text:
    Edith Dewitt WILKERSON, Plaintiff-Appellant v. James Clyde WILKERSON, Defendant-Appellee.
    No. 42,324-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Dimos, Brown, Erskine, Burkett & Garner, L.L.P. by Donald R. Brown, Alexandria, for Appellant.
    Mulhearn and Smith by Leroy Smith, Jr., James E. Paxton, Tallulah, for Appel-lee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

hln this community property partition action, the wife appeals the portions of the partition judgment by the trial court which valued an unexpired sublease, set reimbursement for the income generated by the sublease operations from 1999-2004 and classified the community property interest in an equipment corporation. Finding merit to a portion of appellant’s claims, we amend the judgment in part and affirm.

Facts

After 37 years of marriage, Edith Wilkerson instituted divorce proceedings against her husband, James, on September 1, 1999. The divorce became final on August 7, 2000, and terminated the community property regime retroactive to the date of the divorce petition. On April 17, 2001, James sought partition of the parties’ substantial former community properties. James engaged in the business of farming and Edith did not work outside of the home.

To assist in partitioning the property, the trial court appointed notary/special master (hereinafter “Special Master”) Charles Traylor to obtain agreements or appraisals pertaining to the community property and make findings of fact. The court further empowered the Special Master to file a written report with supporting documentation of his findings and | ¡.recommendations for resolution of all community property disputes so as to effect the partition.

Both parties filed Sworn Detailed Descriptive Lists describing assets and liabilities of the community. Included within the sizable assets of the community and relevant to the issues raised on appeal was a sublease for property known as lone Plantation (hereinafter the “Sublease”). The income attributable to operations from that property after the termination of the community was also listed. In 1997, by virtue of the Sublease, James obtained possession of the property for a term commencing November 1, 1997, and ending November 1, 2012. James was obligated to pay yearly cash rental together with l/8th of the gross proceeds of the crops produced. Although the lease was basically agricultural, James also operated a hunting club on a majority of the plantation acreage and received rentals from participants. Farming took place on the remaining 252 acres that were cleared.

After the conclusion of the Special Master’s report, a dispute arose over his conclusion that the parties had stipulated the value of the remaining term of the Sublease. There was also conflict over the Special Master’s determination of the income produced by farming and hunting operations from the time the community was terminated through 2003. Both of these issues are now the subject of Edith’s appeal.

Also included in the community was the couple’s ownership interest in an equipment corporation known as J & C, Inc. In 1994, James transferred a substantial amount of farm equipment acquired during the marriage to |aJ & C, Inc. (“J & C”), in consideration for the assumption of indebtedness owed on the equipment. J <⅞ C stock was issued equally to James and his son, James Clifton Wilkerson (“Cliff’). Income was received by the corporation from rentals of the equipment to another family entity. This income was used to satisfy equipment notes and remunerate both James and Cliff. On February 22, 2002, Cliff transferred all of his shares of J & C to his father after they ceased farming together. Nothing was paid for this stock transfer as James simply assumed the liability for the equipment indebtedness.

At trial, Edith argued that the entirety of J & C was the parties’ community property, since the 1994 transfer of the equipment into the corporation was, in effect, an unauthorized donation to Cliff. The trial court rejected that contention and instead viewed only one-half of the corporation as owned by the community. Edith also appeals this ruling.

Discussion

I.

The Special Master and the trial court were required to appraise the Sublease from two perspectives. First, the remaining term of the Sublease was the community asset which, under La. R.S. 9:2801(A)(4)(a), was to be appraised as of the time of trial. Next, the income or civil fruit that had accrued from the operations of the Sublease had to be accounted for between the co-owners from the time of the termination of the community in 141999 until the time of trial. In this case, James, who had farmed and operated the Sublease, owed an accounting of the income and reimbursement to Edith.

Edith now asserts that by judicial admission the parties resolved and settled the dispute regarding the value of the remaining term of the Sublease from 2004 through 2012. She also disputes the amount of Sublease income for the years 1999-2003 determined by the trial court.

Judicial Admission

The alleged judicial admission arose out of the process leading to the report of the Special Master. La. R.S. 13:4165 provides that a special master may make findings of fact and shall exercise the power to regulate all proceedings before him. In this case, the Special Master was charged with that task and invested with that power by order of the trial court in April 2002. The order further directed the parties to “either agree on stipulations of value or select by mutual agreement” appraisers for the properties.

On July 2, 2003, Edith filed her amended detailed descriptive list of the community property and reimbursement claims in which she listed the Sublease as a community asset with a $500,000 value. She also made a separate claim for income from the farm and hunting club. James responded with his detailed descriptive list in which the Sublease is claimed to be his separate property with no value. Alternatively, conceding the possibility of community property, he claimed reimbursement for expenses and his labor from the operations of the Sublease.

|RIn March 2004, the parties reached an apparent agreement for a $250,000 value for the Sublease. The only written statement of the agreement initially appears in a letter from Edith’s counsel to James’ counsel which stated:

My client has authorized me to inform you that she is willing to sell her undivided one-half interest in and to the remaining term of the sublease concerning lone Plantation to you client for the sum of $125,000....

(Emphasis added).

James later formally acknowledged this agreement in a lengthy pleading presented to the Special Master listing James’ total claims and his proposed division of the community (hereinafter the “Submission Pleading”). The pleading expressly referenced the attorney’s prior letter regarding the $250,000 total value of the Sublease. Although undated with no filing date shown below the caption of the suit, this Submission Pleading was received in evidence in the trial of the case before the trial court, and James does not dispute that the pleading was presented for the Special Master’s deliberations for the partition.

On February 15, 2005, the Special Master filed a report with the court detailing his recommended partition of the Wilker-sons’ community property. The report acknowledged:

During the course of approximately two years, the parties have gathered information and made submissions to the undersigned for consideration of this project. In preparing this report I have relied primarily on the submissions the parties have made since they were deposed on February 16, 2004, but I have also examined and considered all of the materials they have provided.

|fiIn relevant part, the Special Master stated the following: “The parties agree that among the community assets is a lease of lone Plantation. They further agree that the lease should be valued at $250,000 and allocated to James.” Thus, the Special Master employed in his overall partition of the community a $250,000 value for the unexpired term of the Sublease. Additionally, the Special Master calculated the net income from the Sublease between 1999 and 2003 to be $116,553, allowing Edith reimbursement for $58,277.

The procedural process requires that after a report by a special master, the parties be given a right to traverse and object to the findings. “After a contradictory hearing, the court may adopt the report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions.” La. R.S. 13:4165(0(3). This traversal process began in the spring of 2005, setting up the matters ultimately tried before the district judge. Significantly, in James’ initial traversal, he did not object to the Special Master’s employment of the $250,000 asset value for the Sublease but objected only to the conclusions regarding his accounting/reimbursement obligation for the income from the Sublease.

A month before trial, in a reversal of his prior submission, James made the following statements in a supplemental traversal:

Further, James C. Wilkerson offered to pay Edith $125,000.00 for the remaining 13 year term of the lease on lone which completely reimbursed her for any claims resulting from the lone lease, which offer was accepted. Therefore, there was an offer and acceptance and the issue as to any claims to lone should be res judicata because he agreed to purchase her interest in the lease for $125,000.00 and any income or expenses from September 1, 1999 forward would be the separate property of James C. Wilkerson and she should not be entitled to any reimbursement claims for the income or expenses of lone the same being at the sole risk of James C. Wilkerson.

|7At trial, the parties did not contest the classification of the Sublease as community property or its allocation to James. Edith argued, however, that an agreement had been reached between the parties as to the value of the unexpired term of the Sublease from 2004 forward. Nevertheless, the trial court allowed James’ traversal of the Sublease’s value and considered the parties’ testimony in an effort to determine whether they had reached a compromise. Based upon the evidence presented at trial, the trial court concluded that there existed no meeting of the minds between James and Edith as to the complete details regarding the valuation of the Sublease. The court valued the unexpired Sublease as of the time of trial at $163,000.00 and determined the net income received by James from 1999 through 2004 to be $121,523.78.

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact. La. C.C. art. 1853; Cichirillo v. Avondale Industries, Inc., 04-2894 (La.11/29/05), 917 So.2d 424. Under this article, a declaration made by a party’s attorney or mandatory has the same effect as one made by the party himself. La. C.C. art. 1852, Official Revision Comment (b). Admissions in pleadings fall within the scope of judicial confessions and are full proof against the party making the admission. Smith v. Board of Trustees of Louisiana School Employees Retirement System, 398 So.2d 1045 (La.1981). Likewise, a stipulation has the effect of a judicial admission or confession which binds all parties and the court. Lewis v. City of Shreveport, 36,659 (La.App. 2d Cir.12/11/02), 837 So.2d 44. An exhibit introduced at trial has been held to qualify as a judicial confession. Huval Baking Co. v. State, Worker’s Compensation Second Injury Fund Bd., 594 So.2d 1028 (La.App. 2d Cir.1992).

