author:
STEWART, J.
      CARAWAY, J.,

text:
    CALDWELL PARISH POLICE JURY, Plaintiff-Appellee, v. TOWN OF COLUMBIA, et al., Defendants-Appellants.
    No. 40,865-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 2006.
    Opinion Granting Rehearing May 17, 2006.

      Mixon & Carroll by James E. Mixon, Columbia, for Appellant Town of Columbia.
    Iley H. Evans, Columbia, for Appellee Caldwell Parish Police Jury.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

| Appellant, the Town of Columbia, appeals the trial court’s judgment denying its exceptions of no right of action and prescription and nullifying an annexation ordinance adopted by its Board of Aldermen. For the following reasons, the judgment of the trial court is hereby affirmed.

FACTS

On or about February 27, 2003, the Town of Columbia (“Columbia”) received a petition for annexation from Vernel and Alice R. Riser proposing the annexation of certain property owned by them into the town’s corporate limits. The property which the Risers proposed be annexed was south of the town and not contiguous to its existing' boundaries. Accordingly, the Risers’ petition proposed that U.S. Highway 165 and La. Highway 849 be used as a corridor to accomplish the annexation.

By correspondence from Columbia’s counsel dated February 27, 2003, the Louisiana Department of Transportation and Development (“DOTD”) was advised of the proposed annexation and Columbia’s intent to use U.S. Highway 165 and La. Highway 849 as a corridor to connect the property being annexed to the existing town. By letter dated March 17, 2003, DOTD informed counsel for Columbia that it had no objection to the proposed annexation.

An ordinance providing for the annexation was introduced and seconded at the June 19, 2003, regular session of Columbia’s town council and a public hearing thereon was scheduled for July 8, 2003. The minutes of the council meeting were then published in the Caldwell Watchman, a weekly newspaper published in Caldwell Parish, on July 9, 2003. The 12hearing on the proposed ordinance was subsequently deferred to the council’s regular meeting scheduled for August 12, 2003, and a notice of same was published in the local paper on July 30, 2003. The ordinance was subsequently adopted by the council on September 23, 2003. The ordinance adopted and published in the local paper on October 1, 2003 reads verbatim:

BE IT ORDAINED by the council of the Town of Columbia, that the Town of Columbia introduces to annex property beginning at the point where the West right-of-way of U.S. Highway 165 intersects the most southern boundary of the Town of Columbia, thence in Southwesterly direction along the West right-of-way Of U.S. Highway 165 to a point opposite its intersection with the South right-of-way Line of Louisiana Highway No. 849; thence Southeasterly along the South right-of-way line Louisiana Highway 849 to the intersection of the South right-Of-way Line of Louisiana Highway 849 and the East line of the NW/4 of SW/4 of Section 29, T13N, R4E; thence North along the East line of the NW/4 of SW/4 of Section 29, T13N, R4E to a point 60.7 feet South of the NE/corner of NW/4 of SW/4 of Section 29; thence North along the East line of the NW/4 of SW/4 of Section 29;' thence East along the SE/4 of NW/4 a distance of 31.55 feet; thence North 213.11 feet; Thence East 382.31 feet to the North right-of-way of Louisiana Highway 849; Thence along the North right-of-way of Louisiana Highway 849; Thence along the North right-of-way of Louisiana Highway 849 in a Northwesterly Direction to the intersection of the North right-of-way line of Louisiana Highway No. 849 with the East right-of-way line of U.S. Highway No. 165; thence Northeasterly along the East right-of-way line of U.S. Highway No. 165 to its intersection with the southern boundary of the Town of Columbia; thence along the southern boundary of the Town of Co- ' lumbia in a westerly direction to the Point of Beginning property.

On December 23, 2003, the Caldwell Parish Police Jury (“CPPJ”) filed a petition naming as defendants the Town of Columbia, Jim Sherman (Columbia’s may- or), and the following members of Columbia’s Board of Aldermen: Ken Brockner, Bruce Frazier, Melvin Robinson, Charlie Simons and Darron McGuffee. In the petition, CPPJ objected to the annexation | ¡¡ordinance on the basis that Columbia adopted it without complying with the requirements of La. R.S. 33:180. As a result, the petition requested that the ordinance be declared null and void. On January 8, 2004, the CPPJ filed an amended petition to add the following' allegations in support of their request to annul the ordinance: (1) Neither the U.S. Department of Justice nor DOTD petitioned Columbia for or consented to annexation of U.S. Highway 165 and La. State Highway 489; and, (2) La. R.S. 33:180 does not allow for the annexation of a public right-of-way to serve as a corridor connecting the municipality to privately owned non-contiguous property which the municipality seeks to annex.

The defendants filed an answer along with exceptions of no cause of action, no right of action and prescription. They alleged that the CPPJ had no cause of action against the mayor and the members of the board of aldermen as individuals, that the CPPJ had no right of action to contest the ordinance, and that the time within which a contest to the ordinance must be filed had already passed at the time the CPPJ’s original petition was filed.

The merits and the exceptions came for hearing on July 13, 2005. At the hearing, the parties stipulated that the exception of no cause of action as to the mayor and the members of the board of aldermen should be granted. After hearing arguments on the remaining issues, the trial court took the matter under advisement. On July 21, 2005, the trial court issued written reasons for judgment finding that the CPPJ did have a right of action to object to the ordinance and that because the objection raised by the CPPJ is to the absolute nullity of the ordinance, the action is not subject to liberative [¿prescription. Accordingly, the remaining exceptions of no right of action and prescription were denied.

The trial court’s reasons also reflect its ruling that La. R.S. 33:180 is a special annexation statute which can only be used for the annexation of public lands and thus, the annexation of the corridor to accommodate the annexation of private lands was ultra vires. The trial court also found that the ultimate ordinance adopted by Columbia annexed property different from that described in the original petition filed by the Risers. Accordingly, the trial court found that Columbia failed to comply with the statutory requirements for annexation and, therefore, the annexation ordinance was void. A judgment declaring the ordinance null and void ab initio was signed on August 16, 2005. The instant appeal followed.

DISCUSSION

Columbia assigns error to the trial court’s denial of its exceptions of prescription and no right of action, to its finding that La. R.S. 33:180 does not provide for the annexation of public rights of way to serve as corridors for the annexation of non-contiguous private property, and to its finding that the annexation ordinance was null ab initio. We will begin by addressing the merits of the exceptions, since their disposition governs the necessity to address the merits of the action itself.

Prescription

Columbia alleges that under La. R.S. 33:174, an action to contest an annexation ordinance must be brought within the 30-day period before the ^ordinance becomes effective and failure forever bars any such action. The statute provides in pertinent part:

A. Any interested citizen of the municipality or of the territory proposed to be annexed thereto may, within the thirty-day period before the ordinance becomes effective, file suit in the district court having jurisdiction over the municipality, to contest the proposed extension of the corporate limits. “Interested”, as used in this Section, means a real and actual personal stake in the outcome of the contest of the extension of the corporate limits.
B. The sole questions to be presented to the court in a contest of a proposed extension of the corporate limits shall be as follows:
(1) Whether the proposed extension is reasonable.
(2) Whether, prior to the adoption of an ordinance enlarging the boundaries of a municipality, a petition was presented to the governing body of a municipality, and prior to the adoption of said ordinance, certificates were obtained from the parish assessor and parish registrar of voters showing that the said petition contained the written assent of a majority of the registered voters and a majority in number of the resident property owners as well as twenty-five percent in value of the property of the resident property owners within the area proposed to be included in the corporate limits.
(3) Whether the municipality complied with its own requirements for the adoption of ordinance in adopting the annexation ordinance.

The provisions of La. R.S. 33:174 have been found inapplicable to cases arising under La. R.S. 33:180. Parish of Jefferson v. City of Kenner, 96-73 (La.App. 5th Cir.5/15/96), 675 So.2d 1177, writ denied, 96-1563 (La.9/27/96), 679 So.2d 1346. Whereas La. R.S. 33:174 governs the annexation of privately owned property by a municipality, La. R.S. 33:180 governs the annexation of territory owned by a public body. The latter is a separate and special annexation provision for which no special time limitation for bringing an action to contest has been statutorily provided. Prescriptive periods may not be extended by analogy, since there is no | ^prescription other than that established by legislation. La. C.C. art. 3457; Graham v. Strother, 28,892 (La.App. 2d Cir.12/11/96), 684 So.2d 1088, writ denied, 97-0118 (La.3/7/97), 690 So.2d 20.

