author: EZELL, Judge. COOKS, J.,

text:
    Eric RETRY v. Sid HEBERT, Sheriff, et al.
    No. CA 2006-1447.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Rehearing Denied June 20, 2007.

      Eric Petry, Basile, LA, pro se.
    Robin Jones, Oates & Hudson, Lafayette, LA, for Defendant/Appellee.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|TIn this matter, Eric Petry appeals the judgment of the trial court dismissing his lawsuit on an exception of prescription. The trial court also awarded $100 in attorney fees to the Defendant, Sheriff Sidney J. Hebert. For the following reasons, we affirm the decision of the trial court in part and reverse in part.

Mr. Petry claims that on December 8, 2004, his home was unlawfully searched without a warrant. He filed this suit on April 6, 2006, claiming that the search violated his constitutional rights to privacy and against unlawful searches and seizures. The Defendant subsequently filed exceptions of no cause of action, prescription, and vagueness. The Defendant also filed a motion to strike Mr. Petry’s claim for a specific monetary amount of damages and requested $750 in attorney fees for costs associated with defending the suit.

The trial court ruled in favor of the Defendant, granting his exception of prescription. The trial court also awarded Defendant $100 in attorney fees to cover the costs of bringing the motion to strike. Mr. Petry appeals, asserting three assignments of error. He claims the trial court erred in finding his suit had prescribed, in awarding attorney fees to the Defendant, and in not allowing him adequate time to explain his argument. While this court feels that the judgment granting the exception of prescription should be affirmed, we agree with Mr. Petry that the award of attorney fees should be reversed.

Mr. Petry first claims that the trial court erred in finding his suit had prescribed. We disagree. Ordinarily, when dealing with prescription, the burden of proof is on the party pleading prescription; however, when the plaintiffs petition has clearly prescribed on its face, as it has here, the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted. Younger v. Marshall Ind., Inc., 618 2So.2d 866 (La.1993). Del-ictual actions are subject to a prescriptive period of one year commencing from the date that the injury or damage is sustained. La.Civ.Code art. 3492. Prescription may be interrupted by the commencement of an action against the obligor. La. Civ.Code. art. 3462.

Mr. Petry knew that his house was searched on December 8, 2004. He had until December 8, 2005, to file his claim. His suit is prescribed on its face. Accordingly, the burden of proof shifts to him to show interruption or suspension. While he offers speculation and conjecture as to the legality of the search and the reasons he did not know of the allegedly warrant-less entry, we fail to find support in the record for his claims. The record contains no documentation or proof whatsoever which would lead to a conclusion that Defendant prevented Mr. Petry from filing suit in a timely fashion. Simply put, he could not have met his burden of proof that the suit was not prescribed, as he offered no proof of anything at all. Accordingly, the decision of the trial court relating to the issue of prescription should be affirmed.

We do, however, agree with Mr. Petry that the award of attorney fees for the cost of bringing the motion to strike should be reversed. Louisiana Code of Civil Procedure Article 893(A)(1) provides that “[n]o specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand.” If a petition is filed in violation of this article, the trial court may award attorney fees and costs against the party who filed the petition. Mr. Petry claims that he listed a specific amount of damages simply to establish the need for a jury trial as provide for in La.Code Civ.P. art. 893(A)(1). That article states that if a specific amount of damages is necessary to establish the right to a trial by jury, “a general allegation that the claim exceeds or is less than the requisite amount is required.” While Mr. Pe-try’s prayer for a specific amount of damages may | shave been more detailed than the “general allegation” required by La. Code Civ.P. art. 893(A)(1), we find that he did not willfully violate the article. Therefore, we reverse the trial court’s $100.00 award of attorney fees to the Defendant.

Finally, Mr. Petry claims that the trial court erred in failing to allow him adequate time to explain his argument regarding prescription. We disagree. A review of the brief record in this matter reveals that the trial court interrupted Mr. Petry only once, and that occurred only when he began to speak about aspects of his criminal case, which are irrelevant. Mr. Petry was allowed as much time for argument as the Defendant. In fact, Mr. Petry’s argument was five transcript lines longer than the Defendant’s. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, writ denied, 03-853 (La.10/3/03), 855 So.2d 308. We find that the trial court did not abuse its discretion in taking evidence or hearing the arguments. This assignment of error is without merit.

For the above reasons, the decision of the trial court is hereby affirmed in part and reversed in part. Costs of this appeal are to be split equally amongst the parties.

AFFIRMED IN PART; REVERSED IN PART.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

LI respectfully dissent from the majority opinion dismissing Eric Petry’s lawsuit on an exception of prescription. Mr. Petry’s petition alleges two separate and distinct causes of action: (1) damages for a war-rantless search of his home; and (2) damages for malicious prosecution and defamation. With regard to the first claim, the trial court simply found Mr. Petry’s claim prescribed on the face of the petition without considering his assertion that his attorney, on several occasions through discovery, attempted to obtain information from the State as to whether a warrant existed. This assertion by Mr. Petry was enough proof to shift the burden of proof to the State to establish Mr. Petry had knowledge of the facts giving rise to the complaint within the prescriptive period. The record indicates the trial court did not consider Mr. Petry’s assertions. The following colloquy occurred between Mr. Pe-try and the trial court at the hearing on July 18, 2006.

THE COURT:
Mr. Petry, talk to me about the Prescription claim.
MR. PETRY:
The Prescription claim, I was arrested December 8th, 2002. I had no knowledge that Iberia Parish had searched my home without a warrant or that Vermillion Parish had searched my home without a warrant. I hired an attorney, Mr. Alfred Boustany, to represent me on that. For the last year and a half, Vermillion Parish has not complied with Discovery. My attorney never had knowledge that they did not have a warrant, until recently 12when they gave him Discovery, he realized there was no warrant, which gave me grounds that’s when he first had knowledge it was an illegal search. Because if they had a warrant it was not illegal. But they did not. This is all the amended petitions by Mr. Boustany for suppression. The search is under suppression in Vermillion Parish as well as St. Martin Parish. There is a special date on next month, on the 23rd, for search and seizure—
THE COURT:
Motion to Suppress, right?
MR. PETRY:
Yes, Ma’am.
THE COURT:
That’s within your legal right to file, as a criminal defendant, when you are charged with anything. With regards to the civil matter, sir, and whether the prescription period has prescribed, I find that it has. I find no good cause to extend that.

The majority affirms the decision of the trial court and finds since suit was prescribed on its face, the burden was on Mr. Petry to show interruption or suspension of prescription. I respectfully submit Mr. Petry did come forward with information which indicated he was prevented or unable to discover information regarding the search. The jurisprudential doctrine of contra non valentum recognizes that “in some circumstances, equity and justice require that the prescription ‘be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.’ ” Touchet v. Baker Hughes, Inc., 98-749, p. 5 (La.App. 3 Cir. 2/3/99), 737 So.2d 821, 824 (quoting Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206). Prescription will not run against a person who is unable to act or file suit. Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960. Under Louisiana law, the doctrine of contra non valentum halts the running of prescription when the circumstances of the case fall into one of the four categories:(l) when courts are legally closed; (2) when administrative or contractual restraints |sdelay the plaintiffs action; (3) when the defendant prevents the plaintiff from bringing suit; and (4) when the plaintiff does not know nor reasonably should know of the cause of action. Stevens v. Bruce, 04-133 (La.App. 3 Cir. 6/2/04), 878 So.2d 734, (quoting In re Med. Review Panel Proceeding Vaidyanathan, 98-289 (La.App. 4 Cir. 9/23/98), 719 So.2d 604, writ denied, 98-2674 (La.12/18/98), 732 So.2d 1238. The principles of contra non valentum do not halt the running of prescription “if the plaintiffs ignorance is the result of his own willfulness or neglect.” Matthews v. Sun Exploration & Prod. Co., 521 So.2d 1192, 1197 (La.App. 2 Cir.1988). That is, the plaintiff will be deemed to know what he could by “reasonable diligence” have learned. Id. Prescription does not begin to run at the first indication that the plaintiff may have suffered harm, but rather it begins to run “when plaintiff has reasonable basis to pursue claim against specific defendant.” Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987). The heart of the inquiry focuses on the reasonableness of a plaintiffs action or inaction.