Our law regarding judicial confessions during a legal proceeding is distinguished from the law of compromise of disputes outside of court by the parties. The trial court’s view of this issue solely in terms of a possible party compromise misses the import of the special master judicial proceeding and the principles of judicial confession. This was not foremost a search for the parties’ meeting of the minds outside the judicial process. What occurred by James’ Submission Pleading settled in the mind of the court-appointed finder-of-fact the value of the Sublease, leaving only the remaining attendant problem of the accounting for prior income. There was clear demarcation by James in the Submission Pleading of the value of the remaining nine-year term of the Sublease (2004-2012) and the reimbursement claim addressed separately in the pleading for the years 1999 through 2003. There is no room for error of fact given the history of how the parties consistently addressed both aspects of the Sublease dispute. The Special Master understood the Submission Pleading as the clear and unambiguous judicial confession which it represents.

Particularly, with the give and take of a complex and extensive community property partition process, a party should not be allowed to withdraw prior incremental concessions and stipulations made within the process leading to the property division and accounting. The income |aaccounting dispute for the Sublease had always been recognized by the parties, and neither party was fully satisfied with the Special Master’s initial judgment in that matter. Yet, as that issue and others were traversed and properly appealed to the trial court, James should not be heard to withdraw his prior judicial confession of the value of the remaining term of the Sublease.

Accordingly, the trial court’s finding of $163,000 as the value of Sublease utilized for the overall partition is amended to $250,000.

Sublease Income 1999-2003

The trial court valued the net profits of the Sublease from September 1, 1999, through 2004 at $121,523.78. Because we have now found merit to Edith’s contention that James judicially confessed the prospective value of the Sublease in early 2004, we recognize that the 2004 income loss of $16,827.70 determined by the trial court should be excluded from the calculation of the Sublease income. Thus, we adjust the trial court’s income calculation to include only the years 1999-2003 for a total of $138,351.48. From this amount, Edith’s reimbursement will total $69,175.74. The judgment will be amended to reflect this recalculation.

In addition to this determination of income by the trial court, Edith claims that the award must be increased because of the improper expense calculations of James’ expert which the trial court employed in its ruling. She contends that James failed to present adequate proof of the subject expenses and that the method utilized by James’ expert produced inequitable results. Edith requests that the sum of $85,886.64 be added l10back into the income calculation and that she be awarded one-half of that amount.

David Richardson, James’ expert, utilized an average approach method to calculate certain farm expenses. These included items such as truck expenses, shop supplies, diesel, gas, oil, payroll taxes, workers’ compensation expenses and repairs. At trial, Richardson explained the average approach method he utilized in calculating these actual costs of farming the Sublease. He testified that this method utilized a calculation of all expenses incurred by James in his total farming operations on the Sublease lands and other family acreage. The total sum of expenses was then divided by the total acreage farmed by James. This average cost per year was then multiplied by the 252 acres farmed on the Sublease to arrive at a cost per acre amount. Other expenses specific to the Sublease were also apparently included in Richardson’s overall expense calculation.

Regarding the subject 2000-2003 cost calculations, the trial court made the following statements in partially accepting the methodology and calculations presented by Richardson:

Thus, the Court does not believe that an “average approach method” is acceptable regarding the attendant costs concerning labor for the reasons stated and therefore disagrees with Richardson’s calculations in arriving at a net profit for lone’s farming operations in this respect. However, the Court does embrace the “average approach method” regarding the remaining farming expenses unless otherwise noted including the actual wages of the employees and has taken these expenses in consideration to arrive at appropriate net profits.

Inin the final computation of expenses, the court removed certain expenses from Richardson’s average approach expense calculations, but otherwise accepted his numbers.

Overall, Edith’s expert, David Johnston, did not contest the majority of expenses listed by Richardson. He felt the better valuation method was to place the expenses of the operations on the family entities that actually incurred them. Thus, he prepared his expense schedule only from the expense data actually identified with the Sublease. He admitted that his numbers did not reflect the actual cost of production from the Sublease acreage and that if he were going to buy the farm he would want to know specifically what was spent. He also agreed that in this case, he would have to consider the other family corporations to determine actual costs. Johnston agreed that the average approach method “in theory” would be “a reasonable method” of calculating actual expenses.

In community property partitions, the trial court is granted much discretion in valuing and allocating assets and liabilities and is required to consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances. La. R.S. 9:2801 et seq.; Roan v. Roan, 38,383 (La.App. 2d Cir.4/14/04), 870 So.2d 626; Bedenbender v. Bedenbender, 28,579 (La.App. 2d Cir.8/21/96), 679 So.2d 506. Given this great discretion, the trial court is not required to accept at face value a spouse’s valuation of assets or debts, or claims against the community. Bedenbender, supra. An appellate court may not set aside |iaa trial court’s factual findings absent manifest error or unless clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993); Ball v. Ball, 32,851 (La.App. 2d Cir.3/1/00), 757 So.2d 824.

Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. Green v. K-Mart Corp., 03-2495 (La.05/25/04), 874 So.2d 838; Marsh v. USAgencies Cas. Ins. Co., 42,176 (La.App. 2d Cir.5/16/07), 957 So.2d 901. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Id. The effect and weight to be given to expert testimony rests within the broad discretion of the trier of fact. Williams v. State Farm Mut. Auto. Ins. Co., 36,439 (La.App. 2d Cir.10/23/02), 830 So.2d 379.

We can find no manifest error in the trial court’s acceptance of Richardson’s average approach method in calculating the subject expenses. Even by Johnston’s own admission, this approach presented a closer estimate of the costs of the farming operations and a reasonable method of calculating expenses. Considering the broad discretion granted to the trial court in these matters, we find no error in the trial court’s expense determination. Edith’s argument is rejected.

II.

Regarding the community’s ownership of J & C, Edith next argues that the corporation was formed solely out of the community property in 1994 and that her son’s stated interest in the corporation resulted from an unauthorized donation of community property by James. She contends that pursuant to the provisions of La. C.C. art. 2349, James was prohibited from | ^donating the community’s farming equipment to Cliff through the format of J & C without her concurrence. Accordingly, pursuant to La. C.C. art. 2353, Edith argues that the formation of J & C was a relative nullity and that one-half of the value of the equipment holding company should be credited to her. The trial court’s ruling awarded her only one-fourth of the value of J & C which was determined at the time of trial to be $93,832.

The provisions of Civil Code Article 2349 read as follows:

The donation of community property to a third person requires the concurrence of the spouses, but a spouse acting alone may make a usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation.

The provisions of Civil Code Article 2353 provide in relevant part:

When the concurrence of the spouses is required by law, the alienation, encumbrance, or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur....

True donations of community property made without consideration and merely from liberality to third persons require the concurrence of both spouses. The general rule applies to both movables and immovables. 1 Katherine S. Spaht and Richard Moreno, Matrimonial Regimes § 5.14, in 16 Louisiana Civil Law Treatise (3d ed.2007). The exception to the rule provides that one spouse acting alone can make a “usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation.” Id. When one spouse agrees to a transaction that |14requires consent of both, La. C.C. art. 2353 applies and makes the transaction relatively null. Id. This provision apparently carries over the whole spectrum of effects that attach to relative nullities, especially the provisions of La. C.C. art.2031 which provides that a relative nullity may be confirmed and may be invoked only by the person for whose interest the ground of nullity was established. Id.

A relative nullity may be confirmed or ratified. La. C.C. arts. 1842, 2031. There is no apparent requirement that the confirmation or ratification be in writing or particular form. Id. The signing of a document as a witness by the alleged non-concurring spouse was found to be an adequate confirmation of a relatively null servitude. Kee v. Francis Camel Const., 532 So.2d 378 (La.App. 3d Cir.1988). The signing of joint tax returns by the non-concurring spouse was held to be an adequate casual confirmation in First Federal Savings & Loan Ass’n of Warner Robins, GA. v. Delta Towers, Ltd., 544 So.2d 1331 (La.App. 4th Cir.1989), writ denied, 548 So.2d 1250 (1989). In Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967), the conduct of the non-concurring wife acted as a ratification of a relatively null partition executed between the spouses when the wife exercised all benefits of the partition, occupied the partitioned property, and contracted to sell the property.

Onerous donations (burdened with charges) and remunerative donations (recompense for services rendered) are not true donations and would be treated as any other onerous contracts within the power of one spouse acting alone. See La. C.C. arts. 1523-1527; Spaht and Moreno, supra. Additionally, the provisions of Civil Code Article 2350 provide:

The spouse who is the sole manager of a community enterprise has the exclusive right to alienate, encumber, or lease its movables unless the movables are issued in the name of the other spouse or the concurrence of the other spouse is required by law.

Documentation regarding the formation of J & C was introduced into evidence. Those documents and the parties’ testimony evidence that Cliff and James formed J & C in 1994 and had 100 shares of common stock issued, 50 shares to each. The initial report named James and Cliff the directors and officers of the corporation. James was named President and Cliff, Vice President/Secretary Treasurer. A Sale with Assumption of Mortgage to J & C was executed by Cliff and James on April 15, 1994, conveying movable property and farm equipment. J & C assumed two equipment loans with balances totaling $671,615.87. J & C thereafter derived its income from renting the farming equipment to other family entities conducting the parties’ farming operations.

Also introduced into evidence was a list handwritten by James in 1994 of the farm equipment transferred to J & C. The values shown for the equipment totaled $1,203,024, indicating that the value of the equipment exceeding its indebtedness was over $500,000. By the time of the proceedings before the Special Master and the trial court, the total value of the equipment, excluding the debt, was determined to be $93,832. By act of sale in 2003, Cliff conveyed his 50 shares of J & C to James. There was nonpayment for the shares as James simply assumed responsibility for the equipment indebtedness.

