author: THIBODEAUX, Chief Judge.

text:
    Laura Leonard LeBLANC v. Mitchel Brett LeBLANC.
    No. 2006-1307.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      David Sterling Fitzgerald, Jr., Cox Fitzgerald, L.L.C., Lafayette, LA, for Defendant/Appellee — Mitchel Brett LeBlanc.

      Samuel David Abraham, Eric Scott Neu-mann, Julie Koren Vaughn Felder, Lafayette, LA, for Plaintiff/Appellant — Laura Leonard LeBlane.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges..
   THIBODEAUX, Chief Judge.

| ]This case involves a custody dispute between the plaintiff-appellant, Laura Leonard LeBlane (“Laura”), and the defendant-appellee, Mitchel Brett LeBlane (“Mitch”), over the parties’ minor child, Ryan, who will be fourteen years old in July 2007. The parties entered into a Consent Judgment on January 19, 2005, wherein Laura was to have domiciliary custody of Ryan, and Mitch was to have visitation with Ryan for approximately one half of the summer weeks and for at least 25% of the school year. After a trial in March of 2006, Laura was found in contempt of court for failing to enforce the visitation between Ryan and his father. Mitch was found in contempt of court for violating an interim order that required him to attend anger management and parenting classes. Both Laura and Mitch were awarded joint custody with Laura being designated as the domiciliary parent. Mitch was awarded attorney fees. Both parties have appealed the March 2006 judgment. For the following reasons, we affirm and modify the judgment of the trial court.

I.

ISSUES

With regard to the appeal of Laura Le-Blanc, we must decide:

(1)whether the trial court erred in finding Laura in contempt for violating the January 19, 2005 Consent Judgment, and whether the sanctions imposed were beyond the scope of the court’s power pursuant to La.R.S. 13:4611(d)(e);
(2) whether the trial court erred in excluding transcripts from the Motion for Summary Judgment and in not recognizing the January 19, 2005 Consent Judgment as a “considered decree”;
(3) whether the trial court erred in establishing joint custody in violation of La.R.S. 9:335(2)(a);
(4) whether the trial court erred in setting the date for the custody trial; and,
| ¾(5) whether the trial court erred in ordering Laura to pay for two-thirds of the cost of counseling for the minor child.

With regard to the appeal of Mitch Le-Blane, we must decide:

(1) whether the trial court abused its discretion in designating Laura as domiciliary parent;
(2) whether the trial court erred in finding Mitch in contempt of court for failing to attend the assigned classes; and,
(3) whether the trial court erred in not awarding Mitch the full amount of the attorney fees for Laura’s contempt.

II.

FACTS AND PROCEDURAL

HISTORY

Laura and Mitch were married in 1992. Their minor child, Ryan, was born on July 1, 1993. The parties subsequently separated and divorced. In 1999, a judgment granting joint custody with a seven-and-seven visitation schedule (seven days with Laura, then seven days with Mitch, and so on) was implemented. In 2003, two court-appointed psychologists evaluated the parties and the minor child and, finding both parents capable and caring, submitted a joint recommendation that the joint custody with seven-and-seven visitation continue. In 2004, Laura filed a rule to modify custody and visitation, and hearings began wherein Laura presented testimony by various witnesses including Ryan’s Catholic school counselor since the first grade. Following this testimony, a temporary order was issued in September 2004 which awarded Mitch domiciliary custody of Ryan for the fall semester of 2004, pending the resolution of the trial scheduled to resume in January 2005.

On January 19, 2005, without the presentation of evidence by Mitch, Laura and Mitch entered into a Consent Judgment. Both agreed that Laura would be |3the domiciliary parent and Mitch would have visitation with Ryan at Mitch’s home for at least 25% of the school year, and each summer, for two weeks in June, two weeks in July, and for ten days in August, of each year. In April of 2005, Mitch filed a rule for contempt against Laura because he had not had visitation with his son since January of 2005. Laura asserted that a counselor whom Laura had contacted, Barbara Walley, found suicidal as well as homicidal tendencies in Ryan against his father. Laura filed for a restraining order around the end of May 2005 to prevent visitation between Mitch and Ryan. However, Mitch worked with Walley and Ryan for several months in attempts to work through the problems alleged by Ryan regarding his relationship with his father. In late August 2005, the trial court appointed Dr. Kenneth Bouillion to evaluate Ryan to determine whether he did in fact have suicidal and homicidal tendencies. Dr. Bouillion did not agree with Ms. Wal-ley, and Dr. Bouillion was appointed to begin a reunification process between father and son.

After meeting with Mitch and Ryan on numerous occasions and working through various problems, Dr. Bouillion recommended unsupervised visitation between father and son in December 2005. Apparently there were additional gaps in visitation between Christmas 2005 and the custody trial in Marchjj200f, The trial court issued a judgment ^warding joint custody to both parents andjssued a Joint Custody Implementation Plan. Domiciliary custody was to remain with Laura, but the seven- and-seven visitation was to resume with specific provisions for counseling and specific provisions for holiday visitation. The judgment also found Laura in contempt for violating the January 19, 2005 Consent Judgment with regard to the minimum visitation between father and son, and it found Mitch in contempt for failing to attend required parenting classes. It is from this judgment that the parties appeal.

_4III.

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. 12 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (quoting State in the Inter est of Sylvester, 525 So.2d 604, 608 (La. App. 3 Cir.1988)) (citing Bagents v. Ba-gents, 419 So.2d 460 (La.1982)).

Every child custody case must be viewed within its own peculiar set of facts, and a trial court’s award of custody is entitled to great weight and will not be overturned on appeal unless an abuse of discretion is clearly shown. Connelly v. Connelly, 94-0527 (LalApp. 1 Cir. 10/7/94), 644 So.2d 789. 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.

Contempt of Laura LeBIanc

Laura contends that the trial court erred in finding her in contempt for violating the January 19, 2005 Consent Judgment and erred in the sanctions imposed. The sanctions included ordering her to pay all court costs from January 19, 2005, to |sthe date the judgment was signed, to pay a fíne of $500.00, to pay $13,137.00 in attorney fees to Mitch LeBIanc, and to spend seven days in jail or provide weekly reports to Mitch documenting her efforts to improve the relationship between the minor child, Ryan, and his father, Mitch. Mitch responds that the trial court did not err in finding Laura in contempt because she violated the January 19, 2005 Consent Judgment by failing to enforce the minimum visitation requirement therein, and further responds that the court did not err in conditioning the seven day jail sentence on whether Laura documented positive steps to improve the relationship between Ryan and his father.

Pursuant to our Code of Civil procedure, constructive contempt is “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” La.Code Civ.P. art. 224(2). “[A] finding that a person wilfully [sic] disobeyed a court order in violation of La.Code of Civil Proc. art. 224(2) must be based on a finding that the accused violated an order of the court ‘intentionally, knowingly, and purposefully, without justifiable excuse.’ ” Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343, cert, denied sub nom. Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999)). In the present case, the order that Laura is accused of willfully disobeying is the January 19, 2005 Consent Judgment which named her as domiciliary parent of Ryan, subject to summer visitation with Mitch for the first fifteen days of June, the first fifteen days of July, and the first ten days of August, of each year. The Consent Judgment further provided that Ryan’s visitation with Mitch during the school year would be as follows:

SCHOOL YEAR: Whenever Ryan desires to go to MITCHELL BRETT LEBLANC’S home to visit; however, |finot less than 25% of the total school year. LAURA LEONARD RITCHEY shall give reasonable notice by telefax to MITCHEL BRETT LEBLANC’s tele-fax number (337) 896-3487 Ryan’s desire to visit with his Dad, and MITCHEL BRETT LEBLANC shall telefax back to LAURA LEONARD RITCHIE’s te-lefax number (337) 988-1121 within two (2) hours of receipt of the telefax if he can be available to have Ryan for visitation. Anytime that Ryan’s wishes are telefaxed and received by MITCHEL BRETT LEBLANC, this time shall count as part of the 25% total for the school year.

The record reveals that Mitch tried repeatedly to see his son after the January 19, 2005 Consent Judgment was executed. He notified Laura on January 21, 2005, that his fax machine was being repaired and asked her to send faxes to his father-in-law’s fax machine, to which she objected. Mitch sent Ryan a certified letter on February 2, 2005; Laura testified that Ryan did not want to see his dad and ripped up the letter. Mitch sent a fax on February 12, 2005, asking for visitation, and Laura replied that Ryan would like to visit the weekend of February 18 through February 20. However, there were disagreements over the fact that Ryan, who was about eleven-and-a-half years old at the time, was reading and approving the faxes, and ultimately, the child became upset and cancelled the visit. Mitch sent faxes seeking visitation on February 21, February 28, March 7, and March 14, 2005.