I find that the facts of this case fall squarely under the fourth category of contra non valentum. This category, often referred to as the “discovery rule,” suspends prescription where a plaintiff neither knew he had a cause of action nor could have learned of it through reasonable diligence. Despite numerous prior attempts, through discovery in a pending criminal proceeding, Plaintiff alleges he did not discover until January of 2006 that the search of his residence on December 8, 2004 was without a warrant. He states in December of 2005, his attorney “gained newly discovered evidence that alleges a violation of Plaintiffs federal and State Constitutional rights.” On December 21, 2005, pursuant to the discovery of this material, Plaintiffs attorney filed a Motion to Suppress in the various criminal proceedings arising out of the allegedly illegal search. Plaintiff contends, in January |4of 2006, his attorney sent him a copy of this “newly discovered evidence which proved and gave the plaintiff knowledge for the first time that the search conducted upon his home by the Vermillion Parish Sheriff Dept, [and] Iberia Parish Sheriff Dept, was indeed unlawful and without a warrant.” Plaintiff filed a civil suit in Evangeline Parish on April 6, 2006. Plaintiff, who was representing himself, “gained knowledge that his petition was in the wrong venue and dismissed his action in Evangeline Parish.” On May 18, 2006, Plaintiff filed the present civil suit in Iberia Parish.

I respectfully disagree with the majority opinion finding Mr. Petry’s failure to file a law suit for his alleged injuries within one year of the incident in question automatically prevents him from instituting the present action. Once Mr. Petry came forward with evidence supporting his position the burden of proof shifted to the State to prove he had or should have had knowledge of the facts giving rise to the claim at an earlier time. The State presented no evidence to dispute Plaintiffs allegations that he did not learn of the State’s lack of a warrant to search his residence until January of 2006, and that his lack of knowledge was not the result of his own willfulness or neglect.

The second cause of action for malicious prosecution and defamation asserted by Mr. Petry was also dismissed without consideration by the trial court. Mr. Petry alleges he was never convicted on the charge for which he was arrested in December 2004. It is well established that a cause of action for damages for malicious prosecution does not arise until the termination of the prosecution. A dismissal of prosecution or an abandonment by the district attorney is considered a termination of the proceedings in favor of the claimant for purposes of having a cause of action for malicious prosecution. Engrum v. Boise Southern Company, 512 So.2d 5594 (La. App. 3 Cir.1987). Mr. Petry had one year in which to file suit from the time of dismissal or abandonment.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Laura Kaye Landsburg STEINEBACH v. William Jacob STEINEBACH, IV.
    No. 2007-38.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Elvin Clemence Fontenot, Jr., Leesville, LA, for Plaintiff/Appellant — Laura Kaye Landsburg Steinebach.
    Charles Overton LaCroix, LaCroix, Levy & Barnett, Alexandria, LA, for Defendant/Appellee — William Jacob Steine-bach, IV.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

|, This case involves custody, visitation, and child support issues between the plaintiff-appellant, Laura Steinebach (now Clark) and the defendant-appellee, William Steinebach, IV. Following a five-day trial in 2005, the trial court issued a judgment awarding joint custody of the minor child to both parties, with domiciliary custody in favor of Laura and visitation in favor of William. The judgment ordered William to pay child support in the amount of $100.00 per month. Pursuant to motions for a new trial filed by both parties, the trial court modified the child support award by ordering William to also pay travel expenses associated with out-of-state visitation, but awarded him the use of the tax credit for dependent children. Both parties appealed. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court abused its discretion in awarding domiciliary custody to Laura Steinebach, and in denying a new trial to William on this issue;
(2) whether the trial court abused its discretion in the amount of visitation awarded to William Steinebach;
(3) whether the trial court erred in determining the child support obligation of William Steinebach; and
(4) whether the trial court erred in awarding the federal tax credit to William Steinebach.

II.

FACTS AND PROCEDURAL HISTORY

Laura and William Steinebach met in November of 2001 in Germany, where William was stationed with the Air Force, and where Laura was stationed with her first husband, whom she was in the process of divorcing. Laura and William |2returned to the United States in 2002, lived together for awhile, and were married in DeRidder, Louisiana, in May of 2003. William was still in the Air Force and stationed at Fort Polk, which is an Army base that also houses Air Force personnel. The marriage was difficult from the beginning, as both parties had somewhat volatile tempers, and the couple fought bitterly on their wedding day. Six months later, in November 2003, a son was born to Laura and William. Difficulties escalated into a physical altercation in January of 2004, and, after efforts at reconciliation failed, the couple separated in June of 2004. Laura filed for divorce in Vernon Parish less than three weeks later, and apparently William also attempted to file at the same time in Florida while visiting his parents. The divorce was final in June of 2005.

As part of the divorce proceedings, the couple worked out an equal sharing custody arrangement wherein they each cared for the child every other week. Laura continued to live in the government housing unit they had shared, while William moved to the barracks, then a hotel, then an apartment, in order to share custody of the child. During the separation, the parties accused each other of alcohol abuse and child neglect and involved the Air Force and various child protection services in their ongoing battles. However, no neglect was found. Laura also made accusations of non-support, as the only cash that she received from William, up until the January 2006 judgment, was one payment of $100.00 which he made in July of 2004 shortly after their separation. William was ordered to take food and diapers to Laura on a few occasions, which the Air Force considered “support in kind.” Laura is hearing impaired, and, as she was not employed, except briefly at the beginning of the pregnancy, the only income she had was her disability benefit of $423.00 per month. Both parties received assistance from both sets of grandparents as a result of the economic problems that the couple had during and after the marriage.

lain November of 2004, the court appointed Dr. John C. Simoneaux to evaluate the parties and make recommendations regarding custody. Dr. Simoneaux opined that both parents appeared capable of providing the child with love and care but pointed out that both are dependent on their own parents, and stated that it was hard for him to make recommendations without talking to the grandparents as well. Notwithstanding, he ultimately recommended William as being the more stable of the two based upon psychological testing.

At the end of December 2004, William obtained a discharge from the Air Force and moved to Florida where his parents lived. Laura left the government housing unit, obtained an apartment and remained in Louisiana. In January 2005, these parents entered into an equal sharing arrangement wherein the child stayed for three weeks with each parent. William was ordered to pay the transportation costs associated with the exchange, pending the custody and child support hearing scheduled for April 2005. However, there was no interim support established.

After a hotly contested trial, the court awarded the parties joint custody of the minor child and named Laura as the domiciliary parent. The judgment further stated that until the child started kindergarten, William would have visitation at his home one month out of four, and the Thanksgiving holiday. Once the child started school, William would have visitation for five weeks in the summer, and every other holiday period, as recognized by the child’s school system, for Thanksgiving, Christmas, New Year’s, and Easter, alternating each year so that each parent could enjoy Christmas with the child every other year. The judgment further ordered William to pay $100.00 per month in child support and one-half of the child’s medical insurance policy cost and one-half of the medical bills remaining after all insurance payments had been applied.

_kin.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). This is especially applicable in a child custody dispute wherein appellate courts accord substantial deference to the trial judge’s conclusions. “The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse.” Deason v. Deason, 99-1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (citations omitted). Both the Louisiana Legislature and the Louisiana Supreme Court have made it abundantly clear that the primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child. See Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731.

Domiciliary Custody

At trial each party presented evidence of the other’s negative drinking habits, erratic behavior, and uncontrolled temper tantrums. The most pivotal event occurred in late January of 2004, a couple of months after the baby was born. The couple began an argument which ended with William pinning Laura to the wall, Laura spitting on William, and William striking Laura about the face and head, resulting in significant facial bruising. Laura reported the incident, and thus began months of involvement with the Family Advocacy Program at Fort Polk, with various child protection and social service organizations, with marital counseling and anger management programs. The precipitating event was subsequently substantiated, after | Bmvestigation, as “moderate physical spouse abuse” with William as the offender and Laura as the victim. William was reprimanded, and his Air Force record documented.

Subsequently, while Laura remained in the government housing unit, e-mails between Cassandra Bagwell of Fort Polk’s Family Advocacy Program, and William’s commander, Gary “Mad Dog” Ducote, Lt. Col., USAF, indicate ongoing struggles over exchanging the child for visitation, with each accusing the other of deviation from the agreement. William reportedly issued subtle threats to Laura, and his part-time job at a bar became an issue while he was being assessed for a possible alcohol problem. Additionally, the record reveals that William received a letter of counseling for drinking while operating an ATV and dirt bike in March 2004. Likewise, William asserts that Laura was previously counseled about her drinking in Germany.

