author: McClendon, j.

text:
    Gregory William TRAMONTIN v. Brenda Boyett TRAMONTIN.
    No. 2010 CA 0060.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.

      James R. Swanson, Jason W. Burge, New Orleans, LA, for Plaintiff/Appellant, Gregory William Tramontin.
    Neil D. Sweeney, Baton Rouge, LA, for Defendant/Appellee, Brenda Keith.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

|?The plaintiff, Gregory William Tramon-tin, appeals several interlocutory rulings that the trial court designated as final pursuant to LSA-C.C.P. art. 1915(B). For the following reasons, we dismiss the appeal and remand this matter for further proceedings in the trial court.

FACTS AND PROCEDURAL HISTORY

Gregory William Tramontin and Brenda Boyett Keith were married on December 30, 1994. On May 20,1998, Mr. Tramontin filed a petition for divorce pursuant to LSA-C.C. art. 102, which contemplates a prospective six-month physical separation. On December 9, 1998, Mr. Tramontin amended his petition, alleging that he and Ms. Keith had been living separate and apart, without reconciliation in excess of six months and that he was “therefore entitled to an absolute divorce based upon [LSA-C.C.] Article 103.”

On December 16, 1998, Ms. Keith filed an answer to the amended petition, admitting that she and Mr. Tramontin had lived separate and apart in excess of six months and that Mr. Tramontin was entitled to a divorce pursuant to LSA-C.C. art. 103. That same day, the trial court signed a judgment of divorce “based on the parties having lived separate and apart for a period in excess of six (6) months.”

Throughout the latter half of 1998, Mr. Tramontin and Ms. Keith discussed and negotiated the partition of the couple’s community property. One key issue in those discussions was shares of stock and stock options in USAgencies, Inc., a company founded by Mr. Tramontin.

On January 14,1999, Mr. Tramontin and Ms. Keith settled and divided their community property and agreed to “fully and forever compromise, discharge and release each party from any further accounting or claim, demand or cause of action against the other party.” According to their partition |sagreement, Ms. Keith was to receive 100,000 shares of U.S. Agencies, Inc. stock, while Mr. Tramontin was to receive all remaining shares of U.S. Agencies, Inc. stock, as well as “[a]ll interest and claim to all U.S. Agencies, Inc. stock options ... issued to or which may be in the future issued to [Mr. Tramontin].” On February 10, 1999, the trial court signed a “Judgment Homologating Community Property Agreement,” finding the parties’ agreement “fair and equitable to both parties” and making the agreement the judgment of the court.

On January 15, 2002, Ms. Keith filed a petition to rescind the partition agreement and to nullify the February 14, 1999 judgment. Therein, she alleged that the agreement should be rescinded on grounds of lesion and fraud. Specifically, Ms. Keith alleged that she was misled by Mr. Tramontin and his attorney regarding the stock and stock options owned by Mr. Tra-montin. She also alleged that she received less than one-fourth of the total of the community property. Ms. Keith prayed that a judgment be rendered nullifying the February 14, 1999 judgment and partitioning the community property equally.

Mr. Tramontin filed an exception of per-emption, asserting that plaintiffs claim had been perempted under LSA-C.C.P. art. 2004 because the action to annul the judgment had not been “brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.” Following a hearing, the trial court overruled the exception, finding that “Ms. Keith testified that she did not discover the falsity of these representations more than a year prior to filing suit.”

In response to motions for partial summary judgment filed by Ms. Keith, the trial court determined that the parties’ community terminated retroactively to the filing date of the amended petition for divorce pursuant to LSA-C.C. art. 103, | ¿that 500,000 shares of USAgeneies stock were community property, and that the 780,788 stock options were community property.

Thereafter, the parties proceeded to trial solely on the issue of fraud and ill practices. On August 20, 2008, following a four-day trial, the trial court, finding that Mr. Tramontin and his attorney committed fraud against Ms. Keith, signed a judgment rescinding the partition agreement and annulling the Judgment of Homolo-gation. The judgment also denied Mr. Tramontin’s re-urged exception of peremption and further ordered that each party provide a detailed descriptive list of all property, debts and claims, community and separate, in accordance with LSA-R.S. 9:2801, et seq.

Following its denial of Mr. Tramontin’s motion for new trial, the court found “no just reason for delay” and ordered its judgments “rescinding the Partition of the Community Property Agreement; nullifying the Judgment of Homologation; overruling Mr. Tramontin’s exceptions of Prescription and Peremption; granting the Plaintiffs motions for partial summary judgment on ownership of the stock and stock options in USAgeneies, Inc.; resetting the termination date of the community property regime; and any other interlocutory rulings” as final for purposes of appeal.

Mr. Tramontin has appealed, assigning the following as errors:

1. The family court denied Mr. Tra-montin’s exception of peremption on the basis that Ms. Keith discovered the allegedly false statements within a year of filing her claim. This ruling was erroneous because the facts demonstrate Ms. Keith either knew, or should have known through the exercise of reasonable diligence, sufficient facts to put her on reasonable notice of her claims no later than two years prior to bringing the instant suit.
2. The family court annulled the prior judgment and rescinded the parties’ partition on the basis of fraud and ill practices. This ruling was erroneous because the testimony and evidence establish that Ms. Keith was aware of the factual issues relating to the community property and that she could have discovered the relevant facts without “difficulty, inconvenience, or special | ¡¡skill” by, among other ways, following through with her discovery requests.
3. The family court suggested that Thomas Gibbs, Mr. Tramontin’s lawyer, was Ms. Keith’s “trusted friend” such that she could rely on his representations to avoid her duty to investigate the facts. This was erroneous because a party cannot have a “relation of confidence” with opposing counsel, and Ms. Keith did not actually rely on what Mr. Gibbs told her.
4. The family court ruled that the parties’ community property regime terminated on December 9, 1998. This ruling was erroneous, because the community should have terminated on May 20, 1998, the date of filing of the Original Petition in the action in which the judgment of divorce is rendered.
5.The family court ruled that all stock options granted to Mr. Tramontin effective September 1, 1998 were community property. This ruling was erroneous because it is undisputed that a substantial portion of the options vested after the termination of the community.

DISCUSSION

This appeal was taken from various interlocutory rulings, which the trial court certified as final pursuant to LSA-C.C.P. art. 1915(B). Louisiana Code of Civil Procedure art. 1915(B) provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of a judgment adjudicating all the claims and the rights and liabilities of all the parties.

