text:
    STATE of Louisiana, Appellee v. Melvin Charles FORD, Appellant.
    Nos. 42,928-KA, 42,929-KA, 42,930-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Mark 0. Foster, for Appellant.
    Paul J. Carmouehe, District Attorney, John F. McWilliams, Jr., Damon D. Ker-vin, Assistant District Attorney, for Appel-lee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

liThe defendant, Melvin C. Ford, was charged by bill of information with the aggravated battery of Russell Ford, a violation of LSA-R.S. 14:34. He was also charged with the aggravated second degree battery of Bridgette Grimes, Carl Grimes and Kelly Ford, violations of LSA-R.S. 14:34.7. Following a bench trial, the defendant was convicted of the lesser included offense of second degree battery of Kelly Ford and was acquitted of the other charges. The defendant was sentenced to serve five years at hard labor, with all but six months of the sentence suspended. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

Shortly after midnight on July 4, 2004, the defendant was driving an automobile south on Ford Street in Shreveport, Louisiana. A group of motorcycle club riders were riding motorcycles also south on Ford Street. The defendant and the motorcycle riders stopped at a red light at the intersection of Ford Street and Allen Street; some riders were immediately in front of the defendant’s vehicle and some were immediately behind his vehicle. Some contact occurred between the defendant’s vehicle and one of the motorcycles while they were stopped at the red light. As a result, a melee ensued, during which several motorcycles were destroyed and some serious personal injuries were sustained.

For purposes of analyzing the issues presented, we will separate the events that occurred before the defendant exited his vehicle from those that |9pccurred after he exited the vehicle. While there are serious factual disputes with regard to the incident, for purposes of this opinion, we will direct our focus on the events that occurred after the defendant exited his vehicle and struck Kelly Ford (“Kelly”).

Our review of the testimony of the motorcycle riders and the passengers in the defendant’s vehicle (his wife, sister and niece) reveals that the altercation happened one of two ways. The motorcycle riders testified that they were on their way downtown when they came to a place where Ford Street narrowed from four lanes to two lanes (apparently with a middle turn lane). At that point, they encountered the defendant’s vehicle, which ended up getting in the middle of the group of at least six motorcycles when only some of the riders were able to get ahead of the defendant before the road narrowed. One of those motorcycles apparently cut in close to the defendant’s vehicle when trying to get around the defendant. When they all came to the stoplight at the intersection, the defendant’s vehicle rolled forward and bumped the back of a motorcycle, ridden by Kenneth Johnson (“Johnson”). A shouting match ensued, and at some point the defendant’s passengers exited the vehicle and ran to a nearby house. The defendant sharply turned the wheels of his vehicle, stepped on the accelerator and began turning “donuts” in the street, knocking down and running over motorcycles and striking riders. The riders testified that the defendant knocked his own wife down in the process. Carl Grimes (“Carl”) suffered a | sbroken femur and testified that the blow from the defendant’s vehicle “ripped all the meat off of my knee.” The defendant’s vehicle eventually left the roadway, running over Bridgette Grimes (“Bridgette”), who was pinned underneath the defendant’s vehicle. She suffered 17 broken ribs, a broken wrist and shoulder, punctured lungs, a lacerated liver, and burns on her chest and arms.

Conversely, the defendant’s passengers testified that the incident was triggered when the motorcycles immediately ahead of them at the intersection backed up into their vehicle. They testified that their vehicle became trapped because there also were motorcycles behind it. When the motorcycle riders got off their motorcycles and began striking the defendant’s vehicle with their helmets, the defendant’s passengers exited the vehicle and ran to a nearby house. The defendant drove around in circles trying to get away, but the riders continued to follow him and strike his vehicle. Then, a pickup truck, which was driven by a member of the motorcycle party, struck the rear of the defendant’s vehicle, pushing it off the street and causing it to run over Bridgette.

Ruthie Ford (“Ruthie”), the defendant’s wife, testified that she was not struck by her husband’s vehicle. Instead, she stated that she tripped on the long gown she was wearing when she. attempted to move out of the way of the vehicle. Ruthie testified that after she fell, “a lady” helped her to get up and asked her if she was okay.

The “lady” who assisted Ruthie was apparently Kelly, who had been [¿riding on the back of the motorcycle of Russell Ford (“Russell”), her husband. Russell testified that he saw the defendant’s vehicle strike Johnson’s motorcycle, knocking Johnson to the ground. He stated that Johnson “got up yelling and screaming.” Russell testified that he “jumped off’ his motorcycle and approached the defendant’s vehicle, when he was struck by the defendant’s vehicle as it turned “donuts.”

There also was testimony from patrons of a bar across the street who witnessed the incident. Their testimony was consistent with that of the defendant’s passengers with regard to the events leading up to the defendant exiting his vehicle.

As demonstrated by the preceding factual background, the facts of how the altercation started were hotly contested. However, as indicated above, the events that took place after the defendant exited his vehicle are most important with regard to the conviction in this case.

It is undisputed that Kelly was struck in the face with a motorcycle helmet and that she received multiple facial fractures. Although Kelly was unable to identify her attacker, several motorcycle riders testified that the defendant struck her.

Russell testified that he saw Kelly help the defendant’s wife off the ground. He also stated that he watched as the defendant got out of his vehicle and picked up his (Russell’s) motorcycle helmet while “yelling and swearing” at Johnson. Russell stated that he saw the defendant approach Kelly and strike her with the helmet.

Christopher Moffitt, another motorcycle rider, and Cliffton Peppers, | Bthe driver of the truck that was following the bikers, both testified that the defendant struck Kelly with the helmet. Moffitt testified that Kelly was attending to the defendant’s wife when the defendant approached her from behind and hit her with the helmet. Peppers testified that Kelly was “just standing there” prior to being hit and had not confronted or yelled at the defendant.

None of the passengers in the defendant’s vehicle testified with regard to whether he did or did not hit Kelly. During an interview with police officers, the defendant stated that he was swinging a helmet to defend himself. He indicated that he did not remember hitting Kelly. At one point, the detective asked, “Why did you hit that girl in the head with the helmet?” The defendant responded, “What girl?”

It was undisputed that some fighting between the defendant and some of the motorcycle riders took place after the defendant exited his car. However, no one testified that Kelly participated in the brawl in any way.

At the conclusion of the trial, the trial court found insufficient evidence to establish that the defendant intentionally ran over Russell, Bridgette and Carl. However, with regard to Kelly, the court found the defendant guilty of second degree battery, concluding that the evidence was sufficient to establish that the defendant struck her in the face with a helmet. The defendant was sentenced to serve five years at hard labor, with all but six months of the sentence suspended. This appeal followed.

I .DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence was insufficient to support his conviction of the second degree battery of Kelly. The defendant argues that it is possible that Kelly was hit accidentally when he swung the helmet in self-defense, and that it is also possible that one of the riders accidentally hit her. Alternatively, the defendant asserts that if the evidence, viewed in the light most favorable to the prosecution, proves he hit Kelly, the evidence does not exclude the possibility that he acted in self-defense and/or defense of others. The defendant argues that, after being surrounded by and attacked by “a large gang,” and hit, and seeing a member of that gang “bending over his wife lying on the ground,” he subjectively believed that his wife was “in the same mortal danger that he was.”

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La. 10/17/97),7 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, units denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with | ¡¡physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Marshall, 2004-3139 (La.11/29/06), 943 So.2d 362; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434; State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, unit denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

LSA-R.S. 14:33 defines a battery as the intentional use of force or violence upon the person of another. LSA-R.S. 14:34.1 provides:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

The standard of proof when a defendant claims self-defense in a non-homicide case is a preponderance of the evidence. State v. Freeman, 427 So.2d 1161 (La.1983); State v. Updite, 38,223, 38,423 (La.App. 2d Cir.6/23/04), 877 So.2d 216, unit denied, 2004-1866 (La.11/24/04), 888 So.2d 229; State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992). The state |9must then prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670, rehearing denied, 516 U.S. 1142, 116 S.Ct. 977, 133 L.Ed.2d 897 (1996); State v. Updite, supra.

The issue of self-defense requires a dual inquiry, an objective inquiry into whether the force used was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. State v. Robinson, 37,043 (La.App. 2d Cir.5/14/03), 848 So.2d 642. A person who is the aggressor or who brings on the difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. LSA-R.S. 14:21; State v. Updite, supra; State v. Robinson, supra.

After reviewing the record in its entirety, we find no error in the trial court’s conclusion that the evidence was sufficient to support a conviction of the second degree battery of Kelly. As noted above, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Several witnesses testified that the defendant hnstruck Kelly with the helmet. That testimony was not controverted by any other witness. Additionally, no witness testified that Kelly provoked the attack in any way. The testimony indicated that Kelly had already helped the defendant’s wife up before the battery took place. Therefore, the evidence presented does not support the defendant’s contention that he believed his wife was in danger.

Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was sufficient to show that the defendant intentionally, rather than accidentally, struck Kelly with the helmet. Furthermore, considering the seriousness of her physical injuries, we reject any argument by the defendant that the injuries did not constitute “serious bodily injury” for purposes of the second degree battery statute.