Also, this court’s holding in Parish of Ouachita, Ouachita Parish Police Jury v. Town of Richwood, 29,617 (La.App. 2d Cir.6/18/97), 697 So.2d 623, writ denied, 97-1912 (La.11/7/97), 703 So.2d 1267, reconsideration denied, 97-1912 (La.1/16/98), 707 So.2d 48, suggests that the 30-day prescriptive period is inapplicable to the case at bar even to the extent that the ordinance purports to annex private property. In Parish of Ouachita, supra, this court held that an action challenging as ultra vires the action of a municipality arises under general law and does' not arise under La. R.S. 33:174. An action arising under La. R.S. 33:174 is limited to attacks on an annexation ordinance on the basis of “unreasonableness” and failure to comply with the statutory requirements of “petition and certification,” and, therefore, the time limitations imposed therein are not applicable to an action which attacks the ordinance on other grounds, such as being ultra vires. ■■

Accordingly, to the extent that the annexation was undertaken under the provisions of La. R.S. 33:180, and to the extent that the CPPJ has alleged the invalidity of the ordinance as being ultra vires, we find the time limitations provided for in La. R.S. 33:174 to be inapplicable to the case at bar.

No Right of Action

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The exception of no right of faction is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927 A(5). The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748. Its function is to determine whether the plaintiff belongs to the particular class of persons to whom the law grants a remedy for the particular grievance, or whether plaintiff has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885.

Columbia contends. that the trial court erred in denying its exception of no right of action because La. R.S. 33:174 limits the right to contest the validity of an annexation ordinance to an interested citizen, which by definition the CPPJ cannot be. As noted above, the cause of action asserted herein does not arise under the provisions of La. R.S. 33:174 and therefore is not subject to the limitations provided for therein. The trial court in the present case found that the CPPJ had an actual interest in the action because the annexation impacts the parish’s tax base. Columbia has urged no argument opposing this finding, and the record is devoid-of any evidence which contradicts it. Accordingly, we find no error in the trial court’s denial of Columbia’s exception of no right of action.

Nullity of Ordinance

Columbia argues that the trial court erred in concluding that the annexation of non-contiguous land by a municipality contemplated under La. R.S. 33:180(0 is limited to public property. La. R.S. 33:180 provides:

[¡¡A. The governing body of any municipality other than the city of New Orleans may, by ordinance, enlarge the boundaries of the municipality to include territory within which all of the land is owned by a state agency, political subdivision, or public body, but only upon petition of the governing body of the agency, political subdivision, or public body owning the land which is to be so included. Except as otherwise provided by this Section, the governing body of the municipality may, in its discretion, upon majority vote thereof, adopt such an ordinance without the necessity of compliance with any of the procedures of advertisement, petition by residents, public hearing, or other procedures set forth in this Subpart.
B. No municipality may annex the paved portion of a public road without including in such annexation all property adjacent to at least one side of the road, the paved portion of which is included in the annexation.
C. A municipality may annex a portion of the right-of-way of a public road as a corridor connecting other property which is not contiguous to the municipality but which is to be annexed without including the property adjacent to the corridor. Any annexation pursuant to this Subsection shall be in accordance with the following:
(1) The municipality shall, by certified mail, notify the state agency or political subdivision which owns the road proposed to be annexed at least thirty days prior to the introduction of the ordinance proposing such annexation.
(2) The petition or written consent of the state agency or political subdivision must be received by the municipality prior to the adoption of the ordinance.

Prior to the addition of sub-paragraph C by Acts 1997, No. 1304, § 1, the annexation of non-contiguous private land was not permissible under the existing annexation statutes. Parish of Ouachita, supra. In Parish of Ouachita, supra, this court held that the generally prevailing meaning of the language of La. R.S. 33:172(A) providing for the municipal annexation of private property by petition/ordinance required contiguity of the territory to be annexed with the existing territory of the municipality. However, since this court’s decision in Parish of Ouachita, supra, the provisions of La. R.S. 33:172 have been substantively amended in a manner suggesting the | ¡^Legislature's intent to allow the annexation of non-contiguous private property. La. R.S. 33:172(A)(1)(d)(iv), which addresses the burden of proof in a suit by a parish to contest the reasonableness of a proposed annexation of vacant land, provides that the burden of establishing unreasonableness is on the parish when the property proposed to be annexed is contiguous to the existing corporate limits, but the burden falls on the municipality to establish the reasonableness of the annexation when the property is not contiguous to the existing corporate limits.

In light of the changes in La. R.S. 33:172 and La. R.S. 33:180(0), it is not logical to conclude that contiguity is necessary for annexation by petition / ordinance as was held in Parish of Ouachita, supra. It is also not logical to conclude that La. R.S. 33:180(C) providing for the annexation of a portion of the right of way of a public road to serve as a corridor to connect the municipality to other non-contiguous property which is to be annexed is only available in those cases where the non-contiguous property to be annexed is public in nature. No such limiting language appears in the statute, and no policy considerations or rules of statutory construction seem to require such a restrictive interpretation. Our duty in interpreting a statute is “to adopt a construction which harmonizes and reconciles it with other provis ins dealing with the same subject matter.” Hollingsworth v. City of Minden, 2001-2658 (La.6/21/02), 828 So.2d 514, 517. Considering that La. R.S. 33:172 contemplates annexation of private property that is not contiguous to the municipality’s corporate limits, La. R.S. 33:180(C) can be used for achieving such an annexation by annexing a portion of a right-ofjwayio a public road as a corridor connecting the property to the town. In such cases, the municipal authority would have to follow the applicable procedures for annexation of the private property as well as the procedures set forth in La. R.S. 33:180(0 to annex a corridor connecting the non-eon-tiguous property to the municipality to complete the annexation. This interpretation reconciles and harmonizes the statutes pertaining to annexation of public and private property and renders no provision superfluous or meaningless.

It appears from this record that Columbia followed the appropriate procedures for annexation of the Risers’ property. That, however, is not the end of our inquiry. The ordinance in question annexes all of the land described therein into the town. A fair reading of that description leads us to conclude that the annexation included the paved portion of U.S. Highway 165 and La. Highway 489. La. R.S. 33:180(B) requires that the annexation of the paved portion of a public road include all property adjacent to at least one side of the road being annexed. However, La. R.S. 33:180(C), which Columbia utilized to annex a corridor connecting the Riser property to the Town, allows only the annexation of “a portion of the right-of-way of a public road” when it is to be used as a corridor to non-contiguous land to be annexed by the municipality.

Municipalities are creatures of the Legislature and possess those powers granted to them by the state. La. Const, art. VI § 2; Kel-Kan Inv. Corp. v. Village of Greenwood, 428 So.2d 401 (La.1983); and, Bradford v. City of Shreveport, 305 So.2d 487 (La.1974). Conversely, they do not In have those powers .which the Legislature has not granted them, i.e., the power to annex the paved portion of a public road when the property adjacent to at least one side of the road is not being annexed with it or the power to annex more than a portion of a right-of-way of a public road when it is used as a corridor to connect non-contiguous property to the municipality. The Town could not annex the Riser property without also annexing a corridor for connection. Because Ordinance 2003-1 of the Town of Columbia purports to annex more than is allowed under La. R.S. 33:180(C), it is an ultra vires act. As such, it is null and void.

CONCLUSION

For the foregoing reasons, the judgment of the trial court denying the Town’s exceptions of no right of action and prescription and declaring Ordinance 2003-1 null is hereby affirmed.

AFFIRMED.

CARAWAY, J., dissents with written • reasons.

CARAWAY, J.,

dissenting.

U respectfully dissent from the majority’s ruling.

The statutory constructions, or lack thereof, given in answer to both the exception of no right of action and the merits of this case do not convince me that the trial court’s judgment may be affirmed. The majority correctly concedes that Sections 172 and 180(C) of the annexation law of Title 33 may be followed by the Town of Columbia (“Town”) to annex non-contiguous private property using a portion of a public road as a corridor. Applying both of these sections for the resolution of these issues, the trial court’s ruling should be reversed for the Police Jury’s lack of standing and on the merits.

The majority dismisses the standing issue on .the rationale that the cause of action does not arise under Section 174, yet later holds that an annexation of private property is occurring in this case under Section 172. Section 174 provides a cause of action to any “interested citizen” contesting improper annexation of private property under Section 172. ■ “Interested” is further defined to mean “a real and actual personal stake in the outcome of the contest of the extension of the corporate limits.” La. R.S. 33:174(A). To broadly construe “interested citizen” to include a police jury is made difficult by the implications of Section 172(A)(1)(d). That statute gives a police jury standing to contest municipal annexations only in cases where no registered voters and no resident property owners are affected by the proposed annexation. The implication is that the registered voters/resident property owners safeguard the process by their involvement in the | gannexation, not the police jury. Also, the public party at interest regarding the road corridor involved in this annexation is the State Department of Transportation and Development (DOTD), whose rights are fully addressed and protected under Section 180(C)(2). Thus, with Sections 172 and 180(C) governing this annexation, the statutes indicate that upon the approval of the annexation by the registered voter/resident property owners, here the Risers, and public road owner, the DOTD, the annexation may occur, and the police jury has no standing to contest it.