In order to assist the appellate courts in its review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay. R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122. However, if the trial court fails to do so, the appellate court cannot summarily dismiss the appeal. When no reasons are given but some justification is apparent from the | Brecord, the appellate court should make a de novo determination of whether the certification was proper. If after examination of the record the propriety of the certification is not apparent, the appellate court may request a per curiam from the trial court judge, or issue a rule to show cause to the parties requiring them to show why the appeal should not be dismissed. R.J. Messinger, Inc., 04-1664, pp. 13-14, 894 So.2d 1122.

Upon lodging of the record, this court, ex proprio motu, issued a show cause order, noting that it appears that the August 20, 2008 judgment is not a final judgment. The parties were directed to show cause by briefs on or before February 9, 2010, whether the appeal should or should not be dismissed. Although a duty panel made a preliminary determination to maintain the appeal, we are empowered and elect to fully consider the propriety of the trial court’s designation of finality in connection with our duty to review the merits of the appeal, pursuant to LSA-C.C.P. art. 2164.

Although the trial court designated the judgment rescinding the community property agreement and nullifying the judgment of homologation, along with prior interlocutory rulings on motions for partial summary judgment and the denial of Mr. Tramontin’s exception of peremption, as final judgments, no reasons were given for the designations. Accordingly, we review the propriety of the designations de novo, considering the following criteria set forth by the Louisiana Supreme Court in R.J. Messinger, Inc.:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

04-1664 at p. 14, 894 So.2d at 1122.

17Mr. Tramontin urges that the trial court has resolved one of the key issues in this matter insofar as it has found that the judgment was secured through fraud or ill practices. Mr. Tramontin posits that it is unlikely that any future developments in the trial court will moot the need for review of this issue, because the trial court has moved forward to re-partition proceedings and is no longer addressing the fraud or ill practices, which Mr. Tramontin asserts is akin to a finding of liability. See LSA-C.C.P. art. 1915(A)(5). Mr. Tramon-tin urges that if this court were to reverse this finding of “liability,” it would terminate the litigation. Moreover, Mr. Tra-montin argues that the issue of peremption is directly related to “liability” and if Ms. Keith’s claims are perempted, her claims to annul the homologated judgment fail and there is no need for a re-partition.

We disagree. Contrary to Mr. Tramon-tin’s contention, LSA-C.C.P. art. 1915(A) is not applicable in this case insofar as the issue of liability and damages have not been bifurcated for separate trials as contemplated by LSA-C.C.P. 1915(A)(5). Rather, there has been a single trial on the issue of fraud, which resulted in the rescission of the community property partition and the annulment of the judgment homol-ogating same. The August 20, 2008 judgment on appeal, however, is not determinative of the entirety of the merits of the claims between the parties, because a community property partition has yet to be effected. Notwithstanding that a re-partition has not been effected, we note that even if we were to conclude that the trial court’s finding of fraud was erroneous, we cannot address the action for lesion at this time and this matter would have to be remanded to the trial court to address same.

In the alternative, if we were to affirm the trial court’s finding of fraud, we could not address the denial of Mr. Tramontin’s exception pleading peremption on that issue because it was improperly certified as a final judgment. See LSA-C.C.P. art. 1915(B)(1) and Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 6, (La.App. 1 Cir. 6/6/08), 992 So.2d 527, 530, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018 (Despite a designation by the trial court, “it is well settled that a judgment overruling a peremptory 1 sexception of prescription is an interlocutory judgment and not appeal-able.”) Rather, Mr. Tramontin is entitled to seek review of all adverse interlocutory judgments prejudicial to him when an unrestricted appeal is taken from a final judgment. Peak Performance Physical Therapy & Fitness, LLC, 07-2206 at p. 6, 992 So.2d at 531.

The trial court also certified as final its judgments granting Ms. Keith’s motions for partial summary judgment on ownership of the stock and stock options in USAgencies, Inc. and setting the termination date of the community property regime, although these issues had been decided months prior to the trial court’s designation. We note that there is no time delay for filing a motion to certify a judgment as final, and the delay for appealing an interlocutory judgment that has been certified begins to run from the day the notice of the certification order is mailed. Fraternal Order of Police v. City of New Orleans, 02-1801, pp. 3-5 (La.11/8/02), 831 So.2d 897, 899-900. Accordingly, the appeal on these issues appears timely insofar as the appeal was taken within the requisite delays from the date the notice of the certification order was mailed. Although the referenced interlocutory rulings were specifically mentioned in the trial court’s order, the trial court further ordered that “any other interlocutory rulings” were also final for purposes of immediate appeal. However, we caution against such overly broad certifications because, as noted above, not all interlocutory rulings may be certified as final under LSA-R.S.1915(B). Rather, the trial court should identify, with particularity, the specific rulings that are subject to the 1915(B) designation.

Any ruling with regard to the termination date of the community does not necessarily resolve the issue of whether the entirety of the stock and stock options were community property. Also, although Mr. Tramontin asserts in his appellate brief that the stock in USAgencies, Inc. was not community property, Mr. Tramon-tin did not assign that specific issue as error. Rather, the ^assignments only address the classification of the stock options. Moreover, although the written reasons with regard to the stock and stock options appear in the record, the trial court’s written judgments do not. Appeals lie from final judgments, not written reasons for judgment. See Hains v. Hains, 09-1337, p. 17 (La.App. 1 Cir. 3/10/10), 36 So.3d 289, 301 [“Thus, where there are only written reasons and no separate signed judgment, there is no final judgment.”] Assuming that we could consider whether the stock and stock options were properly classified as community, to permit an appeal of these judgments would encourage multiple appeals and piecemeal litigation and would prohibit expeditious disposition of community property cases. See St. Pierre v. St. Pierre, 08-2475, pp. 6-7 (La.App. 1 Cir. 2/12/10), 35 So.3d 369, 372, writ not considered, 10-0587 (La.3/17/10), 29 So.3d 1243. In St. Pierre, this court dismissed an appeal which sought review of a trial court’s judgment finding that a community property regime existed, noting that “[a]n effective remedy is available ... once the trial court renders a judgment partitioning the parties’ assets and liabilities.” St. Pierre v. St. Pierre, 08-2475 at p. 6, 35 So.3d at 372.