Following the February 21 request, the child responded that he would let his father know when he would come and said that his father could call him at any time. Mitch testified that he tried to call many times but never got through because of busy signals, fax line signals, or a full answering machine. Mitch attempted to schedule visitation for Ryan to accompany him and his new family on vacation in February, but subsequently withdrew the invitation because Laura would not provide the dates needed. Likewise, Mitch attempted to schedule visitation for the three-day Easter weekend, but that was also unsuccessful. Mitch did not have visitation with |7Ryan during the spring and summer of 2005 as required in the Consent Judgment. Laura attempted to argue that Mitch had had Ryan for 33% of the school year, which is more than the 25% requirement, because Ryan had lived with Mitch for the fall semester of 2004. However, the Consent Judgment was not executed until January 19, 2005. Therefore, any custodial time that Mitch had in 2004 was irrelevant as to the visitation requirements of the judgment issued in 2005.

At the contempt hearing in March of 2006, Laura admitted that she had answered some but not all of Mitch’s faxes regarding visitation. She further indicated that she tried to make Ryan visit his father but that it was out of her control. Laura attributed this to the fact that she had contacted a counselor, Barbara McCarroll-Walley, LPC, LMFT, who reported finding suicidal tendencies in Ryan, as well as homicidal tendencies in Ryan toward his father, and that Walley was of the opinion that forcing Ryan to visit his father would be harmful to Ryan. Laura, therefore, argued that, even if she did fail to enforce the visitation, which she denied, she was justified in her actions. However, Ryan’s first visit with Walley was not until March 30, 2005, and Mitch had already been denied visitation since January. It was not until April or May that Walley had discussions with Ryan of suicide and homicide, and Ryan had been with his mother and had not seen his father for months, since January, when this subject came up. Moreover, Laura did not file for a restraining order to stop visitation until May 25, 2005, and the court order which officially suspended Mitch’s visitation, until Walley deemed it advisable, was not signed until July 14, 2005. Mitch worked with Walley for several months, but ultimately, was not allowed to have unsupervised visitation with Ryan for over eight months in 2005.

During that time, on August 31, 2005, Judge Phyllis Keaty, who was the presiding judge, appointed Dr. Kenneth Bouil-lion, a psychologist well known for his |swork with children, and who had worked with Mitch and Laura several years before, to meet with Ryan to determine whether he was suicidal and whether there was any reason that Ryan should not have visitation with his father. At the contempt hearing before Judge Edwards in March of 2006, Dr. Bouillion testified that Ryan was not suicidal, that he was somewhat manipulative, and that much of his fear of his father had to do with Ryan’s procrastination and how his father would react to Ryan’s falling grades while in his mother’s care in 2005. More specifically, Dr. Bouil-lion testified that Ryan had spent most of the fall of 2004 at his father’s residence, and during that time his father had him on a strict school and homework schedule, which included help from his step-mom using study guides, and which resulted in good academic performance. We note that both Mitch and Laura remarried, and both had new babies at home. Dr. Bouillion testified that while Laura and her new husband helped Ryan with his school work, there was less accountability at Laura’s residence.

From September through early December 2005, Dr. Bouillion met often with Mitch and Ryan and worked at reunifying the father and son upon the request of the court. Dr. Bouillion cautioned Mitch about his blunt manner, and reenacted incidents wherein Ryan had reported rough treatment from his dad, who had cuffed Ryan’s head while he was studying, and once accidentally caused Ryan to poke himself with a pencil. Dr. Bouillion employed a process called “mass practice” wherein he brought the two together repeatedly and counseled them, with the result that the tension and stress levels decreased, and he ultimately recommended unsupervised visits between father and son. Accordingly, there were visits around Christmas 2005, but then another gap in visitation apparently occurred between December 24, 2005 and mid-February 2006, wherein Mitch did not get to have Ryan visit.

|flWe note that the exhibits contain numerous letters from Laura to Mitch showing Laura’s great care and interest in Ryan’s day-to-day school and health needs. There is no doubt that she is a loving, caring, and capable mom. With regard to the father’s home life, Mitch has a nice place in the country, a large two-story house and huge garage heated and cooled for various kinds of recreation, with four-wheelers to ride, Ryan’s scooter and bicycle, a swimming pool, pool table, Ryan’s own bedroom decorated to reflect Ryan’s interest in cars, Ryan’s friends in the neighborhood, and two younger half-brothers with whom to play. Mitch testified that he never misses church and that Ryan always goes to church when he is with him. Both parents have repeatedly been found to be good and capable parents.

However, Dr. Bouillion testified that the conflict between the parents was causing most of the problems, angering the father and causing Ryan to side with his mother. When asked whether he felt that Laura had cooperated fully in the reunification process, Dr. Bouillion indicated that there had been difficulty with Laura in scheduling appointments for him to see Ryan and that her stress level was immense with regard to the reunification. Dr. Bouillion further testified on the other hand that he believed that the father is capable of encouraging a positive relationship with the mother.

The March 2006 hearings lasted several days and included twenty-nine hours of testimony. In addition to the live testimony of Dr. Bouillion, Judge Edwards also heard first hand the testimony of Mitch, Mitch’s wife, his mother-in-law, his father-in-law, Laura, Laura’s husband, Laura’s mother, some of Ryan’s teachers, and he heard the testimony of Ryan himself. He was able to hear and observe the witnesses in person. Additionally, he had a joint exhibit which contained the testimony of Barbara Walley, and he had the letters and recommendations of the Impsychologists, Dr. Luke Elliot and Dr. Lowe. After the closing argument, the trial court stated as follows:

I have been able to listen to you during the course of this trial about some very troubled relationships. I’m very confident that one of the previous Judges that you have dealt with has more than likely told you that for as long as you live you will be the parents of this child. That is an accident of history and it turns out that this child came to both of you. I hope I am now convinced that both of you love this child and I’m convinced that both of you want what’s best for this child.... Somehow you all will have to change the dynamics of your relationship if you are to achieve what you both want for your son. What you are now doing is not working.... Somehow or another you will have to figure out a way to work with the other parent in order to achieve what you want. You will not be able to achieve what you want by yourself. The other parent will have to be considered.... But you need to know, whatever I say, you can always allow the other parent to be more involved in the child’s life than what I require. You can always let them be more involved.

It is clear from the record that the trial court considered very carefully the testimony and evidence before him, and we find no abuse of discretion in his finding that Laura violated the Consent Judgment by not enforcing the minimum visitation requirement that Mitch was entitled to under that order.

Laura argues that the order of the court did not recite facts constituting contempt, which is mandatory under Havener v. Havener, 29,785 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, and therefore should be reversed. More specifically, La.Code Civ.P. art. 225(B) provides: “If the person charged with contempt is found guilty the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed.” “The provisions of C.C.P. art. 225(B) are mandatory and must be strictly construed. The failure of a trial court to recite facts constituting contempt mandates a reversal of a judgment of contempt.” Havener, 700 So.2d at 538 In (citations omitted). In the present case, in the judgment being appealed, the trial court stated, “LAURA LEONARD RIT-CHIE has not required RYAN LEBLANC, to spend 25% of the school year with MITCHEL BRETT LEBLANC. That conduct is in violation of the January 19, 2005 judgment. That conduct is contemptuous of the orders of Division M2 of this court.” This language clearly constitutes a recitation of the facts constituting contempt. We find no error.

Laura further contends that the trial court erred in ordering her to pay all court costs incurred from January 19, 2005 to the date that the judgment is signed, pay a fine of $500.00, pay the sum of $13,137.00 in attorney fees to Mitch, and to spend seven days in jail or provide weekly documentation to Mitch regarding her efforts to improve the relationship between Ryan and his father. The allowable sanctions for contempt of court are set forth in pertinent part as follows:

La.R.S. 13:4611. Punishment for contempt of court
Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fíne of not more than five hundred dollars, or imprisonment for not more than three months, or both.
(e) In addition to or in lieu of the above penalties, when a parent has violated a visitation order, the court may order any or all of the following:
(i) Require one or both parents to allow additional visitation days to replace those denied the noncustodial parent.
Iia(ii) Require one or both parents to attend a parent education course.
(iii) Require one or both parents to attend counseling or mediation.
(iv) Require the parent violating the order to pay all court costs and reasonable attorney fees of the other party.
(f) A pattern of willful and intentional violation of this Section, without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order.