Nevertheless, if the merits of this annexation are reached, the majority offers little explanation why Section 180(C) does not stand as clear authority for the Town’s actions. A map of the municipal growth configuration envisioned in the legislative purpose for Section 180(C) would look like the Town’s annexation of the Riser tract using these highways as a corridor. Annexation provides benefits and services to people and their private property, and existing roads included therein are somewhat secondary. Indeed, as the majority recognizes, contiguity is no. longer a requirement for annexation of private property for tracts like the Risers’, with or without the inclusion of a road corridor. See, La. R.S. 33:172(A)(l)(d)(iv). Nevertheless, the majority .vaguely suggests that a fatal mistake occurred in this case when the Town annexed the “paved” portion of the highways. Attaching great significance to this legislatively loose adjective of Section 180(B), which is not the basis of the Town’s action, the majority would apparently make the application of the “corridor” concept of Section 180(C) dependent upon the type of road surface |,qemployed for the highway (concrete vs. asphalt or gravel) or the portion of right-of-way (roadway vs. ditch or shoulder) described as the corridor in the annexation ordinance. .A proper statutory interpretation giving deference to the clear purpose of the law must avoid such overemphasis on a trivial adjective which would lead to the “absurd consequences” warned against in our law for the interpretation of statutes. La. C.C. art. 9, et seq.

Reaching for Section 180(B) to create conflict in the employment of Section 180(C) is unjustified because that section does not directly address the corridor concept. Section 180(B) was in our annexation law before Act 1304 of 1997 which added Section 180(C). Read literally, without overemphasis of the word “paved,” the statute would prevent a municipality from annexing only a portion of a road extending out from a town or city. That prohibition remains. The exception to that prohibition as expressed in the language of Section 180(B) allows a portion of the road to be annexed if all property adjacent to at least one side of the road is included in the annexation. This would mean that the road and the annexed private land on one side of the road would form an area for annexation that would remain contiguous to the existing boundary of the municipality-

By implication only, Section 180(B) also prohibited the situation which is now expressly addressed in Section 180(C). Before the enactment of Section 180(C), a fair reading of Section 180(B) would prohibit the annexation of a road which was contiguous to the town as it left the corporate limits and ran to a tract of private property proposed for annexation and otherwise non-contiguous to the town. Thus, prior to the |41997 legislation, Section 180(B) would prohibit the annexation of such road and private property in an effort to defeat the contiguity requirement found by this court in Parish of Ouachita v. Town of Richwood, 29,617 (La.App. 2d Cir.6/18/97), 697 So.2d 623, writ denied, 97-1912 (La.11/7/97), 703 So.2d 1267.

Under the majority’s apparent interpretation of Section 180(B) and the phrase “paved portion,” a non-paved gravel road running contiguously out of the town to a private tract could, even in the absence of the 1997 legislation, be utilized to defeat the Parish of Ouachita ruling. Likewise, the annexation of the ditch portion of the private road running to a private tract could occur under this strained view of Section 180(B) and not violate the contiguity requirement found in our prior ruling, because the ditch and private tract would be technically contiguous to the corporate boundary. Thus, since most private tracts, otherwise non-contiguous to the corporate limits of nearby towns, are connected to town by public roads, the majority’s view of Section 180(B) means that Parish of Ouachita got it wrong. So long as there is annexation of roadside ditches (but not paved surfaces) leading to otherwise non-contiguous tracts of private land, the annexation of those ditches and such private tracts has, according to the majority, always been possible. Indeed, the only objection the majority now has with the Town’s annexation is that it attempted to annex the pavement and the ditches of these two highways when only the ditches were subject to annexation.

Lin conclusion, the majority has reached for an adjective (paved) in an inapplicable provision of law and failed to consider a noun (corridor) of great weight in the very section of law which it finds controlling. Yet, in 1997, the legislature made a policy decision to allow annexation of tracts that may be non-contiguous to the existing municipal corporate limits, using a public road as a corridor for the incorporation of such private property. The Civil Code provides that the judiciary’s place is not to grade such a policy shift in the legislation with a technical, linguistic overemphasis so as to thwart the clear “purpose of the law” and produce “absurd consequences.”

ON REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS, and MOORE, JJ.

hWe granted rehearing to reconsider our interpretation of La. R.S. 33:180 in the context of the Town of Columbia’s annexation of the noncontiguous Riser property by utilizing right-of-ways along U.S. Highway 165 and La. Highway 849 as a corridor connecting the property to the town. For the following reasons, we now find the annexation to have been proper and reverse the trial court’s judgment of nullity.

Our prior ruling concluded that La. R.S. 33:180(0 allows for the annexation of noncontiguous property, whether private or public, by annexing a portion of a right-of-way of a public road as a corridor connecting the property and the town. We also concluded that the Town of Columbia followed the appropriate procedures for annexation of the Riser property. However, we further concluded that the Town of Columbia exceeded the authority of La. R.S. 33:180(C) by annexing the paved portion of public roads in violation of La. R.S. 33:180(B). It is this latter conclusion that we now find to have been in error.

Both subparts (B) and (C) of La. R.S. 33:180 were added by Acts 1997, No. 1304, § 1. The two parts of the statute provide:

B. No municipality may annex the paved portion of a public road without including in such annexation all property adjacent to at least one side of the road, the paved portion of which is included in the annexation.
C. A municipality may annex a portion of the right-of-way of a public road as a corridor connecting other property which is not contiguous to the municipality but which is to be annexed without including the property adjacent to the corridor. Any annexation pursuant to this Subsection shall be in accordance with the following:
(1) The municipality shall, by certified mail, notify the state agency or political subdivision which owns the road proposed to be annexed at lease thirty days prior to the | ^introduction of the ordinance proposing such annexation.
(2) The petition or written consent of the state agency or political subdivision must be received by the municipality prior to the adoption of the ordinance.

La. R.S. 33:180(B) and (C).

Review of the legislative history, particularly the minutes of the House Committee on Municipal, Parochial, and Cultural Affairs of April 18, 1997, reveals that the amendments to La. R.S. 33:180 arose from House Bill No. 666 introduced by Representative Tommy Wright to prevent municipalities from annexing roads to extend the city limits for speed-traps. The legislative history establishes that the bill was not intended to prevent annexation of property for legitimate purposes, such as annexation of commercial areas to bolster the tax revenue taken in by municipalities. Although House Bill No. 666 initially proposed enactment of La. R.S. 33:181, the final version consisted of the above amendments to La. R.S. 33:180. This history further supports our prior ruling that the Town of Columbia could annex the noncon-tiguous Riser property by utilizing La. R.S. 33:180(C).

It is clear from the legislative history that subparts B and C pertain to different situations. Subpart B serves the intention of Representative Wright’s bill by preventing municipalities from annexing the paved portions of public roads for creating speed-traps. To annex the paved portion of a roadway, a municipality must also annex all the property adjacent to at least one side of the roadway. This requirement burdens municipalities with the responsibility of complying the with the requirements for annexation, such 13as in La. R.S. 33:172, and of providing services to the annexed areas, thereby deterring annexations for creating speed-traps.

Subpart C addresses the concern that municipalities be able to extend their limits to encompass commercial areas that may not be contiguous to the city limits. A municipality is allowed to annex a “portion of the right-of-way of a public road as a corridor” to connect the municipality to noncontiguous property. Municipalities are relieved of the burden of also annexing the property adjacent to one side of the road as in subpart B.

Upon our review of these provisions and the record of this matter, we find that we erred in concluding that the annexation of the corridor by the Town of Columbia exceeded what is allowed under La. R.S. 33:180(C) by annexing the paved portion of the public roads without annexing property adjacent to at least one side. Rather, the Town of Columbia annexed a corridor by utilizing U.S. Highway 165 and La. Highway 849 to connect the town to the Riser property. We find that a “portion of a right-of-way of a public road” refers to that measure of the roadway serving as the corridor from the limits of the municipality to the property being annexed, rather than to some nebulous section along the right-of-way as suggested by our prior opinion.

This interpretation of La. R.S. 33:180(B) and (C) gives effect to both parts and renders neither superfluous or meaningless in light of the entire statute or laws governing annexations. See Hollingsworth v. City of Minden, 2001-2658 (La.6/21/02), 828 So.2d 514. We adopt all parts of our prior opinion, other than that part which concluded that the Town of Columbia annexed more than allowed under La. R.S. 33:180(C) and declared 1 ¿Ordinance 2003-1 to be an ultra vires act and null. For the reasons expressed, we now hold that the annexation met the requirements of La. R.S. 33:180. The judgment of the trial court declaring null Ordinance 2003-1 of the Town of Columbia is hereby reversed.

REVERSED.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge. ARMSTRONG, C. J., TOBIAS, J.,

license: Public Domain

text:
    Debra L. LEARD v. William S. SCHENKER.
    No. 2005-CA-1125.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.
    Rehearing Denied April 28, 2006.
    Writ Denied June 16, 2006.

      Debra L. Leard, Baton Rouge, in Proper Person, Plaintiff/Appellant, Debra L. Leard.