Accordingly, based on our de novo review of this matter and consideration of the factors set forth in R.J. Messinger, Inc., we find that the trial court’s designation of these interlocutory rulings as final was improper. As such, we dismiss Mr. Tramontin’s appeal and remand this matter to the trial court for further proceedings.

Additionally, we note that Ms. Keith filed a motion to strike improper content in Mr. Tramontin’s brief insofar as she believed he made representations that were not based upon anything in the record. Ms. Keith also filed a motion to supplement the appellate record with documents she indicated “are missing |infrom the appellate record.” Because we are dismissing the appeal and have not reached the merits, we also dismiss the referenced motions as moot.

CONCLUSION

For the foregoing reasons, we dismiss the appeal taken from the August 20, 2008 judgment and from the prior interlocutory rulings granting Ms. Keith’s motions for partial summary judgment with regard to the ownership of the stock and stock options and determining the termination date of the community property regime. Moreover, Ms. Keith’s motion to strike and motion to supplement the appellate record are dismissed as moot. Costs of this appeal are assessed against Mr. Tramontin.

APPEAL DISMISSED. MOTION TO STRIKE AND MOTION TO SUPPLEMENT THE APPELLATE RECORD DISMISSED AS MOOT.

      . Mr. Tramontin had previously filed an amended petition on November 18, 1998 that sought the same relief requested in his December 9, 1998 amended petition. However, apparently realizing that the requisite six-month time period had not lapsed at the time the November 18, 1998 pleading was filed, Mr. Tramontin cured the possible defect by filing the latter amended petition.

      . We note that there was no hearing in connection with the signing of the judgment.

      . On January 8, 2006, the trial court issued its written reasons for judgment denying Mr. Tramontin’s exception. A written judgment denying the exception was signed on February 13, 2006.

      . On January 16, 2008, the trial court issued its written reasons granting Ms. Keith’s motion for partial summaiy judgment with regard to the termination date of the community and with regard to the classification of the stock. On April 22, 2008, the trial court issued its written reasons granting Ms. Keith’s motion for partial summary judgment with regard to the classification of the stock options.

      . The rule to show cause did not refer to any other prior interlocutory ruling.

      . However, we note that the Code of Civil Procedure does not require assignments of error in any appeal. See LSA-C.C.P. art. 2129. Also, the appellate court is required to render any judgment which is just, legal, and proper upon the record on appeal. See LSA-C.C.P. art. 2164.

      . We also note that these orders or decisions may be revised by the trial court at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. LSA-C.C.P. art. 1915(B)(2).


source: Caselaw Access Project

author: KLINE, J. KUHN, J.,

license: Public Domain

text:
    Ramona SCOTT, Wife of/and Cedric Scott, Sr., Individually and as Natural Tutors of the Minor, Cedric Scott, Jr. v. LEONARD J. CHABERT MEDICAL CENTER, Through Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Dr. Fadi Naddour.
    No. 2010 CA 0192.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.

      James P. Desonier, Mandeville, Louisiana, for Plaintiffs/Appellants, Cedric Scott, et al.
    Jude D. Bourque, Assistant Attorney General, Baton Rouge, Louisiana, for Defendant/Appellee, Leonard J. Chabert Medical Center, et al.
    Alfred R. Gould, Jr., Covington, Louisiana, for Defendant/Appellee, The Blood Center.
    Before KUHN, PETTIGREW and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

|2In this appeal, the trial court granted a hospital’s motion for partial summary judgment concerning a single issue, i.e., whether the hospital’s breach of the applicable standard of care caused plaintiffs’ son to contract the hepatitis “C” virus. A judgment was signed that dismissed plaintiffs’ allegations and cause of action pertaining to the hepatitis “C” virus. The judgment was designated as final for purposes of LSA-C.C.P. art. 1915(B). For the reasons that follow, we affirm the partial summary judgment.

PERTINENT FACTS AND PROCEDURAL HISTORY

This litigation arises from a boating accident on May 30, 1999, when thirteen-year old Cedric Scott, Jr., was injured and taken to the Leonard J. Chabert Medical Center (Chabert) emergency room. Dr. Fadi Naddour, the emergency room doctor, diagnosed Cedric, Jr. with abrasions to his low back, contusions and complaints of abdominal pain. He was treated and released. His condition did not improve, and on June 4, 1999, he returned to Chabert where he was diagnosed with a lacerated ruptured spleen and internal bleeding. A splenectomy was performed, and after-wards, he was given two units of blood supplied by a third party blood bank. Cedric, Jr., was discharged on June 9, but returned on July 11,1999, once again complaining of abdominal pain. He was released after being diagnosed with “transient abdominal” pain. On October 28, 1999, Cedric, Jr., again returned to Cha-bert complaining of abdominal pain and nausea. Again, he was treated and released. His condition worsened, and on February 29, 2000, Cedric, Jr. was readmitted into Chabert, where he was diagnosed with jaundice; the following day, test results revealed he had hepatitis “C.” Eventually, he suffered liver failure and received a transplant in 2003.

|3On October 10, 2002, Ramona Scott, wife of/and Cedric Scott, Sr., individually and as natural tutors of the minor, Cedric Scott, Jr. (hereinafter, the Scotts), filed a petition for damages against Leonard J. Chabert Medical Center, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, and Dr. Fadi Naddour. The petition was later amended, and the Blood Center of Southeast Louisiana, Inc. (Blood Center) was added as a defendant. The petition alleges numerous acts of negligence, including that the blood transfusion received in June 1999 caused him to contract hepatitis “C.”

The matter was submitted to the Medical Review Panel. The panel found that Dr. Fadi Naddour failed to comply with the appropriate standard of care in his treatment of Cedric, Jr. The panel also unanimously concluded that neither Cha-bert nor the Blood Center breached its applicable standard of care regarding the collection, testing, screening and distribution of the two units of blood Cedric, Jr., received.

On June 23, 2005, Chabert filed a motion for partial summary judgment on the issue of its liability regarding the blood transfusion. Chabert submitted Cedric, Jr.’s, medical records and an affidavit from Cedric, Jr.’s, physician in the liver transplant program to support its claim that the hepatitis “C” virus did not come from the blood transfusion. The medical record, dated May 16, 2002, states:

“Mr. Scott is a 16-year-old boy who probably have [sic] Hepatitis C for long time. He has been rapidly progressive for the last one year. His most recent liver biopsy showed cirrhosis with moderate inflammatory activity. He has no other underlying etiology of liver disease. I really doubt whether he acquired Hepatitis C at the time of transfusion 1999, and this is extremely unusual for hepatitis to progress this rapidly, so it’s likely that he may have acquired this before. He has a history of some pneumothorax and a chest tube placement about three days after birth....”