James testified that when he and Cliff formed J <& C, Cliff owned a truck that he contributed to the corporation. James admitted that the truck was not listed on the 1994 conveyance of the equipment to J & C. Regarding the formation of J & C, James testified that it was Edith who “wanted him to” form the family farming entities like other farmers in Tensas Parish.

The trial court viewed James’ transfer of the farming equipment to J & C and his sharing of the ownership of that corporation with his son as onerous transactions. This might be justified on the basis of Cliffs overall contributions to the farming operations, equipment maintenance and debt servicing that were expected following the formation of J & C and the other family farming entity in 1994. The trial court then concluded that James had authority under Civil Code Article 2350 to make the transfer of the equipment to a corporation which was not entirely owned by the spouses as community property. To the contrary, Edith now asserts that the large equity value in 1999 of the farming equipment, in excess of $500,000, demonstrates that J & C was capitalized solely with the parties’ community property and that James effectively donated one-half of the community’s farming equipment to Cliff.

From the record, we cannot conclude that the J & C transactions benefited Cliff as a pure gratuity. Cliff was expected to act and contribute to the family farming operations and servicing of the farming debt after 1994. The transfer of the equipment to him through the corporate 117arrangement may be viewed as an onerous donation. His actions through J & C and the family farming entity thereafter were to provide benefits enhancing the community’s stake in those entities. The trial court’s conclusions that the J & C transactions were onerous in nature and that James’ actions were authorized were not error under this complicated factual arrangement.

Moreover, we find that any act of donation to Cliff through the creation of J & C was acknowledged and ratified by Edith in 1994 and thereafter. Edith testi-lied that m 1994 she understood that the equipment was being transferred to J & C for the assumption of the debt by the corporation. She concurred in the joint use of the equipment by James and her son through the farming entities that were created.

Conclusion

For the reasons stated above, we amend the trial court judgment to increase the value of the unexpired term of the lone Sublease to $250,000 |isand to delete the 2004 loss from the lone Sublease income calculation, thus increasing Edith’s reimbursement claim for that income to $69,175.74. In all other respects the judgment is affirmed. Costs of this appeal are to be assessed equally to the parties. After 1994, James received as income to the community an annual salary from J & C for five years before the end of the marriage. Under this arrangement with the parties’ child, we find sufficient evidence of Edith’s concurrence in the transfer of the equipment to J & C and her ratification of benefits which accrued to her son. Accordingly, the trial court’s determination regarding Edith’s interest in J & C is affirmed.

JUDGMENT AMENDED IN PART AND AFFIRMED.

      . Traylor’s appointment qualifies as the appointment of a special master in accordance with the provisions of La. R.S. 13:4165, which allows the court to appoint a special master where complicated legal or factual issues are presented. Related powers to court-appointed notaries are provided under the Code of Civil Procedure for partitions, La. C.C.P. art. 4604. Further the provisions of La. R.S. 9:2801(A)(3) allow the trial court to appoint experts to assist the court in the settlement and partition of community property. See Crais v. Crais, 98-1477 (La.App. 4th Cir.1/13/99), 737 So.2d 785, writ denied, 99-0763 (La.5/14/99), 741 So.2d 668.

      . James and Cliff formed Wilkerson Farms II, a partnership created to maximize agricultural subsidies from the federal government (also called a "Mississippi Christmas Tree” arrangement). The corporation was composed of 8 individuals. Wilkerson Farms II rented the equipment from J & C.

      . Edith contests only the trial court’s inclusion of certain farm expenses relating to the farming operations of the Sublease from 2000-2003. For the year 1999, the record reflects that the court accepted the income calculation of her expert because James' expert had prepared no calculation for that year.

      . The court's reasons for judgment reflect that the court disallowed legal and accounting fees and equipment rent for 2000-2001. The court also disallowed payroll taxes, workers’ compensation, medical insurance, employee fringe benefits and insurance costs in certain years.

      . At trial, the parties stipulated to the Special Master's value of J & C at $27,682. This sum, however failed to include the value of four corporate vehicles. The trial court valued the four vehicles at $66,150 and included this total in the value of J & C for a sum of $93,832.00. The parties do not contest this calculation on appeal nor the trial court's award of the corporate stock to James.

      . In his appellate brief, James seeks additional reimbursement to the community for expenses related to wells which serviced the irrigation systems utilized on the farms. Because he has neither appealed nor answered the appeal raising this issue, this matter is not properly before us. La. C.C.P. art. 2133; Starnes v. Caddo Parish School Board, 598 So.2d 472 (La.App. 2d Cir.1992).


source: Caselaw Access Project

author: MOORE, J. BROWN, Chief Judge,

license: Public Domain

text:
    Melanie Lynch HOBBS, Plaintiff-Appellee v. Mitchell Doil HOBBS, Defendant-Appellant.
    No. 42,353-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Albert E. Loomis, III, Monroe, for Appellant.
    Elizabeth Brown, West Monroe, for Ap-pellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

|, This is an appeal of a judgment denying a motion and rule to modify custody. Finding no merit in the appellant’s assignment of error that the trial court manifestly erred in assessing the factors governing determination of the best interest of the child, we affirm the judgment of the district court and dismiss this appeal at appellant’s cost.

FACTS

Mitchell Doil Hobbs and Melanie Lynch Hobbs were married on October 22, 1991 and divorced on April 16, 1993. One child was born of the marriage, Shawn Tyler Hobbs. Pursuant to a judgment dated November 29, 1995, the parties were awarded joint custody of Tyler in which each parent had physical custody of Tyler on alternating weeks. On November 2, 2005, Mitchell Hobbs filed a motion and rule for primary custody of Tyler alleging that there had occurred a substantial change in circumstances. The next day, Melanie Hobbs filed a motion for contempt and rule to show cause alleging Mitchell Hobbs was in arrears for medical and dental payments.

A Hearing Officer Conference was held on February 1, 2006. The Hearing Officer issued his recommendations and proposed judgment pursuant to La. R.S. 46:236.5 C(5)(d) on the afternoon of February 1, 2006. The proposed judgment dismissed Mitchell Hobbs’ demand to modify the custody decree and dismissed Melanie Hobbs’ demand that Mitchell be held in contempt. It ordered Melanie to pay 46% and Mitchell to pay 54% of Tyler’s orthodontic treatment. Both parties filed objections to the recommendations; however, Melanie subsequently withdrew her objections. The matter of custody was submitted to the district court for a hearing. [ 2After a nine-day trial held over a six-month period, the court signed a judgment on November 17, 2006, ordering that the existing custody arrangement remain intact.

Mr. Hobbs filed this appeal alleging that the trial court manifestly erred in its analysis of the “best interest of the child” factors listed under Civil Code Article 134 and other factors on a checklist of factors considered by the trial court. Attached to the trial court’s judgment is an “Article 134 Check Sheet” which lists the twelve factors listed under Article 134 and thirteen additional statutorily or jurispruden-tially significant factors. Corresponding to each factor listed, the sheet contained a score box in which the court weighed on a scale of 1 to 5 each parent’s score for the particular factor. The trial court’s “Ruling, Judgment, and Order” essentially recites its assessment of the factors as to each party. Mr. Hobbs’ complaint on appeal concerns the findings and weight given by the court regarding several of the factors.

DISCUSSION

The burden of proof at trial upon a party seeking to modify a prior permanent custody award is dependent on the nature of the original custody award. Custody awards are of two types. The first is a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is a considered decree, which is rendered after the trial court has received evidence of parental fitness to exercise care, custody and control of a child. Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731; White v. Kimrey, 37,408 (La.App. 2 Cir. 5/14/03), 847 So.2d 157, writ not considered, 2003-1943 (La.8/1/03), 849 So.2d 534; Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 09/13/00), 808 So.2d 354, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

When the original custody decree is a stipulated judgment, the party seeking modification must prove that there has been a material change in circumstances since the original decree and that the proposed modification is in the best interest of the child. Evans, supra; White, supra; Touchet v. Touchet, 36,881 (La.App. 2 Cir. 01/29/03), 836 So.2d 1149; Masters v. Masters, 33,438 (La.App. 2 Cir. 04/05/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/07/01), 803 So.2d 975.

A party seeking to modify a considered decree of permanent custody bears a heavy burden of proving that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Evans, supra; Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Evans v. Lites, 30,632 (La.App. 2 Cir. 06/24/98), 714 So.2d 914.

In this instance, the November 29, 1995 judgment awarding joint custody was apparently a stipulated judgment. Hence, Mitchell Hobbs’ burden at trial on his motion and rule to modify the standing custody judgment was to show a material change in circumstances and that a change from the original decree is in the best interest of the child. La. C.C. art. 131. After reviewing the factors under La. C.C. art. 134 and others, the |4trial court concluded that the best interest of the child would be served by maintaining the current custody arrangement. We will not disturb the trial court’s ruling absent a manifest abuse of discretion. See La. C.C. art. 134, Comment (b) (Citations omitted).

Appellant contends that the trial court erred in the weight it assigned to Factor Seven concerning the mental and physical health of each party under the best interest standard. The court weighed this factor in favor of Mitchell by assigning the number “3” to his score, and did not give the mother a score.