Based upon the foregoing, all, except for one, of the trial court’s sanctions in this case are specifically listed in La.R.S. 13:4611, including the payment of a $500.00 fine and court costs and attorney fees, and the jail sentence. As to the trial court’s offering of an alternative to the jail sentence in the form of Laura’s submitting documentation to Mitch of her efforts to improve the relationship between father and son, Laura argues that it directs her into a personal servitude to Mitch without time limitations and is an abuse of the court’s power and an illegal sentence. In support of her position, Laura cites George v. Nero, 02-1140 (La.App. 3 Cir. 3/5/03), 839 So.2d 1085. There, the mother was found in contempt for failing to allow summer visitation and was ordered to serve ten days in jail, to pay $500.00 to the father to offset his expenses, and she was assessed all court costs. A panel of this court found that the trial court abused its discretion in ordering the mother to pay $500.00 to the father. We stated as follows:

[A] contempt proceeding is designed for the vindication of the dignity of the court rather than for the benefit of a litigant. Nungesser v. Nungesser, 558 So.2d 695, 701 (La.App. 1st Cir.)[wni denied, 560 So.2d 30 (La.1990), abrogated on other grounds, Wascom v. Wascom, 96-0125 (La.4/8/97), 691 So.2d 678]. Thus, the court cannot order a fine or penalty to be paid to a litigant because such payment does not vindicate the court. City of Kenner v. Jan P. Jumonville, Placide Jumonville, p. 8, 701 So.2d | -1,0,223 [writ denied, 97-2890 (La.1/30/98), 709 So.2d 718]. The fine must be made payable to the court itself. Id.

George v. Nero, 839 So.2d at 1088. Finding that the assessment of a fine to be paid to the father rather than to the court was in error and in violation of the purposes of contempt proceedings, we reversed the trial court in George v. Nero. Likewise, we found that the indefinite discontinuance of child support payments was unauthorized and illegal in that case.

In the present case, Mitch agrees that the requirement for Laura to document her efforts to improve the relationship between father and son should have a time limitation and suggests that the documentation be provided to the trial court and to Mitch for the next three months. We agree with the time limitation suggested.

However, in keeping with George v. Nero, we modify the judgment to provide that the condition for the suspension of the seven-day jail sentence as to Laura be that she provide weekly reports to the trial court only, and not to Mitch personally, for the next three months, documenting her efforts to improve the relationship between Ryan and his father. Her failure to provide documentation to the court will result in her serving the jail sentence set forth in the March 2006 Judgment. The finding of contempt against Laura and all other sanctions imposed are affirmed.

Laura further contends that the trial court erred in excluding transcripts of testimony in her motion for partial summary judgment and at the trial on the merits and in not recognizing the January 19, 2005 Consent Judgment as a “considered decree.” In order to understand this somewhat convoluted assignment of error, we must backtrack to previous filings. In 2004, Laura filed a rule for a change of custody. At two hearings on the rule, on August 5th and 10th of 2004, Laura put on testimony by Ryan, by Ryan’s school counselor, Sister Kathy, by Father Bill Gear-heard, by Mitch’s former girlfriend, Crystal Cormier, and by Laura’s current luhusband, Jay Ritchie. The matter was to be concluded at a final hearing on January 19, 2005. However, the parties entered instead into a “Consent Judgment” on that date, wherein Ryan would reside with Laura, and Mitch would have visitation with Ryan in his home for approximately 50% of the summer and 25% of the school year. Due to the Consent Judgment, Mitch never put on testimony on his own behalf; nor did the parties themselves testify; nor was there testimony by any of the psychologists who had previously found both parties fit and capable parents.

When Laura did not facilitate the consented-to visitation in the spring semester of 2005, Mitch filed a rule for change of custody on April 27, 2005. On December 22, 2005, Laura filed a motion for partial summary judgment seeking to have the January 19, 2005 Consent Judgment recognized as a “considered decree” in order to raise the burden of proof in Mitch’s April 27 request for a change of custody. More specifically, when a trial court has made a considered decree of permanent custody, the party seeking a change of custody bears the heavy burden of proving that a 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 a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). However, in cases where the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the burden in changing the present custody arrangement requires only that: (1) a change in circumstances affecting the welfare of the child had occurred since the original decree, and (2) the proposed modification is in the best interest of the child. Aucoin v. Auc00oin, 02-0756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245.

|1BAt the hearing before Judge Edwards on the motion for partial summary judgment, Laura introduced into evidence an affidavit summarizing the August 2004 testimony on her behalf, and she presented the minute entries from the testimony, in her efforts to have the Consent Judgment recognized as a “considered decree.” However, the actual transcripts of the 2004 testimony were not available. The transcript of the January 19, 2005 hearing resulting in the Consent Judgment was available, and the trial court did accept that into evidence. Judge Keaty had recited in the Consent Judgment that it was based upon the pleadings and the written stipulations of the parties. Therefore, she did not rely on any testimony regarding fitness of the parties. In fact, as Mitch points out, he did not put on any testimony of his own. Accordingly, Judge Edwards determined that there was not enough evidence before him to render the January 19, 2005 Consent Judgment a “considered decree,” and he denied Laura’s motion for summary judgment on that issue.

In support of her argument that the Consent Judgment was a considered decree, Laura LeBlanc cites Adams v. Adams, 39,424 (La.App. 2 Cir. 4/06/05), 899 So.2d 726; Long v. Long, 28,763 (La.App. 2 Cir. 12/11/96), 684 So.2d 1099, writ denied, 97-096 (La.3/7/97), 690 So.2d 20; and Cherry v. Cherry, 04-0002 (La.App. 4 Cir. 2/2/05), 894 So.2d 1208. However, in Adams and Long, the parties stipulated to the standard of proof in Bergeron; and in Cherry, the trial court awarded custody based upon clear and convincing evidence after considering all pertinent facts and circumstances. In the present case, the Consent Judgment was based only upon the pleadings filed and the written stipulations of the parties. Accordingly, the trial court herein did not err in concluding that the January 19, 2005 Consent Judgment was not a considered decree. As to Laura’s argument that it was error to not admit the 2004 transcripts, we disagree.

|1frAt the trial on the merits on March 3, 2006, Laura attempted to introduce the actual transcripts from the August 2004 testimony that she had summarized in an affidavit for the March 1, 2006 hearing on her December 2005 motion for partial summary judgment, which she had filed again in January 2006. Counsel for Mitch objected, stating that the matter of the considered decree had already been decided. The trial court sustained the objection but allowed Laura to proffer the transcripts of the August 2004 testimony. With regard to the excluded transcripts, counsel for Mitch asked whether the transcript evidence pertained to the motions for summary judgment or to “all of the trial.” The court responded, “I understood him to be offering evidence that he wanted me to consider when deciding the motion for summary judgment.” Counsel for Laura responded, “The motion for partial summary judgment, that’s correct.”

A trial court is afforded great discretion in the admission of evidence during a trial. Its decision to admit or deny evidence will not be reversed on appeal in the absence of an abuse of that discretion. McIntosh v. McElveen, 04-1041 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, writ denied, 05-0528 (La.4/29/05), 901 So.2d 1069. In the present case, the transcripts were offered in support of a motion for partial summary judgment on the issue of whether a consent judgment was a considered decree. Where the transcripts included testimony on behalf of Laura only, and where no evidence was entered on behalf of Mitch regarding fitness of the parties, nothing in the transcripts could change the fact that the Consent Judgment was not a considered decree. A considered decree is rendered by a court only after considering all evidence regarding the fitness of both parties. The Consent Judgment itself recited that it was based upon only the pleadings and the stipulations of the parties.

117Moreover, just a few days before, at the March 1, 2006 hearing on the motion, while introducing Laura’s affidavit summarizing the August 2004 testimony, counsel for Laura stated to the trial judge, “I did not believe that we would have time to give the entire record of all testimony that was taken. I did not believe that to be necessary.... I don’t think there is a requirement for you to read through three volumes of trial testimony to make that determination.” Accordingly, the trial court did not abuse its vast discretion in excluding the transcript evidence a couple of days later on March 3 when counsel for Laura had the actual transcripts of the August 2004 testimony and sought to have them entered for the same purpose.

Laura further contends that the trial court erred in establishing a joint custody and implementation plan that imposes a seven-and-seven custody arrangement (each parent has seven days of alternating weekly custody), provides for Mitch to have custody for the entire school year of 2006-2007, and which denies the mother Christmas visitation. As a threshold matter, the custody plan implemented by Judge Edwards after the March 2006 trial does not deny the mother Christmas visitation. The plan calls for the father to have custody in odd-numbered years from the beginning of Christmas holidays, when school lets out, until 2:00 p.m. on December 25th. The plan further provides that the father will have custody in even-numbered years from 2:00 p.m. on December 25th until Christmas holidays end, when the child returns to school in the new year.