The record also supports the conclusion that the defendant failed to prove his claim of self-defense by a preponderance of the evidence. See State v. Freeman, 427 So.2d 1161 (La.1983); State v. Updite, supra. The defendant’s argument that he acted in self-defense was not corroborated by anyone, including his family members who were present during the altercation. It is clear from the testimony that the defendant armed himself with a motorcycle helmet as he approached Kelly from behind. There was no evidence that Kelly was acting aggressively towards the defendant or his wife. Kelly was not armed, and the defendant failed to produce any evidence that she made any overt act or otherwise put him in reasonable fear of immediate loss of life or great bodily injury. The record overwhelmingly supports the state’s contention that neither the defendant nor his wife was In attacked by Kelly before he struck her over the head with the helmet. This assignment is therefore without merit.

Continuance/Recess

The defendant also contends the trial court erred in refusing to allow additional time for him to produce Kenneth Johnson to testify as an adverse witness. The defendant argues that Johnson “was perhaps the most critical witness” since it was his motorcycle that was “bumped” and that Johnson was the aggressor because he began “banging” on the defendant’s car window. The defendant urges that Johnson appeared in court at the beginning of the trial and later “obviously was avoiding testifying.” However, Johnson did not appear despite repeated subpoenas, and he could not be located after a writ of attachment was issued.

We first note that the record does not show that the defendant made either a written or oral motion for a continuance or recess. Instead, the defendant’s counsel indicated that he was reluctant to proceed without Johnson’s testimony, stating, “I am reluctant to go forth without Mr. Johnson, although it is my understanding that the Court will not grant additional delay to try to get him here.” Defense counsel did not object to j12the trial court’s refusal to issue an instanter subpoena. Rather, counsel proceeded to proffer evidence with regard to Johnson’s criminal history, stating, “[H]ad he been here and we had been allowed to place him on the witness stand, we would have offered those convictions for the purposes of impeachment....” Defense counsel stated that if Johnson were present, he would have been a hostile witness for whom the convictions would have been offered for purposes of impeachment.

Even if defense counsel’s statements on the record could be construed as an oral motion for a continuance or recess, we find that the trial court did not abuse its discretion, and there is no showing the defendant was prejudiced by Johnson’s unavailability.

LSA-C.Cr.P. art. 708 makes a distinction between a “continuance” and a “recess,” as follows:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

In this case, as the trial had already commenced, the defendant was required to request a recess. It is well settled that whether the motion was improperly styled as one of continuance or recess, the court may examine the motion as though it had been properly denominated. State v. White, 389 So.2d 1300 (La.1980); State v. Bertrand, 381 So.2d 489 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979); State v. Mizell, 341 So.2d 385 (La.1976). Thus, although the motion may have been improperly styled as one for “continuance,” it can be reviewed as if it had been properly named as [ 13one for recess. State v. Spears, 39,302 (La.App. 2d Cir.9/27/06), 940 So.2d 135, writ denied, 2006-2704 (La.8/31/07), 962 So.2d 424; State v. Dooley, 38,763 (La.App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30.

A motion for continuance, if timely filed, may be granted in the discretion of the court in any case if there is good ground therefor. LSA-C.Cr.P. art. 712. The provisions of LSA-C.Cr.P art. 709 concerning a continuance based on the absence of a witness state:

A motion for a continuance based upon the absence of a witness must state: (1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

The standard of review of a motion for recess is the same as the review of a motion for a continuance. State v. White, supra; State v. Spears, supra; State v. Dooley, supra. The granting or denial of a motion for continuance or a motion for recess is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice. LSA-C.Cr.P. art. 712; State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190; State v. Spears, supra; State v. Dooley, supra.

In State v. Dooley, supra, the defendant argued that the trial court erred in refusing to grant her a “continuance” (actually a recess) because of the unavailability of the wife of one of the state’s witnesses. However, the defendant did not provide specific allegations with regard to how the trial court abused its discretion or how she was prejudiced. On appeal, she argued that the witness was needed to show the sordid lifestyle of the victim and that he was an illegal drug user and dealer. During her argument on a motion for new trial, the defendant stated that the witness would have shown that it was possible that someone else shot and killed the deceased. This court rejected the defendant’s arguments, finding that at no point did the defendant provide any specifics with regard to how the missing witness would have proven her allegations, or how the testimony would have resulted in a different outcome of the trial.

As in Dooley, supra, the defendant herein has not provided this court with any specific assertions with regard to how Johnson’s testimony would have proven the defendant’s allegations, or how the testimony would have resulted in a different outcome at trial. Although Johnson’s testimony might have shed some light on the details of how Kelly was hit, it is only the defendant’s speculation that Johnson’s testimony might have helped prove the defendant’s allegations of self-defense. Moreover, there was no denial of the defendant’s right to confrontation because the state never called Johnson to testify. This assignment lacks merit.

I ^CONCLUSION

For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Russell and Kelly Ford are husband and wife but are not related to the defendant.

      . The charges with regard to Russell Ford, Bridgette Grimes and Carl Grimes arose from events which occurred while the defendant was driving his vehicle. The lone conviction in this matter was for the second degree battery of Kelly Ford, which resulted from events occurring after the defendant had exited his vehicle.

      . Carl testified that he underwent 13 surgeries, as well as skin grafts, as a result of the incident.

      . We note that the defendant argued in brief that the trial court specifically found that the defendant was justified in his actions with his car and that the attack against him never stopped, but intensified until after Kelly was hit. However, contrary to the defendant's contentions, the court did not determine that the defendant’s actions in running over the other victims were justified. The court merely determined that there was insufficient evidence to convict him, beyond a reasonable doubt, of the other charges. Thus, there was no internal contradiction between not finding the defendant guilty of intentionally running over the other victims and finding him guilty of the second degree battery of Kelly.

      . The defendant argues that nothing in the record explains why the state did not call Johnson and that a "good guess” is that Johnson, “with his record of violence, would have damaged the state’s attempt to portray the victims as boy and girl scouts on a [sic ] evening nature drive, that were attacked, without provocation, by Melvin Ford.” However, the defendant does acknowledge that the bench trial consisted of morning and afternoon sessions that spanned over the course of several months.

      . On February 21, 2007, the trial court issued a writ of attachment for Johnson at the defendant’s request when Johnson failed to appear on that date despite having been subpoenaed. The trial court declined to issue an instanter subpoena that day because the case was not taken up until 2:00 p.m. and the court did not believe Johnson could be found soon enough that day. The case was continued until February 28, 2007, at which time the court noted that Johnson had not been arrested on the writ of attachment.

      . LSA-C.Cr.P. art. 707 provides that a motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. However, this court has held that, under extenuating circumstances, an oral motion is sufficient. State v. Spears, supra; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Diane SULLIVAN, nee Bonnett, Plaintiff-Appellant v. John SULLIVAN, Defendant-Appellee.
    No. 42,923-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.
    Rehearing Denied March 13, 2008.

      Harold A. Murry, Lafayette, Victoria Reed Murry, Alexandria, for Appellant.
    Donald L. Kneipp, Monroe, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

Lin settlement of claims arising from their divorce, a husband and wife entered into stipulated judgments regarding division of community property and spousal support in February 2001. The wife now seeks to rescind the parties’ agreement for “contractual spousal support” and to annul, or alternatively, to supplement the community property partition. The trial court granted the husband’s exceptions of prescription as to both the claim for rescission of the alimony agreement and annulment of the community property partition. The court allowed the wife to proceed with the supplemental community property action for items of property omitted from the partition upon amendment of her petition. The wife appeals the judgment sustaining the prescription exceptions. For the following reasons, we affirm the dismissal of these claims.

Facts and Procedural History

John and Diane Sullivan were divorced on March 21, 2001. On January 9, 2001, the parties orally agreed to division of community property and alimony. Two written stipulated judgments memorialized the agreements on February 22, 2001. In relevant part, the community property division agreement awarded full ownership of the matrimonial domicile to Diane. John agreed to pay the mortgage on the home in full within three years of the agreement. John received full ownership of the couple’s interest in Bamburg Steel Buildings, Inc. A second steel-related corporation, Steel Erections, Inc., which is now subject to this dispute was 12not listed in the partition. The parties agreed that the partition constituted a compromise of the parties’ claims and waived any action in lesion.

The stipulated alimony agreement ordered John to pay Diane contractual spousal support as follows:

a. Beginning January 10, 2001, the sum of Five Thousand and No/100 ($5,000.00) Dollars each month for six (6) months; and,
b. Beginning July 10, 2001, the sum of One Thousand and No/100 ($1,000.00) Dollars each month for six (6) months, at which time this obligation shall cease and plaintiff will no longer be entitled to any spousal support of any nature by virtue of her waiving and relinquishing any and all rights thereto pursuant to the stipulation agreed to herein; provided, however, that said waiver and relinquishment is rescinded if defendant, JOHN SULLIVAN, fails to discharge and/or declares bankruptcy on any part of the indebtedness described in the companion Stipulated Judgment entered into contemporaneously with this Stipulated Judgment.