There is ample medical and lay testimony in the record alluded to by appellant that indicates that Melanie has suffered from symptoms of depression which included sleep disturbances, irritability, lack of energy and other symptoms characteristic of depression. We are also struck by the fact that Melanie has sought medical help for her problems and has received treatment. Appellant argues, however, that she has not consistently followed her treatment, and therefore the treatment has not been as effective as it might be. He contends, among other things, that Melanie’s depression has led her to file for bankruptcy due to irresponsible spending and borrowing. He also contends that Melanie’s symptoms are consistent with bipolar disorder, and that these symptoms have adversely affected her care of Tyler. We agree with the trial court that the score regarding mental and physical health favors Mitchell. However, we find no manifest abuse of discretion in the weight the trial court has assigned to this single factor regarding its impact on custody and the best interests of Tyler.

We also agree with the trial court’s conclusion that Mitchell was a better financial manager than Melanie. The district court found that Factor Three under Article 134, which concerns the capacity and disposition of the parities to provide the child with food, clothing, medical care and other material needs, favored heavily in favor of Mitchell (4-0). He contends that Melanie has demonstrated a lack of capacity and disposition to provide materially for the child because she filed for bankruptcy, utilizes “pay day” loans, has minimal savings, and changed jobs to become a teacher which has resulted in a lower income by almost half. He contends that Melanie’s parents, Troy and Patsy Lynch, and not Melanie, provide the material needs of the child.

Although it is clear from this record that Mitchell makes more money and is a better manager of his money than Melanie is of hers, and therefore is in a better position and has greater capacity to provide Tyler with material needs, we do not find that the record supports a finding that Tyler has been deprived of food, clothing, medical care and other material needs. Nor do we find that Mitchell has been restricted in any way from using his superior financial position to provide any material needs he might feel Tyler lacks under the current custody arrangement.

The trial court found that Factor Two, the capacity and disposition of each party to show the child love, affection and spiritual guidance and to continue the education and rearing of the child, was weighted slightly in favor of the mother due to her profession as an educator. Appellant argues that because Melanie sleeps a lot (a symptom of depression), any advantage | fishe might have due to her profession as a teacher was lost due to her fatigue and sleep problems. In view of the fact that Melanie has been receiving treatment both for depression and sleep apnea, we find no abuse of discretion in the trial court’s assessment of this factor. Although we express some concern that Melanie has in some instances not followed up with treatment for her medical condition, we do not find that the trial court was clearly wrong in its conclusion regarding this factor.

Appellant argues most stringently over Factor Six regarding the moral fitness of each party insofar as it affects the welfare of Tyler. He is critical of her financial circumstances and her admission that she had dinner dates with five or six men that she had met through the internet over the years. Specifically, he points out that two men she dated had substance abuse problems, and she had spent one or more nights with each in her trailer, which is located approximately 1,000 feet (0.2 miles) behind her parents’ home. One of the men, John Lofton, apparently entered a rehabilitation center for methamphetamine use. She also dated a man named Julius Harper who testified that he was an alcoholic and dated Melanie while separated from his wife. Appellant also attacks Mr. Lynch, alleging he was formerly a member of the Klu Klux Klan, and attacks the moral character of two of Melanie’s friends who testified on her behalf, the allegations of which we will not detail in this opinion.

On the other hand, Melanie contends that Mitchell was aware of the alleged inappropriate moral circumstances to which Tyler was allegedly exposed regarding Mr. Lynch many years ago. We also observe that Tyler’s | junior high school principal, called by the appellant to testify, stated that Tyler was a strong student with a good attendance record, and that he was not a discipline problem. He also indicated that he recognized Melanie from her attendance at school functions. He saw no signs to indicate that Tyler was adversely affected by or distressed from his home life. Accordingly, we find no manifest error or abuse of discretion in the trial court’s conclusion that does not weigh in favor of either party regarding Factor Six, inasmuch as Tyler’s welfare has apparently not been adversely affected.

Appellant also complains about the trial court’s conclusions regarding Factors Four (length of time the child has lived in a stable, adequate environment and the desirability of maintaining continuity of that environment) and Five (the permanence, as a family unit, of the existing or proposed custodial home or homes). Apparently Tyler spends his weeknights during the school year with Melanie’s parents when Tyler is in her custody. Because of the very close proximity of Melanie’s home and the close relationship of the family, we do not perceive this as a problem, inasmuch as it is customary for grandparents to assist in rearing children, particularly for their children who are single parents.

On the other hand, Mitchell has been involved in Tyler’s life as well, serving as a baseball coach and taking Tyler fishing and hunting, and participating with him in scouting. Accordingly, we find no manifest abuse of discretion in the trial court’s conclusion not to favor either parent in this regard.

|sThe trial court found that Factor One, the love, affection and other emotional ties between each party and the child, weighed equally between the parents. Appellant contends that this factor should have weighed heavily in his favor because: l)Melanie does not put Tyler ahead of herself; 2) she changed jobs, which cut her pay in half; 3) she ran up excessive debt; 4) she failed to adhere to her medication regimen; 5)she lets her parents raise Tyler; 6) she exposed her son to men who abuse substances; and other matters.

Melanie argues that she quit her job to become a teacher so that she could spend more time with Tyler. We are not persuaded that the trial court erred or abused its discretion in concluding that both parties equally love Tyler.

In addition to the factors reviewed above, appellant also complains about the assessment and weight given by the trial court (including the lack of an assessment with respect to some and inapplicability with respect to others) regarding Factors Eight (the home, school, and community history of the child), Ten (the willingness and ability of each party to facilitate and encourage a close relationship between the child and the other party), Twelve (the responsibility for the care and rearing of the child previously exercised by each party), Nine (the reasonable preference of the child), Fourteen (decision-making ability), Nineteen (“other” addictions), Twenty (known schedules), and Twenty-one (supportive family circle). Appellant reiterated the factors found by the trial court to be in his favor.

IcAfter review of the factors above, we cannot say that the trial court manifestly erred or abused its discretion in its assessment, the weight it assigned to the various factors, and its decision to disregard some factors.

CONCLUSION

We have reviewed the entire record in this case. As a result of this review, in spite of several factors that weigh heavily in the appellant’s favor, we do not believe that there is clear and convincing evidence that primary custody should be awarded in this case, nor do we find that the trial court manifestly erred or abused its discretion in its conclusion regarding Tyler’s best interests. We find that it is particularly significant that Tyler is now 15 years old and the current physical custody arrangement has been in effect for more than a decade. Accordingly, Tyler’s stated preference at the Watermeier hearing to maintain the current physical custody arrangement is entitled to substantial weight.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

BROWN, Chief Judge, concurs with written reasons.

CARAWAY, J., concurs.

BROWN, Chief Judge,

concurring.

11What stands out is that this week-to-week exchange of physical custody has been in place for 10 years. Moreover, this 15-year-old appears to be doing fine and does not want a change in the status quo. The mother is a school teacher and the father a police officer. I can find no reason for this 9-day trial or for this court’s exhaustive repetition of the pluses and minuses of the many factors set forth in La. C.C. art. 134.

I would simply find no material change in circumstances and affirm.


author: GASKINS, J.

text:
    Patsy WASHINGTON, et al., Plaintiffs-Appellants v. Reverend Louis JAMES, et al., Defendants-Appellees.
    No. 42,345-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Smith & Nwokorie, by Anselm N. Nwokorie, Brian G. Smith, Monroe, for Appellants.
    The Herring Law Firm, A.P.L.C., by Charles E. Herring, Jr., for Appellees.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   GASKINS, J.

hThe plaintiffs, Patsy Washington, Len-dy Kennedy, Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed, appeal from a trial court judgment finding that they were without authority to incorporate Evergreen No. 1 Missionary Baptist Church in Bastrop, Louisiana, and that some of the plaintiffs were not members of the church and had no right or cause of action. For the following reasons, we affirm.

FACTS

The church at the center of this controversy was organized in 1902 as Evergreen Baptist Church. Immovable property was purchased by the unincorporated congregation that year. At some point, the name was changed to Evergreen No. 1 Missionary Baptist Church (Evergreen No. 1). The plaintiffs’ ancestors were members of the church, as were those of one of the defendants, Earlean German, the secretary and bookkeeper of the church. The plaintiffs, who are all related, became members of the church as they grew up in the community. Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed moved away from the area more than 20 years ago. However, they claimed that they continued to financially support the church by contributing money to rebuild the church in the 1990s. Billy Ray Rhodes claimed that he personally laid the foundation for the present church building. They also asserted that they attended the church every few years when they returned to the area for family reunions. Patsy Washington and Lendy Kennedy remained active members of the church.

In 2003, Rev. Louis James was hired as the pastor of the church. At that time, there were approximately ten adult members actively attending | ¡¿he church. Under Rev. James’ leadership, the membership increased to more than 40. According to the defendants, a dispute arose between Ms. Washington, Ms. Kennedy and the pastor. The plaintiffs commenced efforts to seize control of the church property and to oust Rev. James.