On July 11, 2005, the Blood Center filed a similar motion for summary judgment. In support of its motion, it submitted a physician’s affidavit stating that plaintiffs have no evidence showing that the units of blood received by Cedric, Jr., [¿were infected with hepatitis “C.” On July 29, 2005, the motions were heard; the trial court denied them on the basis that discovery was incomplete.

Nearly two years later, Chabert reasserted its motion. The matter was heard on December 21, 2007. By judgment dated July 2, 2009, the trial court granted Chabert’s motion for partial summary judgment concerning the issue of hepatitis and designated it as a final judgment pursuant to LSA-C.C.P. art. 1915(B). A judgment was signed, and the Scotts appealed. By interim order dated October 5, 2010, this court remanded the matter for the limited purpose of having the trial court “sign a judgment that contains the proper decretal language identifying the specific relief granted in regards to the ‘issue of hepatitis’ ” and ordered the district court’s clerk of court to supplement the appellate record with that judgment. On October 8, 2010, the trial court signed an amended judgment, which granted Cha-bert’s motion for partial summary judgment concerning the issue of hepatitis and further dismissed “plaintiffs’ allegations and cause of action pertaining to [Cedric, Jr.’s] hepatitis ‘C’ virus.” Additionally, the trial court also designated the amended judgment as a final judgment for purposes of LSA-C.C.P. art. 1915(B). We now consider the Scott’s appeal of this partial summary judgment.

FINALITY OF PARTIAL SUMMARY JUDGMENT

This court’s appellate jurisdiction extends to final judgments. LSA-C.C.P. art. 2083. A partial judgment may be a final judgment even if it does not grant the successful party all of the relief prayed for or does not adjudicate all of the issues in the case. LSA-C.C.P. art. 1915(A). Article 1915 provides in pertinent part as follows:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
1 a(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

As here stated, LSA-C.C.P. art. 1915(A)(3) particularly provides that partial summary judgments are final and appealable unless the summary judgment is rendered pursuant to art. 966(E), as was the judgment before us. LSA-C.C.P. art. 966(E) provides as follows:

E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.

Because the trial court granted Chabert’s motion for partial summary with respect to a “particular issue” as referenced in LSA-C.C.P. art. 966(E), the judgment under consideration is not final under Article 1915(A). LSA-C.C.P. art. 1915(A)(3). Thus, we consider whether it was properly designated as a final judgment pursuant to LSA-C.C.P. art. 1915(B).

PROPRIETY OF FINALITY DESIGNATION

As stated above, LSA-C.C.P. art. 1915(B)(1) provides that when a court renders a partial judgment as to one or more but less than all of the claims, demands, issues, theories, or parties, the judgment shall not constitute a final judgment unless designated as a final judgment by the court after an express ^determination that there is no just reason for delay. Under Louisiana law, a final judgment is one that determines the merits of a controversy, in whole or in part. LSA-C.C.P. art. 1841. Although Article 1915 dispenses with finality in the sense of completion of the litigation, the judgment rendered must be sufficiently final in that it disposes of the claim or dispute in regard to which the judgment is entered. Van ex rel. v. Davis, 00-0206, p. 5 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 483. Furthermore, in determining whether a partial judgment is a final one for the purpose of an immediate appeal, a court must always keep in mind the historic policies against piecemeal appeals. Id., 00-0206 at pp. 5-6, 808 So.2d at 483.

Although the trial court designated the judgment as final, the court failed to provide reasons to support this designation. When the propriety of the certification is not apparent and the trial court has failed to give reasons for its certification, we review the case de novo using the factors listed in R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 14 (La.3/2/05), 894 So.2d 1113, 1122, as follows:

1. The relationship between the adjudicated and unadjudicated claims;
2. The possibility that the need for review might or might not be mooted by future developments in the trial court;
3. The possibility that the reviewing court might be obligated to consider the same issue a second time and;
4. Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Regarding the first factor, we observe that the only relationship between the adjudicated and unadjudicated claims is that they allege breaches of the applicable standards of care of Cedric, Jr.’s, treatment.

Regarding the second and third factors, there is little likelihood that future developments in the trial court will moot the need to review this issue. Moreover, this court would not be required to consider Chabert’s negligence on the hepatitis “C” issue a second time.

|7The fourth factor requires this court to consider miscellaneous issues affecting the efficient administration of justice. While we recognize that this partial summary judgment resolves only one of the issues on which the Scott’s claims against Cha-bert are based, we also recognize that this one issue appears to be the compelling issue in the litigation. Resolution of the hepatitis “C” claim now will promote speedy adjudication and save the parties a considerable expense in litigating this issue or preserving it for appeal. Further, resolving this issue now will shorten the time of trial.

In designating a judgment as final, “the overriding inquiry ... is whether there is no just reason for delay.” Messinger, 04-1664 at p. 14, 894 So.2d at 1122-23. Considering the Messinger factors, there is no just reason to delay disposing of the hepatitis “C” claim. Rather, the interests of judicial efficiency militates in favor of our deciding this issue. Accordingly, we turn to the merits of the appeal.

CORRECTNESS OF SUMMARY JUDGMENT

A motion for summary judgment is properly granted if the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The burden of proof is on the movant. This burden does not require mover to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s ^determination of whether summary judgment is appropriate. Roccaforte v. Wing Zone, Inc., 07-2451, p. 8 (La.App. 1 Cir. 8/21/08), 994 So.2d 126, 128. writ denied 08-2266 (La.11/21/08), 996 So.2d 1112. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to this case. Id., 07-2451, p. 4, 994 So.2d at 128. The Scotts assert that genuine issues of material fact exist regarding the hospital’s breaches of the standard of care in connection with Cedric, Jr., contracting hepatitis “C” and the resulting sequelae, including, but not limited to, a liver transplant.