One e-mail from Ms. Bagwell reported that someone vandalized Laura’s Jeep, wrote “bitch” with shoe polish across the windshield, and slashed the Jeep’s windows with a sharp object. Ten days later, the commander conducted an unannounced inspection of Laura’s house and documented “deplorable” conditions with evidence of parties and above-normal alcohol consumption. Testimony indicated that this inspection had indeed occurred the morning after a barbeque with neighbors. Inspections by Family Advocacy found no substandard living conditions. The e-mails from Ms. Bagwell document her frustration at not being able to get the Air Force to cooperate in getting funds from William for child support or even sufficient food and supplies for the baby. One e-mail reported that William had tried to “strike a deal” with Laura’s dad wherein the dad would provide the support instead of William. In the meantime, the e-mails of William’s Air Force commander ] ^documented his distrust of Laura, indicating that she was affecting William’s relationship with his superiors and that she needed to get off the base.

With regard to the vandalized Jeep, we note that Ms. Bagwell did not indicate that William himself had vandalized the Jeep, but, due to escalating events, she suggested that future custody exchanges should be done with an escort, and “preferably someone who is not a buddy of Airman Steinbach.” We further note that a serviceman neighbor of Laura’s, Private Travis Thompson, who exchanged vehicles with her on occasion because hers was unreliable, testified at trial that her Jeep’s gas tank had sugar poured into it. Private Thompson was later confronted by William for driving the couple’s Jeep.

The record also contains testimony of a pastor’s sister, Nelwyn Moore, who was a member of the church helping Laura with food and supplies. She testified to receiving a rude visit from William late at night regarding property in her yard that he claimed was stolen from him. Laura’s parents, both of whom are educators, also testified at trial. Laura’s father, David Landsburg, testified to events wherein William lost his temper in their presence. He heard William curse Laura loudly during an argument in front of the child, using the “f” word in every context possible, as an adjective, noun, verb, and adverb. Mr. Landsburg also recalled a family event on a lake wherein William let out a primal scream and jumped in the lake in frustration when he could not properly dock two boats together. Likewise, the trial judge heard William’s parents and friends testify regarding Laura’s drinking and emotional outbursts, as well as a perceived deficient care of the minor child. Witnesses testifying on behalf of Laura testified that she took very good care of the baby and was a loving mother. In particular, Mrs. Nelwyn Moore, the church member, testified that she just loved Laura and the way she communicated with the baby, teaching him 17sign language, and further testified that Laura and the child were happy and affectionate and well-behaved.

In his detailed and well-thought-out Written Reasons regarding custody, the trial judge analyzed the factors in La.Civ. Code art. 134. He found Paragraph 7, regarding the mental and physical health of the parties, to be relevant and discussed the report of Dr. John Simoneaux, the court-appointed psychologist who evaluated the parties in 2004. Dr. Simoneaux reported that both parents appeared capable of providing their child with love and care but suggested, based purely on the psychological evaluation and available information at the time, that William was psychologically more stable and “possibly better able to provide for the child as the primary custodial parent.” However, the trial court noted that, in his March 2005 deposition, Dr. Simoneaux stated that William’s failure to provide support could affect his opinion. He subsequently opined that the effects of Laura’s significant hearing impairment must be factored in to all of the reports, possibly suggesting that the complaints may have a different import than would be the case if there were no hearing impairment.

The trial court then discussed the opinion of Dr. Nancy Eldredge, whose deposition was taken in April 2005 for the purpose of impeaching Dr. Simoneaux’s interpretation of Laura’s test results, particularly the MMPI-II test (Minnesota Multiphasic Personality Inventory-II). Dr. Eldredge opined that Dr. Simo-neaux’s interpretation of the test results could be misleading due to Laura’s hearing impairment. Dr. Simoneaux had agreed that this was possible but felt that her impairment did not affect the test results. The trial court then noted that some of Laura’s conduct was irrational, but it considered her testimony as credible that the trauma caused by the breakup of the marriage precipitated the conduct. Further, the |scourt noted that the family counselors corroborated Laura’s testimony that she did not want the divorce.

The trial court then discussed Paragraph 3 of La.Civ.Code art. 134, regarding the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs, stating as follows:

Will mistakenly took the position, which was endorsed by the USAF, that free housing and utilities provided by the Government fulfilled his obligation mandated by this paragraph. He gave Laura the sum total of $100 over the period from their separation in June '04 to the time of trial in August of '05. During this time, Laura relied upon her disability check of $435 [sic] per month, charity from a church, and support from her family and friends to provide herself and Jake with basic necessities and transportation.

The trial court next considered Paragraph 10 of Article 134 regarding the willingness and ability of each party to facilitate a close and continuing relationship between the child and the other party. He discussed Laura’s willingness to obtain an apartment and stay in Louisiana, rather than move to Arizona with her parents, after William moved to Florida and she had to leave the government housing in January 2004. The court cited her efforts to continue equal sharing of their son and to avoid the necessity of having to transport the child a greater distance from Arizona to Florida. The trial court found that Laura demonstrated “a decided willingness to encourage and facilitate a close and continuing relationship between [the child] and his father.” Accordingly, after considering all of the evidence, particularly William’s failure to provide financial support and Laura’s willingness to facilitate visitation, the trial court found that “it is more probable than not that it is in the best interests of the minor child that Mrs. Steinbach should be the primary domiciliary parent.”

The record suggests that it must have been difficult to award custody to either of these young parents. The trial judge reviewed the hundreds of pages of | aexhibits introduced at trial and also listened to live testimony for five days, which puts him in the better position to evaluate the evidence and to make credibility determinations. Based upon our review of the record and the reasons articulated above, we can find no manifest error or abuse of discretion in his decision to award domiciliary custody to Laura Steinebach.

With regard to William’s assertion that the trial court failed to follow Dr. Simo-neaux’s recommendation, we believe the trial judge clearly articulated his reasons for not doing so. Moreover, we note that Dr. Simoneaux expressed additional concerns that would qualify his recommendation, such as William’s work schedule, the couple’s reliance on their own parents, and the doctor’s inability to interview those grandparents. We also note that Dr. Si-moneaux’s final recommendation may have been influenced in part by written material that he received about Laura, possibly before he interviewed her on November 2, 2004.

More specifically, Dr. Simoneaux’s report indicates that he received a “long letter” dated November 1, 2004, the date of William’s interview, from William’s attorney, outlining numerous specific incidents of Laura’s objectionable behavior in detail. The letter called her conduct volatile and bizarre; it attached unfavorable emails and one letter, from a serviceman to William, describing Laura as a “pathological liar.” The letter from William’s attorney further provided editorial comments attacking Laura and painting William as the victim, basically arguing the defendant’s case to the psychologist. Dr. Simo-neaux specifically noted in his report that he received no such background information on William from Laura’s attorney. Additionally, much of William’s interview was spent accusing and criticizing Laura, covering three full pages of the report in fact, while only a few paragraphs were dedicated to his personal history. Thus, it appears that Dr. Simoneaux would have Imbeen hard-pressed to begin his interview of Laura without pre-conceived notions about her character. In spite of all of the scathing criticism, however, William did admit in the interview that Laura is a good mother.

By comparison, Laura’s interview was filled with positive information about William, that the pregnancy was unplanned, but William was very supportive. She described William’s excitement when their son was born and stated that he was a good father in the early months, helping when he could. She stated that it was difficult when he worked long hours, because she did not have the child monitor for the deaf, so that William had to keep waking up. Ultimately, her mom gave her the needed monitor. Laura admitted to having mood swings, postpartum depression, and outbursts. She stated that she tried to follow the advice of William’s parents who advised her to take antidepressants, which did not help. Laura described problems in the marriage mostly in terms of her problems with William’s parents and William’s problems with her parents. She did criticize him briefly for spending money on new vehicles, 4-wheel-er, etc., and for the final break-up when he left her at her parents’ house in Arkansas and drove to Florida.

In his report Dr. Simoneaux stated that William’s answers on the Minnesota Multi-phasic Personality Inventory — II (MMPI-II) yielded a somewhat guarded profile, meaning that he tried to give a “middle of the road” response set, responding to the items in a measured and emotionally cautious way. That is, his answers demonstrated emotional sophistication but at the same time an unwillingness to admit being knocked off balance by emotional problems, all of which could indicate a conscious attempt to distort the scores and make him appear psychologically healthier and more emotionally balanced than he really is. Dr. Simoneaux reported that Laura’s responses on the same test produced a clinically |nelevated profile, indicating a propensity to feel implied rejection or criticism and to jump to conclusions and focus on how she has been hurt , and how others are at fault.