According to the plaintiffs, they considered themselves to compose the membership of the church and, at a family meeting, decided to incorporate the church as a nonprofit corporation. Articles of incorporation were filed with the Louisiana Secretary of State’s office on August 10, 2006, forming the Evergreen No. 1 Missionary Baptist Church, Inc. (Evergreen, Inc.). The plaintiffs then changed the locks on the church door, excluding Rev. James and the other members of congregation for a period of nine days. In September 2006, they also sent a letter to Rev. James telling him to resign as pastor or they would commence legal action.

Rev. James and the other members of the congregation gave notice of a meeting to elect officers, adopt bylaws, create a board of trustees and a finance committee, and to incorporate the church. The meeting was announced in the Sunday and Wednesday services, a notice was posted on the door of the church, and efforts were made to personally telephone all members on the church roster, including Ms. Washington and Ms. Kennedy. The meeting was held on October 17, 2006, and the New Evergreen Baptist Church (New Evergreen) was incorporated.

On November 6, 2006, the plaintiffs filed a petition for declaratory judgment, temporary and permanent injunction, and application for a writ of quo warranto. Named as defendants were Rev. James, Earlean German, and |sthe board of trustees of New Evergreen, composed of Rose Brooks, Dórica Doaty, and Edna Chism. The plaintiffs claimed that the defendants were without authority to execute documents purporting to usurp, transfer, and convey church property to New Evergreen. A temporary restraining order was issued in favor of the plaintiffs to stop a meeting scheduled for late November 2006. The purpose of the meeting was for the church congregation to vote on whether to transfer the church’s assets to New Evergreen.

The defendants filed an answer and exceptions of no right and no cause of action and failure to join a necessary party. The defendants claimed that Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed had no right of action because they were not members of Evergreen No. 1. Further, they attacked the alleged incorporation by the plaintiffs, arguing that it was done without notice to the rest of the congregation of the unincorporated religious organization. The defendants claimed that the plaintiffs were not trustees of the church at the time they sought to form a corporation and that their actions did not transfer any assets of Evergreen No 1.

The defendants asserted that the plaintiffs had no cause of action because there was no meeting to incorporate and no transfer of assets to the corporation. The defendants contended that the plaintiffs failed to join a necessary party because they did not join Evergreen No. 1 or New Evergreen. The defendants argued that the trial court had jurisdiction over |4this matter because the issues before the court concerned corporations and property transfers rather than doctrinal issues.

A hearing on the exceptions was held in November 2006. The trial court framed the issues as who is a member of the church, how that is determined for voting purposes, and whether the temporary restraining order should be dissolved. Ear-lean German testified that she has been a member of the church for more than 50 years and has been the church secretary since 1971. Ms. German detailed the manner in which members are accepted at the church. A person had to be 18 years old and a member in regular standing to vote. She said that she updates the roll every year to delete those who no longer come to church. Ms. German testified that sometimes members are voted off the roll. She submitted the current list of membership. According to Ms. German, Ms. Washington and Ms. Kennedy are voting members of the church, but Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed are not.

Ms. German detailed the meeting of October 2006 when the defendants purported to incorporate the church as New Evergreen. She submitted the minutes of the meeting and the sign-up sheet of members who were present and voting. She stated that officers were elected, bylaws were adopted, a board of trustees and a finance counsel were created, and the name of the church was changed to New Evergreen. Under the new bylaws, a member must have attended at least once in a three-month period, unless ill, and must be at least 15 years of age to vote on church business. She outlined the extensive measures that were taken to notify the congregation |fiof the meeting. Ms. German stated that another meeting was scheduled in November 2006 to vote on whether to transfer the assets of Evergreen No. 1 to New Evergreen.

Rev. James testified that he came to the church in 2003. Billy Ray Rhodes, Carlton Rhodes, and Robert Reed were not on the membership list when he arrived. He corroborated Ms. German’s testimony that if members don’t come for about three months, they are taken off the roll. He also stated that sometimes people are voted off the roll and sometimes he just tells the church secretary to take them off.

Billy Ray Rhodes asserted that he and his family were largely responsible for the financial support of the church and paid for most of the cost of rebuilding the church building. He claimed that he joined the church in 1954 and has never moved his membership or joined any other church. However, he acknowledged that he acted as a deacon at a church in Texas and paid more than $40,000 to help build a church in Texas.

He testified that he and the other plaintiffs sought to have the church incorporated in August 2006. They did not have a meeting before incorporation. Billy Ray Rhodes stated that after the plaintiffs purported to incorporate as Evergreen, Inc., they changed the locks on the church and posted a notice on the door that no more keys would be made because the church “was under investagation [sic].” They also sent a letter to Rev. James asking for his resignation.

Patsy Washington testified that she has been a member of Evergreen No. 1 for 49 years and was assistant secretary of the church. She stated that |Bthe church did not have regular business meetings. Ms. Washington said that she was not aware of anyone ever being voted out of the church and stated that there was no set number of times that a person had to come to church to remain a member. Ms. Washington claimed that the church operated as a family and not as a congregation. She claimed that due to the large amount of money furnished by her family to rebuild and support the church, the defendants had no right to “move anything.” The plaintiffs could not document the amount of money furnished to the church.

The parties stipulated that if Robert Reed and Carlton Rhodes were called to testify, their testimony would be substantially the same as Billy Ray Rhodes and Ms. Washington.

On December 28, 2006, the trial court signed a judgment in favor of the defendants. The court found that it had subject matter jurisdiction over the dispute. The court sustained the exceptions of no right and no cause of action, finding that Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed are not voting members of the church and were not entitled to vote at a meeting held on November 29, 2006. In oral reasons for judgment, the court found that the Rhodes family no longer composed the exclusive membership of the church.

The trial court found that the plaintiffs’ corporation, Evergreen No. 1 Missionary Baptist Church, Inc., purportedly formed in August 2006, was null and void and shall not be used to control the property, assets, or accounts of Evergreen No. 1. The court dissolved the temporary restraining order.

The trial court found that the defendants properly gave notice to the congregation of the October 2006 meeting. The court stated that the votes and resolutions of that meeting were valid, including the incorporation of the church as New Evergreen.

The court approved a meeting to be held in November 2006 by the defendants and the congregation of Evergreen No. 1 to consider the transfer of the church assets to New Evergreen. The court ruled that a majority vote of the members present and voting would control. The court accepted the defendants’ membership list containing 41 names as representing the correct membership roster of the church. It ordered that only those persons on that list who are over 15 were allowed to vote at the November meeting. Both counsel were ordered to be present and preside or to find someone to preside at the meeting.

The propositions to be considered at the November meeting were whether to transfer the assets of Evergreen No. 1 to New Evergreen and, if the congregation voted not to transfer the assets, which entity should be entitled to the assets.

Following the November meeting, the trial court issued an order recognizing that the church voted to transfer its assets to New Evergreen. The court ordered the transfer to take place inclusive of the immovable property of the church.

SUBJECT MATTER JURISDICTION

The plaintiffs appealed the trial court judgment. They assert that the trial court exceeded its jurisdictional power by ruling that members who had | Jived away for many years, who had not withdrawn or transferred their membership, and who continued to make financial contributions had no voting rights.

According to the plaintiffs, the First Amendment of the United States Constitution prohibits courts from attempting to resolve church disputes requiring interpretation of church laws and practices. They argue that this constitutes interference with ecclesiastical and administrative matters within the church. The plaintiffs claim that the courts are without jurisdiction to determine church membership status. This argument is without merit.

The First Amendment of the United States Constitution and Article I, Section 8 of the Louisiana Constitution prohibit courts from interfering in ecclesiastical matters of religious groups. This prohibition extends to matters of religious discipline, faith, and/or custom. See Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Hawthorne v. Couch, 40,162 (La.App. 2d Cir.9/21/05), 911 So.2d 907; Thomas v. Craig, 424 So.2d 1090 (La.App. 1st Cir.1982).

Not all church disputes necessarily involve purely ecclesiastical matters. Hawthorne v. Couch, supra. When a matter does not involve an entanglement of questions of church doctrine, the courts have jurisdiction to decide the issue. Jefferson v. Franklin, 96-1389 (La.App. 3d Cir.3/5/97), 692 So.2d 602. Examples of such justiciable controversies include the validity of church elections, the election of boards of trustees, and the determination of membership. See LeBlanc v. Davis, 432 So.2d 239 (La.1983); Smith v. Riley, 424 So.2d 1166 (La.App. 1st Cir.1982); Chimney Ville Missionary Baptist Church of Garland v. Johnson, 95-819 (La.App. 3d Cir.12/6/95), 665 So.2d 730.

The plaintiffs argue that the determination of church membership is an ecclesiastical matter requiring an interpretation of church doctrine, citing Macedonia Baptist Foundation v. Singleton, 379 So.2d 269 (La.App. 1st Cir.1979). That case is distinguishable from the present controversy. In Macedonia, former members of the church were excluded from membership as a matter of church discipline based upon church doctrine.

In the present case, the members were not removed from the rolls for any reason other than long years of nonattendance. The issues raised in this suit require a determination of who is a voting member of the congregation and which entity was validly incorporated. Under the facts presented here, these issues do not require any interpretation of church doctrine or ecclesiastical matters. Therefore, the trial court was correct in finding that it had subject matter jurisdiction over the controversy.

Further, we are struck by the fact that it was, of course, the plaintiffs who filed this lawsuit. To file a suit, raising the issues currently before the court, and then claiming that the court lacks jurisdiction to decide those matters is spurious at best.