It is undisputed that Chabert did not supply the two units of blood at issue. Chabert’s evidence includes a document showing the chain of custody of the blood. It also shows that the blood tested negative for hepatitis. An affidavit from the blood bank indicates that the donors of the blood had been screened before donating, and that two of the three donors were retested and found negative after Cedric, Jr., was diagnosed with hepatitis “C.” The other donor could not be located, but there is no evidence he had hepatitis. Chabert also submitted the affidavit of Satheesh Nair, M.D., Cedric, Jr., treating physician. Dr. Nair stated that it was his opinion that Cedric, Jr., contracted hepatitis “C” much earlier than 1999. Moreover, two physicians stated in affidavit that it is more likely that Cedric, Jr. contracted hepatitis “C” when he was treated as a newborn for bilateral spontaneous pnemothorax.

In their opposition to Chabert’s motion for partial summary judgment, the Scotts presented no evidence to show that the blood Cedric, Jr., received was defective. Rather, their expert, William N. Grant, M.D., merely stated in his affidavit that “Hepatitis C is most commonly transmitted by blood transfusion.” He also said that, “Cedric Scott developed liver cirrhosis more likely than not secondary to his blood transfusions during the splenectomo-ny at Chabert Medical RCenter.” Dr. Grant suggested that more likely than not, hospital protocol was not adhered to, and consequently, more likely than not, Cedric, Jr., contracted Hepatitis “C” from the blood transfusion. The Scotts appear to argue that their witness’s affidavit is enough to rebut Chabert’s evidence.

To defeat Chabert’s motion for summary judgment, the Scotts must produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Dr. Grant’s statements however, are opinions unsupported by facts and insufficient to show the Scotts can win at trial. Here, they are unable to meet their burden; therefore, there is no genuine issue of material fact. Accordingly, the Scotts’ assignment of error is without merit, and the summary judgment is affirmed.

DECREE

For the above stated reasons, we affirm the partial summary judgment of the trial court. The costs of this appeal in the amount of $2,484.00 are assessed to the plaintiffs/appellants, Ramona Scott, wife of/and Cedric Scott, Sr., individually and as natural tutors of the minor, Cedric Scott, Jr.

AFFIRMED

KUHN, J., Dissents & Assigns Reasons.

PETTIGREW, J., concurs.

KUHN, J.,

dissenting.

hBy exercising jurisdiction in this case, the majority caters to the desires of the parties to litigate this suit one issue at a time and ignores the historic policy against multiple appeals and piecemeal litigation. The result is that a single issue is decided, and the matter is remanded for further proceedings, wherein the same parties will be involved, and much of the same evidence will be considered to resolve the outstanding issues of this litigation. Louisiana Civil Code article 1915 B attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122. To allow an immediate appeal in this instance only causes delay and judicial inefficiency; there is nothing in the record to suggest that an immediate appeal of the partial summary judgment at this stage of the proceedings best serves the needs of the parties or that other compelling or urgent circumstances weigh in favor of immediate review. Further, no injustice would result from delaying this appeal until the remaining issues, which all pertain to the medical care that Cedric Scott Jr. received while at the Leonard J. Chabert Medical Center, have been resolved. Accordingly, I would dismiss this appeal because it is | abased on a judgment that was improperly designated by the trial court and by this court as a “final judgment” pursuant to Article 1915 B.

      . The Scotts filed a motion on May 26, 2010 requesting to supplement the record with documentary evidence so that Cedric Scott, Jr.'s medical records would be consolidated. In accordance with Rule 2-12.4 of the Uniform Rules of the Courts of Appeal, however, the Scotts provided appropriate page numbers for the medical records for our review. Accordingly, the motion to add documentary evidence into the record is unnecessary for this appeal and is, therefore, denied.

      . The Blood Center also reasserted its motion, which was granted in June, 2009 and has not been appealed.


author: WELCH, J.

text:
    Frances Jean Crow GIVENS v. Kenneth Blake GIVENS.
    No. 2010 CU 0680.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.

      John W. Waters, Jr., Jaime Crow Waters, New Orleans, LA, for Plaintiff-Appellant Frances Jean Crow Givens.
    Bernard F. Levy, Houma, LA, and Michael S. Zerlin, Melissa LeBlanc, Thibo-daux, LA, for Defendant-Appellee Kenneth Blake Givens.
    Before CARTER, C.J., GAIDRY And WELCH, JJ.
   WELCH, J.

iJn this acrimonious divorce and child custody proceeding, Frances Jean Crow Givens appeals a trial court judgment and its incorporated joint custody plan insofar as it allocates Kenneth Blake Givens periods of overnight physical custody with the minor child. Finding no error in the judgment of the trial court, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Frances Givens and Kenneth Givens were married on August 4, 1979. During their marriage, they had two children: Victoria Brighten Givens, who was born on June 24, 1987 (and is now a major), and Olivia Rose Givens, who was born on July 24,1997. During the marriage, they resided in Terrebonne Parish. On March 23, 2007, Frances Givens filed a petition for divorce based on La. C.C. art. 103(2), alleging Kenneth Givens had committed adultery. In her petition, she also requested that she be awarded sole custody of the minor child, Olivia. Kenneth Givens admitted the allegations of adultery in his answer to the petition. However, he denied that Frances Givens should be awarded sole custody of Olivia, and asserted that the parties were entitled to joint custody and that he should be designated as the domiciliary parent. Kenneth Givens subsequently amended his answer, maintaining that the parties should be awarded joint custody of the child, but asserting that Frances Givens should be designated as the child’s domiciliary parent, subject to liberal and generous physical custodial periods with the child in his favor. Shortly after Frances Givens filed her petition for divorce, she moved with the minor child to New Orleans, Louisiana (without notice to Kenneth Givens) into the home of her sister and brother-in-law, both of whom are attorneys |3and are representing her in this matter.

A trial on the issue of custody initially commenced on July 5, 2007; however, the matter was not completed on that date. On that date, the majority of the testimony and evidence concerned specific details regarding Kenneth Givens’ use of the internet on the family computer to access pornographic websites (some of which suggested inappropriate sexual proclivities), and sexually explicit communications and photographs exchanged between Kenneth Givens and Barbara Crosby, the person with whom he had an adulterous affair. Pending completion of the trial, Kenneth Givens was granted visitation one day every weekend from 9 a.m. until 9 p.m. Additionally, following that hearing (and by a previous joint agreement of the parties), a psychological evaluation of the parties was performed by John C. Simoneaux, Ph.D. Also, a psychiatric evaluation of Kenneth Givens, for the purpose of determining the presence of any psychiatric dysfunction, was conducted by Frances Givens’ expert, Harold M. Ginzberg, M.D., J.D., M.P.H.