Dr. Simoneaux stated that Laura’s answers reflect that she read the questions carefully and answered them honestly, and there was no evidence that she tried to distort the scores in any way. Accordingly, we conclude that the trial judge gave the appropriate weight to Dr. Simoneaux’s report and recommendation, and we find no manifest error or abuse of discretion in awarding joint custody to the parties with domiciliary custody to Laura, who had been the child’s primary caregiver for all of his young life.

NEW TRIAL

Following the trial of this matter in the Fall of 2005, William filed a motion for a new trial, seeking to have himself named as the domiciliary parent to the minor child. The trial court denied his motion, and William asserts on appeal that it was error to deny him a new trial on the issue of custody. The applicable law regarding entitlement to a new trial is found in La. Code Civ.P. arts. 1972 and 1973. Article 1972 provides that a new trial shall be granted (1) when the verdict or judgment appears clearly contrary to the law and evidence or (2) when a party discovers after trial important evidence that could not, with due diligence, have been obtained before or during the trial. La.Code Civ.P. art. 1972. Article 1973 provides that a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

William argued, pursuant to Article 1972, subpart (1), that the judgment awarding custody to Laura was contrary to the evidence adduced at trial because the report of the court-appointed psychologist, Dr. John Simoneaux, recommended William as the domiciliary parent. We have already addressed the report and [ ^recommendation of Dr. Simoneaux and determined that the trial judge did not abuse his discretion in his decision regarding the report and deposition of Dr. Simo-neaux. William also argued under La.Civ. Code art. 1972(2) that he discovered evidence after trial that is relative to the issue of custody, and that it was error not to grant him a new trial based upon this evidence.

More specifically, William attached pages of Laura’s “web blog” to his motion for a new trial, showing various entries made in January 2006. He argues that the entries show that Laura possibly had a relationship and sleep-overs with a Mr. Samuel Clark during the separation while she denied at trial that she was dating. He further argues that the evidence shows that Mr. Clark moved to Arkansas to live with Laura in October 2005, and he attaches an Arkansas news announcement as evidence that they purchased a marriage license around December 11, 2005. We note that both of these events occurred after the trial ended in September 2005, and that they do not prove the extent of the relationship at the time of trial. William also asserts that the blog entries indicate that Laura spent too much time on the internet when she should be caring for the minor child, and he asserts that they show her “intense hatred” of his parents based upon the fact that she accuses them of cyberstalking her by reading her blogs on-line.

In denying William’s motion for a new trial based upon this new evidence, the trial judge concluded that:

[T]he evidence referred to in defendant’s motion is evidence in the form of Internet statements which could have been used to impeach plaintiffs credibility at the trial. All of those statements occurred after trial, therefore, it is clear that defendant could not have discovered their existence before or during the trial because they simply did not exist at that time.
It is the Court’s opinion that statements by a witness made after trial which tends [sic] to contradict their 1 ^testimony at trial cannot properly be considered as the basis for granting a new trial unless such statements were made under oath. Even if they could be considered it is not clear that this could constitute evidence important to the cause.
Certain facts alluded to in the Internet postings did, however, exist prior to the trial, i.e., the extent of plaintiffs relationship with Mr. Clark. Be that as it may, these facts could have been obtainable by deposing Mr. Clark or subpoenaing him for trial.

Accordingly, William’s motion for a new trial was denied. We agree with the trial court’s reasoning on this issue. Witnesses were questioned about Mr. Clark and the possibility that he spent the night at Laura’s house. Therefore, William knew of Mr. Clark’s existence and could have subpoenaed him for trial. Testimony revealed that Samuel Clark was the grandson of Nelwyn Moore, with whom he was living when he and Laura became acquainted. Mrs. Moore and her brother, who was the pastor of the church that Laura went to and asked for help, were instrumental in providing food and supplies to Laura and the minor child when they were without support. Testimony further revealed that Mr. Clark’s mother, and his father, who was the son of Mrs. Moore, were both hearing impaired, and that Laura came to know Mr. Clark through his deaf parents.

Some of Laura’s web blog entries, that William attached as evidence to his motion for a new trial, comprise Laura’s “Abuse Story,” which is about William, and which contains the following excerpt:

[T]he harassment and the terror didn’t end when he moved, amazingly, he found time to come all the way to Louisiana (.... picking up his son, or dropping him off ... moving his stuff) and still bother me, and he still had some friends left, so he got them to help. Soon I had people shooting guns in my yard (quite possibly at my house, I found a bullet hole in my bedroom) throwing rocks thru my window, as well as the window to my son’s room. They would park across the street and watch my house; they would follow me around town. I soon became too afraid to |14stay in my house alone, so Mr. C [Clark] started sleeping on my couch, or my son and I would go to his place and sleep on his couch.... I was too terrified to go anywhere alone, someone was with me at all times.... I even had some one try to run me off the road 3 times. It was terrifying....

Based upon the foregoing, much of the evidence supplied by William, which he offers as proof of true events, tends to damage his case for custody rather than support it. However, as the trial court indicated, none of the statements in the blog were made under oath, and even if they could be considered, it is not clear that these statements constitute evidence important to the cause. Indeed, the evidence tends to paint a picture of Mr. Clark as a protector without proving an improper relationship. We further note the irony of William’s reference to Mr. Clark in his appellate brief as “this gentleman who apparently had been providing care for the child for almost a year.” Again, this reference reflects positively upon Mr. Clark as a caregiver and provider, and does nothing to further William’s argument that he himself should have been awarded domiciliary custody of the minor child. We find no error in the trial court’s denial of a new trial in favor of William on the issue of custody.

Visitation

Both parties contend that the trial court erred in implementing the visitation order. Laura argues that it was error to require the child to go from his home in Arkansas to visit with William in Florida for a month every three months, due to the disruption in the young child’s schedule, and because William lives with his parents, both of whom work full time, and that the child is placed in day care during the week while the household is at work. She asserts that the child’s contact with William need only be frequent and continuing under La.R.S. 9:335(A)(2)(a), and listhat the ordered visitation it is not feasible or in the best interest of the child under subpart (b). William asserts that it was error to force a father to be away from his son for three months at the time, and that the trial court gave no reasons for implementing this order where the parties had previously agreed to equal sharing, which is appropriate under La.R.S. 9:335(A)(2)(b).

With regard to William’s argument for equal sharing, given the distance between the parties, we find that it is not in the best interest of this young child to be away from his primary caregiver for a prolonged period of time. In Evans, 708 So.2d 731, the Louisiana Supreme Court determined that alternating, split physical custody every four months between the mother and the father living in different states was not in the best interest of a preschool child. The expert psychotherapist in that case opined that a transfer between the mother in Washington and the father in Louisiana could potentially be deleterious because the young child needed predictability, routine, and consistency. The expert stated that alternating split custody works in some rare cases in which the parties live close to each other. However, as the court noted, distance is a factor. Accordingly, given the factors of distance and the age of the child, we agree that equal sharing is not in the best interest of the minor child in this case.

In Evans, the expert opined that for a preschool child four days should be the maximum period of time that the child should go without some kind of 11fiface-to-face contact with the primary caretaker. However, in that case, the biological father did not seek to prove paternity of the child until the mother had married another, and the father had not established a relationship with the child as William has in this case with equal sharing soon after the separation. Moreover, in the present case where no expert was called upon to evaluate the minor child, we cannot say that the trial court erred in awarding William visitation for one month out of four. We note that the photographs in the record depict a happy little boy with his dad at the beach and the park in Florida, and indicate a lovely home environment with William and his family, as well as a very nice day care facility near the house. We, therefore, affirm the visitation plan as ordered.

Child Support

In the present case, the trial court’s judgment ordered William to pay child support in the amount of $100.00 per month plus one-half of the medical insurance premium and one-half of the medical bills remaining after insurance payments were applied. Laura filed a motion for a new trial stating that the amount ordered was contrary to the law and evidence. The trial judge agreed and granted her motion, modifying and amending his prior judgment and providing Written Reasons on May 26, 2006, for a new judgment as follows:

The Court deviated from the child support guidelines and failed to note its reasons. The Court considers that plaintiff is unemployed and defendant is paying community debts and is employed while attending college and approximately a third of his income is from the GI Bill. The Court also considers the distance between the parties and the importance of facilitating visitation between the child and its father. The guidelines provide for child support in the amount of $455.00. The Court deviates from these and requires the plaintiff [sic] to pay all costs of visitation.
| ^Accordingly, the Court modifies and amends its judgment rendered January 19, 2006 awarding child support in the amount of $100.00, provided that defendant [William] shall also pay in advance the entire costs of transporting the child for purposes of visitation. Defendant shall also be entitled to such benefits available from the IRS for the support of the child until such time that plaintiff may be employed and thereafter the parties shall alternate such benefits annually.