      Robert C. Lowe, Marynell L. Piglia, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Counsel for Defendant/Appellee, William F. Schenker, Jr.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MAX'N. TOBIAS, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

I,This is a case involving child custody. Debra L. Leard sought a change in the custody of her minor child, Gabriel Easton Leard. The trial court had previously awarded sole custody of Gabriel to his father, William F. Schenker, Jr. Alternatively, Ms. Leard sought an increase in visitation with her son. The trial court denied both a change in custody and an increase in visitation. Ms. Leard is now appealing that decision.

FACTS AND PROCEDURAL HISTORY

Consent Judgments

On March 27, 1995, Gabriel was born to Ms. Leard. A consent judgment signed on November 20, 1995, recognized Mr. Schenker as Gabriel’s father and granted joint custody of Gabriel to Ms. Leard and Mr. Schenker, who were never married to each other. Ms. Leard was named as the domiciliary parent in the consent judgment, and the judgment granted liberal visitation privileges to Mr. Schenker. Mr. Schenker was also ordered to pay child support to Ms. Leard for Gabriel’s benefit. In a second consent judgment signed on March 11, 1996, certain ^details with respect to when each parent would have physical custody of Gabriel and how holidays with Gabriel would be divided were set forth.

In a third consent judgment signed on November 15, 1999, the child support payments recommended by a special master appointed to review the issue of child support were adopted. This consent judgment was executed in connection with a rule to increase child support that had been filed by Ms. Leard. In a fourth consent judgment signed on September 25, 2000, the prior orders of visitation were amended. This consent judgment was executed in connection with motions to enforce child support and to change custody filed by Ms. Leard, in which she also sought penalties and sanctions against Mr. Schenker.

Litigation Regarding Gabriel’s Care and Custody

On July 27, 2001, an order was signed by the trial court judge in connection with various rules filed by both Ms. Leard and Mr. Schenker. The order concerned, among other things, (1) written and telephone communication between the parties, (2) a prohibition of derogatory comments by the parties about each other and a prohibition of the alienation of Gabriel’s affection, (3) the continuation of the then current visitation and child support orders, (4) the use of the name “Leard” as Gabriel’s last name by both parties, and (5) counseling for Gabriel.

In an order signed on September 13, 2001, the trial court appointed Dr. James Arey to perform a custody evaluation, which the parties had requested, and to report to the court the results of the evaluation. On October 25, 2001, the trial court issued an interim order regarding the sharing of Gabriel’s physical custody |aby Ms. Leard and Mr. Schenker. Ms. Leard was further ordered not to linger at Gabriel’s school on the mornings when she did not have physical custody of Gabriel. Again, each of the parties was ordered not to alienate Gabriel’s affection for the other.

The 2002 Trial

A seven-day trial on custody rules and exceptions filed by both Ms. Leard and by Mr. Schenker was held, and a judgment was rendered on May 31, 2002. The judgment granted Mr. Schenker sole custody of Gabriel, and all visitation between Gabriel and Ms. Leard was terminated. Before the reinstatement of Ms. Leard’s visitation with her son would even be considered, Ms. Leard was ordered to undergo a minimum of six weekly visits with a psychiatrist to address “her psychological disorder.” Additionally, Ms. Leard was ordered to maintain steady employment.

The judgment provided that if visitation were reinstated, it would be supervised and would be conditioned on Ms. Leard’s remaining in active treatment for at least six months with either a psychiatrist or another mental health professional recommended by her psychiatrist. Only after Ms. Leard had been in compliance with a plan of treatment for her “psychological disorder” for a minimum of six consecutive months would unsupervised visitation between Gabriel and Ms. Leard be considered. Dr. Arey, the court appointed evaluator, and Ellen Gandle, M.D., the psychiatrist who was then treating Gabriel, would have to approve any unsupervised visitation between Ms. Leard and Gabriel.

14A subsequent judgment was signed on August 5, 2002. That judgment ordered that Mr. Schenker’s obligation to pay child support be terminated. The judgment further prohibited Ms. Leard from contacting “anyone on behalf of the minor child, Gabriel Leard.” Ms. Leard was permitted to receive Gabriel’s report cards but not to otherwise have any contact with Gabriel’s school.

Neither the judgment signed on May 31, 2002, nor the judgment signed on August 5, 2002, was appealed. On August 1, 2002, however, the court signed a minute entry granting Ms. Leard one hour a week of supervised visitation with Gabriel. The minute entry stated that the supervised visitation was being permitted by agreement of the parties and on the recommendation of Dr. Gandle, Gabriel’s psychiatrist. The cost of the supervised visitation was $100 per hour, and Mr. Schenker was ordered to pay for the first four visits. Ms. Leard would be responsible for paying for the subsequent visits.

Actions After the Judgment in the 2002 Trial

On October 16, 2002, Ms. Leard filed a pro se motion for, among other things, contempt and a modification of child visitation. Ms. Leard alleged that she had not been permitted to visit with Gabriel since August 26, 2002, in violation of the August 1, 2002 minute entry. Approximately a month later, Ms. Leard filed another pro se motion in which she again alleged that she had not seen Gabriel since August 26, 2002, and she moved to have Mr. Schenker and his wife submit to drug testing.

|ñA consent judgment was signed on September 22, 2003, quashing interrogatories directed to Mr. Schenker by Ms. Leard and a motion for production of documents that she had filed. The trial court ordered (1) Dr. Gandle, Gabriel’s psychiatrist, (2) Diane Huber, the social worker who had supervised Ms. Leard’s visits with Gabriel, (3) Dr. Arey, the counselor appointed by the trial court to render a custody evaluation, and (4) Richard Roni-ger, M.D., the psychiatrist Ms. Leard had consulted in connection with the psychiatric treatments the court had ordered, to submit to the court a report on the status of Ms. Leard and Gabriel. Additionally, Ms. Leard was ordered not to go to Gabriel’s school “and see Gabriel Leard under any circumstances whatsoever.” She was, however, found to be entitled to receive a copy of his report card. A subsequent consent judgment was signed on November 18, 2003, ordering Ms. Leard to pay Mr. Schenker $4,758.00 that she owed in child support arrearages for Gabriel's school tuition.

On November 5, 2004, the trial court judge signed a judgment that was rendered on October 21, 2004, pursuant to which she ordered that no testimony, documents, or reports prior to November 18, 2003, would be used as evidence in connection with Ms. Leard’s rule to, among other things, modify visitation. Ms. Leard represented herself pro se at the hearing on Mr. Schenker’s motion to limit the evidence.

The Trial Resulting in the Instant Appeal

After a trial on July 21, 2004, October 21, 2004, and March 16, 2005, on various rules and motions filed by Ms. Leard and Mr. Schenker, including Ms. |fiLeard’s request for expanded visitation with Gabriel, a judgment was signed on April 19, 2005. Ms. Leard represented herself at the trial. Her motion for expanded visitation was dismissed. The trial court judgment stated that “Ms. Leard failed to present any evidence that increased visitation is in the best interest of Gabriel.”

At the trial Ms. Leard called four witnesses on her behalf. First, she called Sarah McHarg, the managing attorney at the law .firm where she worked. Ms. McHarg testified that Ms. Leard performed her duties at the law firm competently and professionally.

The next witness that Ms. Leard called was Consuelo R. Husserl, a licensed clinical social worker, who had supervised five visits between Ms. Leard and Gabriel. Three of the visits occurred in May of 2004, one occurred in October of 2004, and one occurred in January of 2005. Ms. Husserl stated that she had been qualified as a court expert in child custody matters. Ms. Husserl testified that Ms. Leard had never said anything inappropriate to Gabriel in her presence, that Ms. Leard asked Gabriel appropriate questions when she saw him, and that she had never heard Ms. Leard whisper in Gabriel’s ear during any of the visits that she supervised. Ms. Husserl further stated that “I think it’s a wonderful bond between them [sic] two,” referring to the relationship between Ms. Leard and Gabriel, and she said that Gabriel was “[v]ery well behaved, very happy, excited when he sees his mother.” Finally, she testified that she saw “a normal relationship between |7mother and child,” and she denied ever hearing Gabriel express anything negative about his mother.

Ms. Leard also called Dianne Huber to testify. Ms. Huber stated that she was a licensed clinical social worker and that she had previously testified as an expert in child custody matters. Ms. Huber testified that she had been appointed by the trial court judge as a supervisor for Ms. Leard’s visits with Gabriel and that she had facilitated the court ordered supervision beginning in August of 2002.

Ms. Huber agreed that, in her professional opinion, a close bond of love and affection existed between Gabriel and his mother, that the child reciprocated his mother’s love, that Gabriel was receptive to his mother’s nurturing, and that Gabriel was always happy to see his mother. She further confirmed that Gabriel had never been reluctant to visit his mother, that Gabriel did not want to leave when the visitation ended, and that she believed that Gabriel had expressed a desire to go home with his mother. Ms. Huber also agreed that Ms. Leard brought age appropriate toys, cards, and videos to her visits with Gabriel, that conversation flowed easily and naturally between mother and child, and that there had never been a break in the continuity of the supervised visits granted to Ms. Leard.