While the mother is not specifically mentioned, it is clear to this court that the mother has custody during Christmas when the father does not. In other words, the mother has custody for the second half of Christmas holidays in the odd-numbered years, and she has custody for the first half of Christmas holidays in the even-numbered years, with December 25th at 2:00 p.m. marking the half-way point |1sof the Christmas holiday period. As to the custody arrangement, the trial court listened to twenty-nine hours of testimony, including the testimony of the court-appointed Dr. Kenneth Bouillion, who worked with Ryan and Mitch together and testified that both parties were good parents and that Mitch in particular provided more structure for Ryan with regard to academic performance. The court also read the testimony of counselor Barbara Walley, which was entered as a joint exhibit. Additionally, the court read the 2002 letters of the court appointed psychologists, Dr. Warren Lowe and Dr. Luke Elliot, who had evaluated Ryan and each parent individually and had jointly recommended adhering to a previous custody plan of seven-and-seven.

As Laura points out in her brief, La.R.S. 9:335(2)(a) provides: “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.” Subsection (b) provides: “To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.” We see nothing in the seven- and-seven custody plan that runs counter to these provisions. In fact, the custody plan appears to provide exactly what the legislature intended. With regard to the plan’s provision giving Mitch custody for the entire school year of 2006-2007, La. R.S. 13:4611(l)(e)(i) states that when one parent violates a custody and visitation order, the court can require that parent to allow additional visitation days to replace those denied the noncustodial parent. Moreover, La.R.S. 13:4611(l)(f) provides that a pattern of willful and intentional violation of the contempt statute, without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order. Laura’s argument on this issue is meritless.

|18Laura further contends that the notice and time allowed for trial preparation was inadequate. She argues that the order setting the custody trial date and an expedited hearing on interim custody, for the same date, was not signed until February 26, 2005[sic], which only allowed three or four days for trial preparation. The record reveals that the order fixing the date of March 3, 2006 for trial on the merits was signed on February 25, 2006. The order set March 3, 2006 as the date for several pending rules including Mitch’s request for permission to Amend and Supplement the Rule for Change of Custody, an expedited hearing on Interim Custody, the trial on the merits for Change of Custody, the continuation of the Rule for Contempt and the Request for Sanctions against Laura, filed on June 10, 2005. As Mitch points out, the contempt hearing against Laura had begun on November 7, 2005 before Judge Phyllis Keaty. However, Judge Keaty recused herself on January 4, 2006, and the matter was assigned to Judge Edwards.

Therefore, the custody and contempt matters had been ongoing since Mitch filed a request to change custody on April 27, 2005, and hearings had actually begun in November of 2005. All of the parties were on notice of the substance of the issues to be considered. As Mitch points out, there was little preparation required since the issues and the facts were the same. Moreover, we note that Laura does not argue, and the record does not indicate, that Laura requested or filed for a continuance of the trial date. At the hearing on her Motion for Partial Summary Judgment on Wednesday, March 1, 2006, the parties discussed having learned the previous Friday that they would be going to trial on the upcoming Friday, March 3rd, and counsel for Laura did not at that time object to the upcoming trial. In fact, at one point during the hearing on March 1, 2006, counsel for Laura stated, “I’m not suggesting that we continue the trial, Judge.”

LnIf counsel did not object to the trial date, and he participated in the proceedings, his client cannot now raise an objection. See Cortina v. Gulf States Utilities-Cajun Elec. Power Co-op., Inc., 594 So.2d 1326 (La.App. 1 Cir.1991), writs denied, 600 So.2d 666, 600 So.2d 667 (La. 1992) (plaintiff participated in the proceedings on the day of trial without objection; any objection plaintiff had to the proceedings was waived). See also Himel v. Landry, 180 So. 428 (La.App. 1 Cir. 1938) (Defendant was denied a new trial or rehearing where she failed to show that she was deprived of making any defense on the merits of the case by reason of the trial going forward on a day fixed with her attorney’s consent). After failing to object at the hearing on March 1, 2006, at the trial on the merits on March 3, 2006, counsel for Laura pointed out to the court that they had had less than ten days to prepare for trial. The court responded that the dates were set in response to a request for an expedited hearing, and the normal delays were not being honored. Counsel did not comment further, did not request a continuance, and clearly had not filed a motion for a continuance.

Laura contends finally that the trial court erred in ordering her to pay for two-thirds of the cost of counseling for the minor child. More specifically, the trial court’s Joint Custody Implementation Plan orders both parents to complete specific parenting courses and to cooperate with Dr. Luke Elliot’s efforts to coach the parents and to counsel Ryan on more functional methods to address their situations. The Joint Custody Implementation Plan orders Laura to pay two-thirds and Mitch to pay one-third of Dr. Elliot’s counseling and coaching costs; the Plan also orders Laura and Mitch to split 50/50 the cost of Dr. Darlene Nemeth’s neuropsychological assessment of Ryan. Laura argues that the assessment of these costs to her results in a modification of the child support obligation, which issue was not before the court, j ?1We disagree. The assessment of these costs is not a modification of the ongoing child support obligation but is a separate, distinct and allowable assessment under La.R.S. 13:4611(l)(e)(iii) which provides that, as punishment for contempt, a trial court may require one or both parents to attend counseling.

If the court had ordered only Laura to attend counseling, she would have been responsible for the entire cost of the counseling. By ordering both to undergo counseling, and by ordering Laura to pay for two-thirds of the counseling costs, it is apparent that the trial court found Laura more liable for the necessity of counseling than Mitch. The court’s allocation of two-thirds of the cost to Laura is not prohibited by La.R.S. 13:4611, nor does it constitute a modification of child support which covers the ongoing medical costs of the child. This assignment of error is also without merit.

Mitch answered the appeal in this case and assigns three errors. First, he asserts that the trial court abused its discretion in designating Laura as domiciliary parent, primarily because she failed to “facilitate and encourage a close and continuing relationship between the child and the other party” under La.Civ.Code art. 134(10). However, there are eleven other factors under Article 134, including love, affection, emotional ties, permanence of family unit, moral fitness, health, reasonable preference of the child, and the responsibility for the care and rearing of the child previously exercised by each party. There was strong evidence that Laura was a loving and caring mother and no evidence that Laima failed in any of the above-mentioned factors, and there was testimony that Ryan liked living with his mother. Therefore, we find no error in the trial court’s maintaining Laura as the domiciliary parent.

ImMitch also contends that the trial court erred in finding him in contempt of court for failing to attend assigned parenting classes. The record reveals that the Hearing Officer issued a Conference Report on May 25, 2005, recommending that both parents contact the Family Tree and enroll in the R.A.P.P. Program, and that Mitch enroll in the Best Dads program. Laura complied, and Mitch did not. Mitch filed a timely objection, and Judge Keaty signed a Temporary Order on June 1, 2005, ordering that the recommendations of the Hearing Officer be made a temporary order of the court pending the hearing on the rule to show cause. The Notice of the Signing of the Judgment went out on June 6, 2005. Laura filed a Rule for Contempt on December 22, 2005, which included allegations that Mitch was in contempt of court for failing to attend the assigned classes. On January 6, 2006, an Order was issued by the trial court setting the Rule to Show Cause on the contempt issue for March 7, 2006. The matter was heard during the custody trial, and Judge Edwards found Mitch in contempt and ordered him to pay a $500.00 fine, and also ordered him to serve seven days in jail or provide verification within fifteen days that he had enrolled in the recommended parenting classes.

Mitch argues that the assignment to take the classes was merely a hearing officer’s recommendation, to which he timely objected, that the recommendation became an interim order only, and that he cannot be found in contempt where no court order was ever issued. He cites Piccione v. Piccione, 01-1086 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, as authority for his position. In Piccione, a panel of this court set aside a contempt judgment rendered against Dr. Piccione for failing to pay spousal and child support in -accordance with the recommendations of a hearing officer. There, the hearing officer had issued recommendations that were neither reduced to a written order nor filed into the record | ¡^of the proceeding. Both parties filed exceptions to the hearing officer’s recommendations. Thereafter, Ms. Pic-cione filed a Rule for Contempt alleging that Dr. Piccione had failed to pay child and spousal support as recommended by the hearing officer. The trial court found Dr. Piccione in contempt and then we reversed.

In reaching our decision in Piccione, we considered La.R.S. 46:236.5 which authorizes the use of hearing officers in domestic matters, including support matters. We also reviewed the local district court rule relating to hearing officers and found that the local rule gave the hearing officer more authority than contemplated by the statute by allowing contempt proceedings against a party against whom no court order has ever been issued. However, the LeBlanc case herein is distinguishable from Piccione. The record in this case establishes, unlike that in Piccione, that the recommendations of the hearing officer were reduced to writing and were made a temporary order of the court, signed by Judge Keaty on June 1, 2005, and the Notice of Signing of Judgment went out on June 6, 2005.