The parties were eventually divorced, and thereafter, Kenneth Givens married Barbara Crosby (hereinafter “Barbara Givens”) and moved from Terrebonne Parish to her residence in Wesson, Mississippi. Numerous disputes between the parties over various issues arose, all of which required court appearances and resolution by the trial court. Pertinent to this appeal, Frances Givens made a request to inspect and photograph Barbara Givens’ residence in Mississippi. Kenneth Givens objected to this request, and in response, Frances Givens requested Kenneth Givens’ request for “liberal and generous” (or overnight) custodial time be stricken based on his refusal to allow the inspection. The trial court denied both Frances Givens’ request to inspect and photograph 14 Bar bar a Givens’ residence and her motion to strike.

The remainder of the custody trial was eventually held on June 1, 2, and 3, 2009. At the conclusion of trial, the trial court took the matter under advisement. On July 24, 2009, the trial court rendered and signed a judgment awarding Frances Givens and Kenneth Givens joint custody of the minor child, Olivia, subject to a joint custody plan attached to and made part of the judgment. The judgment also designated Frances Givens as the domiciliary parent of the child, subject to Kenneth Givens’ right to physical custodial time, without restriction, in accordance with the attached joint custody plan. The attached joint custody plan allocated physical custodial periods to Kenneth Givens: every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., commencing Friday, July 31, 2009; on specific holidays, with the holidays each party was entitled to alternating on a yearly basis; and for four weeks during the school summer vacation. Following the rendition of judgment, on August 25, 2009, the trial court issued extensive findings of fact and written reasons for judgment.

Frances Givens has appealed the July 24, 2009 judgment of the trial court, asserting that the trial court erred in awarding Kenneth Givens overnight periods of physical custody. Specifically, she argues that the trial court erred in denying her the right to inspect Barbara Givens’ home in Mississippi and in denying her motion requesting that Kenneth Givens’ request for overnight visitation be stricken. She also argues that the trial court erred in: rejecting the testimony of two experts, Dr. Ginzberg and Dr. Simoneaux; relying on the testimony of Dorothy Day, a Licensed Marriage and Family Therapist, whom the trial court accepted as an expert in marital and family counseling; accepting the testimony of Barbara Givens; and “[ajpplying incorrect principles of law, which errors were prejudicial to [Frances |fiGivens], and otherwise making clearly erroneous findings of fact that [were] not supported in the record.”

LAW AND DISCUSSION

General Precepts Concerning Child Custody

Each child custody case must be viewed in light of its own particular set of facts and circumstances. Perry v. Monistere, 2008-1629, p. 3 (La.App. 1st Cir.12/23/08), 4 So.3d 850, 852. Louisiana Civil Code article 131 provides “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” Thus, the paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577, p. 12 (La.2/6/98), 708 So.2d 731, 738. In determining the best interest of the child, La. C.C. art. 134 provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
|fi(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The list of factors set forth in this article is non-exclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. La. C.C. art. 134, comment (b). Additionally, the “best interest of the child” test under La. C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 2006-0594, p. 5 (La.App. 1st Cir.3/23/07), 960 So.2d 186, 191. Hence, every child custody case is to be viewed on its own particular set of facts and the relationships involved, with the paramount goal of reaching a decision that is in the best interest of the child. Id.

The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Thus, a trial court’s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello, 2006-0594 at p. 5, 960 So.2d at 191-92.

Frances Givens’ Request to Inspect the Home of Barbara Givens and Request to Strike Kenneth Givens’ Request for Overnight Visitation

In February 2009, Frances Givens filed a request pursuant to La. C.C.P. art. 1461 that Kenneth Givens make available to Frances Givens for inspection and photographing “the residence of [Kenneth Givens’] ‘new family ” in Mississippi, on the basis that the residence was a “proposed and potential custodial placement” [ 7for the minor child. Kenneth Givens objected to the request on the basis that: the premises were not owned by him, but rather by Barbara Givens; that Barbara Givens was not voluntarily going to allow the inspection and photographing of her home because it was a violation of her right to privacy; and he believed that the request was solely to harass Kenneth and Barbara Givens. Frances Givens filed a motion to compel the inspection and a motion to strike Kenneth Givens’ request for overnight or “generous” and “liberal” custodial time based on his refusal to allow the inspection. The trial court denied both motions, and on appeal, Frances Givens asserts that this was error.

Louisiana Code of Civil Procedure article 1461 provides, in pertinent part:

Any party may serve on any other party a request ... to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of [discovery],

The general scope of discovery is that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” La. C.C.P. art. 1422. It is well established that the trial court has broad discretion with regard to discovery matters and its decision on such matters will not be disturbed on appeal absent a clear abuse of that discretion. Moak v. Illinois Central Railroad Compa ny, 93-0783 (La.1/14/94), 631 So.2d 401, 406.

In denying the motion to compel the inspection, the trial court stated:

I don’t know anybody that’s [sic] got any right to go in and take any photographs or visit anybody’s else’s house, especially when they’ve got other people living in that house with other children and people who aren’t part of this proceeding. So I’m not going to compel anybody to make their home or somebody else’s home or the place where they’re going to stay available for inspection to anybody else, period.
If Olivia visits there at some point, and she tells [Frances] Givens that she doesn’t like it because it’s uninhabitable in some fashion, you can |scome back and complain about it. But I’m not going to put anybody with photographers and lawyers in somebody else’s house. Some things [are] just not that important.

Based on the trial court’s ruling, it appears that the trial court concluded that Frances Givens did not have the right to inspect the residence of Barbara Givens because she was not a party to the proceeding and because the request to inspect and photograph the home was not important to the determination of what was in Olivia’s best interest. Notably, the trial court did not rule on whether the request for inspection was being interposed to harass Kenneth or Barbara Givens.