The terms of John’s obligation to retire the home mortgage indebtedness were set forth in the other stipulated judgment as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, JOHN SULLIVAN, shall continue to pay the mortgage indebtedness on the former matrimonial domicile and shall have said mortgage indebtedness paid in full within three (3) years. Further, defendant, JOHN SULLIVAN, shall continue to pay the taxes and insurance on the former matrimonial domicile.

On March 31, 2005, Diane filed a rule for contempt against John. She alleged that John “failed to comply with his obligation to ‘have said mortgage indebtedness paid in full within three (3) years.’ ” Based upon John’s “non-compliance with the obligation imposed upon him to pay off the mortgage within three years,” Diane prayed that John be found guilty of contempt. Following a contempt hearing on February 8, 2006, the court | sfound John in contempt of court and ordered that he pay the remaining $82,026.66 obligation on the matrimonial domicile by February 21, 2006, or serve 90 days in jail and pay $5,000 in attorney’s fees.

On July 5, 2006, Diane filed separate petitions seeking to set aside both stipulated judgments. These petitions, which were dismissed in response to peremptory exceptions, are the subject of this appeal. Petition for Rescission of Alimony Agreement

Diane sought to enforce the rescission clause of the spousal support agreement based upon John’s failure to pay off the matrimonial domicile mortgage indebtedness within the required three years. Specifically, Diane sought to rescind her waiver and relinquishment of her right to permanent alimony.

John filed Exceptions of Prescription, No Cause of Action and Res Judicata in response to the claim for rescission of the alimony stipulated judgment. Attached to his memorandum in support of the exceptions was a copy of John’s check which paid off the house debt on February 28, 2006, in an apparent response to the contempt judgment and its threatened jail time.

After reviewing the exceptions and memorandum submitted by the parties, the trial court granted John’s exception of prescription on the alimony claim without stating the legal grounds for the ruling. The court specifically denied John’s exceptions of no cause of action and res ju-dicata. Diane appeals the judgment dismissing her claims for rescission of the agreement on the grounds of prescription.

\ ¿Petition for Annulment of Community Property Agreement

Diane also filed a petition to annul the stipulated judgment for partition of the community property on the grounds of fraud and ill practices or alternatively, for supplemental partition of the community property. She claimed that John “fraudulently, -willfully, and knowingly failed to disclose the existence of a community business enterprise, namely, Steel Erections, Inc., and/or other business interests and/or assets, on his sworn detailed descriptive list.” She made no specific allegation concerning Bamburg Steel Buildings, Inc.

John filed Exceptions of Prescription and No Cause of Action relating to the community property partition. Following a hearing, the trial court granted John’s prescription exception on the claim for rescission of the partition without stating any legal authority for the ruling. The May 9, 2007 judgment, however, gave Diane fifteen days to amend her petition to more particularly state a cause of action for the supplemental partition of undisclosed community property. Diane appeals the partial judgment dismissing her claims for annulment of the community property partition on the grounds of prescription.

Discussion

The combined Stipulated Judgments of February 20, 2001, dealt with child support and custody, spousal support, responsibility for community debts, and partition of community assets. Obligations and expected performance under both agreements were interrelated. The “contractual | ¡^spousal support” provision of the Stipulated Judgment quoted above links its operation to John’s obligation under the “companion Stipulated Judgment” for the payment of the home mortgage. All of these various marital matters were compromised by the parties, and their settlement was sanctioned by the court in the form of the two related judgments. Diane’s two petitions filed over five years after the compromise seek to unravel the prior complicated resolution of these matters after substantial performance by the parties and the effects of the agreement had been largely realized.

I.

The parties crafted a “contractual spousal support” agreement which Diane now seeks to dissolve. John’s performance obligations under this contract required him to first pay $36,000 in periodic payments to Diane throughout 2001 and to also pay the monthly installments on the parties’ former home which Diane received in full ownership in the companion partition. After three years of the mortgage payments, John was obligated to pay off the entire mortgage debt by January 2004. His failure to pay this monetary support according to the agreement would result in the reinstatement of Diane’s right to seek spousal support.

Diane’s petition now claims that John breached this contractual spousal support agreement. John defended with the three peremptory exceptions for no cause of action, res judicata and prescription. The trial court’s ruling for dismissal of the action was stated to be based on prescription, although the court did not identify the applicable prescriptive period. Because the prescriptive periods urged by John are unpersuasive to |fithis court, we choose to affirm the trial court’s dismissal on the basis of the other peremptory exceptions before the trial court.

An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. The jurisprudence recognizes an exception to the rule that no evidence may be admitted to support or controvert an exception of no cause of action. The court is allowed to consider evidence which is admitted without objection to enlarge the pleadings. City National Bank of Baton Rouge v. Brown, 599 So.2d 787 (La.App. 1st Cir.1992) writ denied, 604 So.2d 999 (La.1992); Owens v. Book, 02-90 (La.App. 3d Cir.6/5/02), 819 So.2d 484.

In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. Badeaux, supra. An exception of no cause of action should be granted only when it appears beyond doubt that |7the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Badeaux, supra; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Badeaux, supra. The failure to disclose a cause of action may be noticed by the appellate court of its own motion. La. C.C.P. art. 927.

In addition to the petition’s allegations concerning Diane’s contempt action and resulting court order finding John delinquent in failing to pay off the mortgage indebtedness, the record as a whole and the uncontested evidence presented in support of the peremptory exceptions show that John has now paid all monies listed for payment in the contractual spousal support agreement. The mortgage indebtedness was paid off by John on February 28, 2004, to insure that he served no jail time pursuant to the contempt order.

From this situation, the exception of no cause of action may be recognized. The judicial dissolution of the agreement sought by Diane’s petition is no longer appropriate. Civil Code Article 2013 provides for dissolution, as follows:

When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved. In either case, the obligee may recover damages.
|sIn an action involving judicial dissolution, the obligor who failed to perform may be granted, according to the circumstances, an additional time to perform.

Additionally, performance by the obligor extinguishes the obligation. La. C.C. art. 1854.

By her own actions in seeking the coercive civil contempt remedy, the record reveals that Diane obtained John’s full performance. Damages she might claim for his tardy performance are not sought in her present petition. Accordingly, we affirm the trial court’s dismissal of the action for spousal support on the exception of no cause of action.

Additionally, we note that the exception of res judicata also appears to support the trial court’s dismissal of the action. La. R.S. 13:4231(1) lists the following ground for res judicata:

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.

In this case, Diane sought and successfully obtained a civil contempt order for John’s delinquency in failing to pay off the mortgage indebtedness. At that time, she chose not to raise her present claim for dissolution of the “contractual spousal support” payment for that same delinquency. Accordingly, any other cause of action contesting John’s delinquency was extinguished and merged into the initial judgment of relief in her favor.

II.

The substantive ground for Diane’s claim to annul the 2001 partition of the community was that the community’s ownership of Steel Erections, Inc., and certain other unidentified “business interests” of John were left out | flof the partition due to John’s fraudulent failure to disclose. Once again, given the choice between John’s peremptory challenges to this claim, the exception of no cause of action correctly requires dismissal of the remedy for annulment of the entire partition.

Under the section of the Civil Code dealing with the rescission of partition of succession properties, the mere omission of a thing, belonging to the succession, is not ground for rescission, but simply for a supplementary partition. La. C.C. art. 1401. By analogy this principle applies to the partition of the community. Gautney v. Gautney, 35,398 (La.App. 2d Cir.4/3/02), 814 So.2d 717; Rollison v. Rollison, 541 So.2d 375 (La.App. 2d Cir.1989); Mire v. Mire, 06-511 (La.App. 3d Cir.9/27/06), 962 So.2d 1. When co-owned property is omitted from the spouses’ partition, the jurisprudence holds that each spouse continues as co-owner and is entitled to a supplemental partition. Gautney, supra. Even when an original partition explicitly purports to be a full and final property settlement between the spouses, the courts have allowed supplemental partitions of omitted assets when the facts and intent of the parties warrant it. Mire, supra; Day v. Day, 02-0431 (La.App. 1st Cir.5/28/03), 858 So.2d 483, writ denied, 03-1845 (La.11/7/03), 857 So.2d 492. The courts have held that an inadequate partition or no partition at all permits the parties to continue as co-owners as to any undivided property. Mire, supra; Le Blanc v. LeBlanc, 05-212 (La.App. 3d Cir.11/2/05), 915 So.2d 966.

There is no prescription period applicable to the right of a co-owner of property to bring a petition to partition that property. LeBlanc v. LeBlanc, supra; Terrebonne v. Theriot, 94-1632 (La.App. 1st Cir.6/23/95), 657 So.2d 1358, writ denied, 95-2249 (La.11/27/95), 663 So.2d 743. A spouse has the right to demand partition of former community property at any time. A contrary agreement is absolutely null. La. C.C. art. 2369.8.

Although the stock of Bamburg Steel Buildings, Inc. was listed in the 2001 partition, community ownership of Steel Erections, Inc. was not. Under the above law, the omission of Steel Erections, Inc. stock from the partition is not grounds for rescission of the parties’ partition. Thus, Diane’s allegations disclose no cause of action for rescission of the entire partition agreement. The trial court’s partial judgment dismissing Diane’s claimed remedy of rescission is affirmed for this reason.