Ms. Huber was asked about an incident that occurred during one of the visits that she supervised. Ms. Huber related to the court that while pointing his finger at his temple, Gabriel had asked, “Mom, is it true that your dad took a gun and pointed it to his head and went bang?” Ms. Huber further said that she was “stunned” by the question, but when she looked at Ms. Leard, Ms. Leard had an |8expression on her face that indicated that her. father really had shot himself. Ms. Huber described the incident that had occurred as “chilling,” and she said that Gabriel had stated in her presence that his father had told him that Ms. Leard’s father had shot himself.

Ms. Huber also testified that on one occasion Mr. Schenker called her following a supervised visit and told her that when Gabriel got in the car with him after the visit, Gabriel had become very upset and was crying hysterically about something that had occurred during the visit. Gabriel had told Mr. Schenker that his mother had whispered to him that his father and his stepmother hated and disliked him. Ms. Huber testified that she told Mr. Schenker that when Gabriel left after the visit, she had not noticed that he was upset in any way. She further stated that the whispering “[njever happened.” She said that Ms. Leard never whispered information to Gabriel during their supervised visits.

The last witness to testify on Ms. Leard’s behalf was her psychiatrist, Dr. Roniger. He was admitted as an expert in psychiatry. Dr. Roniger first saw Ms. Leard as a patient on June 8, 2002, just eight days after she was ordered to begin psychiatric treatment by the trial court. She attended six sessions with Dr. Roniger in a two-month period, and he stated that “there were a number of condensed sessions and then thereafter they were more sporadic.” The total number of sessions that she had with Dr. Roniger was twenty-two. They began on June 8, 2002, and the last session was on September 18, 2004, which was during the course of the trial.

| c,Dr. Roniger testified that Ms. Leard lived a balanced lifestyle, had not had any substance abuse problems, and was psychologically stable “[sjince I have known you.” Dr. Roniger further stated that Ms. Leard was not a danger to herself or to anyone else. He also testified that “I think that you have been capable of mothering and [I] have submitted that statement many times.” He also clearly disagreed with the statement that Ms. Leard should not have unsupervised visitation with her son and stated that “she was capable of having unsupervised visitation.” Dr. Roniger further testified that this was the case notwithstanding any psychological problems she had.

Dr. Roniger stated that Ms. Leard “[djidn’t show me her inner life, used some defensive mechanisms that might not have been the healthiest in the world but that she was capable of mothering.” He also said that if he were to consider what psychological problems Ms. Leard might have, he “would look at borderline personality traits.” He “did not think that she was a great candidate for insight oriented psychotherapy,” but he had given her supportive psychotherapy, which was “aimed at bolstering rational thinking, making healthy choices about one’s life [and]... having a spiritual life .... ”

Dr. Roniger also testified that he thought that Ms. Leard had some “borderline traits,” but he had not diagnosed her as having borderline personality disorder. He could not, however, rule out such a diagnosis.

Dr. Arey, the court appointed custody evaluator, also testified at the trial. Dr. Arey testified that he had seen Gabriel the day prior to his testimony and that _JjgGabriel was doing very well. He had seen Gabriel approximately three or four times since the 2002 trial. Dr. Arey stated that “in my mind there’s absolutely no way that we want to make unsupervised visitations.” Dr. Arey said that seeing Ms. Leard in a supervised setting “gives him an opportunity to know where she is and that makes him less anxious.” He further opined that it would be “clinically really inappropriate” for Gabriel to see his mother any more than the one-hour weekly supervised visits or in an unsupervised setting.

Dr. Arey testified that he would prefer not to tell the court exactly why he did not think the visitation schedule should be changed, because of the confidence that Gabriel had placed in him. A letter dated May 21, 2004, from Dr. Arey to the court was entered into evidence. That letter contained the following information:

During the October 14, 2003 visit, I asked Gabriel how he would like spending time with his mother alone (unsupervised visitation). Gabriel immediately answered, “I would not like it. I would be scared. My mom is not like other people, it is not a walk in the park with my mom.” When asked what he would be afraid of, he stated, “She is kookie. She might jump off a bridge with me without a parachute. She might hurt me.” He went on to explain that, “she whispered in my ear that Shelley [Gabriel’s stepmother] and my dad are trying to kill her. When she whispers to me, I know it is bad”. In an effort to be very clear, I asked again if Gabriel wanted the supervised visitation to change or stay the same. He quickly responded, “I want to keep checking on her every Monday. I am worried she is going to hurt someone more than me ... like one of my friends. She does whatever she wants to do. She does not take orders from anyone. That is what I am afraid of.”

Gabriel was approximately eight and a half years old when he made the statements included in the letter. Dr. Arey stated with respect to the language used |nby Gabriel that “[i]f I put it in quotes, then that is absolutely positively one hundred percent verbatim what the young boy said.”

Dr. Arey also said with respect to the language in the letter that “[t]his is really the area that I don’t want to get into because this is the stuff that Gabriel and I talk about and if it gets back [to him] ... that I have said these things about him ... this is going to do tremendous, and I say again, tremendous damage to this boy and make my relationship with him therapeutically impossible ....” Dr. Arey further opined that “I believe that my relationship with him right now is the thing that makes it possible for him to see you in supervised visitation once a week, and if he doesn’t have access to me ... and if he feels that I have betrayed his trust, ... then I’m going to recommend that this boy not have supervised visitation with his mother at all .... ”

When Dr. Arey was asked whether it would be in Gabriel’s best interest to be evaluated by somebody else, he said that he did not think so, because “I believe I know everything I need to know.” Further, Dr. Arey said that “I don’t believe that this boy needs people peaking [sic] inside his head any more than we are doing right now.”

Mr. Schenker and his wife, Shelley Schenker, both testified at the trial. Ms. Schenker’s testimony revealed that Gabriel was no longer being treated by Dr. Gan-dle. Mr. Schenker testified that he owned firearms but that they were kept in a locked case.

\wThe Trial Court’s Reasons for Judgment

The day after the judgment was rendered on April 19, 2005, Ms. Leard requested written findings of fact and reasons for the judgment. Written reasons for the judgment were rendered on May 10, 2005. The reasons for judgment stated that after seven days of testimony in 2002, the court had granted sole custody of Gabriel to Mr. Schenker, and Ms. Leard had been denied all visitation rights. The court explained that the “severity of this judgment and its effects on Gabriel and Ms. Leard were not lost on the Court and were not taken lightly.” After the 2002 trial, written reasons for the judgment were “purposely not issued at that time,” because “[wjritten reasons would have been devastating to Ms. Leard and would have only served to fuel the hostility which existed at that time between her and Gabriel’s father.”

Reasons for the Judgment in the 2002 Trial

The trial court, in responding to Ms. Leard’s request for written reasons for the April 2005 judgment, stated that because Ms. Leard had made the request, “a short review of the reasons for the 2002 judgment is appropriate.” The trial judge stated that by the time Gabriel was six months old, Ms. Leard and Mr. Schenker had reached a consent judgment giving the parties joint custody of Gabriel and “granting to Mr. Schenker liberal visitation and establishing child support.”

The judge then stated in her reasons for judgment that “[f]rom that point forward, the record of these proceedings has ballooned into a 6 volume record 1 ^illustrative of the discord between these parents.” She further stated that although Ms. Leard complained in the early stages of the litigation that Mr. Schenker was not “living up to his responsibilities as a father,” Ms. Leard later “became unable to accept that fact that Mr. Schenker had any parental rights at all.” The trial court concluded that it was “apparent that Ms. Leard was unable to accept reasonable offers and suggestions regarding Gabriel’s custody and visitation,” and that “she was unable to comply with interim judgments rendered by the Court.”

In discussing the evidence presented at the custody trial in 2002, the trial court judge stated that the evidence was “overwhelming that Gabriel’s best interests were served by granting sole custody of him to his father with severely restricted visitation with his mother.” The evidence at the 2002 trial included expert testimony, testimony of the parties, and testimony of family members. Evidence of Gabriel’s academic progress and tape recordings of conversations between Gabriel and Ms. Leard, which she recorded, were presented at the 2002 trial. The reasons for judgment state that “[t]he Court’s mental health expert, Dr. James Arey, testified that Ms. Leard probably suffers with a personality disorder, borderline type.” The trial court judge explained that “[t]his disorder interferes with her ability to exercise good judgment, set appropriate limits for Gabriel, establish trusting relationships with other adults, and interact in a positive way with people who have authority over her or her child.” The reasons for judgment state |14that “Dr. Arey also testified about the detrimental effect Ms. Leard’s psychological disorder was having on Gabriel, including causing Gabriel to live in the conflict created by his mother's animosity toward his father.”

In discussing the “personality disorder from which she [Ms. Leard] suffers,” the trial court judge stated that “[a] signature diagnostic criteria of the personality disorder ... is [sic] a lack of insight into the disorder.” She concluded that “Ms. Leard is unable to understand the effects her behavior has on Gabriel and those who share in the responsibility of caring for him ....”