The present case is more analogous to Ackel v. Ackel, 06-646 (La.App. 5 Cir. 1/16/07), 951 So.2d 403, where an “interim judgment” was signed by the domestic commissioner, and when Mr. Ackel moved for a continuance of the trial court hearing on his objection to the hearing officer’s recommendations, the district court judge signed an “interim judgment” ordering Mr. Ackel to pay his spouse final periodic spousal support in the amount of $1,500.00 per month. The court in Ackel distinguished the Piccione case, and found that the contempt proceedings in that case did not proceed against a party in the absence of a court order but, to the contrary, were to enforce the court order issued by the district court judge. While the Fifth Circuit Court of Appeal acknowledged that the interim judgment may have been entered in consideration of the hearing officer’s recommendations, the court stated 1 ¡>4that it was no less a court order for contempt purposes. Similarly, in the present case, Mitch violated a court order, based upon the hearing officer’s recommendation but signed by District Court Judge Phyllis Keaty, and Judge Edwards did not commit legal error in finding him in contempt for the violation.

Lastly, Mitch contends that the trial court erred in not awarding Mitch the full amount of his attorney fees for Laura’s contempt. The trial court may render judgment for costs and attorney fees against any party as the court may consider fair. La.Code Civ.P. art. 4550. This assignment of error is without merit.

IV.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed in all respects except that we modify the judgment to provide that the condition for the suspension of the seven-day jail sentence as to Laura LeBlanc be that she provide weekly reports to the trial court only, and not to Mitch LeBlanc personally, for the next three months, documenting her efforts to improve the relationship between Ryan and his father.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. R.W.W.
    No. 2006-1258.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant: R.W.W.
    Renee W. Dugas, Assistant District Attorney, Colfax, LA, for Appellee: State of Louisiana.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

hThe defendant appeals his convictions for one count of aggravated rape, in violation of La.R.S. 14:42, and two counts of sexual battery, in violation of La.R.S. 14:43.1. For the following reasons, we conditionally affirm and remand for an eviden-tiary hearing.

Factual and Procedural Background

The record shows that on November 22, 2004, L.P. and B.W., the victims, spoke with Detective Lorraine Lacour, a juvenile detective with the Grant Parish Sheriffs Office, concerning allegations of sexual abuse allegedly perpetrated by the defendant, R.W.W. Detective Lacour stated that after speaking with L.P. and B.W., she scheduled appointments for them to see a doctor, which they did. She testified that she then sent the girls to “the Rapides Children’s Advocacy Center so they [could] be interviewed by a forensic interviewer and be put on tape and video and audio taped.”

According to Detective Lacour’s testimony, later on that day, M.S. arrived at her office also alleging that the defendant sexually abused her. Detective Lacour stated that because M.S. had been previously examined by a doctor, she did not request that M.S. see another doctor. Like she did with B.W. and L.P., Detective Lacour made an appointment for M.S. to be interviewed at the Rapides Children’s Advocacy Center (Advocacy Center). Detective Lac-our stated that she watched the interviews from another room and that they were consistent with the previous statements that the girls had given. However, according to Detective LaCour, a few months after making the initial complaint, L.P. denied that the defendant sexually abused her.

| zWith regard to the sexual abuse of B.W. and M.S., the defendant was subsequently arrested and charged by bill of indictment with two counts of sexual battery in violation of La.R.S. 14:43.1. He pled not guilty to the amended charges of two counts of sexual battery and one count of aggravated rape, a violation of La.R.S. 14:42(A)(4). Following a jury trial, the defendant was found guilty as charged and sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence for the aggravated rape conviction. For each count of sexual battery, the defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant was given credit for time served. He subsequently filed a motion for post-verdict judgment of acquittal or, alternatively, for a new trial, which the trial court denied. The defendant now appeals, asserting the following assignments of error:

[ 1.] The evidence is constitutionally insufficient to sustain a conviction.
[ 2.] The court erred in allowing the jury to view documentary evidence in the form of transcripts of alleged child victim statements after the jury had retired to deliberate.
[ 3.] The court erred in denying the defendant’s motion for a new trial and other alternatives without a contradictory hearing.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

13Sufficiency of the Evidence

The defendant argues that the “evidence presented at trial was insufficient to legally support [his] convictions by the jury verdict of one count of aggravated rape and two counts of sexual battery[.]”

With regard to sufficiency claims, this court stated in State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La. 1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

Aggravated Rape and Sexual Battery of B.W.

The defendant asserts that “the testimony of B[.JW[.] was not supported by any physical evidence and the circumstances give rise to reasonable doubt.” In particular, the defendant points out that B.W.’s cousin, K.W., testified that B.W. admitted to him that the allegations against the defendant were false.

Louisiana Revised Statutes 14:42 provides in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years.

^Louisiana Revised Statutes 14:43.1 states:

A. Sexual Battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

The record indicates that the defendant and C.W. were married for several years and had a daughter, B.W., in March 1992. After the dissolution of the marriage, B.W. and her brother visited the defendant on weekends at the home he shared with his girlfriend, S.P., and her children, L.P. and J.P. She stated that although she slept in L.P.’s room, they slept in separate beds. According to B.W.’s testimony, the defendant entered L.P.’s bedroom while she and L.P. were asleep. B.W. stated that she asked the defendant, “Why are you in here?” B.W. testified that the defendant did not answer, but instead he “put his hands down my shirt and my pants” and touched “[m]y boobs and down below.” When asked if she had a name for the area she was referring to, B.W. answered, her “cat[.]” B.W. testified that the defendant put his finger inside of her and “[h]e would push it in and out.” She further testified that the defendant touched her “cat” with his mouth and tongue. Additionally, B.W. testified that the defendant would “make [her] suck his thing[,]” which she said was his | ./‘private spot.” He also made her touch it. She stated that she asked the defendant to stop, but he refused.

Upon further questioning, B.W. recalled an incident where she and the defendant were alone in the kitchen one morning and he “would call me over to him and I would sit on his lap and, then he would start touching my boob.” She asked him to stop, but he did not. B.W. explained that she was afraid to tell anyone about the defendant touching her because the defendant said “he would get back at me if I told anybody.”

B.W. stated that once her mother learned of the abuse, she took her to see a “regular doctor.” She told him what happened, but he did not examine her. She saw another doctor before seeing Dr. Na-khlawi, the doctor she was referred to by Detective Lacour. According to Detective Lacour, Dr. Nakhlawi concluded that “[t]here was no physical evidence ... of sexual penetration.” However, she explained that “the children never alleged to me that they were sexually penetrated, only fondled. Fondling means with the hand, okay, or some other object. The children told me with the hand and the mouth, so naturally there would not be any other signs of ... you know, of penetration.”

During his case, the defendant called B.W.’s cousin, K.W., to the stand. K.W. testified that B.W. stayed with his family the week before Christmas. He further testified that he, his sister, B.W., and B.W.’s brother were in his room when B.W. told him that the allegations against the defendant were not true. According to K.W., B.W. told him that “she wanted to tell the truth but she couldn’t because she didn’t want everybody to hate her, to get mad at her.”

| fiAfter reviewing the record, we conclude that there is sufficient evidence to support the defendant’s conviction for aggravated rape of B.W. B.W. testified that the defendant engaged in oral sex with her. The record indicates that she was twelve years old at the time. Additionally, the elements of sexual battery were met insofar as B.W. testified that the defendant touched her vagina and breasts and forced her to touch his penis. Again, B.W. had not yet attained the age of fifteen and was at least three years younger than the defendant. See La.R.S. 14:43.1.

We note that the testimony of the victim alone is sufficient to prove the elements of sexual offenses despite the lack of physical evidence. State v. J.M., 06-624 (La.App. 3 Cir. 11/2/06), 941 So.2d 686. Although the defendant may point to the physical examination that did not reveal physical evidence, recall that the jury was aware of the extent of the contact between the defendant and B.W. and was free to conclude that this lack of physical evidence was consistent with that type of contact. Furthermore, B.W.’s interview at the Advocacy Center, which was entered into evidence, and her trial testimony were virtually identical.

Finally, the jury was free to give little weight to KW.’s testimony. It heard his mother testify that K.W. told her that “he would do whatever it took” to get the defendant out of jail. Therefore, we find that in viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of aggravated rape and sexual battery proven beyond a reasonable doubt.

This assignment is without merit. jjSexual Battery of M.S.

In his brief, the defendant argues that “[i]n the absence of any physical evidence and no corroboration, M[.]S[.]’s claims made in response to prompts and leading questions by her grandmother ... must be questioned.”