Conclusion

For the foregoing reasons, the judgment of the trial court dismissing Diane’s petitions to rescind the spousal support agreement ‘and to annul the community property partition is affirmed. Costs of the appeal are assessed against Diane.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and PEATROSS, JJ.

Rehearing denied.

PEATROSS, J., would grant rehearing.

      . The record contains only the detailed descriptive list of community property filed by Diane who listed Bamburg Steel Buildings, Inc. as a community asset with unknown value.

      . On October 4, 2007, the court certified the partial final judgment as a final judgment subject to appeal.

      . The prescriptive period argued by John is based on the action for nullity of a judgment. La. C.C.P. art. 2001, et seq. The Stipulated Judgment merely confirmed the parties' compromise of the issue of spousal support and their establishment of a commutative contract. There is no vice of form or substance of a judgment involved, nor fraud or ill practices in its obtainment. La. C.C.P. arts. 2001 and 2004. On the other hand, viewed as a compromise, rescission for error, fraud or other grounds for annulment of contracts is not the basis of Diane’s claim. La. C.C. art. 3082. Therefore, the prescriptive period of La. C.C. art. 2032 is inapplicable. Diane’s claim is for the dissolution of a contract to which Civil Code Articles 2013, et seq., apply. A significant portion of John’s performance which extended over a stipulated time period was performed by the time of the alleged breach of the contract in July 2004. Under this view of the parties’ contract, we agree with Diane that the general ten-year provision for prescription on a personal action in contract applies. La. C.C. art. 3499.


text:
    Sandra Blankenship STOCKMON, Plaintiff-Appellee v. Forrest Franklin VAN ALSTYNE II, Defendant-Appellant.
    No. 42,922-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Burt A. Bowers, Shreveport, for Appellant.
    Lynn E. Estes, Jr., Shreveport, for Ap-pellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

| jThis dispute involves an employment-related contract in which the defendant/employer promised an employee an ownership interest in the company in the amount of 1% for each year of the employee’s services. The defendant owned a sole proprietorship and admitted that he intended to incorporate his business and provide a stock benefit. Incorporation never occurred, and plaintiff never insisted on further evidence of the stock benefit. Eight years after the parties’ written agreement, defendant sold the business. This resulted in this suit for an accounting to the employee for her ownership claim. The trial court recognized the validity of the contract and awarded plaintiff judgment for the value of her interest. The employer and his spouse appeal. Finding no error in the trial court’s ruling, we affirm.

Facts

Plaintiff, Sandra Blankenship Stockmon (“Stockmon”), was employed by defendant, Forrest Franklin Van Alstyne II (“Van Alstyne”), in his insurance business in 1992. At that time, Stockmon was nineteen years old. She was employed as a secretary. Van Alstyne described Stock-mon as a very good employee throughout the time of her employment from 1992 until 2004, when Van Alstyne sold his agency. In 2004, Van Alstyne was 62 years old and had experienced health problems which led to his sale of the business.

This dispute concerns a contractual agreement between the parties reached in January 1996 following Stockmon’s decision to leave employment with Van Alstyne for a better paying job. In an effort to | ^prevent Stockmon’s leaving, Van Alstyne made certain proposals which were listed on a one-page contract, as follows:

ONE YEAR CONTRACT 01-16-96
AGREEMENT BETWEEN SANDRA D. BLANKENSHIP AND F.F. VAN ALSTYNE
1. Raise effective 01-15-98 — will be $323.00 per week less deductions.
2. Review every six (6) months with annual raise of $100.00 per month.
3. Christmas bonus according to company profit.
4. Five hundred dollar ($500.00) bonus to be paid 02-10-96.
5. Write health insurance on Sandra within the next seven (7) working days.
She will pay $75.00 per month toward her health insurance; we will deduct this weekly from her payroll ($17.31/ week). This will go toward her disability, maternity and major medical. She can add husband and child at anytime with her paying the cost.
6. Retirement plan will be started within seven (7) working days of this agreement with five (5) year provision from vesting.
7. Ownership of company will begin 01-01-96 in the amount of one (1) percent each year until Frank retires. Sandra will have the first option to buy the business from Frank at his retirement.
8. Sandra will have five (5) sick days per year and one (1) week paid vacation along with the usual paid holidays. After five (5) years of continued service Sandra will have two (2) weeks paid vacation.
9. Frank will pay for continuing education classes required to renew insurance license.

Both parties signed the agreement. While provision number 7 concerning Stockmon’s ownership of the company is the subject of this suit, most of the other listed benefits were provided to Stockmon throughout the | ^remainder of her employment. One exception was the promise of a retirement plan. Van Alstyne provided Stockmon instead with a life insurance policy in which her husband was named the beneficiary. She indicated at trial that she did not question Van Alstyne about the matter, trusting at the time that the policy with its cash value was what he intended to provide her as the “retirement plan.”

In April 2004, Van Alstyne sold the agency for $500,000. Stockmon testified that she was made aware of the sale of the business after it had been transacted. She continued in the employment of the purchaser. Nevertheless, because of the “company” ownership rights she received in the 1996 agreement, she eventually brought this suit against Van Alstyne and his wife, Barbara Gail Van Alstyne (hereinafter “Gail”), for an accounting of Stock-mon’s interest in the agency. According to Stockmon, after the execution of the 1996 agreement, she and Van Alstyne never again discussed provision number 7 of the contract or the accrual of any profits from the business to which she might be entitled. According to Van Alstyne, later in 1996 he mentioned the matter to her with the idea of incorporating his business and making her a minority shareholder. However, Van Alstyne testified that at that time Stockmon rejected any arrangements to formalize her ownership interest.

Following a bench trial, the trial court ruled in favor of Stockmon, enforcing her ownership provision of the agreement. She was recognized as an 8% owner of the business — one percent for each year between 1996 and 2003. She was awarded 8% of the sale price of the business ($40,-000) plus [4her share of profits for certain profitable years less her share of the loss experienced by the business in the first four months of 2004. Van Alstyne appeals the judgment award of $56,595.85.

Discussion

I.

Factually and as a matter of law, Van Alstyne contests the ruling that he breached a contract with Stockmon. He asserts that the agreement had an express term of one year and was never renewed. Alternatively, he argues that the term for the accrual of Stockmon’s ownership was ambiguous, such that the parties’ disputed interpretations demonstrate no mutual consent to the contract. Also, Van Alstyne asserts that as an employment contract, the agreement cannot be for an indefinite or lifetime term. Regarding the fact dispute, Van Alstyne asserts that his claim that Stockmon renounced her ownership rights in September 1996 is corroborated by her failure to ever request a share of the profits or to assert to anyone her ownership position in his business.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express 1 .¡provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. La. C.C. art. 2054.

Whether or not a contract is ambiguous is a question of law. Hubbard v. Marilyn’s Manhattan Grooming, Inc., 34,467 (La.App. 2d Cir.4/4/01), 784 So.2d 752. The trial court’s interpretation of the contract is a finding of fact subject to appellate review for manifest error. Id. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La. C.C. art. 2056; Hubbard v. Marilyn’s Manhattan Grooming, Inc., supra; Franklin v. Ram, Inc. (Of Arkansas), 576 So.2d 546 (La.App. 2d Cir.1991). The burden of proving an alteration in the terms of a written employment agreement lies with the party alleging the change. Scallan v. Mark Petroleum Corp., 303 So.2d 498 (La.App. 2d Cir.1974), unit denied, 307 So.2d 370 (La.1975).

Before addressing specific language and terms of the parties’ contract which Van Alstyne asserts in support of his arguments, the general context of the parties’ arrangement should be considered. As an additional incentive to an employment relationship, employee compensation in the form of an equity interest in the business often occurs. The Louisiana jurisprudence reveals many employment disputes similar to the present controversy. Wood v. Toth Aluminum Corp., 367 So.2d 1338 (La.App. 4th Cir.1979), writ denied, 371 So.2d 833 (La.1979) (in addition to the employee’s salary for a one-year employment contract, court affirms award of stock bonus worth $20,000); Combs v. Howard, 481 So.2d 179 (La.App. 3d Cir.1985), writ denied, 484 So.2d 671 (La.1986) (plaintiffs employment agreement to take over management of closely-held corporation for salary and 49% of corporate stock upheld); Damrill v. Iminorities.Com, Inc., 03-0739 (La.App. 4th Cir.2/18/04), 869 So.2d 169, writ denied, 04-0689 (La.6/4/04), 876 So.2d 90 (employee’s contract for 100,000 shares of employer’s stock upheld). Louisiana Business Corporation Law allows for compensation of employees by profit sharing plans and stock bonus or option plans. La. R.S. 12:41(B)(9)(d) and (e). Such plans would generally be an added compensation feature, distinct from the employee’s salary or wages.