The trial court judge found that the evidence at the trial showed that Ms. Leard did not understand that child support payments were only to be used to support Gabriel rather than to allow her to live at the same financial level as Mr. Schenker. Additionally, Ms. Leard was unable to understand concerns over the fact that Gabriel did not have a bed in her home. Although she was buying a bed on a layaway plan, before she had completed the payments for the bed, she purchased a dog and a piano for Gabriel. Additionally, Ms. Leard’s occupational goals were to sell hot tamales or make a movie, but she had no business plans for these endeavors. Finally, although Ms. Leard testified that she had a good support system to help her care for Gabriel, “not one family member, friend or colleague testified on her behalf.”

The trial court judge set forth orders in the judgment on the 2002 trial that required Ms. Leard to maintain steady employment and to receive specified psychiatric treatments. The purpose of the orders was “to allow her to come to 11fiterms with her psychological disorder; come to better understand the impact her behaviors were having on Gabriel; gain financial independence from the child support ... and develop a healthy co-parenting relationship with Mr. Schenker.” The trial court judge also noted that she did not order Ms. Leard to pay child support to Mr. Schenker, because Mr. Schenker could afford, at least temporarily, to rear Gabriel without Ms. Leard’s financial assistance. Additionally, Ms. Leard had the financial burden of paying for her court-ordered psychiatric treatment. The trial court judge explained that even though Ms. Leard had not met the criteria set forth in the judgment rendered after the 2002 trial regarding her psychiatric treatments, she had granted Ms. Leard one hour of supervised visitation with Gabriel per week. The visitation was granted as a result of it being brought to the trial court’s attention by Dr. Gandle, Gabriel’s psychiatrist at the time, that “Gabriel was quite concerned about his mother.”

Reasons for the April 2005 Judgment

In her reasons for judgment the trial court judge explained that at the trial held on October 21, 2004, and March 16, 2005, Ms. Leard sought relief from the supervised visitation that was limited to one hour per week and also sought to have custody of Gabriel transferred to her. Ms. Leard was denied all relief, however, because she had not fully complied with the requirements set forth in the orders in the judgment following the 2002 trial. She had obtained full-time employment, but she had “failed to present any evidence that she has had any success in managing |1Rher psychological disorder or that she has gained an understanding of the need to co-parent with Mr. Schenker.”

The trial judge noted that the testimony presented at the trial showed that “Gabriel is finally doing well” and that Gabriel has adapted to seeing his mother in a setting of supervised visitation. The court had requested that Dr. Arey present the court with a limited updated evaluation regarding Gabriel’s custody, and Dr. Arey testified that Gabriel was doing well but continued to “fear his mother’s disobedience of authority” and “fears that she will take him away if he sees her unsupervised.” Further, the trial court judge stated that Dr. Arey testified that Ms. Leard had not been successful in gaining insight into her borderline personality disorder and had not sought the treatment required by the court. The trial court judge further remarked in her reasons for judgment that “[s]he appears for psychiatric visits seemingly to satisfy the Court’s requirement that she attend, but no meaningful work is getting done.”

STANDARD OF REVIEW

In child custody cases, appellate courts will not disturb an award of custody absent a manifest abuse of discretion in the trial court. See Revision Comments— 1993 to La. Civil Code art. 134, Comment (b). In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the Louisiana Supreme Court described the appellate review standard by stating that “upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.” Id. at 1196. See also AEB v. JBE, 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 761.

[17Where there has been an error of law, a de novo review is required in a child custody case. In Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, the Supreme Court discussed the appellate review standard where the trial court has committed legal error. The Supreme Court stated:

[Wjhere one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

97-0541, 99-0577, pp. 6-7, 708 So.2d at 735 (citations omitted).

ASSIGNMENTS OF ERROR

Ms. Leard’s brief has listed a number of assignments of error. Although some of the assignments of error and the discussions of those assignments of error in Ms. Leard’s brief were somewhat difficult for this Court to follow, we have addressed what we believe to be the concerns raised by the appellant and have applied the law applicable to those concerns.

Assignment of Error No. 1: The trial court erred in not allowing evidence and/or testimony regarding the father’s DWI arrests, proffer or statement by appellant.

Ms. Leard contends that she should have been able to introduce evidence to prove that Mr. Schenker had been arrested for driving while under the influence of alcohol. There is, however, nothing in the record from which we can determine |1swhether the alleged incident occurred, and there is no proffer from which we can make this determination. Therefore, because there is insufficient information in the record for us to rule on this assignment of error, we cannot consider it.

Assignment of Error No. 2: The trial court erred in confiscating, at trial, psychiatric records of the child.

Ms. Leard attempted to proffer the records of Dr. Gandle, who was Gabriel’s’ treating psychiatrist at one time. Ms. Leard had filed a motion for contempt against Dr. Gandle, because she had not responded to a subpoena duces tecum pursuant to which Ms. Leard had sought Gabriel’s psychiatric records. The trial court subsequently issued a rule for Dr. Gandle to show cause why she should not be required to produce the records. Before the rule was heard, Dr. Gandle released Gabriel’s records to Ms. Leard, presumably as a result of the motion being signed by the trial court. Subsequently, the trial court quashed Ms. Leard’s subpoena duces tecum and denied Ms. Leard’s motion for contempt.

At the trial involved in this appeal, when Ms. Leard proffered Dr. Gandle’s records into evidence, the trial court judge stated that there was a court order providing that Dr. Gandle’s records would remain confidential to facilitate Dr. Gandle’s treatment of Gabriel. Additionally, Dr. Gandle had not seen Gabriel since July of 2003. At the time of the trial, it had been well over a year since Dr. Gandle had seen Gabriel, and the records might not have been probative with respect to Gabriel’s then current status. Additionally, the records predated the November 18, 2003 cut-off date for evidence. Therefore, we find that the trial |19court judge did not abuse her discretion in refusing to accept Dr. Gandle’s records in evidence.

Assignments of Error No. 3 and 4: The trial court erred in granting the Motion in Limine prohibiting evidence and testimony of (a) the father’s interference with the visitation order, alienating the child from his mother’s affection, and (b) the willful contempt of defense counsel by interfering with a court order and alienating the child from his mother’s affection.

The purpose of the trial court in prohibiting evidence of matters that predated the judgment of the court after the initial custody trial was to avoid relitigat-ing matters that had previously been presented to the trial court. The trial court stated that “[t]he Court will not hear evidence of anything which occurred prior to November 18, 2003 ... We don’t go back and revisit testimony which has already resulted in judgments and/or orders .... ”

Because the order permitting supervised visitation was not in existence at the time of the first trial, the trial court judge should have considered the evidence relating to any interference with the visitation, if she had not previously considered it. Ms. Leard has not presented sufficient information for us to determine whether or not there was, in fact, interference with her supervised visitation rights. Ms. Leard has the burden of showing that the trial court committed error on this matter, and she has not carried her burden of proof. There is insufficient evidence in the record for us to determine whether this assignment of error has merit.

Assignment of Error No. 5: The trial court eired in failing to strike the report and testimony of Dr. James Arey, LPC.

Ms. Leard contends that Dr. Arey improperly diagnosed her with borderline 12oPersonality disorder. There is nothing in the record before us,’ however, to evidence that Dr. Arey was qualified as an expert witness at the trial that is the subject of the instant appeal. He may have been qualified as an expert at the 2002 trial, but there is nothing in the record on appeal regarding his qualifications as an expert in counseling or in any other field. By relying on Dr. Arey’s diagnosis in the absence of a proper foundation being laid for his testimony as an expert, the trial court committed legal error. Therefore, his testimony on the issue of Ms. Leard having a possible borderline personality disorder cannot be considered.

Ms. Leard also objects to Dr. Arey testifying in his capacity as a court appointed custody evaluator. Again, Dr. Arey’s testimony cannot be considered, because a proper foundation for his testimony as an expert in child custody evaluation was not presented at the trial and is, therefore, not in the record that is before us.

Even if Dr. Arey had been qualified as an expert in child custody evaluation, for the trial court to make a fully informed decision regarding the issue of increased visitation, the court was required to consider the basis for whatever recommendation was made. Further, Ms. Leard was entitled to be apprised of the basis for the conclusion so that she could be given the opportunity to provide evidence to counter any erroneous facts or assumptions that might have provided a basis for Dr. Arey’s conclusion.

| ?,! Dr. Arey did not reveal the basis for his conclusion that it was not' in Gabriel’s best interest to have any increased visitation with his mother. Dr. Arey explained that revealing the information that Gabriel had entrusted to him would “make my relationship with him therapeutically impossible,” if Gabriel learned that his trust had been betrayed. In referring to his role as Gabriel’s counselor, Dr. Arey, who was originally appointed by the trial court as an impartial child custody evaluator, admitted that “I know that was not my initial role in this.” Dr. Arey did not testify regarding the basis for his opinion that it was in Gabriel’s best interest not to have any increased visitation with his mother. Therefore, even if he had been properly qualified at the trial as a child custody expert, his testimony could not be used to make a determination regarding Ms. Leard’s request for increased visitation with Gabriel.

