for approximately eight weeks. Further, he noted that mail service in south Louisiana was severely disrupted by the hurricanes, a fact noted in the Governor’s three Executive Orders. The severe impact of the hurricanes on basic services and mail is well and widely known and this Court takes judicial notice of such fact.

The effect of these three Executive Orders on legal deadlines in court and administrative proceedings is one of first impression in this Court, as our research |ghas failed to show any other cases as of this time that apply or interpret the Executive Orders.

The trial court found that there was no fault on the part of Kaiser or Mr. Resor, but because Broadspire was located in Illinois, they were not adversely affected by the hurricanes and the Executive Orders did not apply to them.

The Executive Orders make clear that all legal deadlines in the listed types of proceedings, which included workers’ compensation cases, were suspended until October 25, 2005. The suspension of deadlines is without condition or qualification. The Executive Orders clearly apply to proceedings, not parties. The Orders make no reference to particular parties or fault of parties, or the location of other interested persons, as a condition for their applicability.

This settlement was reached on August 22, 2005. Normally, the 30 day deadline in which to pay the settlement, found in LSA-R.S. 23:1201(G), would have given Kaiser until September 21, 2005 to pay the settlement to Mitchell. The Order suspended that deadline until November 17, 2005 (on August 29, 2005, the day Katrina struck, 7 of the 30 days had already passed, leaving 23 days remaining. 23 days past October 25th is November 18, 2005). November 17th is when Mitchell received the third check. Under the time limits in LSA-R.S. 23:1201(G), as suspended by the Executive Orders, the settlement was paid timely.

The trial judge was clearly in error when he refused to recognize the suspension in this proceeding because the adjustor was located out of state and presumably not affected by the hurricanes. The Executive Orders recognize that it is the legal proceedings in this state that were disrupted by the hurricane, and thus, |inthe suspension operates in favor of the proceedings, not the individual parties or interested persons. Therefore, it is irrelevant that Broadspire, who is not a party to this suit, was located in an area not physically affected by the hurricanes.

Since Mr. Mitchell received his check on or about November 17th, and the deadline in this case was suspended until November 18th, the settlement was not paid “late” under LSA-R.S. 23:1201(G). Therefore, the trial court clearly erred in reaching the issue of fault (whether the settlement was paid late due to “conditions over which the employer had no control,” as per LSA-R.S. 23:1201(G)). Only if the settlement had been paid after the expiration of the suspended deadline would such a determination be required by LSA-R.S. 23:1201(G).

Accordingly, we find that the trial court clearly erred in its ruling. Kaiser is not liable to plaintiff for penalties and attorney fees under LSA-R.S. 23:1201(G), and reverse the judgment of the trial court.

REVERSED.

      . Mr. Lemon executed his affidavit in Dallas County, State of Texas.

      . The legislature has ratified the Governor’s Executive Orders in LSA-R.S. 9:5821 et seq.

      . As of September 14, 2006, research shows only three cases that mention these executive orders: State v. All Property and Cas. Ins. Carriers, 2006-2030, 937 So.2d 313 (La.8/25/06), State v. Schnyder, 06-29, 937 So.2d 396(La.App. 5 Cir. 6/28/06), and McCorvey v. McCorvey, 05-2577 (La.3/10/06), 923 So.2d 638, but these cases fail to give this Court much guidance in this matter.

      . On October 3, 2005, the Supreme Court issued a Resolution that set forth procedures to allow the lifting of the suspension of deadlines on a case by case basis. None of those procedures were employed in this case, so the suspension of deadlines remained in place until October 25, 2005.