Significantly, Van Alstyne admitted on cross-examination that upon agreeing to the written terms of the contract in January 1996, he was bound to convey Stock-mon an ownership interest in his business. He planned to implement that compensation benefit by incorporating his individual proprietorship and placing an initial 1% of the shares in Stockmon’s name. We therefore find that from the mutual intent of the parties in January 1996, provision 7 of the agreement would allow Stockmon to receive as an additional employment benefit a 1% equity interest in the business for “each year” of employment. In keeping with the general context for employment benefits under a stock bonus type plan, Stockmon could increase her financial rewards by her continued efforts for profits for the business, and Van Alstyne could expect a higher level of Stockmon’s contribution and loyalty with her status as a part-owner of the business.

|7The primary challenge presented by Van Alstyne to his admitted agreement for Stockmon’s ownership interest involves a factual dispute. Van Alstyne claims that Stockman later declared she had no desire to be an owner of the business and renounced the ownership benefit of the contract in September 1996. Stockmon denies this assertion, claiming that the parties never discussed the application of the ownership benefit of the contract after their signing of the initial agreement. Van Alstyne argues that the trial court’s choice of Stockmon’s version of these events is unreasonable because she failed for over eight years to claim any ownership interest and considered herself only an employee. This challenge therefore insists that the trial court’s choice of Stock-mon’s testimony over Van Alstyne’s was clearly wrong and manifestly erroneous. We disagree.

At the time of the 1996 contract, Stock-mon was approximately 23 years old and Van Alstyne was a much older, established businessman in his fifties. Stockmon had been employed in the agency since Van Alstyne began the business in 1992 and had obviously become a valuable employee in the management of the agency’s affairs. Nevertheless, she had not received education or experience in the formation of a corporation, partnership or similar business entity. She trusted Van Alstyne in the delivery of his promise for a “retirement plan” without questioning the life insurance policy which he provided instead. The trial court could therefore reasonably conclude that her silence regarding her ownership interest in the business reflected her uninformed trust in Van Al-styne. Additionally, from | Rthe accounting information revealed at trial, Van Alstyne reported no profits from his agency for the years 1996 through 1998. Accordingly, the trial court could reasonably conclude that after January 1996, Stockmon never renounced the ownership interest in the business which Van Alstyne promised to provide her.

Next, Van Alstyne argues that the parties’ contract was limited to a one-year term and never intended to be extended beyond one year. While this is primarily a dispute concerning the interpretation of contracts, Van Alstyne cites Civil Code Article 2746 and certain jurisprudence, asserting that “an employment contract must have a specified term and cannot be for an indefinite period.”

This assertion regarding the law of employment contracts is incomplete and Van Alstyne’s arguments are misguided. The employer-employee contract is denominated as a “lease of labor” in the Louisiana Civil Code. La. C.C. arts. 2746 and 2747. Article 2747 provides that while the employer is at liberty to dismiss the employee “without assigning any cause,” the employee “is also free to depart without assigning any cause.” Robinson v. Healthworks International, L.L.C., 36,802 (La.App. 2d Cir.1/29/03), 837 So.2d 714. From this limited codal authority, the jurisprudence has recognized two types of employment situations: (1) the | terminable at-will contract, and (2) the limited duration contract. Id. Under a limited duration contract, the parties have agreed to be bound for a certain period during which the employee is not free to depart without assigning cause and the employer cannot dismiss the employee without assigning any reason for such conduct. Id.

The present dispute does not concern whether, under the parties’ contract, Stockmon remained an at-will employee in the year 1996 or thereafter, free to depart without assigning cause. Despite the incentives given by Van Alstyne to keep Stockmon in his employ, the contract never expressly states that Stockman was bound to remain in employment for one year. The forward looking benefits promised by an employer and expected by an employee upon the commencement of any employment relationship does not mean that the employer and employee have agreed to a contract with a fixed term of employment. Stockmon may have remained an at-will employee in 1996 under the present agreement but resolution of that issue is not central to this dispute.

From a review of the contract as a whole, its primary focus is on additional future benefits to Stockmon, which were not limited to one year. The agreement promised a $100 per month annual raise, and Stockmon testified that she received such raises for the years following 1996. The retirement plan which Van Alstyne never paid contemplated a build-up of benefits over five years before the account would vest in Stockmon. After five years, Stockmon’s annual paid vacation time would increase. Stockmon’s continuing education in insurance matters occurred in the Imfollowing years, and Van Alstyne paid for that expense in accordance with the 1996 contract.

Other than the caption of the agreement — -“One Year Contract” — the provisions of the contract as a whole clearly indicate that if Stockmon remained employed with Van Alstyne for an indefinite period of time, she could expect the listed benefits to continue to accrue. In most instances, her promised benefits did accrue after 1996 in the stated manner. Likewise, regardless of any meaning Van Al-styne might attribute to the contract’s caption concerning a desire to have Stockmon remain obligated in his employment for one year, after 1996, she unquestionably continued as an at-will employee, reaping the benefits under the January 1996 agreement until the sale of the business. Therefore, from our construction of the contract, there was no one-year term governing the extension of any benefits addressed in the contract. Like the other prospective benefits that were listed, provision 7 entitled Stockmon to a 1% ownership interest in the business for each year she continued to remain in employment.

The assignments of error challenging the validity and effect of provision 7 of the contract are without merit.

II.

Van Alstyne raised the exception of prescription in the trial court and now reasserts the defense pursuant to the prescriptive period of La. C.C. art. 3494 pertaining to the payment of wages.

We find the three-year prescription for wages inapplicable in this case. First, the suit was filed in October 2004, within months of I^Stockmon’s discovery of the sale of the business. Her claim was primarily for the value of her 8% ownership interest which was lost by that unauthorized sale. Second, the additional accounting claim for her share of the business profits for the years 1999 and thereafter was a benefit tied to her ownership interest, which we do not view as direct compensation for her services.

Accordingly, we find the defense of three-year prescription inapplicable. Absent argument concerning any other prescription period, the ten-year period applicable to an accounting on a personal obligation applies. La. C.C. art. 3499; Ellias v. Ellias, 94-1049 (La.App. 3d Cir.3/1/95), 651 So.2d 939, writ denied, 95-832 (La.5/5/95), 654 So.2d 333.

III.

The next assignments of error by the appellants concern Van Alstyne’s wife, Gail. They argue that since the contract involved an interest in the community-owned business, it required Gail’s concurrence under Civil Code Article 2347. They also argue alternatively that because of the lack of her concurrence in the contract, the judgment holding her liable for the debt was in error.

Significantly, after the filing of Stock-man’s initial petition in this matter, Van Alstyne filed a peremptory exception of nonjoinder, alleging the insurance agency was a community business enterprise by virtue of his twenty-eight year marriage to Gail, making her an indispensable party to the | ^proceeding. A hearing on the exception never occurred. Instead, plaintiff amended her petition to add Gail as a party defendant.

Each spouse acting alone may manage, control or dispose of community property unless otherwise provided by law. La. C.C. art. 2346. The concurrence of both spouses is required for the alienation, encumbrance, or lease of ... all or substantially all of the assets of a community enterprise. La. C.C. art. 2347. According to Comment (b) to Article 2347, the community enterprise contemplated in this article is a business that is not a legal entity. The transfer of a partnership interest is the exclusive right of the spouse who is a partner. La. C.C. art. 2352.

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. La. C.C. art. 2360. During the marriage, either spouse acting alone may incur a community obligation. Sciortino v. Bank of Louisiana, 97-1420 (La.App. 4th Cir.1/28/98), 705 So.2d 813, writ denied, 98-721 (La.5/15/98), 719 So.2d 463. Except for separate obligations specified under Civil Code Article 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations. La. C.C. art. 2361. McConathy v. McConathy, 25,542 (La.App. 2d Cir.2/23/94), 632 So.2d 1200, writ denied, 94-750 (La.5/6/94), 637 So.2d 1052.

11sCivil Code Article 2345 provides that “[A] separate or community obligation may be satisfied during the community property regime from community property and from the separate property of the spouse who incurred the obligation.”

The Van Alstyne agency was a community enterprise exclusively under his management in 1996. Under La. C.C. art. 2347, we do not find that Van Alstyne’s undertaking to provide Stockmon with a portion of the ownership of the business amounted to alienation of “all or substantially all” of the business. Therefore, no concurrence was necessary on the part of Gail for validity of this contract.

Likewise, the contract benefited the community enterprise by retaining the services of an able employee. Therefore, the contract gave rise to a community obligation for which Gail’s continued ownership in the community may be held liable in accordance with Civil Code Article 2345.

We find no merit in these assignments of error.

Conclusion

For the reasons expressed herein, we find no merit in the appellants’ assignments of error and the trial court’s judgment is affirmed. Costs of appeal are assessed to appellants.

AFFIRMED.

      . We find no merit in Van Alstyne’s arguments characterizing the benefit of provision 7 as a donation. It was an onerous agreement requiring Stockmon to provide her employment services for each year in order to receive a percentage interest in the business.

      . We likewise find no merit in the assignment of error pertaining to the trial court's exclusion from evidence of a January 2004 letter from Stockmon to Van Alstyne during the time of his health problem. In the letter, Stockmon acknowledges conflict on the job involving Barbara Gail Van Alstyne and her fear of being fired. Regardless of the trial court’s evidentiary ruling, an employee who owns a minority interest in a business remains primarily an employee. The stock ownership interest which Van Alstyne intended to convey would not guarantee that Stockmon’s employment, which was at-will employment (see discussion below), could not be ended by the majority will of the corporation.