Because, as Dr. Arey admitted, he had developed a therapeutic relationship with Gabriel that was critical to Gabriel’s psychological well being, we find that the trial court must appoint an independent evaluator to render an opinion on whether or not Ms. Leard should have increased visitation with Gabriel. An independent evaluator will be free to apprise the court and the parties whether increased visitation with Ms. Leard would be in Gabriel’s best interest and to explain the basis for that finding. We find that this assignment of error has merit.

Assignment of Error No. 6: The trial court erred in not allowing egewitness testimony or other evidence regarding the stepparent’s drinking and driving with the child to and from court ordered supervised visitation.

It appears that the trial court judge disallowed the testimony of an eyewitness to the alleged drinking by Ms. Schenker while driving Gabriel to supervised visitation with his mother. Because this alleged incident happened after the first custody trial, Ms. Leard might not have previously presented this evidence |g2to the trial court. Therefore, Ms. Leard may have been entitled to have the evidence considered if it were relevant. The record, however, does not indicate how Ms. Leard attempted to introduce the eyewitness testimony into evidence or whether she proffered the testimony. Because Ms. Leard has not provided this Court with sufficient information for us to make a ruling on this assignment of error, we cannot determine whether or not the evidence should have been admitted. Therefore, we cannot consider this assignment of error.

Assignment of Error No. 7: The trial court erred in not allowing eyewitness testimony or other evidence regarding the trial court’s minute clerk’s actions with regard to sequestered witnesses.

Ms. Leard contends that statements made by the trial court’s minute clerk might indicate bias on the part of the trial court judge. We do not believe that the trial court judge was in any way influenced by any statements made by the minute clerk. The trial court judge expressly stated on the record that “there is no conversation that anyone has had with Mrs. Morías [the trial judge’s minute clerk] that I would even give consideration to in this proceeding.” This assignment of error is without merit.

Assignments of Error No. 8: The trial court abused its discretion and manifestly erred by failing to develop a joint custody and visitation implementation plan that would provide the mother and child with substantial time and frequent and continuing contact and that would allow the child to practice the Catholic faith, because the court did not have credible evidence that the contact between the mother and child would endanger the child, mentally, morally, or emotionally.

The burden of proof that Ms. Leard is required to meet to have a court consider a change in custody is a heavy burden. In Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, the Louisiana Supreme Court discussed the burden of proof that a party seeking a change in child custody must meet. The general rule is that “the paramount consideration in any determination of child custody is the best interest of the child.” 97-0541, 95-0577, p. 12, 708 So.2d at 738. An additional jurisprudential burden is imposed when a change in a considered custody decree is requested. In Evans the Supreme Court described the burden of proof in that situation. The Supreme Court stated:

When a trial court has made a considered decree of permanent custody, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is “so deleterious to the child as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.”

97-0541, 97-0577, p. 13, 708 So.2d at 738 (citation omitted and emphasis in original).

A considered decree was issued after the 2002 trial, and it awarded sole custody of Gabriel to Mr. Schenker. For a court to change that award of custody, Ms. Leard would have to present clear and convincing evidence that the advantages gained by changing Gabriel’s custody from his father to his mother or to them both jointly would substantially outweigh the harm likely to be caused by changing Gabriel’s environment. Alternatively, she would have to show that Gabriel’s situation in his father’s home was so deleterious that a change in custody was warranted. There is no evidence to demonstrate that Gabriel was not doing | Atwell in his father’s custody. Therefore, Ms. Leard has failed to carry her burden of proof.

The burden of proof that Ms. Leard must meet to have a change made in Gabriel’s visitation schedule is less than the burden required for a change in custody. See Fernandez v. Pizzalato, 2004-1676, p. 22 (La.App. 4 Cir. 4/27/05), 902 So.2d 1112, 1126. The Louisiana Supreme Court in Maxwell v. LeBlanc, 434 So.2d 375 (La.1983) stated that “[t]he right of visitation for a non-custodial parent is a natural right with respect to his children ....” 434 So.2d at 376. La. Civil Code art. 136 establishes a statutory right to visitation. The Supreme Court further stated, however, that “[t]he right of visitation is not without its limitations. The rights of any parent are subservient to the best interests of the child.” 434 So.2d at 377.

La. Civil Code art. 134 provides that a court shall consider all relevant factors in determining what is in a child’s best interest. That article contains an illustrative list of those factors.

In the instant case, Dr. Arey testified that it was not in Gabriel’s best interest to have increased visitation with Ms. Leard. Yet the social workers who supervised Gabriel’s visits with his mother presented evidence that there were love, affection, and emotional ties between Ms. Leard and Gabriel. Nevertheless, as the trial court judge noted in her reasons for judgment, the social workers did not specifically testify that it would be in Gabriel’s best interest to have increased | ¡¡(¡visitation with his mother. Conversely, except for Dr. Arey’s testimony, there was no testimony that it would not be in Gabriel’s best interest to have increased visitation with Ms. Leard. Further, although Dr. Roniger testified that Ms. Leard was capable of properly parenting a child despite any mental disorders she might have, he had never met Gabriel and could not address what would be in his best interest.

We have considered all of the testimony regarding increased visitation with Gabriel. We find that this assignment of error has merit to the extent that the trial court relied almost exclusively on the conclusions of Dr. Arey regarding the advisability of increased visitation.

Assignment of Error No. 9: The trial court erred in rendering a decision that the mother possesses a mental illness, discriminating against mental health illnesses as a catch-all basis of unfitness to parent.

Because Dr. Arey was not qualified as an expert witness at the trial, his testimony regarding Ms. Leard’s mental status should not have been considered by the trial court judge. The only competent evidence on the issue of Ms. Leard’s mental status was that presented by Dr. Roni-ger. Dr. Roniger testified that he had not ruled out borderline personality disorder in Ms. Leard’s case and that she did have some traits of a borderline personality. Nevertheless, he testified that Ms. Leard was still perfectly capable of parenting her child and that her mental status |gfiwas such that she would not be a danger to herself or to her child if she were granted unsupervised visitation with him.

This assignment of error also has merit to the extent that the trial court relied on Dr. Arey’s assessment of Ms. Leard’s psychiatric condition. This was legal error.

DISCUSSION

There are two legal issues that must be decided in this case. The first issue is whether Ms. Leard has met her burden of proof in showing that Gabriel’s custody should be changed. The second issue is whether Ms. Leard is entitled to increased visitation rights.

Modification of Custody

We find that no evidence was presented to show that Mr. Schenker’s continued custody of Gabriel would be so deleterious to Gabriel that a modification of the existing custody decree would be warranted. See Evans v. Lungrin, 97-0541, 97-0577, p. 13 (La.2/6/98), 708 So.2d 731, 738. Similarly, we find that no evidence was presented that a modification in the existing custody decree would be so advantageous to Gabriel that it would outweigh any disadvantage of changing his existing environment. Id. Therefore, we affirm that portion of the trial court judgment refusing to modify the existing custody decree granting Mr. Schenker sole custody of Gabriel.

Increased Visitation

The trial court judge relied exclusively on Dr. Arey’s testimony to deprive Ms. Leard of increased visitation with Gabriel. As previously discussed, we have determined that the trial court committed legal error in accepting Dr. Arey’s testimony on the issue of whether it would be in Gabriel’s best interest to have [¡^increased visitation with his mother and on the issue of Ms. Leard’s psychiatric status. Thus, Ms. Leard is entitled to further consideration regarding her right to have unsupervised visitation with Gabriel, subject only to what is in his best interest.

Therefore, we remand this case and order the trial court to appoint an independent child custody expert to determine what would be in Gabriel’s best interest regarding visitation with his mother. If Ms. Leard is granted unsupervised visitation based on the expert’s opinion, this Court recommends that the trial court appoint a mediator to resolve any ongoing differences between Ms. Leard and Mr. Schenker relating to Ms. Leard’s visitation with Gabriel.

Judgment after De Novo Review

This Court renders judgment as follows:

1. The judgment of the trial court denying a change in Gabriel’s custody is hereby affirmed.
2. The judgment of the trial court denying a change in visitation is hereby vacated, and the matter is remanded to the trial court for the immediate appointment of an independent child custody expert to determine whether it is in Gabriel’s best interest to have unsupervised visitation with his mother. The expert who is appointed must render a report of the evaluation with recommendations regarding visitation and the reasons for those recommendations. The expert shall interview Gabriel and such other parties as the expert deems necessary to reach a conclusion on the issue of visitation, and the expert shall be provided with the testimony of Dr. Roni-ger, Dr. Arey, Ms. Huber, and Ms. Husserl from the trial transcript to use in the evaluation. Ms. Leard shall pay the evaluator’s fee.
|2⅞3. After the report is rendered, a rule to show cause why the recommendations set forth in the report should not be adopted by the trial court shall be held, and the trial court shall render a judgment on the rule as soon as possible after the hearing.
4. The judgment shall be rendered within the time frame specified by this Court in Ventura v. Rubio, 2000-0682, p. 18 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 892.