Accordingly, on July 31, 2006, the trial court signed a new judgment ordering William to pay $100.00 per month in child support plus one-half of the medical expenses, plus the transportation costs for his visitation with his son. Laura appealed, arguing that William is underemployed and that child support should be calculated in accordance with La.R.S. 9:315 et seq., which allows the addition of travel expenses to the basic obligation but not, she argues, a reduction of the basic obligation. More specifically, La.R.S. 9:315.6, regarding other extraordinary expenses, provides for two categories of expenses that may be added to the basic child support obligation: (1) expenses associated with the cost of private school to meet the needs of the child, and (2) any expenses for transportation of the child from one party to the other.

A deviation from the child support guidelines is permitted, if the court finds that the support required by the guidelines would not be in the best interest of the child or would be inequitable to the parties. The record must contain oral or written reasons for the deviation, which are supported by the evidence. McDaniel v. McDaniel, 95-1314 (La.App. 3 Cir. 3/6/96), 670 So.2d 767. Additionally, the court must include in its reasons a finding as to the amount of support that would have been required under a mechanical application of the guidelines. La.R.S. 9:315.1(B)(1). In determining whether to deviate from the guidelines, the court’s considerations may include an extraordinary community debt of the parties, or any other consideration |1swhich would make application of the guidelines not in the best interest of the child or inequitable to the parties. La.R.S. 9:315.1(C)(5) and (8). “Deviations by the trial court from the guidelines set forth in this Part shall not be disturbed absent a finding of manifest error.” La.R.S. 9:315.17.

In the present case, Laura argues that William, whose income was less than $3,000.00 per month at the time of trial in 2005, is underemployed because he voluntarily left the Air Force, where he made $48,575.00 in 2004 according to his 2004 Federal Tax Return. However, she has provided no proof of his earning potential as a civilian or that he is currently underemployed because he no longer makes $48,575.00 a year. While it is not a determinative issue, we note that William’s honorable discharge from the Air Force shortly after he had re-enlisted for six more years, may have been less than entirely voluntary, but rather possibly the result of a “strong suggestion” because of the problems the young couple caused while based at Fort Polk. Laura herself states in one of her blog entries that William had to leave the service, and she cites various incidents of bad behavior on his part that are unsubstantiated in the record.

The trial court relied upon William’s statements of “Income and Expenses of William Jacob Steinbach, IV,” his “Verified Income Statement Pursuant to R.S. 9:315.2,” and his check stub from the Breakers Hotel in Palm Beach Florida which showed an income of $1,993.33 per month, plus a GI Bill benefit of $1,000.00 per month for college associated expenses, for a total income of $2,993.33. Testimony at trial indicated that William was working and enrolled in college and maintaining a 3.5 grade point average. The “Louisiana Child Support Guideline Schedule of Basic Child Support Obligations,” set forth in La.R.S. 9:315.19, indicates that the basic child support obligation for one child, of parents with a combined 11smonthly income of $2,950.00 to $2,999.00, is $455.00 per month, which is the amount recited by the trial judge in his Written Reasons.

The trial judge then took into consideration that William was paying the community debts, which appear to total $426.00. The trial court further took into consideration that one-third of William’s income, or $1,000.00, was from the GI Bill, which we note may consist of some non-monetary compensation. Finally, the trial court considered the transportation costs associated with visitation. William’s statement shows a monthly transportation cost of $540.60 for flight, car rental, and hotel expenses. It is not known whether this is an averaged amount, broken down by month, or an actual monthly amount since the parties were at one time exchanging the child every three weeks. If it is an averaged amount, it comes to $6,487.20 per year for visitation, which is reasonable, even where the visitation order reduced visitation to five or six times a year (every 90 days plus Thanksgiving), since flight, car rental and hotel expenses can fluctuate considerably. In fact, William’s father testified at trial that the visitation costs were between $700.00 and $1,000.00, which is why William gave up his apartment and moved in with his parents.

Given the trial court’s several stated reasons for deviating from the guidelines, including the community debts, his award of the minimum amount for child support, which is $100.00 pursuant to La.R.S. 9:315.14, appears within his. discretion. However, with regard to the transportation costs specifically, Laura argues that the trial judge erred in deducting the transportation costs from William’s obligation, where La.R.S. 9:315.6(2) appears to provide only for the addition of transportation expenses to the basic obligation. We disagree with Laura’s assessfnent.

In Gould v. Gould, 28,996 (La.App. 2 Cir. 1/24/97), 687 So.2d 685, 693, our brothers in the second circuit affirmed the trial court’s deduction of transportation expenses from the father’s child support obligation. There, the father testified that gasoline cost him about $50 per round trip, and the motel room averaged $34 a night. Based on two round trips per month, and two nights of motel each trip, the court deviated from the guidelines by reducing the father’s support obligation by $236.00. The second circuit found that the trial court was entitled to accept the father’s testimony that these were necessary expenses for visitation. It further reasoned that if the mother were required to transport the children twice a month, the court would be entitled to add travel expenses to the basic support obligation. La.R.S. 9:315.6(2). However, since the father was shouldering the entire expense of visitation, the trial court was found to have the discretion to deduct this reasonable expense from the obligation. We agree, and we take this opportunity to review the parameters of the statute and reconcile our prior decisions with the second circuit decision in Gould.

More specifically, in Brown v. Brown, 01-0157 (La.App. 3 Cir. 9/12/01), 801 So.2d 1116, we found Gould distinguishable, because in Gould the father presented evidence of his travel expenses, where there was no evidence presented in Brown. Likewise, in Jones v. Jones, 628 So.2d 1304 (La.App. 3 Cir.1993), we found no abuse of discretion in the trial court’s failure to consider the father’s travel expenses where there was no evidence of the amount incurred. Additionally, this circuit stated:

[I]t seems [La.R.S. 9:315.6(2) ] permits the addition of travel expenses to the child support obligation but it does not appear to allow reduction of the obligation due to these same expenses. It contemplates a situation, we feel, where the domiciliary parent is responsible for transporting the children to the non-domiciliary parent for visitation purposes. Why, in this instance, should [the father who Amoved] be paid for exercising his parental visitation rights? [Jones, 628 So.2d] at 1307.
While application of La.R.S. 9:315.6(2) appears to provide for inconsistent relief depending on whether the custodial parent or non-custodial parent moves from the state, in the instant case, we need not revisit the parameters of the statute because the record contains no evidence of the amount of any travel expenses.

Brown v. Brown, 801 So.2d at 1123.

In the present case, both parents moved out of state, and, unlike Brown and Jones, there was evidence of travel expenses associated with the visitation in the form of William’s income statement and the trial testimony of William’s father. Moreover, in this case, the trial court enunciated additional reasons for reducing the child support award that render the travel costs only one portion of the reduction. We have reviewed La.R.S. 9:315.8, which instructs us at subpart (E)(5) to calculate joint custody child support obligations using worksheet “A” at La.R.S. 9:315.20. That worksheet was not attached or discussed by the trial court in this case, possibly because Laura is unemployed. Pursuant to our review, we note that, contrary to our comments in Jones and Brown the statutes do provide for a reduction of the child support obligation for visitation travel expenses for the non-domiciliary parent.

More specifically, La.R.S. 9:315.8, governing the calculation of the total child support obligation, provides at subpart (D) that the non-domiciliary party shall owe his or her total child support obligation to the custodial or domiciliary party, “minus any court-ordered direct payments made on behalf of the child for work-related net child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses provided as adjustments to the , schedule.” La.R.S. 9:315.8 (emphasis added). The subtraction of the “direct payments” is also provided for in the referenced La.R.S. 9:315.20, Worksheet A, at Item (8). While l^both the pocket part and the computerized version of Worksheet A have different typographical errors and omissions in Item (8), it is clear that Item (8) was intended to mimic the language in La.R.S. 9:315.8(D) above. See also Item (12) in Worksheet “B” which is used to calculate support obligations in shared custody awards under La.R.S. 9:315.9, and which contains similar language.