      . La. C.C.P. art. 735 indicates that Van Al-styne as managing spouse of the agency could be sued alone and that Gail was only a necessary party.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    David E. CAMERON v. DELTA PLUMBING.
    No. 2007-CA-0672.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.
    Rehearing Denied March 12, 2008.

      David E. Cameron, Picayune, MS, in Proper Person, Plaintiff/Appellant.
    L. Jay McCreary, Jeff R. Rytlewski, Law Offices of Jeff R. Rytlewski, New Orleans, LA, for Appellees, Delta Plumbing and Hartford Insurance Company.
    Kevin A. Marks, Kimberly M.A. Nieting, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Louisiana, for Appel-lee, CNA Insurance Companies.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge LEON A. CANNIZZARO, Jr.).
   LEON A. CANNIZZARO, JR., Judge.

[i>The plaintiff, David Cameron (“Mr. Cameron”), a pro se litigant, appeals the judgment of the Office of Workers’ Compensation (“OWC”), sustaining an exception of prescription in favor of his employer, Delta Plumbing (“Delta”) and its insurer, Hartford Insurance Company (“Hartford”). For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On April 5, 2000, Mr. Cameron filed a disputed claim for compensation alleging that he sustained an injury to his back while working as a plumber’s assistant for Delta. The claim form indicates that the accident occurred on April 19, 1999. The matter proceeded to trial before OWC Judge Clara F. Toombs on July 10, 2002. Before judgment could be rendered, Judge Toombs stepped down and her successor, OWC Judge Sylvia T. Steib, rendered judgment on January 3, 2003, after a review of the record. The OWC judge found that Mr. Cameron | ¡¡sustained a work-related injury on March 19, 1999, and was entitled to recover temporary total disability benefits of unspecified duration commencing March 19, 1999, plus penalties for his employer’s arbitrary and capricious actions. It was further ordered that a contradictory hearing be conducted at a later time to determine the duration of Mr. Cameron’s disability. The issue of prescription was not raised at that time in spite of the fact that the trial court determined that the accident occurred on March 19, 1999 (not April 19, 1999), and the disputed claim for compensation was received by the OWC on April 5, 2000.

Delta and Hartford appealed the judgment of the OWC arguing that Mr. Cameron did not meet the requisite burden of proof establishing his entitlement to compensation benefits. In an opinion dated March 17, 2004, this Court affirmed the judgment of the OWC as to the finding of a work-related injury, and remanded the matter to the OWC for a further determination regarding the extent of Mr. Cameron’s disability, medical expenses, and other related issues. Cameron v. Delta Plumbing, 03-0985 (La.App. 4 Cir. 3/17/04), 870 So.2d 1067.

On August 23, 2005, before the case was taken up by the trial court on remand, Delta and Hartford filed their exception of prescription arguing that the medical records submitted by Mr. Cameron, as well as Mr. Cameron’s own statements, showed his alleged work-related accident occurred on March 19, 1999, yet his disputed claim for compensation was filed on April 5, 2000. The exception was heard by the OWC on May 17, 2006. Judgment was rendered on June 20, 2006, granting the exception of prescription, and dismissing Mr. Cameron’s claim with prejudice.

|4On March 6, 2007, more than eight months after the judgment was rendered, Mr. Cameron filed a motion and order for appeal. The order was signed by the OWC judge on March 12, 2007. Mr. Cameron filed an appellant brief with this Court, but did not assert specific assignments of error.

STANDARD OF REVIEW

It is well established that factual findings in workers’ compensation cases are subject to the manifest error/ clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error/ clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman v. Poulan/Weed Eater, 93-1530, p. 5 (La.1/14/94), 630 So.2d 733, 737-38; Stobart v. State, Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

EXCEPTION OF PRESCRIPTION

In the exception of prescription filed August 23, 2005 (more than five years after the commencement of this action), Delta and Hartford argued that they learned through discovery that Mr. Cameron was actually injured on March 19, 1999, not April 19, 1999, as stated on his claim form. Despite this, there is evidence in the record dating back to 2002, which identifies March 19, 1999, as the accident date. A copy of the disputed claim for compensation, dated April 3, 2000, |5and received by the OWC on April 5, 2000, is also contained in the trial court record. Nevertheless, it is well established that the exception of prescription is a peremptory exception that may be pled at any stage of the proceeding, even on appeal, prior to a final judgment, but must be brought by a formal pleading. La. C.C.P. art. 2163; Fair Grounds Corp. v. ADT Sec. Sys., 97-2375, p. 15 (La.App. 4 Cir. 9/23/98), 719 So.2d 1110, 1118. In the present matter, Delta and Hartford filed a formal pleading in the trial court setting forth the exception of prescription. Moreover, as the merits of Mr. Cameron’s case have not been fully litigated, the exception of prescription was filed prior to submission of the case for decision by the trial court. Consequently, the exception of prescription was pled timely, and we now address the merits of the exception.

As previously stated, La. R.S. 23:1209 A provides for a one-year prescriptive period in workers’ compensation cases. In the present case, at the hearing on the exception of prescription, a copy of the East Jefferson Hospital emergency room report was introduced into evidence. The document clearly shows that Mr. Cameron was treated at the emergency room for the alleged work-related accident on March 19, 1999. In his testimony before the OWC, Mr. Cameron stated that he was injured on the job on March 19, 1999, and was taken immediately to the East Jefferson Hospital emergency room. Finally, in a letter to the OWC, dated July 16, 2002, Mr. Cameron indicated that the work related accident occurred on March 19, 1999. Nothing in the record indicates that the incident occurred on April 19, 1999, as stated on the disputed claim for compensation. Based on the evidence presented, the OWC correctly determined that Mr. Cameron’s filing of the disputed claim for compensation on April 5, 2000, was untimely.

| «DECREE

Accordingly, for the reasons stated above, we affirm the judgment of the OWC, sustaining the exception of prescription in favor of Delta and Hartford, and dismissing Mr. Cameron’s claim with prejudice.

AFFIRMED.

      . Hartford filed a third party demand against CNA Insurance Companies. It is alleged that CNA, the workers', compensation insurer pri- or to Hartford, had a policy in effect on the date of Mr. Cameron's alleged accident. The status of the workers’ compensation insurer is not at issue in this appeal. CNA has filed an appellee brief in this action, reiterating the arguments of Delta and Hartford.

      . La. R.S. 23:1209 A provides that all workers' compensation claims must be filed within one year of the accident.

      . Although this appeal appears to be untimely, we are unable to ascertain from the record when Mr. Cameron was notified of the trial court’s ruling. On June 20, 2006, the notice of signing of judgment was issued to Mr. Cameron’s previous attorney, Mr. James S. Scott, in spite of the fact that he officially withdrew from the case on March 20, 2006. The record does not reflect that a notice of judgment was sent to Mr. Cameron personally. Furthermore, it is not evident from the record if Mr. Cameron received notice of the judgment from his previous attorney. Thus, we will consider the merits of his case.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Desiree Roth HARRIS v. David Allen HARRIS.
    No. 2007-CA-0966.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2008.
    Rehearing Denied March 12, 2008.

      Edith H. Morris, Bernadette R. Lee, Suzanne Ecuyer Bayle, Morris, Lee & Bayle, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Robert C. Lowe, Jeffrey M. Hoffman, Melanie Lockett, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

11 This is a divorce case. David Allen Harris appeals the calculation of the child support awarded to his former wife, Desiree Roth Harris. For the reasons that follow, we affirm in part, reverse in part, and remand for recalculation.

FACTUAL AND PROCEDURAL BACKGROUND

On January 26, 1996, Mr. and Mrs. Harris were married in New Orleans. On January 24, 2006, Mrs. Harris filed a petition for divorce under La. C.C. art. 102. She also requested primary domiciliary custody of the one minor child of the marriage and child support. At that time, the child was nine years old.

On September 20, 2006, a judgment of divorce was granted. On December 7, 2006, and February 5, 2007, hearings were held on several issues, including child custody and child support. At the hearings, four witnesses testified on the child support issue: (i) Mr. Harris; (ii) Mrs. Harris; (in) John Maggiore, Mrs. Harris’ expert certified public accountant; and (iv) Gary Arnold, Mr. Harris’ supervisor at EDG Consulting Engineers (“EDG”).

At the time of the hearings, Mr. Harris had been employed by EDG as an engineering technician for eight years. During the marriage, Mr. Harris regularly worked for EDG doing both domestic and overseas assignments. Around the time 12of the divorce — before according to Mr. Harris and after according to Mrs. Harris and Mr. Harris’ supervisor — Mr. Harris requested to change his work assignments to only domestic work. EDG granted his request. As a result, the number of hours Mr. Harris works for EDG was reduced to about thirty hours a week.