After reviewing the record, we find that the evidence supports the defendant’s conviction for sexual battery of M.S. The record shows that M.S. was born in October 1998 and is the niece of the defendant’s girlfriend, S.P. According to J.S., M.S.’s grandmother, M.S. lived with S.P. until she got full custody of M.S. in January 2004. J.S. stated that after she obtained full custody of M.S., M.S. would spend every other weekend at S.P.’s house while she worked as a registered nurse. J.S. testified that in November 2004, she received a call from S.P. informing her that the defendant may have behaved inappropriately with M.S. J.S. explained how she broached the subject with the then six-year old child: “1 fixed her some popcorn and we sat down in the living room and I told her that we needed to talk, that mamaw needed the truth, that I needed to hear from her what [R.W.W.] had did.” According to J.S., M.S. stated that the defendant “pulled her up in the bed with [S.P.] in the bed asleep and put his hands in her panties and rubbed her tutu real hard.” When asked what her “tutu” was, J.S. replied, “her private area.” J.S. testified that she took M.S. to the doctor the next day and that he examined M.S. She then went to the Grant Parish Sheriffs Office and met with Detective Lacour, who scheduled M.S. for an interview at the Advocacy Center.

At trial, M.S.’s interview from the Advocacy Center was entered into evidence. M.S. testified that when she slept at S.P.’s house, she would either sleep on a pallet in S.P.’s room or on a couch in the living room. She recalled one incident where she | swas in the defendant’s bedroom that he shared with S.P. According to M.S., S.P. was asleep. She testified that when she climbed into the bed, the defendant touched her with his fingers. M.S. was asked to circle on a picture of a girl’s body, where the defendant touched her. According to the picture, which was entered into evidence, she circled her vagina.

M.S. testified that she did not tell anyone about the incident until J.S. asked her, “has anybody touched you where you didn’t like it?” She stated that she did not know why she did not tell anyone before. M.S. maintained that no one helped her remember what happened or told her what to say.

After reviewing this evidence, we find that a rational trier of fact could have found the defendant guilty of sexual battery. Louisiana Revised Statutes 14:43.1 requires that the defendant touch the genitals of a victim who is less than fifteen years old and at least three years younger than the defendant. Here, the record indicates that M.S. was six years old when the defendant, an adult, touched her vagina with his fingers. Furthermore, her testimony was consistent with what she disclosed to J.S. as well as her interview at the Advocacy Center. Accordingly, we find that a rational trier of fact could have found the essential elements of sexual battery proven beyond a reasonable doubt.

Therefore, this assignment is without merit.

Evidence During Deliberations

In his second assignment of error, the defendant argues that the trial court violated La.Code Crim.P. art. 793 when it allowed the jury to examine, during deliberations, transcripts of the victims’ interviews. According to the defendant, this is reversible error in that the “jurors were able to give undue weight to information from the Child Advocacy Center instead of sworn testimony at trial.”

| flAccording to the defendant’s brief, when the trial court stated that the jury could read the transcripts in the courtroom, he objected, and the trial court retrieved the transcripts from the jury in open court. However, the State asserts, in brief, that “the transcripts were being passed out in the courtroom when counsel for the State as well as counsel for the defendant approached the bench” to determine whether the jury could review the transcripts during deliberations. According to the State, no agreement could be reached and “both the State and defense requested that] the transcripts be retrieved.” The State maintained that “the jurors did not have the transcripts in their possession long enough to have given them undue weight. Before all [the] jurors received] a copy of the transcripta,] they were retrieved by the court and returned to the bailiff.”

The record is unclear on this aspect of the proceeding insofar as it does not reveal whether all of the jurors received the transcripts, how long they had them, and whether they were permitted to leave the courtroom with them. The timing of the defendant’s objection in this course of events is also unclear. According to the record, after the jury retired to deliberate, they made two requests:

BY THE COURT: I have a note from the jury. “Can we have the 3 transcripts from the videos.” The answer is yes, you may, but you have to stay in here and read the transcriptfe]. You cannot take them in the jury room. Why, I do not know, but that’s what the law is. Next question is “Can we have the definitions of all the verdicts?” I can read those to you again if you want me to, but you can’t take them in the jury room. Why I don’t know, but that’s the way it is.
BY JUROR: Okay.
BY THE COURT: Would you like for me to read them again? Aggravated rape or force ...
BY JUROR: Can you explain not so wordy? I mean you read it was kind of long.
BY THE COURT: What part of it did you want me to explain?
|inBY JUROR: Well just the definitions of each one.
BY THE COURT: Okay. Let’s see what I can do.
BY MS. DUGAS [Assistant District Attorney]: Your Honor, may we approach.
(BENCH CONFERENCE-ON RECORD)
BY MS. DUGAS: They want you to explain the charges ...
BY MR. WAMPLER [Defense Counsel]: I think you can charge them again but I don’t think you can engage in a dialogue about the charge, can you?
BY MR. WHITE [Assistant District Attorney]: I think you can recharge them with that, that charge.
BY MS. DUGAS: It was that language they’re saying that ...
BY MR. WAMPLER: She asked me to make it, she asked to make it simpler and help explain it and he can’t do, he can’t ... he can read the charges ...
BY THE COURT: Would you mind explaining to me how I’m going to find out what they want if I don’t talk to them?
BY MR. WAMPLER: Well, I think you can talk to them but I don’t think you can do what she just asked you to do, Judge.
BY THE COURT: You mean read the ...
BY MR. WAMPLER: No. You can read it, certainly ...
BY THE COURT: Uh-huh.
BY MR. WAMPLER: ... but she said, I thought, can you explain it to us in a not so wordy fashion.
BY THE COURT: Well, if you’ve got an objection put it on record. Let’s get on with this thing.
BY MR. WHITE: And to not let them take this in the jury ...
(BENCH CONFERENCE CONCLUDED)
BY THE COURT: Okay. You want to know the definition of forcible rape? J^BY JUROR: Yes.
BY JUROR: Yes, sir, please.
BY THE COURT: Okay. Forcible rape is_Yes, sir.
BY THE FOREMAN OF THE
JURY (MR. VALLERY): Uh ...
Your Honor I have been elected for— to be the foreman.
BY THE COURT: Yes, sir.
BY FOREMAN VALLERY: Can we return to our, return to our jury room ... deliberation room[?] I think we can, can work this out.
BY THE COURT: Certainly.
BY FOREMAN VALLERY: Thank you.
BY THE COURT: Certainly. Any thing else? Okay. Would you mark this as the questions that the juror propounded to the court after they started deliberating.
(JURY EXITS COURTROOM-RETURNS TO DELIBERATE)
(JURY RETURNS TO COURTROOM)
BY MR WHITE: Well let’s put that on record.
BY MR. WAMPLER: Wait a minute[,] let me see something. No. I do object.
BY MR. WHITE: Do you have any objections ...
BY MR. WAMPLER: Yeah.
BY MR. WHITE: ... I mean right here. Do you care if they do it here? You want to [sic] them from them. Your honor, we, we ... I don’t think there is going to be an agreement. We need to (Inaudible) the evidence.
BY MR. WAMPLER: I, I’m not ... you may overrule me but the statute says that they are not to be given ...
BY THE COURT: All right. Ladies and gentlemen of the jury the ... it’s been brought to my attention that it would not be appropriate [for] you to read that. I’ll have to take those transcripts back and you have to go back to the jury room and rely on your memories.
(JURY RETURNS TO DELIBERATE)

112The lack of clarity in the record is crucial in two respects. First, La.Code Crim.P. art. 793 requires a timely objection. Next, if preserved, this court must be able to review the trial court’s actions in light of La.Code Crim.P. art. 793, which provides in pertinent part:

A. Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

“The general reason for the prohibition is a fear that jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them.” State v. Savoy, 05-92, p. 9 (La. App. 3 Cir. 11/2/05), 916 So.2d 339, 344 (quoting State v. Adams, 550 So.2d 595, 599 (La.1989) and State v. Freetime, 303 So.2d 487, 488-89 (La.1974) affd after remand, 334 So.2d 207 (La.1976)). See State v. Gongre, 503 So.2d 785 (La.App. 3 Cir. 1987) (wherein this court found Article 793 violated when the trial court allowed the jury to review the transcript of the defendant’s oral statement for the purpose of examining its contents) and State v. Perkins, 423 So.2d 1103 (La.1982) (wherein the supreme court reversed the defendant’s conviction and remanded the case for a new trial because the trial court allowed the jury to review the defendant’s written statement after retiring for deliberations).