Therefore, William’s directly paid expenses, including transportation costs (an extraordinary expense under La.R.S. 9:315.6), which he reported at $590.00 per month in April 2005, as well as his child care costs, a work-related expense reported at $560.00 on his income statement, though not discussed at all by the trial court, would all be subtracted from his side of the child support obligation under item eight (8), had the trial court placed a work sheet in the record. We assume that he did not because Laura’s side of the equation, as a non-working mother of a child under five, would be zero because her percentage share of income is zero, and zero is the multiplier that determines her final obligation.

In any event, it is clear that William’s expenses exceed the mechanical child support guideline amount of $455.00, particularly in light of the community debts of $426.00 per month, which could be considered extraordinary under La.R.S. 9:315.1, given William’s income and expenses. Accordingly, the trial court did not commit an error of law in deducting the visitation travel expenses which are not an actual deviation since they are specifically provided for as an extraordinary expense under La.R.S. 9:315.6 and as a deduction under La.R.S. 9:315.8 and 9:315.20. Nor did he abuse his discretion in deviating from the guideline by considering the portion of William’s income attributable to the GI Bill. We affirm the trial court’s ordering William to pay child support in the amount of $100.00 per month plus paying his own visitation expenses.

| aijFederal Tax Credit

In the present case, the trial court’s judgment following the parties’ motions for a new trial, added the provision that William would receive the federal tax credit until Laura became employed, and thereafter, each would receive the credit in alternating years. Laura assigns as error the trial court’s award of the tax credit to William because she is the domiciliary parent and because there was no contradictory hearing on the issue pursuant to La. R.S. 9:315.18. That statute provides that the domiciliary party is presumed to have the right to claim the federal and state tax dependency deductions and any earned income credit, but further provides that the non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the deductions if, after a contradictory motion, the judge finds that no arrearages are owed, and the right to claim the deductions would substantially benefit the non-domiciliary party without significantly harming the domiciliary party. La.R.S. 9:315.18.

Under the particular facts of this case, where Laura was not employed and was assessed no percentage of the child support obligation, William, by default, is responsible for the entire obligation. Since he is a working parent and has to pay day care expenses, the tax credit, which he showed as $1,000.00 on his 2004 tax return, substantially benefits him, and since Laura is not working and does not have day care costs, she is not significantly harmed by not receiving the credit. The record indicates that Laura sought interim child support in 2004, and that due to continuances, the only proceedings addressing child support are the subject proceedings, consisting of five days of trial in 2005. Laura did not make a claim for arrearages, and the trial court did not award any. With regard to the absence of a Incontradictory hearing, we believe that logic guided the trial court in likely not perceiving a requirement for a hearing when only one party is employed.

Moreover, we note that pursuant to La. R.S. 9:315.18(B)(2)(a), the trial court did specify the years of entitlement to the credit by providing that the parties will alternate taking the credit when Laura becomes employed. We further note that there appears to be no precedent for the particular circumstances we have before us, and neither party cites to analogous cases. Accordingly, under the specific circumstances herein, we affirm the trial court’s award of the tax credit to William.

IV.

CONCLUSION

Based upon the foregoing, the judgment of the trial court, awarding domiciliary custody and child support as stated to Laura, and awarding the tax credit and visitation as stated to William, is affirmed in all respects.

All costs are assessed to appellant, William Jacob Steinebach, IV.

AFFIRMED.

      . La.R.S. 9:335 provides in pertinent part as follows:
      A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
      (2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
      (b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Labontay Rene YOUNGBLOOD, Appellant.
    No. 41,976-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Louisiana Appellate Project, By: Mark O. Foster, for Appellant.
    P. Joseph Carmouche, District Attorney, Tommy J. Johnson, Brady D. O’Callaghan, Damion D. Kervin, Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

I,This criminal appeal by Labontay Rene Youngblood arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. After a jury trial, Youngblood was found guilty of attempted aggravated arson, a violation of La. R.S. 14:27 and 14:51. He subsequently was charged by bill of information as a third felony habitual offender. Following his adjudication, he was sentenced to 20 years’ imprisonment at hard labor, which Youngblood appeals. For the following reasons, Youngblood’s conviction and sentence are affirmed.

Facts

As stated, Youngblood was charged with attempted aggravated arson, and a trial of the matter was conducted. At his trial, Verdia Smith, the victim, testified. Smith, a 73-year-old widow, lived at 514 Coon Street in the Stoner Hill neighborhood of Shreveport for over 50 years. Smith had known Youngblood, who was 38 years old at the time of the crime, all of his life. Youngblood’s mother also lived on Coon Street, in a house located one house down from Smith’s house. According to Smith, some of her neighbors resented that her house was painted free of charge by a charitable organization in May 2005.

On the morning of June 3, 2005, Smith was awakened by the sound of a barking dog sometime between the time of 3:30 and 4:00 a.m. She looked out her back bedroom window and saw Youngblood riding a bicycle in front of her house on the well-lit street. There was a black bag hanging from his handle bars, and nobody else was outside. Smith then looked out her front door. She watched as Young-blood pedaled his bicycle into his mother’s Lyard, turned and went around the back of the house. Right after Youngblood disappeared from her sight, Smith heard a “bam, bang” sound on her house. She heard another one a few seconds later. Smith did not go outside because of the time of morning and she was alone. She attempted to call the police, but her phone would not work because a recent call had apparently not been properly disconnected.

Later that morning about 7:00 a.m., Smith finally was able to contact the police. The fire department was dispatched to the scene, and Shreveport Fire Department Investigator Russell Moon investigated. He found a liquor bottle and two pieces of rag containing an ignitable liquid outside the back of Smith’s house near the northwest corner. Specifically, one piece of rag was located in the bottle and the other piece of rag was on the ground near the bottle and near the side of the house— both pieces of rag were scorched as if they had been burned. Smith identified Young-blood to the investigators. Corporal Tommy Rachal of the Shreveport Police Department testified that the sole fingerprint lifted from the bottle belonged to Young-blood.

The 12-person jury rendered a unanimous verdict of guilty as charged of attempted aggravated arson against Youngblood. Thereafter, Youngblood was adjudicated a third felony habitual offender. His motion for post-verdict judgment of acquittal was denied. After a sentencing hearing, the trial court sentenced Youngblood to serve 20 years’ imprisonment at hard labor, and this appeal by Youngblood ensued.

IsDiscussion

Sufficiency of the Evidence

In his sole assignment of error, Young-blood argues that the trial court erred in finding the evidence sufficient to convict him of attempted aggravated arson. Specifically, Youngblood argues that the evidence against him was largely circumstantial and insufficient for conviction. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

|4The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App. 2d Cir.09/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.02/05/99), 737 So.2d 747.

When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson. State v. Davis, 1992-1623 (La.05/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Owens, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 5(La.App.2d Cir.05/08/96), 674 So.2d 1018, writ denied, 1996-1459 (La.11/15/96), 682 So.2d 760, writ denied, 1998-0282 (La.06/26/98), 719 So.2d 1048.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.04/12/96), 677 So.2d 1008, unit denied, 1996-1807 (La.02/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.04/08/96), 672 So.2d 428, writ denied, 1997-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (1990). Fingerprint evidence has been upheld as sufficient to sustain a conviction. State v. Grissom, 467 So.2d 858 (La.App. 2d Cir.1985).

Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered. La. R.S. 14:51. A conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. See La. R.S. 14:27; State v. Browhow, 41,686 (La.App.2d Cir.12/13/06), 945 So.2d 890. Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the 1 ficircumstances and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Knowles, 598 So.2d 430 (La.App. 2d Cir.1992). The determination of whether thé requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Browhow, supra.

Here, we conclude that Young-blood’s conviction of attempted aggravated arson is supported by the record. After viewing the facts established by the direct evidence and inferred - from the circumstances established by that evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of attempted aggravated arson proven beyond a reasonable doubt. As stated, Off. Moon investigated the crime scene at Smith’s home and testified at trial. He opined that the items he found at the scene of the crime appeared to be pieces of a firebomb commonly known as a “Molotov cocktail,” which is usually a glass bottle containing ignitable or combustible liquid in which a rag is used as a wick. When the rag is lit and thrown at or inside a house, the liquid is spread and sets the house and its contents on fire. Moon observed that Smith’s house had scorch and ricochet marks between the two back windows. A flaming liquid appeared to have run down and burned an area of the house. He opined that the location of the marks indicated the target of the firebomb was Smith’s window. Moon believed that if the firebomb had gone through the window, the resultant fire and smoke would have quickly spread, causing extensive damage to Smith’s old wooden house and immediate danger to her life.