At the hearing, it was established that the community property to be partitioned includes five pieces of immovable property: the former matrimonial domicile in New Orleans where Mrs. Harris and the minor child reside; a family home in Lacombe, Louisiana where Mr. Harris resides; and three rental properties in New Orleans. Mr. Harris currently manages the rental properties. As a result, he collects the rent and pays the mortgages and other expenses on those properties.

At the hearing, Mrs. Harris introduced an “Obligation Worksheet A — Joint Custody” (the “Worksheet”), as provided for in La. R.S. 9:315.20, for purposes of calculating the total support obligation. The worksheet reflects that Mrs. Harris, who is employed at Capital One, has a monthly gross income of $6,381. The worksheet further reflects that Mr. Harris has a monthly gross income of $10,282. The latter figure was calculated by Mrs. Harris’ expert CPA, Mr. Maggiore. Mr. Maggiore testified that Mr. Harris’ monthly income has two components: (i) income from EDG, and (ii) rental income.

As to the rental income, Mr. Maggiore testified that he calculated a monthly net rental income of $2,350 based on figures he obtained from a spread sheet that Mr. Harris had prepared. The spread sheet listed the rental income and mortgage payments on the rental properties through November 2006. As of that date, the | ¡¡schedule showed that the gross rents totaled $8,250 and the mortgages on those properties totaled $5,900, netting $2,350.

As to Mr. Harris’ income from EDG, Mr. Maggiore testified that he calculated a monthly employment income of $7,932 based on the documentation that was supplied in discovery by EDG. The documentation EDG supplied consisted of Mr. Harris’ pay records for the seven and one-half month period from December 3, 2005 to July 14, 2006. From those records, Mr. Maggiore extrapolated Mr. Harris’ monthly employment income as $7,932.

Combining the net rental income and the employment income, Mr. Maggiore calculated Mr. Harris’ total monthly income as $10,282, which as noted is the figure Mrs. Harris listed on the Worksheet.

On March 5, 2007, the trial court rendered judgment awarding joint custody with Mrs. Harris as the designated domiciliary parent. The trial court also awarded Mrs. Harris child support in the amount of $1,441.87. In its reasons for judgment, the trial court, adopting Mr. Maggiore’s calculations and the Worksheet figures, stated:

The Court finds that Mr. Harris has a monthly income of $10,282.00. Mr. Harris’ income is derived from employment in the amount of $7,932.00 as well as rental income which is a total of $8,250.00 minus $5,900.00 in expenses for a net rental income of $2,350.00. Although the rental income comes from community property, Mr. Harris refuses to give Mrs. Harris the portion to which she is entitled. Under the child support guidelines Mr. Harris must pay Ms. Harris $1,441.87 per month in child support (See Child Support Worksheet, D.H. # 7).

On April 11, 2007, the trial court denied the motion for new trial filed by Mr. Harris. This appeal followed.

^DISCUSSION

The statutory guidelines for calculating child support are set forth in La. R.S. 9:315 to 9:315.20. Deviations by the trial court from the child support guidelines shall not be disturbed on appeal absent a finding of manifest error. La. R.S. 9:315.17. On appeal, Mr. Harris asserts that the trial court’s child support calculation in this case is manifestly erroneous because it erred in the following four respects: (i) excluding documentation of Mr. Harris’ current income; (ii) deeming Mr. Harris voluntarily underemployed and thus imputing income to him; (in) imputing all of the rental income for the three rental properties owned by the community to Mr. Harris; and (iv) relying on Mrs. Harris’ child support worksheet, which misstated the net child care cost and erroneously included lunch money as an expense. We separately analyze each of these alleged errors.

CURRENT INCOME DOCUMENTATION

Mr. Harris contends that the income documentation Mr. Maggiore relied upon, and the trial court adopted in calculating his monthly average earnings of $7,932, is improper in that it does not document Mr. Harris’ current income as required by La. R.S. 9:315.2(A), which states:

Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings.... Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.

La. R.S. 9:315.2(A); Drury v. Drury, 01-0877, p. 8 (La.App. 1 Cir. 8/21/02), 835 So.2d 533, 539 (holding that documentation is essential to making the child support determination). Mr. Harris argues that he is currently employed doing |Bdomestic work only and that he currently earns less than when he worked overseas.

Mr. Harris also cites the December 7, 2006 consent judgment the trial court signed, which states:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Allen Harris and his counsel, S. Guy deLaup, shall meet with John Maggiore, Desiree Roth Harris’ expert CPA, to review what documents are outstanding. David Allen Harris shall either produce the documents that John Maggiore requests or he shall execute releases prepared by counsel for Desiree Roth Harris so that John Maggiore can obtain the documents.

Mr. Harris argues that the outstanding documents that the consent judgment contemplated included his outstanding income documentation. The hearing on the child support was not completed on December 7, 2006. The trial court thus left the matter open until February 5, 2007. In January 2007, Mr. Harris delivered such outstanding income-related documents to Mr. Maggiore; however, Mr. Maggiore declined to review those documents because Mrs. Harris’ counsel instructed him not to do so. The reason for that instruction was that the trial court at the December 2006 hearing imposed a restriction on the evidence that could be used in calculating Mr. Harris’ employment income; the trial court limited the evidence to the documentation provided in discovery by Mr. Harris’ employer. (The trial court’s reason for imposing the restriction was Mr. Harris’ failure to comply with Mrs. Harris’ discovery requests.) Mr. Harris contends that the restriction the trial court imposed on the evidence was contrary to the relevant provision of the December 7, 2006 consent judgment. Mr. Harris further argues that Mr. Maggiore incorrectly calculated his income based solely on past income documentation.

IfiWe find Mr. Harris’ reliance on the requirement in La. R.S. 9:315.2(A) that child support be calculated based on current income documentation is misplaced for two reasons. First, neither party complied with the mandatory requirement in La. 9:315.1(A) that they submit a copy of their most recent tax return. (We address this omission further elsewhere in this opinion.) Second, La. R.S. 9:315.2(B) contains an exception to the requirement that child support be calculated based on current income for cases in which a spouse is voluntarily underemployed. When one spouse is determined to be voluntarily underemployed, the child support is to be calculated based on that spouse’s income potential. La. R.S. 9:315.2(B)(providing that “[i]f a party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.11.”) As discussed below, we find no error in the trial court’s implicit finding that Mr. Harris is voluntarily underemployed.

VOLUNTARY UNDEREMPLOYMENT

Mr. Harris contends that the trial court erred in finding him voluntarily underemployed and thus imputing income of $7,932 per month to him. Underemployment is recognized in La. R.S. 9:315.11, which provides that “[i]f a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the |7parties under the age of five years.” La. R.S. 9:315.11(A). Underemployment is also included in the definition of income, which is defined to mean:

(a) Actual gross income of a party, if the party is employed to full capacity; or
(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.

La. R.S. 9:315(5).

Voluntary underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse in reducing his income. Hansel v. Hansel, 00-1914, p. 6 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 880 (citing Gould v. Gould, 28,996 (La.App. 2 Cir. 1/24/97), 687 So.2d 685). ‘Voluntary underemployment is a fact driven consideration.” Koch v. Koch, 97-1600, p. 5 (La.App. 4 Cir. 4/22/98), 714 So.2d 63, 66. When determining if a party is voluntarily underemployed for purposes of calculating a child support obligation, the court shall consider that party’s earning capacity in light of all circumstances. Peacock v. Peacock, 39,950 p. 14 (La.App. 2 Cir. 5/4/05), 903 So.2d 506, 516. “A party shall not be deemed voluntarily unemployed or underemployed if ... the unemployment or underemployment results through no fault or neglect of the party.” La. R.S. 9:315(C)(5)(b).

Mr. Harris contends that his alleged voluntarily underemployment did not result from his own fault or neglect and that he was in good faith. According to Mr. Harris, he eliminated overseas work to spend time with his son at Mrs. Harris’ request. For these reasons, he contends that the trial court manifestly erred when it | ¿found he was voluntarily underemployed. He argues his circumstances are analogous to those in Gould, swpra.

In Gould, the question was whether a father who reduced his work hours by taking off every other Friday to drive ten hours to spend time with his children was voluntarily underemployed. In refusing to find the father voluntarily underemployed, the trial court held it would be “inequitable” to punish the father for the time he had to miss work to regularly visit his children. Affirming that finding, the court of appeal held that “the time spent traveling to see his kids should not be charged as his own fault or neglect” under La. R.S. 9:315. Gould, 28,996 at p. 13, 687 So.2d at 693.

Mr. Harris’ situation is different from that of the father in Gould. In this case, there is no showing that Mr. Harris is unable to work more than thirty hours a week. Rather, he testified that he requested to stop working overseas, and thereby reduced his work hours, to spend more time with his son. However, Mrs. Harris testified that during the years of their marriage Mr. Harris never cut back on his overseas work to be a father. According to both Mrs. Harris and Mr. Arnold, Mr. Harris’ supervisor, Mr. Harris did not make the request until after the divorce was filed.