DETERMINATION OF MEMBERSHIP

The plaintiffs argue that the trial court erred in using the bylaws of New Evergreen, drafted after October 7, 2006, in determining who is a member of the congregation. The plaintiffs claim that before the defendants |inincorporated in October 2006 as New Evergreen, the church did not conduct regular business meetings or vote on issues. Whenever anything needed to be done, the plaintiffs got together as a family and did it. When the plaintiffs decided to incorporate in August 2006, they did not have a meeting. They decided that, after the new church building was completed, it would be prudent to incorporate and took steps to do so.

The plaintiffs contend that the standard of review in this matter is de novo because the issues raised concern only issues of law. While this is true, we also agree with the defendants that resolution of some matters in this case requires findings of fact based upon an evaluation of the credibility of witnesses under the manifest error standard of review.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App. 2d Cir.5/28/04), 877 So.2d 1003, writ not considered, 2004-2136 (La.11/15/04), 887 So.2d 466.

The trial court was presented with conflicting evidence regarding the custom of the church in determining membership and the manner in which church business was conducted. The plaintiffs claimed that there was no procedure for purging the membership rolls of dormant members. Further, they asserted that the church did not hold business meetings. They viewed themselves as constituting the church and simply decided when to take | n action. The plaintiffs maintain that they were entitled to incorporate the church and include the church building and property in Evergreen, Inc. because they made substantial financial contributions to the church and were almost exclusively responsible for building the current church building. They acknowledge that they gave no notice to any other members of the church before they formed their corporation. However, at trial, the plaintiffs presented no corroborating evidence of their membership in the church or the manner in which church business had been previously conducted. Most importantly, the plaintiffs failed to show that they constituted a majority of the membership of the church.

By contrast, the defendants presented documentation regarding the number of members in the church. The defendants testified that the church rolls were updated periodically and that members who no longer attended were excluded. The defendants also presented testimony concerning how members joined the church and were removed from the church roll, as well as the qualifications for voting on church business.

We do not find any error in the trial court’s action in sustaining the defendants’ exceptions of no right and no cause of action based on a determination that Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed were not voting members of the church. These plaintiffs acknowledged that they no longer lived in the area and did not attend the church regularly. The trial court made a credibility determination between the testimony of the plaintiffs and that of the defendants. The trial court’s determination as to membership was not entirely based upon the bylaws of |12New Evergreen, but was largely footed in the longstanding custom of the church regarding the qualifications for voting members. Although the trial court ruled that a member must be 15 years old to vote, as specified in the New Evergreen bylaws, we do not find that this specification constitutes reversible error. We affirm the trial court’s ruling sustaining the defendants’ exception of no right of action and no cause of action.

VALIDITY OF PLAINTIFFS’ CORPORATION

The plaintiffs assert that the trial court erred in ruling that they had no authority to incorporate and that the corporation they formed could not exercise control over church property. The plaintiffs argue that an unincorporated association, such as Evergreen No. 1, may legally act through a majority of its members to incorporate and to authorize the transfer of its property to the corporation which is created. They urge that they acted as a family, as they had done in the past, to protect the assets of the family church handed down to them. These arguments are without merit.

Simply stated, the plaintiffs have failed to show that they had any authority to act on behalf of the church to form a corporation or to transfer any assets held by Evergreen No. 1 to Evergreen, Inc. The record shows that the church had 40 members in October 2006 and 41 members in November 2006. Only two of the five plaintiffs are active members of the church. They do not constitute a majority of the church’s membership. The plaintiffs were without authority to act on behalf of the church in forming a corporation.

|iaLa. R.S. 9:1051 governs the transfer of ownership of church property in this instance:

A. Corporations unauthorized by law or by an act of the legislature enjoy no public character, although these corporations may acquire and possess estates and have common interests as well as other private societies.
Unless otherwise provided by its constitution, charter, bylaws, rules, or regulations under which it is organized, governed, and exists, any unincorporated nonprofit association may alienate or encumber title to immovable property to any person. For the purposes of this article, immovable property includes, without limitation, mineral rights, predial servitudes, and predial leases, and a transaction to alienate or encumber shall include, without limitation, transactions to mortgage, hypothecate, donate, or transfer title to immovable property. Any such transaction shall be authorized by resolution adopted by a majority of the members of the association who vote on the resolution at a special meeting called and held for that purpose. The resolution may designate a person or persons to act as agent for the purpose of effectuating the transaction. Notice of the special meeting, including the date, time, and place of the meeting and the substance of the contemplated resolution, shall be published, on two separate days at least fifteen days prior to the date of the meeting, in the official journal of the parish in which a majority of the members reside or, if none, in a newspaper of general circulation in the parish. A copy of the resolution and proof of publication as required herein shall be attached to each act effectuating the transaction.
B. The provisions of this article applicable to transfers of immovable property by unincorporated nonprofit associations shall not apply when the transfers are part of an incorporation of the association in which substantially all of the assets of the unincorporated nonprofit association are transferred to the new corporation. In such cases, R.S. 12:207(C) shall govern the transfer. [Emphasis supplied.]

The defendants properly notified all the members of the church and the majority of the church members voted to incorporate as New Evergreen. Then, New Evergreen gave proper notice to the church membership in compliance with La. R.S. 9:1051 regarding a vote to transfer the assets of | uEvergreen No. 1 to New Evergreen. The majority of the church approved the resolution. Therefore, the trial court was correct in rejecting the plaintiffs’ claims and in finding that the defendants’ corporation was created with proper authority. The trial court was also correct in holding that the unincorporated nonprofit association formerly known as Evergreen No. 1 properly transferred its assets to New Evergreen.

We also commend the trial court for its thoughtful handling of this matter and in counseling the parties toward establishing unity. The trial court wisely counseled:

It is my hope that you’ll stay together as a church family and you all need to pray for unity and move forward with everybody who’s been a part of this church across the years, staying the course and continuing to be supportive, to preserve this institution that’s been around for more than a century and I understand the hard work and sacrifice that folks made back in the 1910, 20, 30, and 40 and all that when people had to work from can to can’t for a dollar a day working behind mules and plantations and all that.... So, some sacrifices have been made to organize and sustain this church. Some of you here have paid a lot of money to make sure that it was preserved and that it’s comfortable and all that and I commend you.... Unity is important and you know, there’s no reason why you all can’t stay together and continue to work together to move forward. This little bump in the road here is something that you can pass over and move on and I encourage you to do that.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court in favor of the defendants finding that Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed were not active members of Evergreen No. 1 and that they had no right of action or cause of action in this matter. We also affirm that portion of the trial court ruling finding that the corporation formed by the plaintiffs was created without authority and could not validly 1 ¶ ¡¡claim the assets of the church. We affirm that portion of the trial court judgment recognizing that the defendants properly incorporated and transferred the assets of Evergreen No. 1 to New Evergreen. The trial court correctly rejected the claims of the plaintiffs, Patsy Washington, Lendy Kennedy, Billy Ray Rhodes, Carlton Rhodes, and Robert Louis Reed. Costs in this court are assessed to the plaintiffs.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    ROBERT ANGEL BUILDER, INC., Respondent-Appellee v. Timothy Clark GILBERT and Karen Rockett Gilbert, Applicants-Appellants.
    No. 42,340-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Bodenheimer, Jones, & Szwak by David A. Szwak, Shreveport, for Appellants.

      Jeff R. Thompson, Bossier City, for Ap-pellee.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

Lin April 2003, Timothy and Karen Gilbert hired Robert Angel Builders, Inc. (“Angel”), to build a home on their lot in the Oak Alley Subdivision in Bossier City, Louisiana. The parties entered into a written residential construction contract, part of which reads:

13. Arbitration of Claims under the Act. Any and all claims and controversies arising under this Agreement and governed by the Act shall be submitted to arbitration by a single arbitrator pursuant to the rules of Construction Arbitration Services, Inc. (“CAS”) in effect at the time of the request for arbitration .... The decision of the arbitrator shall be final and binding and may be entered as a judgment in any state or federal court of competent jurisdiction. The fees and expenses of the arbitration shall be borne equally by the Purchasers and Seller, and each party shall bear his own attorney fees. This arbitration provision shall apply only to claims arising under and governed by the Act, and other claims arising under this Agreement shall not be subject to this binding arbitration clause.

The Gilberts found what they perceived to be defects and problems and were dissatisfied with Angel’s attempts to remedy the alleged defects.

Thereafter, the Gilberts filed suit against Angel in the 26th Judicial District Court, asserting that Angel had breached the contract by failing to render full performance and they sought damages caused by the defects and Angel’s failure to complete the construction, as well as a reduction of the purchase price based on the resultant diminution of the home’s value, together with attorney’s fees. Angel filed a dilatory exception of prematurity asserting that the claims set forth in the Gil-berts’ petition required arbitration pursuant to the terms of the parties’ contract.

Angel, on February 10, 2006, filed a separate lawsuit in the 26th Judicial District Court seeking the balance due under the contract, costs of ^additions, extras and overages, as well as other unspecified damages and attorney fees. Also citing the arbitration provision in the construction contract, the Gilberts filed a dilatory exception of prematurity, a motion to consolidate and a rule to show cause in February 2006. A hearing on the exceptions filed in both lawsuits was held on November 6, 2006.