17Furthermore, Smith’s account of the events that morning and her identification of Youngblood also support his conviction. She saw Youngblood on the street in front of her house in the early morning hours with a bag hanging from his bicycle. Nobody else was outside. Almost immediately after Youngblood disappeared from her sight around the back of his mother’s house (thereby moving into a position from which he could throw a bottle at her house), the victim heard a noise and/or noises at the back of her house. The next morning, the pieces of an ignited firebomb were found outside the back of her home near the northwest corner — the wall had scorch and ricochet marks. Further, Smith was well acquainted with Young-blood, having known him his entire life, thus explaining her immediate recognition of him. The record shows that she never equivocated in her identification of him— which she made initially to the investigator, before Youngblood’s fingerprint was even identified on the bottle.

Additionally, the sole fingerprint on the bottle belonged to Youngblood. Although Youngblood raised questions regarding the conclusiveness of the fingerprint evidence, it was within the province of the jury to consider the evidence and testimony and assess its credibility. Thus, considering the totality of the evidence against him, we cannot conclude that the circumstantial evidence offered against Youngblood was insufficient for his conviction. This assignment of error is without merit.

Error Patent

We note that the record indicates an error patent. Louisiana C. Cr. P. art. 873, provides:

|s[i]f a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be -imposed immediately.

Here, the trial court imposed Youngblood’s sentence immediately after the denial of his motion for post-verdict judgment of acquittal. There is no showing on the record that Youngblood waived the delay required by La. C. Cr. P. art. 873.

Absent a showing that a defendant was prejudiced by the failure to observe this delay, this court is not required to remand the case for re-sentencing. State v. Moossy, 40,566 (La.App.2d Cir.03/10/06), 924 So.2d 485. Here, the 24-hour delay was not so imperative as to require a re-sentencing where Youngblood failed to show that he suffered prejudice from the violation. See State v. White, 404 So.2d 1202 (La.1981). Furthermore, Youngblood does not even appeal his sentence. Louisiana C. Cr. P. art. 921 provides that “a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” Youngblood’s substantial rights were not affected by the trial court’s decision not to follow the 24-hour delay; therefore, the failure was a harmless error.

Conclusion

For the forgoing reasons, the conviction and sentence of Labontay Rene Young-blood are hereby affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Willie FORD, Appellant.
    No. 41,949-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      James E. Beal, Jonesboro, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Michael 0. Craig, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   BROWN, Chief Judge.

|, Defendant, Willie Ford, pled guilty to one count of attempted first degree murder, and the trial court sentenced him to serve 45 years at hard labor. The defendant now appeals, asserting that his guilty plea is invalid because the trial court’s Boykinization was inadequate and that his sentence is unconstitutionally excessive. For the reasons set forth below, defendant’s conviction and sentence are affirmed.

Facts

On September 23, 2004, police officers were called to respond to a shooting involving two men on Shaver Street in Bossier City. When officers arrived, they were advised that the shooter fled on a red bicycle toward Kroger Grocery Store on Benton Road. Police Chief Mike Halphen received the call on his police radio and saw defendant, who fit the description provided by the officers. When Chief Hal-phen came in contact with defendant and advised him to stop, defendant turned around and fired several shots from a silver handgun at Chief Halphen. Defendant then continued riding toward Kroger and fired several more shots at other officers who had arrived on the scene before he was apprehended and arrested. A bystander in the shopping center’s parking lot was slightly wounded. The young man on Shaver Street was treated at the hospital and released.

Defendant entered a plea of guilty to count one, the attempted first degree murder of Officer Bernard Grant, in exchange for the dismissal of counts two and three (the attempted first degree murders of Officer Jeff Gaydos and Chief Mike Hal-phen). In a separate proceeding, the state 12dismissed the attempted second degree murder charge of the young man shot on Shaver Street. The trial court sentenced defendant to imprisonment at hard labor for a term of 45 years, with credit for time served. The defense timely filed a motion to reconsider sentence, which was denied by the trial court. This appeal followed.

Discussion

Guilty Plea

The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. A valid plea requires a showing that the defendant was informed of and waived his constitutional rights of trial by jury, confrontation, and the privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Before taking the guilty plea, the trial court ascertained that defendant was 20 years old, had a 10th-grade education, and the ability to read, write, and understand the English language. The colloquy regarding the right to confrontation took place as follows:

THE COURT: Do you understand the District Attorney would have to prove his case against you beyond a reasonable doubt?
MR FORD: Yes, sir.
THE COURT: Do you understand your attorney would cross-examine anybody that accused you of this crime?
MR FORD: Yes, sir.

Defendant claims that this advice was insufficient as it only informed him of his right to cross-examine. He asserts that the right of confrontation included the right to see as well as cross-examine the witnesses against him.

lain State v. Mendenhall, 06-1407 (La.12/08/06), 944 So.2d 560, the supreme court reversed a decision from this court and held:

With respect to the Confrontation Clause of the Sixth Amendment, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)(internal quotation marks and citation omitted; emphasis deleted); see also State v. Anderson, 34,491, p. 3 (La. App.2d Cir.4/4/01), 784 So.2d 749, 751 (“In common usage, the phrases confront and cross-examine always connote adversarial activities.”), writ denied, 01-1431 (La.4/12/02), 812 So.2d 666. In this instance, the language used by the trial judge appears sufficiently tailored to inform a 29-year-old defendant, who was educated through the twelfth grade and employed as a plant assistant manager, that he was waiving his right to confrontation, and that, because he was pleading guilty, there would be no further trial. See State v. Martin, 382 So.2d 933, 935 (La.1980)(purpose underlying the Boykin and [State ex rel.] Jackson [v. Henderson, 260 La. 90, 255 So.2d 85 (1971)] rules “is to ensure the defendant’s receipt of adequate information, so that his decision to plead guilty is truly intelligent and voluntary.... [T]his information may successfully be conveyed in words tailored to a particular individual’s vocabulary and comprehension), overruled in part on other grounds, State v. Williams, 392 So.2d 448 (La.1980). Accordingly, we agree with the dissenting views of Chief Judge Brown that the circumstances in the record reflect a knowing and voluntary waiver of defendant’s rights and compliance with the constitutional requirements for the taking of voluntary guilty pleas in Louisiana.

It is common sense that cross-examination is an adversarial act and necessarily includes the right to see the witness. The circumstances in this case reflect an understanding and waiver of the right of confrontation.

In his appellate brief, defendant argues that the guilty plea should also be set aside because the trial court did not advise him of his right to a jury trial. During the guilty plea, the trial court asked defendant if he understood |4that he had the right to continue in his not guilty plea and “have a trial,” informed him that no one could force him to incriminate himself at trial, and asked defendant if he understood that he would have the right to appeal if “convicted after a trial.”

The Louisiana Supreme Court has ruled that courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of rights occurred. State v. Lawson, 410 So.2d 1101 (La.1982). In State v. Worsham, 32,670 (La.App.2d Cir.02/01/00), 754 So.2d 1107, this court found that the defendant’s guilty plea was valid, in spite of the fact that the trial court did not inform defendant of his right to a jury trial at the time he pled guilty, because the record showed that the trial court informed defendant of his right to a jury trial at the arraignment. See also State v. Dodson, 41,415 (La.App.2d Cir.10/16/06), 942 So.2d 579. The record in this case shows that at a hearing where defendant was found mentally able to stand trial, defendant was told by the trial judge, “I need to advise you (that) you have the right to a trial by jury, but you can waive that right and be tried by a judge alone, but you don’t need to make that decision today.” While the trial court and state should be advised that the better practice is to inform defendant of his right to a trial by jury at the time he pleads guilty, the record supports a finding that defendant was aware of his right to a trial by jury and that his guilty plea was made with the knowledge that he was waiving his right to a trial by jury when he pled guilty.

| RExcessive Sentence

Before sentencing defendant, the trial court related that it had reviewed the information contained in the pre-sentence investigation report, including two victim impact statements, plus the defendant’s statement and handwritten letter. The trial court noted that it considered the fact that defendant was a first felony offender. It commented on the severity of the offense, observing that the store parking lot shooting endangered both officers and customers. In considering the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the trial court noted that the seriousness of the crime might be deprecated by a lesser sentence. It also observed defendant’s creation of undue risk to others, including the risk of death or great bodily harm. The trial court commented that defendant’s actions showed no regard for human life. After careful consideration, the trial court sentenced defendant to 45 years imprisonment at hard labor.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La. App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939; 6State v. Lingefelt, 38,038 (La.App.2d Cir.01/28/04), 865 So.2d 280, unit denied, 04-0597 (La.09/24/04), 882 So.2d 1165.