Mr. Arnold testified that Mr. Harris requested “for personal reasons” in early 2006 to do only domestic work and that EDG honored his request. Because EDG’s work is primarily overseas, Mr. Harris’ work hours were reduced to about thirty hours a week. Mr. Arnold testified that if Mr. Harris had not requested to do only domestic work he would be working more than thirty hours a week and making about the same salary as he made before.

loAs noted, Mr. Harris testified that he requested, at his wife’s request, not to work overseas so that he could spend more time with his son. He further testified that he made this request six months before February 2006 when he and Mrs. Harris separated. Mr. Harris, however, had difficulty answering the question of in what month he made that request. After being instructed by the trial court that he was required to answer the question, Mr. Harris testified that he made the request in August or September 2005. The trial court, however, apparently believed that Mr. Harris’ request to modify his work was not in good faith. Based on our review of the record, we cannot say this factual finding is manifestly erroneous.

Given our finding that the trial court correctly concluded (albeit implicitly) that Mr. Harris is voluntarily underemployed, the issue becomes whether the trial court correctly determined his income potential. Absent evidence that work is not available or is available only at a lower salary, the wage earned prior to voluntary underemployment is the best estimate of the underemployed spouse’s potential income. Glover v. Glover, 28,493, p. 4 (La.App.2d Cir.6/26/96), 677 So.2d 659, 661; Havener v. Havener, 29,785, p. 11 (La.App.2d Cir.8/20/97), 700 So.2d 533, 539-40. In this case, the trial court used the figure calculated by Mr. Maggiore, which was based on Mr. Harris’ income for the period immediately before he stopped working overseas. We find no error in the trial court using that figure as Mr. Harris’ earning potential for purposes of calculating child support.

11f,RENTAL INCOME

Mr. Harris contends that the trial court erred in attributing all of the rental income from the three community property rental properties to him. In support he cites the Civil Code articles pertaining to co-ownership of community property between the time of termination and partition of the community. La. C.C. art. 2369.1 provides:

After termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law or by juridical act.
When the community property regime terminates for a cause other than death or judgment of declaration of death of a spouse, the following Articles also apply to former community property until a partition, or the death or judgment of declaration of death of a spouse.

LSA-C.C. Art. 2369.1

Each spouse owns an undivided one-half interest in former community property and its fruits and products.

LSA-C.C. Art. 2369.2

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.

LSA-C.C. Art. 2369.3

During their marriage, the parties purchased three rental properties. Pursuant to Article 2369.3, Mr. Harris is managing the rental properties, and he is required to account for the rentals, “fruits and products,” at the partition. Mr. Harris thus argues that the trial court erred in attributing all of the rental income to him for purposes of calculating the child support award. He argues that none of the rental income should have been included in the calculation. He claims the | ^rental income is a property partition issue, not a custody issue. Moreover, he argues that he will be forced to account for the rental income twice — once in the child support calculation and again in the partition.

The trial court in its reason for judgment acknowledged, as Mr. Harris contends, that the rental income is community property. Nonetheless, the trial court attributed all the net rental income to Mr. Harris because of his alleged failure to share any of this income with Mrs. Harris. Although we understand the trial court was attempting to alleviate the unfairness of Mr. Harris refusing to share the rental income, no support exists for attributing all of the rental income to Mr. Harris. The trial court’s imputation of all the rental income to Mr. Harris ignores La. C.C. art. 2369.2, which provides that each spouse owns an undivided one-half interest in the fruits — rental income — from the former community property. Based on this article, Mr. and Mrs. Harris each own one-half of the rental income as a matter of law until a partition occurs. The trial court thus erred in attributing all the rental income to Mr. Harris.

Rental income, however, is a component of gross income under the guidelines. The definition of “gross income” under La. R.S. 9:315 includes:

(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. “Ordinary and necessary expenses” shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

|12La. R.S. 9:315(c). Although Mr. and Mrs. Harris each own-half of the rental income, one or both of them would have been required to report that income on their tax return. However, as noted elsewhere, neither of them produced a copy of their most recent tax returns at the child support hearing. See La. R.S. 9:315.2(A)(mandating that “[t]he documentation shall include a copy of the party’s most recent tax return.”). The record does not contain sufficient evidence to determine what the rental income is on the community rental properties. We thus remand for a calculation of the rental income. Each party’s one-half share of that rental income is to be included in their respective income for purposes of recalculating child support.

NET CHILD CARE COSTS

Mr. Harris next contends that the trial court erred in allowing Mrs. Harris to include as an expense on the Worksheet the monthly child care expenses of $151.66. He does not dispute the reasonableness or amount of the child care expenses; rather, he contends that Mrs. Harris’ child care figure in the Worksheet, which the trial court adopted, is erroneous because she failed to deduct from that amount the value of the federal income tax credit for child care as required by La. R.S. 9:315(7) and 9:315.3. We agree. See Lewis v. Lewis, 624 So.2d 1211, 1211-112,, (La.1993)(Louisiana Supreme Court granted writ application and remanded to the trial court with an order to fix as part of the child support award “net child care costs, which constitute reasonable costs minus a reasonably estimated prospective credit to federal income tax for child care.”)

“Net child care costs” are defined in La. R.S. 9:315(7) as “reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care.” La. R.S. 9:315(7). Under the guidelines, “[n]et child care costs shall be added to the basic child support obligation. The net child care costs are determined by applying the Federal Credit for Child and Dependent Care Expenses provided in Internal Revenue Form 2441 to the total or actual child care costs.” La. R.S. 9:315.3

Accordingly, we reverse the trial court’s award of $151.66 in child care expenses, and remand to the trial court for the recalculation of the award using the net child care costs in conformity with the above statutory guidelines.

SCHOOL LUNCH MONEY

Mr. Harris contends that the trial court erroneously allowed as an expense in the Worksheet a $45 monthly fee for lunch money. Food is considered to be a part of the basic child support obligation. See Walker v. Walker, 02-606, p. 4 (La.App. 3 Cir. 12/4/02), 832 So.2d 1098, 1102 (noting that clothing generally is part of basic support obligation under La. C.C. art. 227). Such costs already are included in the basic child support obligation. Nonetheless, certain items are permitted to be added to the basic support obligation if those items fit the statutory criteria set forth in La. R.S. 9:315.6, which provides:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
|u(l) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.
(2) Any expenses for transportation of the child from one party to the other.

La. R.S. 9:315.6. The comment to this statutory provision states that in 2001 the Legislature added clarifying language to paragraph (1) to specify the particular types of private school expenses that can be added to the basic child support amount. School lunch money, however, is not one of those enumerated types of expenses. The trial court therefore erred in allowing lunch money to be included in the calculation.

DECREE

For the reasons set forth above, the trial court judgment awarding child support in the amount of $1,441.87 per month is reversed, and the matter is remanded for a recalculation of the child support award in a manner consistent with the views expressed herein. On remand, the trial court is ordered to recalculate the net community property rental income and to divide it equally between Mr. and Mrs. Harris for purposes of calculating child support. The trial court is further ordered to fix as part of the child support award net child care costs as defined and required by the guidelines. The trial court is still further ordered not to allow school lunch money as an expense in the calculation. In all other respects, the amounts included in the trial court’s original calculation are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . A separate partition hearing is currently pending in Civil District Court.

      . According to Mr. Maggiore, Mr. Harris was more of a subcontractor than an employee; Mr. Harris submitted invoices to EDG as well as expenses. The employment records that EDG supplied thus included invoices and expenses submitted by Mr. Harris.

      . At the hearing, he attempted to introduce a spread sheet that calculated his current income with DRG based on his current work schedule of about thirty-one hours per week with no overseas work assignments. The spread sheet, which Mr. Harris proffered, reflects currently monthly average earnings of $5,229.90.

      . Although the trial court’s reasons for judgment do not include an express finding of underemployment, the trial court stated at the hearing that Mr. Harris is voluntarily underemployed. Moreover, Mr. Harris acknowledges that the trial court’s finding that Mr. Harris is voluntarily underemployed is implicit in its adoption of Mr. Maggiore's calculation of Mr. Harris' employment income, which is based on the hours Mr. Harris worked before he stopped doing overseas work.

      . Although Mr. Harris contends that there currently are no existing overseas employment opportunities available to him, Mr. Arnold testified that in the future there could be overseas positions available. Particularly, Mr. Arnold testified that the company has reassigned other personnel to take Mr. Harris place; however, he testified that "[o]n upcoming projects it could be” available.

      . If Mr. Harris is failing to share the rental income with her, Mrs. Harris has other legal recourse to compel him to do so.

      . In this regard, we note that Mr. Maggiore testified he calculated the net rental by subtracting only the mortgage amounts from the rentals; he did not factor into the calculation any of the other ordinary and necessary expenses. Mr. Harris also points out that the trial court refused to consider the rental property expenses that he attempted to submit.

      . The parties point out that the consent judgment the trial court signed on May 3, 2007 (after the judgment appealed from) includes the following provision:
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the amount of child support shall be recalculated after the partition of community property to account for each party’s share of the rental income.

      .Although Mr. Harris contends that the correct amount for net child care is $121.33, there is no evidence in the record on which to make such a calculation. As noted, Mrs. Harris’ tax returns were not introduced into evidence and that there is no evidence in the record regarding what, if any, tax credit she received.