We remand the case to the trial court to address the deficiencies in the record, i.e., to conduct an evidentiary hearing to determine whether the jury reviewed the transcripts of the victims’ interviews during deliberations and whether the defendant timely objected to any alleged error. See State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963 (wherein the supreme court remanded the case for an evidentiary hearing 11sto determine whether the defendant validly waived his right to trial by jury) and State v. Rodriguez, 97-501 (La.App. 5 Cir. 11/25/97), 703 So.2d 803, writ denied, 98-0449 (La.6/26/98), 719 So.2d 1055 (wherein the fifth circuit remanded the case for an evidentiary hearing on a motion for new trial after the defendant alleged that the trial erred in not allowing into evidence during the motion for new trial hearing, the testimony of a juror regarding alleged communications with the bailiff). If the trial court determines that the defendant timely objected and finds a sufficient Article 793 violation, it shall grant a new trial. If the ruling is adverse to the defendant, his right to appeal that ruling is preserved.

Motion for New Trial

Finally, the defendant contends that the trial court “erred in denying [his] motion for a new trial and other alternatives without a contradictory hearing” in accordance with La.Code Crim.P. art. 852. In his motion for new trial, the defendant alleged that “[t]he verdict is contrary to the law and the evidence” and that “[t]he jury was allowed to utilize written evidence during deliberations in violation of the provisions [of La.Code Crim.P. art. 793].”

These matters have been addressed in the previous assignments of error.

DECREE

For the above reasons, the defendant’s convictions are conditionally affirmed on the evidence in the record on appeal. However, the case is remanded to the trial court for an evidentiary hearing to determine whether the jury reviewed the transcripts of the victims’ interviews during deliberations and whether the defendant preserved this issue for review by timely objecting. If the trial court finds the 114question preserved and a sufficient La. Code Crim.P. art. 793 violation, the trial court must set aside the convictions and sentences and grant the defendant a new trial. The defendant may appeal from any adverse ruling on this issue, and in the absence of such appeal, this court affirms the defendant’s convictions.

CONVICTIONS CONDITIONALLY AFFIRMED; REMANDED FOR EVI-DENTIARY HEARING.

      . Pursuant to La.R.S. 46:1844, the initials of the parties involved have been used throughout.

      . We note that S.P. is the mother of L.P., the minor who recanted her statement about the defendant sexually abusing her.

      . The record reflects that at trial, B.W. was shown a picture of a girl’s body. When asked to show what part of her body the defendant touched, she drew a circle around the vagina, which was labeled "cat.”

      . Louisiana Code of Criminal Procedure Article 852 states that: "A motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried contradictorily with the district attorney.”


text:
    J.D. JACOBS, et al. v. CITY OF MARKSVILLE, et al.
    No. 2006-1386.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Rehearing Denied April 25, 2007.

      Randall B. Reiser, Reiser Law Firm, P.L.C., Alexandria, LA, for Defendants/Appellants, City of Marksville Hubert Lambert.
    Jerold Edward Knoll, Jr., The Knoll Law Film, LLC, Marksville, LA, for Plaintiffs/Appellees, J.D. Jacobs, Marcus Conway, Brandon Berry.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

_JjThe plaintiffs allege injury as the result of an automobile accident occurring after the vehicle in which they were traveling was struck by a City of Marksville utility truck. After liability was resolved in favor of the plaintiffs by partial summary judgment, the questions of causation of injuries and damages proceeded to a bench trial. The trial court initially denied an exception of res judicata and ultimately awarded medical expenses and general damages to each of the plaintiffs. The defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiffs, J.D. Jacobs, Marcus Conway, and Brandon Berry, filed suit for personal injuries following a June 5, 2003 automobile accident in Marksville, Louisiana. The plaintiffs alleged that the Mazda Protege in which they were traveling was struck by a utility truck driven by City of Marksville employee, Hubert Lambert. The City of Marksville and Mr. Lambert were named as defendants. Following the accident, the plaintiffs were transported to Avoyelles Hospital where they were evaluated and treated prior to their release. All three plaintiffs began treatment with Dr. Darron McCann.

A partial summary judgment was entered in November 2005 “finding the defendants to be solely at fault in causing the instant accident.” The remaining issues of causation of injuries and damages proceeded to a bench trial. During trial, the trial court denied an exception of res judicata in which the defendants asserted that Mr. Berry’s settlement of a separate, September 2004 automobile accident precluded his recovery of damages associated with the instant accident. The trial court ultimately awarded Mr. Jacobs $5,583.58 in medical special damages and $45,000.00 in general |2damages. As Mr. Conway died from unrelated causes during the course of litigation, his father, as substitute plaintiff, was awarded $5,238.67 in medical special damages and $35,000.00 in general damages. Mr. Conway’s gross award was reduced by $10,000.00 due to a “No Pay No Play Deduction.” Finally, the trial court awarded Mr. Berry $43,197.95 in past medical special damages, $3,500.00 in future medical special damages, and $225,000.00 in general damages.

The defendants appeal and, in their first assignment of error, question the trial court’s denial of exception of res judicata. They also question the quantum in the general damages awarded to each of the plaintiffs.

Discussion

Exception of Res Judicata

The automobile accident at issue occurred in June 2003. In September 2003, Mr. Berry was involved in another automobile accident. Dr. McCann treated Mr. Berry for alleged injuries from both accidents. In their exception of res judica-ta, the defendants asserted that expenses associated with Dr. McCann’s treatment and associated costs for prescribed medical care were forwarded to the insurer in the September 2003 accident and, after settlement of that claim, any claim that Mr. Berry had against them was barred.

There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.

^Specifically, the defendants point to the emphasized language in the “Final Release and Settlement of Claim” stemming from the second accident, wherein Mr. Berry, in exchange for a $9,000.00 payment, agreed to:

[R]elease, acquit and forever discharge the said payor(s), their agents and employees, officers, directors, and all other persons, firms or corporations who are or might be liable, from any and all actions, causes of actions, claims, demands, damages, costs, loss of services, loss of consortium, expenses, punitive and/or exemplary damages, attorney fees, statutory penalties, interest and compensation on account of or in any way growing out of any and all known and unknown death or deaths, personal injuries and property damage, resulting from an accident that occurred on or about the 18 day of September 2004 by reason of auto accident including any other claims that I/we may have which arose at the time of or prior to such accident, or arising out of the manner that the company handled, settled or defended the releasor’s claims or resulting from any obligation arising out of any penalty statute, and do hereby for myself (or ourselves) heirs, executors, administrators, successor and assigns, covenant with the said payor(s), their agents and employees, officers, directors and all other persons, firms or corporations which are or may be liable to indemnify and save them harmless from all claims and demands, costs, loss of services, loss of consortium, expenses and compensation on account of or in any way growing out of said accident or its results, known and unknown, or prior claims, both to persons and property.

(Emphasis added.) Referencing this language, the defendants contend that, “[because those injuries were represented to Farm Bureau[] as resulting from the September 2003 accident, and because Mr. Berry released Farm Bureau and ‘all other persons’ from ‘any claims’ to recover for those injuries, Appellants submit that Mr. Berry’s claims against them are barred by res judicata.” In particular, the defendants contend that, insofar as Mr. Berry complained of knee and back pain from both accidents, his claim was released.

^Louisiana Revised Statutes 13:4231 provides as follows with regard to the defense of res judicata:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

This doctrine, applicable to a final judgment on the merits, also applies in instances where the parties have entered into a transaction or settlement of a disputed compromised matter. See Ortego v. State, DOTD, 96—1322 (La.2/25/97), 689 So.2d 1358.

Examining the settlement and release urged by the defendants, it is apparent that the trial court correctly denied the exception of res judicata. Louisiana Revised Statutes 13:4231 indicates that a final judgment is conclusive “between the same parties.... ” The settlement document the defendants contend is conclusive involved Mr. Berry, but the opposing party was Farm Bureau and its insured. Neither of these parties appear to have any connection with the present accident or claim. Conversely, the present defendants were not involved in the claim arising from the September 2003 accident. Similarly, La. R.S. 13:4231 indicates that a final judgment [¡¡extinguishes “all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation[.]” Obviously the claims from the June 2003 accident and those from the September 2003 accident were distinct occurrences.

This assignment lacks merit.

Double Recovery

In a related argument, the defendants contend that the $9,000.00 received by Mr. Berry for his settlement of the September 2003 accident included payment of medical expenses submitted with the claim and that he should not be able to receive a “double reimbursement” of these fees in the present matter. Again, the defendants point to a number of dates on which Mr. Berry was seen by Dr. McCann and on which the plaintiffs contend that he was seen for injuries from both accidents.

This argument was specifically rejected by the trial court. Based on this record, the trial court’s award of medical special damages to Mr. Berry does not require correction on appeal. While Dr. McCann treated Mr. Berry for injuries arising from both accidents, Dr. McCann testified as to the distinction made between the two accidents. Reference to Dr. McCann’s notes reveals, in fact, segments of the exam attributable to accident “# 1” and those attributable to accident “# 2”, with his examination of Mr. Berry’s various complaints recorded accordingly. Furthermore, as suggested by the plaintiffs, Mr. Berry’s claim against Farm Bureau was a general compromise to end the litigation from the September 2003 accident. While all claims were released, no portion of the settlement was attributed to any specific outstanding medical expenses.