CONCLUSION

The judgment of the trial court denying a change in custody is affirmed, and the judgment of the trial court denying an increase in visitation is vacated. The matter of an increase in visitation is remanded to the trial court for a decision to be rendered in accordance with this opinion.

JUDGMENT AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

ARMSTRONG, J., dissents in part and concurs in part.

JONES, J., concurs for reasons assigned by Judge TOBIAS.

TOBIAS, J., concurs and assigns reasons.

ARMSTRONG, C. J.,

Dissents in Part and Concurs in Part.

IH would affirm the judgment of the trial court. I concur in the majority’s affirmance of the trial court’s judgment denying a change in the child’s custody. Upon my review of the record, however, I do not find that the trial court committed legal error in admitting Dr. Arey’s testimony as an expert in child custody evaluation in the absence of a proper foundation. Apparently, Dr. Arey was qualified by the same trial court in these same proceedings involving the same parties during the 2002 custody hearing. Given that prior qualification, I do not believe the trial court committed legal error by requiring no further foundation for his testimony in the same capacity in the 2004-05 proceedings.

[W]e, as a court of record, must limit our review to that which is in the record before us. The Court of Appeal is not a court of first impression and cannot review evidence that was not before the trial court.

Ventura v. Rubio, 00-0682 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, citing Arceneaux v. Arceneaux, 98-1178 (La.App. 4 Cir. 3/17/99), 733 So.2d 86; Uniform Rules, Courts of Appeal, Rule 1-3. In Ventura, this Court rejected consideration of information concerning the intent of the parties found only in the briefs filed by the parties. Neither Ventura nor Arceneaux would seem to require the re-qualification of an expert previously qualified in earlier proceedings before the same judge and involving identical parties in the same litigation. Furthermore, the 2002 judgment, | abased at least in part on Dr. Arey’s testimony and qualifications, was not appealed by the plaintiff, who was then represented by competent trial counsel. Therefore, I would affirm the trial court’s judgment concerning visitation.

I note that in the course of Dr. Arey’s testimony, he responded to questioning as follows:

This is really the area that I don’t want to get into because this is the stuff that [the child] and I talk about and if it gets back in a supervised visitation that I have said these things about him and it gets back to him through [Ms. Leard] or anybody else in this court, this is going to do tremendous, and I say again, tremendous damage to this boy and make my relationship with him therapeutically impossible and I believe that my relationship with him right now is the things that makes it possible for him to see [Ms. Leard] in supervised visitation once a week, and if he doesn’t have access to me, and I’m not the greatest therapist in the world, but this boy has chosen me to talk to and I have got to honor that ...

This indicates that Dr. Arey, the Court’s expert custody evaluator, has developed a therapeutic relationship with the child that has led to certain confidentiality issues.

Issues of custody and visitation are never, in a real sense, final, since changes in circumstances may occur that could necessitate modifications over the course of the child’s minority. The trial court noted in its reasons for judgment that Ms. Leard did not produce evidence that a change of custody or expanded visitation would be in the child’s best interest. Because of the parties’ opportunity to reopen the custody and visitation issues upon a change in circumstances, I do not believe it is necessary at this time to remand the case for appointment of a new custody evaluator.

In light of the foregoing, I would affirm the judgment of the trial court.

JONES, J., Concurs for the Reasons Assigned by Judge TOBIAS.

TOBIAS, J.,

Concurs and Assigns Reasons.

liThe Court of Appeal is a court of record and that which does not appear in the record on appeal cannot be considered. Ventura v. Rubio, 00-0682, (La.App. 4 Cir. 3/16/01), 785 So.2d 880.

I respectfully concur in the majority’s reasoning, findings, and conclusions on Ms. Leard’s assignments of error numbers one, two, three, four, six, and seven.

As to the remaining assignments of error by Ms. Leard:

I respectfully concur in the conclusion for the reasons assigned by the majority that the custody of Gabriel should not be disturbed. The record is devoid of evidence to establish that Ms. Leard has proved her case for a change of custody given the heavy burden of proof required of her under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Although the record before us on appeal reflects that James Arey (“Arey”) professes to have a Ph.D. (per his stationary letterhead), is a LPC (Licensed Professional Counselor), and is referred to by the title “Dr.”, the record on appeal is devoid of evidence as to what field Arey holds his Ph.D. in and on what basis he has been certified as a licensed professional counsel- or. Counsel for Mr. Schenker asserted in oral argument that Arey was accepted as an expert without opposition at the multi-day trial that resulted in the 31 May 2002 judgment. However, the [^record currently before us does not so reflect that assertion. A review of our jurisprudence discloses but one reported decision in which Arey testified, Riels v. Riels, 04-0567 (La.App. 4 Cir. 5/25/05), 905 So.2d 361, and all that is stated about him is:

The trial court further ordered Mrs. Williams to enroll in therapy with Dr. James Arey, a licensed professional counselor. The court authorized Dr. Arey to supervise visitation between Mrs. Williams and her three daughters, when, in his opinion, they were ready to be reconciled.

Riels, 04-0567 at p. 3, 905 So.2d at 363.

In light of the foregoing, I find that it was error of law for the trial court to accept Arey’s testimony about Ms. Leard’s psychological illness without for the record establishing his qualifications to express such an opinion. However, that error is, in my view, harmless because Ms. Leard did not raise an objection that Arey had not being qualified as an expert witness and in light of the fact that (a) Arey previously had been appointed by the court as an expert and (b) had been talking to Gabriel on a professional basis and now considered himself to have a therapeutic relationship with the child. Therefore I find the majority errs in finding that Arey’s testimony should have been excluded on that basis.

However, I agree with the majority that Arey cannot continue to be a court appointed expert in this case because the record affirmatively reflects that Arey has established a professional therapeutic relationship with Gabriel and has thus become his advocate. It is now appropriate (and was appropriate at the time of trial) for a neutral court appointed expert evaluator to give an opinion on the quantity and quality of the visitation that Ms. Leard should have with Gabriel. Therefore I agree with the majority that the case must be remanded for the purposes of the appointment of an appropriate neutral expert evaluator to determine the best interest of Gabriel for visitation with his mother.

|3I note Judge Jones’ position that the record is devoid of an explanation of how Judge Landrieu continues preside over the present case since she has rotated off the domestic docket at the Civil District Court. Absent from the record is evidence that the parties agreed to her obligation or duty to preside over this case. And it is unclear whether she continued hearing a matter when she had already heard part of the testimony and was merely completing the trial. Absent agreement by the parties or her continuing to preside over an open matter where she had already heard part of the testimony, her activity in this case may in violation of the random allotment rules mandated by law. On the remand and for purposes of clarification, the judge should explain for the record how she continues to preside over this case.

      . Ms. Leard had requested that Gabriel be evaluated by Dr. Scuddy Fontenelle, a child psychologist who had previously counseled Ms. Leard and Gabriel.

      . Neither Ms. Leard nor Mr. Schenker requested written reasons for the judgment that resulted from the 2002 trial.

      . A transcript of the testimony from the 2002 trial is not in the record before us. The trial court judge’s written reasons for judgment is the only document in the record from which we can discern the testimony at the 2002 trial.

      . The trial began on July 21, 2004, but no testimony was taken on that date.

      . We note that Ms. Leard, who is not a licensed attorney, is representing herself, and she may have believed that the signing of the order setting the rule to show cause was, in fact, an order requiring Dr. Gandle to release Gabriel's records. Apparently, Dr. Gandle believed this to be the case, also.

      . Although the supervised visitation did not begin until after the first custody trial, the court did hear several matters during the time between the two trials in this case.

      . Although Ms. Leard has used the term "bipolar disorder" in her brief, we assume that she meant borderline personality disorder, which is the term that has been consistently used by Dr. Arey.

      . We are not necessarily saying that Dr. Arey was not qualified to evaluate Ms. Leard and Gabriel. His credentials may well have been impeccable, but there is nothing in the record that is before us to evidence his qualifications.

      . Because there were hearings on several matters between the time that the judgment in the first trial was rendered and the time of the second trial, we cannot determine whether the trial court had previously considered the evidence.

      . A “considered decree” is “an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children.” Evans v. Lungrin, 97-0541, 97-0577, p. 12-13 (La.2/6/98), 708 So.2d at 738.

      . Article 136(A) states that "[a] parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.”

      . We note that the social workers were not directly asked whether it would be in Gabriel's best interest to have increased visitation with Ms. Leard. We suspect that had Ms. Leard been represented at the hearing by an attorney, the critical questions for the court to determine what is in the child's best interest would have been asked. Although Ms. Leard did a very credible job of representing herself as a layperson, we believe that it was a disadvantage to her that she was not represented by an experienced domestic relations attorney. Such an attorney would have known exactly what testimony and evidence would have to be presented to meet Ms. Leard’s burden of proof as well as how to place that evidence and testimony before the court in accordance with the rules of evidence.