A review of the entire record reveals that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1 and carefully considered the guidelines of the article in tailoring the sentence for this 20-year-old defendant. Furthermore, when defendant’s crime and punishment are viewed in light of the harm done to society by such reckless use of a firearm and total disregard for human life, the 45-year hard labor sentence does not shock the sense of justice. This is particularly true considering that the defendant pled guilty to an offense which does not come near to adequately describing his conduct, and for which he received a significant reduction in potential exposure to confinement. See State v. Black, supra. We find no showing of manifest abuse of the trial court’s discretion, and will not disturb defendant’s sentence in this case.

Conclusions

Defendant’s conviction and sentence are AFFIRMED.

CARAWAY, J., concurs.

      . The full history of this case is: State v. Mendenhall, 40,986 (La.App.2d Cir.05/19/06), 930 So.2d 1196, writ granted, decision reversed, 06-1407 (La. 12/08/06), 944 So.2d 560, on remand, 40,986 (La.App.2d Cir.02/07/07), 948 So.2d 1255.

      . The jurisdiction check in this appeal reveals that the trial court failed to impose the sentence without benefit of parole, probation, or suspension of sentence as required by La. R.S. 14:27(D)(l)(a) and La. R.S. 14:30(C). There is no need for remand, however, because the trial court’s failure to state that the sentence is to be served without benefit will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Klasek, 37,114 (La. App.2d Cir.04/11/03), 843 So.2d 646, writ denied, 03-1359 (La. 12/12/03), 860 So.2d 1149. When a district court fails to order service of sentence without benefits in a case in which a determinate time period to be so served is mandated by the statute of conviction, the sentence automatically will be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.1 1/28/01), 800 So.2d 790. The applicable sentencing statutes mandate that the entire sentence be served without benefit of parole, probation, or suspension of sentence; thus, there is no issue of an indeterminate sentence. Therefore, there is no need for remand to the trial court because the sentence is automatically self-corrected by operation of law.


author: PEATROSS, J.

text:
    Henry Carey PIETSCH and Janice C. Pietsch, Individually and as Administrators of the Estate of the Minor, Ashlee Nicole Pietsch, Plaintiffs-Appellants v. Christopher David FARMER, et al, Defendants-Appellees.
    No. 42,172-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      James M. Johnson, APLC, Minden, by James M. Johnson, for Appellants.
    Corkern & Crews, L.L.C., by Ronald E. Corkern, Jr., for Appellee, State Farm Mutual Automobile Insurance Co.
    Onebane Law Firm, by Frank H. Spru-iell, Jr., Lafayette, for Appellees, Christopher David Farmer and Progressive Security Insurance Company.
    Before BROWN, STEWART & PEATROSS, JJ.
   PEATROSS, J.

|! Henry Carey Pietsch and Janice C. Pietsch, individually and on behalf of their minor daughter, Ashlee Nicole Pietsch, appeal the trial court’s judgment granting the motions for summary judgment filed by Progressive Security Insurance Company (“Progressive”) and State Farm Mutual Automobile Insurance Company (“State Farm”). Specifically, the Pietsches contend that the trial court erred as a matter of law in concluding that the insurers were not liable for exemplary damages under La. C.C. art. 2315.4 beyond their respective policies’ limits. For the reasons that follow, the judgment of the trial court is hereby affirmed.

FACTS

This suit arises out of an automobile accident that occurred on June 23, 2003, on U.S. Highway 371. Ashlee was traveling as a passenger in a 2003 GMC pickup truck being driven northbound on U.S. Highway 371 by Christopher David Farmer. Mr. Farmer allegedly lost control of the vehicle which veered across the southbound lane of traffic into the ditch adjacent to the southbound lane and into a pine tree. Plaintiffs maintain that the accident was due to the intoxication of Mr. Farmer. As a result of the accident, Ashlee suffered numerous serious injuries requiring extensive medical treatment and rehabilitation.

The vehicle was owned by Mr. Farmer’s mother, Tracy Farmer, and insured under a policy issued by Progressive with policy limits of $2,000 for medical payments coverage and $25,000 per person liability coverage for bodily injury. Ashlee’s parents carried uninsured/underinsured motorist | a(“UM”) coverage under a policy issued by State Farm with policy limits of $5,000 for medical payments coverage and $50,000 per person in UM liability coverage.

On June 18, 2004, Plaintiffs filed suit against Mr. Farmer, Progressive and State Farm for Ashlee’s special and general damages, their own damages for loss of consortium and for exemplary damages. As the basis for exemplary damages, Plaintiffs alleged that Mr. Farmer’s intoxication at the time of the accident was a cause of Ashlee’s injuries for which she is to recover in damages pursuant to La. C.C. art. 2315.4. State Farm subsequently tendered the $5,000 in medical payments coverage and $50,000 in UM motorist coverage. Progressive tendered $2,000 in medical payments coverage and offered its policy limits of $25,000 in liability coverage for bodily injury in exchange for release of Progressive and its insured, Mr. Farmer. Plaintiffs refused Progressive’s offer.

State Farm and Progressive filed separate motions for summary judgment. State Farm’s motion sought dismissal from the action on the basis that it tendered its policy limits fulfilling its contractual obligations and that there was no legal basis for any further claims against it by Plaintiffs. Progressive’s motion sought a declaration that its liability to Plaintiffs was limited to the $25,000 per person limits of its policy. Plaintiffs opposed both motions for summary judgment by arguing that an insurance policy’s limits are inapplicable to claims for exemplary damages. The motions for summary judgment were both argued on September 25, |32006, and were subsequently granted by summary judgments signed on October 23, 2006. The instant appeal followed.

DISCUSSION

At issue in this appeal is the legal question of whether an insurer is liable beyond its policy limits for a claim of exemplary damages under La. C.C. art. 2315.4. Plaintiffs contend that, because La. C.C. art. 2315.4 provides for exemplary damages for injuries caused by an intoxicated driver, State Farm and Progressive are responsible for payment of those exemplary damages above and beyond their policy limits.

This question was previously resolved by this court in Davis v. Counts, 38,815 (La. App.2d Cir.8/18/04), 880 So.2d 968. In Davis, the plaintiff appealed the trial court’s dismissal of her claim against the defendant driver’s insurer after it had tendered the policy limits. The plaintiff argued that the insurer could be found liable for her claim of exemplary damages arising out of the insured’s intoxification even if said damages exceeded the insurer’s policy limits. In affirming the trial court’s ruling, we stated:

In the absence 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. It is the particular insurance policy of the insured that establishes the limits of liability, and it is well established that this contract of insurance is the law between the parties. (Citations omitted.)

The court held that the insurer’s tender of its policy limits entitled it to a partial summary judgment dismissing it from the suit.

l4The Davis opinion further emphasized that the policy behind punitive damages is to punish the tortfeasor and deter similar conduct and that holding the insurer responsible for the punitive damages over and above its policy limits would be inconsistent with this policy. Id. Likewise, in the case sub judice, neither of the intended purposes of exemplary damages, deterrence or punishment, is served by making insurers liable for such damages over their policy limits.

Despite Plaintiffs’ assertions to the contrary, nothing in the language of La. C.C. art. 2315.4 reflects an intent by the legislature to circumvent the contractual limits of liability agreed to by insurers and their insureds in the policies executed between them. Plaintiffs have cited no authority to the contrary. The cases cited by Plaintiffs stand for the proposition that, in the absence of exclusionary language to the contrary, insurers are obligated to pay exemplary damages within their policy limits. Since policy limits by their nature, however, exclude liability for damages in excess thereof, there is no need for an insurer to specifically exclude damages, exemplary or otherwise, which exceed the limits of its policy.

As in Davis, supra, the judgment appealed does not preclude an award of exemplary damages against Mr. Farmer, the allegedly intoxicated driver of the vehicle who allegedly caused Plaintiffs’ damages. The judgment simply dismisses Plaintiffs’ claims against State Farm and recognizes Progressive’s liability for special, general and exemplary damages to be limited to $25,000. The trial court did not err in its granting of summary judgment in favor of State Farm and Progressive.

[.CONCLUSION

For the foregoing reasons, the trial court’s judgment granting summary judgment in favor of Progressive Security Insurance Company and summary judgment in favor of State Farm Mutual Automobile Insurance Company is hereby affirmed. Costs of this appeal are to be borne by Plaintiffs.

AFFIRMED.