With regard to whether Frances Givens even had the right to inspect the home of Barbara Givens (or Kenneth Givens), we have not found, nor have we been directed to, any case in the context of a custody proceedings where one parent has requested or been granted the right to inspect and photograph the other parent’s home. However, we recognize that the paramount consideration in all child custody cases is the best interest of the child, and further, that the capacity to provide the child with material needs and the permanence, as a family unit, of the proposed custodial home are two of the factors to be considered in determining the best interest of the child. See La. C.C. arts. 131 and 134(3) and (5). As such, any evidence concerning the proposed custodial home of the parent could be relevant, and therefore, subject to discovery by any available method (provided that the discovery sought is not being interposed for some improper purpose, such as to harass the other party).

Nevertheless, in this case, absent some allegation that the proposed custodial home of Kenneth Givens (and Barbara Givens) was uninhabitable, unsuitable, or otherwise unacceptable, and in light of the fact that the capacity to provide the child with material needs and the permanence of the proposed custodial home are only two of many relevant factors to be considered by the trial court in determining the best interest of the child, we do not find that the trial court abused its discretion | ¡,in refusing to compel the inspection and photographing of Barbara and Kenneth Givens’ home by Frances Givens. Additionally, we do not find that the trial court abused its discretion in its subsequent ruling denying Frances Givens’ motion in limine,

Physical Custody Allocation

When parents share joint custody of children, La. R.S. 9:335 requires an implementation order to be rendered (except for good cause shown), which allocates each party’s physical custodial time periods, as well as the legal authority and responsibility of the parents. Louisiana Revised Statutes 9:335(A)(2)(a) and (b) requires frequent and continuing contact with both parents, and to the extent that it is feasible and in the best interest of the children, that physical custody of the children be shared equally. The trial court is imbued with much discretion in the determination of what constitutes feasible, reasonable time periods of physical custody of the children. Caro v. Caro, 95-0173, p. 4 (La.App. 1st Cir.10/6/95), 671 So.2d 516, 519.

As previously noted, the trial court allocated Kenneth Givens physical custodial time with Olivia, without restriction, every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., on certain holidays, and for four weeks during the summer. Frances Givens asserts that this physical custody allocation was not ¡ ipin Olivia’s best interest. Additionally Frances Givens contends that when formulating the joint custody plan (or physical custody allocation), the trial court erroneously: rejected the testimony of Dr. Ginzberg and Dr. Simoneaux; relied on the testimony of Dorothy Day; and accepted the testimony of Barbara Givens.

In this case, and as in most child custody cases, the trial court’s determination as to what was in the best interest of Olivia was based heavily on factual findings. It is well settled that an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Stobart v. State, DOTD, 617 So.2d 880, 882-83 (La.1993). Thus, when the fact finder is presented with two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883. Additionally, where the factfinder’s conclusions are based on determinations regarding the credibility of a witness, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the |, variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, 549 So.2d at 844.

Furthermore, the trial court is not required to give any extra credence to the testimony of experts. Harris v. State ex rel. Dept. of Transp. and Development, 2007-1566, p. 25 (La.App. 1st Cir.11/10/08), 997 So.2d 849, 866, unit denied, 2008-2886 (La.2/6/09), 999 So.2d 785. It is well settled in Louisiana that the fact finder is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Id. The fact finder may accept or reject in whole or in part the opinion expressed by an expert. Id. The effect and weight to be given expert testimony is within the trial court’s broad discretion. Morgan v. State Farm Fire and Cas. Co., Inc., 2007-0334, p. 8 (La. App. 1st Cir.11/2/07), 978 So.2d 941, 946.

This court has carefully reviewed the arguments presented in this appeal, carefully examined the entire record, and studied the trial court’s written factual findings and reasons for judgment. The factual findings and credibility evaluations expressed by the trial court in the written reasons for judgment are reasonable, and are fully supported by the documentary and testimonial evidence in the record. Therefore, we find no manifest error in its factual finding that overnight physical custodial time with Kenneth Givens was in Olivia’s best interest.

As the trial court noted in its reasons for judgment, the overwhelming evidence at trial established that, prior to the separation of the parties, Kenneth Givens and Olivia had a good relationship, Kenneth Givens was a competent father, he was actively involved with her upbringing, and he was capable of providing Olivia with all of her needs. The testimony of Kenneth Givens, Frances Givens, and Debra Fortier (Frances Givens’ best friend) supports the trial court’s conclusions in this regard. Additionally, while the custody proceedings were pending (and prior to the rendition of judgment by the trial court), Kenneth Givens | i2visited Olivia every weekend, without incident, although, in accordance with Frances Givens’ demand, his visitation or custodial time with Olivia has not been overnight.

As previously mentioned, the majority of the evidence at trial pertained to Kenneth Givens’ activity on pornographic internet websites, the sexually explicit communications, through the internet, between him and Barbara Givens, and their subsequent use of the internet to exchange lewd photographs of parts of their bodies. All of this activity occurred when Kenneth Givens was still living in the family home with Frances Givens and Olivia, and both Frances Givens and Olivia were unaware of Kenneth Givens’ activity in this regard. In fact, the evidence established that Kenneth Givens’ activity on the internet was discovered solely through the cloning and examination of the family computer by two computer experts.

In a child custody proceeding, any purported moral misconduct should be considered by the trial court only if it has a detrimental effect on the child, and not to regulate the moral behavior of the parents. Griffith v. Latiolais, 2010-0754, p. 12 (La.10/19/10), 48 So.3d 1058, 1071. The trial court specifically stated in its reasons for judgment that it had carefully considered the best interest of Olivia in light of the pornographic internet activity of Kenneth Givens. The trial court found, citing the opinion testimony of Dr. Simoneaux, that there was no evidence to suggest that Mr. Givens was interested in pre-pubertal children or child pornography and that Frances Givens’ complaints about Kenneth Givens’ internet activities were not as “consequential” as Frances Givens believed. The trial court further found that there was no evidence in the record suggesting that Kenneth Givens had ever, in any way, acted inappropriately with his two daughters.

With regard to the pictures exchanged between Kenneth Givens and Barbara Givens, the trial court noted that their actions had been forthrightly admitted by | isthem to be impulsive, juvenile acts, and that neither Kenneth Givens nor Barbara Givens were proud of their behavior in this regard. However, the trial court found that them behavior was not evidence that either Barbara or Kenneth Givens posed any danger to Olivia or that they possessed any serious character defect that would result in physical, mental or emotional harm to her.