The trial court sustained Angel’s exception of prematurity and ordered that the Gilberts’ claim against the builder be submitted to arbitration. The court, however, denied the Gilberts’ exception of prematurity and motion to consolidate. The court’s judgments on these rulings were signed on January 18, 2007, and on February 6, 2007, the Gilberts filed a notice of intent to seek writs with this court to seek review of the trial court’s rulings. This court granted the writ and for the following reasons, we find that the trial court erred in denying the Gilberts’ exception of prematurity and motion to consolidate.

Discussion

The Gilberts’ claim against Angel was brought under the New Home Warranty Act (“NHWA”), La. R.S. 9:3143, et seq., based upon Angel’s breach of contract, i.e. the builder’s alleged failure to properly construct and complete the Gilberts’ home. Angel’s claim against the Gilberts, which it asserted in a separately filed lawsuit, seeks the unpaid balance due under the construction contract, as well as the costs associated with extras and overages allegedly requested by the Gilberts.

As noted above, the parties provided in their contract that “Any and all claims, disputes and controversies arising under this Agreement and \ ¡governed bg the Act shall be submitted to arbitration.” The last sentence of the arbitration clause set forth in the parties’ contract provides that “This arbitration provision shall only apply to claims arising under and governed by the Act, and other claims arising under this Agreement shall not be subject to this binding arbitration clause.” Clearly, the claims asserted by both parties arise under the construction contract. The issue in dispute is whether Angel’s claim arises under the NHWA such that it too must be submitted to an arbitrator. We find that it does and the trial court erred in finding otherwise.

La. R.S. 9:3150 provides:

This Chapter provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply. Nothing herein shall be construed as affecting or limiting any warranty of title to land or improvements.

Louisiana courts have consistently recognized that the New Home Warranty Act (“NHWA”) exclusively applies as to claims between a builder and an owner relative to construction defects in a new residence. Carter v. Duhe, 05-0390 (La.01/19/06), 921 So.2d 963; Sowers v. Dixie Shell Homes of America, Inc., 33,390 (La.App. 2d Cir.05/15/00), 762 So.2d 186, writ denied, 00-1770 (La.09/22/00), 768 So.2d 1286; Stokes v. Oster Development, Inc., 01-780 (La.App. 5th Cir.01/15/02), 807 So.2d 987.

The subject matter of, as well as the occurrences and transactions alleged in both claims are interrelated, arising out of actions, inactions or breaches of the residential construction contract. Both claims involve the Gilberts in the posture of buyers/owners and Angel as builder/seller. While |4the Gilberts seek damages for breach of contract arising out of defective or incomplete construction, Angel is seeking to recover money due under the same contract. Angel’s defenses to the Gilberts’ claim are precisely what it has alleged in its separately filed lawsuit, while the Gil-berts will certainly raise as defenses to Angel’s claim the allegations they have set forth in their own claim. Under the facts and circumstances of this case, it is clear that Angel’s claim arises under the NHWA and is therefore subject to arbitration. To hold otherwise would be a strained interpretation of both the NHWA and the clear intent of the parties as expressed in their contract.

Conclusion

For the reasons set forth above, the ruling of the trial court denying the exception of prematurity and motion to consolidate filed by the Gilberts is hereby reversed. The matter is remanded so that the claims of both parties can be consolidated and submitted for arbitration. Costs are assessed to Robert Angel Builders, Inc.

      . In a previous paragraph, the contract defined the "Act” as the Louisiana New Home Warranty Act, La. R.S. 9:3143, et seq.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Jason S. WYANT, Appellant.
    No. 42,338-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Iley H. Evans, District Attorney, Brian E. Frazier, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

pThe defendant, Jason S. Wyant, pled guilty to felony carnal knowledge of a juvenile and was sentenced to ten years at hard labor, with two years suspended and with five years of active supervised probation after service of the eight-year term. He appeals the sentence for excessiveness. We affirm.

FACTS

The defendant was indicted by grand jury for the crime of felony carnal knowledge of a juvenile, a violation of La. R.S. 14:80, committed on April 20, 2005, against the juvenile, J.J.S., who was twelve at the time of the offense. The defendant was twenty-five. The record indicates that the defendant, along with two other adults, gave the young victim alcoholic beverages and led her to engage in sexual behavior. The activity of the four culminated in the defendant having sexual intercourse with the victim.

The defendant entered a guilty plea. According to La. R.S. 14:80, felony carnal knowledge of a juvenile is punishable by a fine of not more than five thousand dollars, or imprisonment, with or without hard labor, for not more than ten years or both.

At the sentencing hearing, the defendant apologized for his actions. He explained that he married at a young age and has two small children to support. The trial judge considered the ages of the victim and the defendant, the fact that alcohol was introduced to the young victim, the hardship the crime has caused the families of both the victim and the defendant, the presentence investigation (“PSI”) report, and the factors of La. C. Cr. P. art. 894.1. Then, the trial judge imposed the maximum ten-tyear2 hard labor sentence, with two years suspended, and five years of active supervised probation thereafter. The defendant was ordered to register as a sex offender and obtain counseling. He was also ordered to make specified reimbursements and pay for the victim’s counseling. Although not mentioned at sentencing, the defendant will be given credit for time served under the provisions of La. C. Cr. P. art. 880.

The defendant filed a motion for reconsideration of the sentence. He argued that he had no criminal history, that he had employment, and that his incarceration would be a hardship on his family. At the hearing on the motion to reconsider, the victim’s mother related that her daughter has trouble sleeping and has nightmares from the incident. She also stated that her daughter was crying and shaking from having to face the defendant. The defendant expressed his regret, but also questioned why he was solely to blame when two other individuals were also involved when the incident occurred. The defendant’s mother and wife testified about the hardships they have endured as a result of the defendant’s incarceration and asked that the sentence be reduced.

The trial judge noted that he was aware of the circumstances of the incident and the fact that others were involved. He noted that the crime caused pain to both families and that the defendant seemed to sincerely regret his actions. However, the trial judge maintained the sentence, describing it as fair and just. This appeal followed.

DISCUSSION

A two-pronged test is used in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the |3criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating factor, but the record must reflect adequate consideration of the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890. The goal of Article 894.1 is an articulation of a factual basis for the sentence, rather than rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452.

Important factors which should be considered include the defendant’s personal history (age, family ties, marital status, health, employment history), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

The second part of the two-pronged test requires a determination of whether the sentence violates La. Const, art. I, § 20 by being grossly disproportionate to the severity of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

Upon review of the record, we find that application of the two-pronged test does not show the sentence to be excessive. The record shows an adequate factual basis for the harsh sentence, despite the fact that the trial court’s articulation at sentencing of the factors underlying the sentence imposed was minimal. Although the defendant is a first felony offender and married with two young children to support, our review of the record, including the PSI report and the transcript of the hearing on the motion to reconsider the sentence, convinces us that the sentence is not constitutionally excessive. The defendant ignored his responsibility to his family to seek sexual gratification with a young girl.

Considering the great disparity between the ages of the defendant and the victim, the apparently deliberate use of alcohol to induce the twelve-year old child’s “consent” to sexual intercourse, and the severe effects of the incident on the child, as testified to by her mother, this sentence does not shock the conscience of the court or appear to be a needless imposition of pain and suffering on the defendant.

[.ERRORS PATENT

We note that at sentencing, the trial court did not properly advise the defendant of the time period within which to apply for post-conviction relief. We now advise defendant that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh, 40,159 (La.App. 2d Cir.9/21/05), 911 So.2d 898.

CONCLUSION

For the reasons explained, the defendant’s sentence is affirmed.

AFFIRMED.


text:
    Richard Carl UPTON, Plaintiff-Appellee v. James G. WHITEHEAD, et ux., Defendants-Appellants.
    No. 42,314-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Davis Law Office, by S.P. Davis, for Appellants.
    Lemle & Kelleher by Brian A. Cowan and Stephen C. Fortson, Shreveport, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

In Upton v. Whitehead, 41,131 (La.App. 2d Cir.6/28/06), 935 So.2d 746, we reversed a summary judgment, that had resulted in the Whiteheads’ eviction, upon finding that the parties’ oral agreement was a bond for deed contract and that a material issue of fact existed as to whether the Uptons had complied with the mandatory notice required by La. R.S. 9:2945(A) for cancellation of the contract. On remand, the trial court found that the required notice had not been given, but took no further action to resolve the parties’ dispute. The Whiteheads now appeal the trial court’s failure to place them in possession of the property and to award them damages for wrongful eviction. For the following reasons, we affirm the trial court’s finding on the notice issue, order the Whiteheads restored to possession, and remand for further proceedings as instructed herein.

FACTS

Pursuant to a written agreement dated September 7, 1993, Richard and Kathy Upton leased a residential property at 1129 Baythorne Drive in Shreveport to James and Lullie Whitehead for two years at a rental price of $269.70 per month. Subsequent to their written agreement, the parties made an oral agreement by which the Uptons agreed to transfer title to the property to the Whiteheads upon payment of $28,000 in monthly installments of $269.70. The Uptons claimed that payment was to include | ¡.eight percent annual interest, but the Whiteheads claimed there was no interest.