This assignment lacks merit.

| BGeneral Damages

Next, the defendants question the quantum of general damages awarded to each of the plaintiffs. In reviewing an award of general damages, an appellate court does not determine what it considers to be an appropriate award, but instead reviews the trier of fact’s exercise of discretion in assessing damages. The adequacy of the award is considered in light of the facts or circumstances presented by a particular case. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Moreover, the discretion accorded the trier of fact has been described as “ ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Id. at 1261. We turn to consideration of the individual awards.

J.D. Jacobs

The defendants assert that the trial court’s award of $45,000.00 to Mr. Jacobs was an abuse of discretion as the injury was primarily soft tissue in nature and required no procedures. Rather, Mr. Jacobs was treated with medications and attended only one physical therapy session.

Mr. Jacobs testified that he was seated in the back seat of the Mazda Protege at the time of the automobile accident and that, after the vehicle was struck on the rear quarter panel, he came to rest in the “lap” of Mr. Berry who was seated in the front portion of the car. He explained that he was “dizzy” and “woozy” from the impact. Mr. Jacobs was transported to the hospital from the scene. He testified that his complaints were as follows at that time: “My shoulder was swollen and I had some glass had come besides my face like by my ear. A little light swelling on my left side of my head. My left shoulder. That was basically it there.”

|7On June 6, 2003, Mr. Jacobs began treating with Dr. McCann, who testified that, on this initial visit, physical examination was “remarkable for the neck was tender with spasm on the left posterior; back was tender; the left shoulder, tender with palpation and manipulation; had positive edema and bruising on the left shoulder.” Dr. McCann stated that, in subsequent visits, Mr. Jacobs continued to complain of headaches, neck pain, shoulder pain, and sharp lower back pain. On cross-examination by defense counsel, Dr. McCann explained that, during the period of treatment, he found spasm in the neck on five occasions, the back on one occasion, and in the shoulder on the initial examination. Dr. McCann reported that, on his final examination of Mr. Jacobs on July 21, 2004, Mr. Jacobs continued to complain of pain, including headaches. At trial, Dr. McCann testified that he had examined Mr. Jacobs earlier in the day and that he reported suffering from headaches two to three times a day and that some decreased vision was involved. He also reported experiencing neck, left shoulder, and back pain several times per week. Dr. McCann related Mr. Jacobs’ complaints to the accident.

In light of the duration of Mr. Jacobs’ varied, long-term complaints, Dr. McCann’s description of the soft tissue strains as “chronic,” and the observation of objective symptoms, we find no abuse of discretion in the trial court’s award of $45,000.00 to Mr. Jacobs.

Marcus Conway

The defendants next turn to the $35,000.00 in general damages awarded to Marcus Conway. As with Mr. Jacobs, the defendants contend that Mr. Conway’s injuries were soft tissue in nature and required only one steroid injection and less than one month of physical therapy.

|8Pr. McCann’s deposition reflects that when he first examined Mr. Conway on June 6, 2003, Mr. Conway reported that he hit his head on windshield in the accident and that he had “some loss of consciousness, immediate headaches, no nausea and vomiting, some blurry vision, confused initially.” Mr. Conway advised him that he later developed “bilateral arm and leg pain and lower back pain and neck pain.” Dr. McCann stated that he observed a five to seven centimeter “knot” on the left side of Mr. Conway’s head and found his right cheek to be tender with an abrasion. Dr. McCann found the lower back tender with a spasm, which he treated with a Cortisone injection. Pain medication was prescribed.

In subsequent visits, Mr. Conway continued to complain of headaches, neck, and back pain. During the course of treatment, which lasted from June 2003 to April 28, 2004, Dr. McCann reported that he identified three instances of neck spasm, one instance of back spasm, and one instance of shoulder spasm. When asked about his diagnosis of Mr. Conway’s condition, Dr. McCann explained that he appeared to have “a head concussion, post-concussion headaches, neck strain and back strain.” Dr. McCann related Mr. Conway’s injuries to the accident.

Mr. Conway suffered a contusion and a facial abrasion in the accident. After-wards, he reported ten months of headaches, at times occurring daily, and repeatedly reported symptoms related to the diagnosis of chronic, neck and back strain. Dr. McCann explained that he found objective findings related to this type of complaint. Given this support, we find no abuse of discretion in the trial court’s award of $35,000.00 in general damages to Mr. Conway.

| gBrandon Berry

Finally, the defendants question the $225,000.00 general damages award made to Mr. Berry and make reference to other cases in which similar awards were made to plaintiffs who required more intensive treatment or who were given a greater impairment ratings.

In Youn, 623 So.2d at 1260, the supreme court referenced its prior jurisprudence indicating it disapproves of use of prior reported awards for similar injuries in the initial determination of whether a trier of fact has abused its discretion “in the awards to a particular plaintiff under the facts and circumstances peculiar to the particular case.” Rather, the initial inquiry is whether the award, given the particular facts and circumstances of both the injury and the plaintiff, is a clear abuse of the trier of fact’s discretion. Id. Only after that initial inquiry reveals an abuse of discretion, does the reviewing court then turn to consideration of prior awards to determine the highest or lowest award that was reasonably within the trier of fact’s discretion. Id.

In consideration of this initial inquiry, we note that the record reveals that Mr. Berry testified that he was sitting in the front passenger seat of the Mazda Protege and that, upon impact, his knees “jammed up against the dashboard” and that he heard a “pop” in his right knee. Dr. McCann explained that he first examined Mr. Berry on June 10, 2003. At that time, Mr. Berry complained of lower back pain and pain in both knees. Dr. McCann treated Mr. Berry with a Cortisone injection in the hip to “reduce inflammation in the back and the knees.” He also prescribed a pain reliever and a muscle relaxer. In subsequent visits, Mr. Berry’s complaints of back pain ^lessened, but his complaints of right knee pain worsened. He ultimately began reporting popping and locking in the knee.

In February 2004, Mr. Berry began treating with Dr. Kenneth Addatto, an orthopedic surgeon in New Orleans, who administered a series of injections into the right knee and prescribed physical therapy. After the complaints continued, Dr. Addatto performed surgery on Mr. Berry’s right knee in March 2005. The surgery revealed that Mr. Berry had a swollen “joint lining” and a “tight” plica fold that Dr. Addatto released during surgery. In an April post-operative visit, Dr. Addatto recommended physical therapy and, by May, advised that Mr. Berry could return to light work.

However, Mr. Berry testified that his knee complaints worsened after the surgery. Thereafter, and due to the disruption of Dr. Addatto’s practice following Hurricane Katrina, Mr. Berry began treating with Dr. John Cobb, an orthopedic surgeon in Lafayette, in October 2005. Dr. Cobb testified that he performed arthroscopic surgery on Mr. Berry’s knee in March 2006 and that the surgery revealed “tilting and subluxation of the patella with contracture of the lateral retinaculum.” For the surgery, Dr. Cobb further explained that “the patient actually receives a general anaesthetic[.]” Prior to his June 2006 deposition, Dr. Cobb’s final examination of Mr. Berry was in May 2006. He felt that Mr. Berry’s prognosis was “good,” but probably prolonged. Dr. Cobb expected Mr. Berry’s recovery to be one year from the date of surgery and noted that, if pain continued, it would have to be managed.

Mr. Berry reported at the June 2006 trial, that his complaints remained the same in that he was experiencing “swelling, popping, aching, stiffness, everything.” InHe stated that he could no longer participate in sports and could no longer walk for long distances or perform any squatting or bending. He ascends and descends stairs with difficulty. Mr. Berry testified that his knee still “pops.”

After review of the record, we find that the trial court’s general damages award was within its much discretion. It was aware that Mr. Berry had undergone two surgeries, physical therapy, and a number of injections. The trial court was also free to accept Mr. Berry’s testimony that, three years after the accident, he continued to experience pain in the knee and that his activities had been curtailed.

As we find no abuse of discretion in this initial inquiry in review of the general damages award, we do not turn to consideration of other cases involving awards for similar injuries.

DECREE

For the foregoing reasons, the judgment rendered by the trial court is affirmed. All costs of this proceeding are assessed equally to the defendants, the City of Marksville and Hubert Lambert, in the amount of $800.00.

AFFIRMED.

      . The record indicates that Marcus Conway died on March 22, 2005.

      . See La.R.S. 32:866(A)(1), which provides that:

      . Farm Bureau was the insurer of the vehicle involved in the September 2003 accident.