Believing they had satisfied the purchase price, the Whiteheads stopped making the monthly payments in early 2004. The Uptons notified them that payment was still due and eventually filed suit to be recognized as owner of the property and have the Whiteheads surrender possession.

The Whiteheads’ answer asserted their own ownership of the property. They claimed they had paid the full purchase price and denied entering an agreement to pay eight percent interest. The Whiteheads filed a reconventional demand seeking a judgment declaring them owners of the property. They also alleged that the Uptons owed them $5,173.10, alleged to be the difference between the $28,000 purchase price and the amount they had paid over the years.

The Uptons filed a motion for summary judgment, which the trial court granted. The trial court determined that the requirements of La. C.C. art. 1839 pertaining to transfer of immovable property had not been met and that the Whiteheads could not prevail on their claim of ownership as a matter of law. The Whiteheads filed a devolutive appeal, but they surrendered possession of the property to the Uptons in accordance with the trial court’s ruling.

In Upton v. Whitehead, supra, this court found the parties’ oral agreement to be a bond for deed contract by which the Up-tons agreed to transfer title to the property to the Whiteheads upon payment of $28,000 with eight percent interest in monthly installments of $269.70. The court Lalso determined that summary judgment should not be granted. There was an issue of material fact as to whether the Uptons had complied with the notice requirements for cancellation of a bond for deed contract. The matter was remanded for further proceedings. Because neither party applied for a writ of review, the appellate findings regarding the bond for deed contract and the applicable interest rate are final and constitute the law of the case in this matter. See Martinez Management, Inc. v. Caston, 39,500 (La.App. 2d Cir.4/13/05), 900 So.2d 301; Northeast Realty v. Jackson, 36,276 (La.App. 2d Cir.8/14/02), 824 So.2d 1264.

On remand, a trial was held to address whether notice had been provided by the Uptons to the Whiteheads in accordance with La. R.S. 9:2945. The testimony of Kathy and Richard Upton established that the Whiteheads were current on payments through December 2003, after which they were consistently delinquent, paying only $1,000 total from January 2004, through May 2004. Although the Uptons testified that they notified the Whiteheads each time a payment was late, their testimony established that they had not complied with the notice provisions of La. R.S. 9:2945 in attempting to cancel the contract with the Whiteheads and evict them from the property.

James Whitehead testified that he stopped making the monthly payment because he did not believe payment was still owed. He further testified that after being ordered to surrender possession of the property by the trial court’s grant of summary judgment, he obtained an apartment at a|4higher monthly cost and had to lease a storage unit at an additional $100 per month.

The trial court concluded that the Up-tons did not comply with the required bond for deed notice provision. The trial court also concluded that the Whiteheads failed to make required payments and thus were not entitled to damages for losing possession of the house. Neither party was declared owner of the property.

DISCUSSION

The Whiteheads filed this appeal seeking to regain possession of the property and to obtain damages for wrongful eviction. They claim they are entitled to possession under the bond for deed contract and that they are entitled to damages because the Uptons’ failure to give the 45-day notice deprived them of peaceable possession of the property.

The Uptons contend that the trial court did not rule on the issue of possession, because it was not put forth in the pleadings or otherwise indicated as an issue at trial. They assert the same argument regarding the claim for damages for wrongful eviction, and they contend that the Whiteheads are not entitled to either possession of the property or damages.

The pertinent issue is whether the Uptons gave the required notice to cancel the bond for deed contract. La. R.S. 9:2945 provides, in relevant part:

A. If the buyer under a bond for deed contract shall fail to make the payments in accordance 'with its terms and conditions, the seller, at his option, may have the bond for deed cancelled by proper registry in the conveyance records, provided he has first caused the escrow agent to serve notice upon the buyer, by registered or certified mail, return receipt requested, at his last known address, |sthat unless payment is made as provided in the bond for deed within forty-five days from the mailing date of the notice, the bond for deed shall be cancelled.
B. Where there is no mortgage or privilege existing upon the property, and the buyer shall be in default, the seller shall exercise the right of cancellation in the same manner.

This notice requirement is “clear and mandatory.” Thomas v. King, 35,857, p. 7 (La.App. 2d Cir.4/3/02), 813 So.2d 1227, 1231, citing Williams v. Dixie Land Company, 231 La. 834, 93 So.2d 185, 186 (1956).

A bond for deed contract is a contract to sell real property. La. R.S. 9:2941; Levine v. First Nat. Bank of Commerce, 2006-0394 (La.12/15/06), 948 So.2d 1051. Parties to a contract to sell have the right to demand specific performance. Levine, supra, citing La. C.C. art. 2623. The Whiteheads’ reconventional demand to be declared owner is essentially a demand for specific performance of the contract. However, the Uptons contend that the Whiteheads defaulted on the contract by failing to pay the full price of $28,000 at eight percent interest. The Whiteheads’ default is proven by the record.

When a buyer defaults on a bond for deed contract by failing to pay the installments as they come due, the seller may cancel the contract as provided in La. R.S. 9:2945. The notice must give the buyer 45 days from the mailing date to make payment as provided in the bond for deed contract. If the buyer does not make payment in accordance with the terms and conditions of the contract, the seller may have the contract cancelled. Montz v. Theard, 2001-0768 (La.App. 1st Cir.2/27/02), 818 So.2d 181. When a bond for deed contract fails, the buyer is entitled to the return of money paid | ^toward the purchase price, insurance premium, and any taxes; however, the seller is entitled to the fair rental value of the property for the time of the buyer’s occupancy. Montz v. Theard, supra; Mooers v. Sosa, 01-286 (La.App. 5th Cir.9/25/01), 798 So.2d 200.

To cancel the bond for deed contract upon the Whiteheads’ failure to make the monthly payments, the Uptons had to give the Whiteheads notice by registered or certified mail, return receipt requested, providing them with 45 days from the mailing date to make the payments as provided in their contract. Upon statutory notice of default, the Whiteheads, as purchasers, would not be entitled to maintain possession of the property without making their payments current. See Montz v. Theard, supra. Though the Up-tons may have repeatedly notified the Whiteheads regarding their failure to make timely payments, the type of notice mandated by La. R.S. 9:2945 was not provided. Absent the required 45-day notice, the contract was not cancelled, and the Whiteheads should not have been dispossessed of the property. Therefore, in finding that the 45-day notice had not been provided, the trial court should have ordered, as we now do, the Whiteheads restored to possession of the property, subject to their becoming current on their payments.

The Whiteheads’ restoration of possession is also subject to Upton’s right to seek cancellation of the bond for deed contract by complying with |7the notice provisions of La. R.S. 9:2945. In Upton v. Whitehead, supra, the court determined that the parties’ oral agreement constituted a bond for deed contract obligating the Whiteheads to pay a total of $28,000 at eight percent interest in monthly installments of $269.70 upon which the Uptons would transfer title to the property to them. The record establishes that the Whiteheads defaulted on the contract by ceasing payment before satisfying the full purchase price. Should the Uptons comply with the mandatory notice provision, the Whiteheads will have 45 days to make current their payments toward the purchase price of the house ($28,000 at eight percent interest) to avoid cancellation of the agreement.

The record shows that the Whiteheads made their last regular monthly payment in December 2003, and then paid an additional $1000 between January 2004, and May 2004. However, it appears that the Whiteheads remained in possession of the property until the trial court’s summary judgment in favor of the Uptons on October 3, 2005, at which point they surrendered possession and found another place to reside. We find that in lieu of any damages for wrongful eviction, the Whiteheads should be credited in the amount of $269.70 per month for the months they were wrongfully dispossessed as a result of the summary judgment and for the Up-tons’ failure to provide the requisite notice to cancel the contract. The credit is to be applied toward the amount owed to make their contractual payments current from their last payments made in 2004.

As per this opinion, the Whiteheads are to be restored to possession of the property no later than 60 days from the finality of this opinion, ^subject to the Uptons’ right to comply with La. R.S. 9:2945. On remand, the trial court is instructed to conduct a hearing to determine the following:

1. The specific date from which the credit owed the Whiteheads as compensation for their wrongful dispossession is due.
2. The total amount of credit due.
3. The amount owed to make the bond for deed contract current.

CONCLUSION

For the reasons stated, we affirm the trial court’s finding that the Uptons did not comply with La. R.S. 9:2945. Accordingly, we conclude that the bond for deed contract was not canceled, and the Whiteheads were improperly dispossessed of the property. Subject to the Upton’s providing the appropriate notice of cancellation, the Whiteheads are to be restored to possession and credited for the months they were dispossessed. The matter is remanded with instructions for implementation of this ruling.

AFFIRMED and REMANDED.

      . The property at issue is described as:
      LOT 60, HIGHLAND PARK, UNIT A, a subdivision of the Parish of Caddo, State of Louisiana, as per plat recorded in Book 800, Pages 627, 629, and 631 of the Conveyance Records of Caddo Parish, Louisiana, together with any and all buildings and improvements located thereon.

      . The exhibits attached to the Uptons' petition indicate that Richard Upton had mortgaged the property on February 14, 1985. However, the mortgage documents indicate that the maturity date for final payment on the mortgage was to be March 1, 2005. Presumably, the mortgage has been paid and the property is no longer burdened by it such that the Uptons may provide notice as seller as allowed by La. R.S. 9:2945(B).