The trial court also found that Frances Givens’ concerns about Kenneth Givens’ overnight physical custodial periods with Olivia were “unreasonable, flimsy excuses” for making his custodial time with Olivia more difficult and that there was no reasonable basis for concern about Olivia’s welfare and well-being while in the care and control of her father. Based on the evidence, the trial court concluded that Frances Givens was more concerned that Olivia, while in the care of Kenneth Givens, might be denied the more perceived benefits and opportunities offered by the area of New Orleans (where Frances Givens and her family live) and preferred that Olivia not be subjected to the small town experiences of Wesson, Mississippi.

Frances Givens argues on appeal that in making this finding, the trial court was mocking her and playing on “big town-small town regionalism” to trivialize her concerns and overlook the more important issue of whether overnight custodial time with Kenneth Givens was in Olivia’s best interest. We do not read the trial court’s recitation of her concerns as a mockery of Frances Givens or an attempt to play on “big town-small town regionalism,” but rather, as a fairly accurate summary of Frances Givens’ testimony. At trial, Frances Givens specifically testified that she objected to Kenneth Givens having overnight physical custodial time with Olivia because: Kenneth Givens sends text messages while driving; Kenneth Givens provides insufficient supervision of Olivia; Olivia has no place to play in Wesson, Mississippi; Olivia has no children to play with in Wesson, Mississippi; Barbara Givens allows her son to socialize with older boys; Barbara [14Givens allows transient people (or people that Frances Givens does not know) in her home; there is a bar near Kenneth and Barbara Givens’ office; the town of Wesson is small; Olivia has to sleep on a mattress on the floor when they stay at the office; and the sports and medical facilities in Wesson, Mississippi are inadequate. Frances Givens’ allegations in this regard (other than the fact that Wesson, Mississippi is a small town), was contradicted by the testimony of Kenneth Givens, Barbara Givens, and Dorothy Day, all of whom are residents of Wesson, Mississippi.

Based on Frances Givens’ testimony, along with the testimony refuting her allegations, it is reasonable to conclude that Frances Givens’ objections to overnight physical custodial time between Olivia and Kenneth Givens were not motivated by a desire to protect Olivia from any danger or avoid circumstances deleterious to her welfare while in Kenneth Givens’ care and control, but rather, to make Kenneth Givens’ physical custodial time with Olivia more onerous, so that he would chose to keep Olivia in the New Orleans area— close to Frances Givens — rather than taking Olivia to Wesson, Mississippi, during his physical custodial time. This conclusion is further supported by Frances Givens’ specific statement that she had no problem with Kenneth Givens having physical custodial time, as long as the physical custodial time was not overnight. Thus, the trial court determined that if Francis Givens did not object to general, unsupervised, day-long physical custodial time between Kenneth Givens and his daughter, there was no reasonable basis for her to object to general, unsupervised overnight physical custodial time.

We disagree with Frances Givens’ contention that the trial court rejected the | lsentire testimony “of all of the qualified experts.” Based on our review, the trial court rejected the opinion expressed by both Dr. Simoneaux and Dr. Ginzberg that overnight physical custodial periods were not in Olivia’s best interest. However, the trial court accepted and relied on other opinions expressed by Dr. Simoneaux, ie., that there was no evidence suggesting that Kenneth Givens was interested in pre-pu-bertal children or child pornography and that Frances Givens’ complaints about Kenneth Givens’ internet activities were not as “consequential” as Frances Givens believed them to be. As previously noted, the trial court was not required to give any extra credence to the expert opinion testimony, and was free to accept or reject, in whole or in part, the testimony of both Dr. Simoneaux and Dr. Ginzberg.

The trial court’s reasons for judgment reflect that it carefully considered the two expert opinions. After evaluating Dr. Ginzberg’s opinion, the trial court found that Dr. Ginzberg’s opinion regarding the best interest of Olivia was based on assumptions about Kenneth Givens that were ultimately incorrect — ie., that Kenneth Givens had refused to support both Frances Givens and Olivia. Hence, the trial court concluded that Dr. Ginzberg’s opinion that Kenneth Givens should not have overnight physical custodial time was directed more at punishing Kenneth Givens (for his alleged failure to support Frances Givens and Olivia), rather than what was in the best interest of Olivia. Because Dr. Ginzberg’s opinion was based on false assumptions, the trial court was well within its discretion to reject it.

Dr. Simoneaux testified that he believed Kenneth Givens loved Olivia and was very proud of her. Dr. Simoneaux did not consider Kenneth Givens to be a sexual predator, did not think Kenneth Givens had any sexual interest in Olivia (or in children), and saw no evidence that Kenneth Givens had been viewing child | ^pornography.

Essentially, Dr. Simoneaux opined that it was not in the best interest for Olivia to have overnight physical custodial time with her father for three reasons. The biggest concern that he had with overnight physical custodial time was the fact that Barbara Givens was “a huge unknown” because he knew “absolutely nothing” about her. Thus, he could not recommend for Olivia to go to an environment that he was not able to assess. Dr. Simoneaux’s second concern was the fact that Kenneth Givens had married Barbara Givens and moved to Mississippi. He considered both of those decisions to be “unconscionable.” Third, Dr. Simoneaux believed that in general, Kenneth Givens had poor judgment or insight relating to his children and virtually no judgment into how his behaviors and choices had the potential to adversely affect his child.

Although Dr. Simoneaux classified Barbara Givens as the “huge unknown,” he specifically recognized that, after meeting or evaluating Barbara Givens, it was possible that he could find her to be a positive factor in the case. Since the “unknown” Barbara Givens was the main concern expressed by Dr. Simoneaux concerning overnight custodial time, the trial court, which was able to meet and observe Barbara Givens during her testimony at trial (and thus, make the necessary credibility determinations about her), was well within its discretion to reject Dr. Simoneaux’s initial concerns on that issue and to make its own factual finding as to what the best interest of Olivia. After hearing the testimony of Barbara Givens and assessing her character, attitude, and demeanor, the trial court found exactly what Dr. Simoneaux had stated was possible — that Olivia would benefit from exposure to Barbara Givens.

Frances Givens contends, however, that the trial court erred in accepting the testimony of Barbara Givens, essentially because of Barbara Givens’ adulterous affair with Kenneth Givens, the nature of her communications with Kenneth |17Givens at the beginning of them relationship, and the explicit photographs that she sent of herself to Kenneth Givens. The trial court was obviously aware of these actions, and after listening to her testimony, determined that she was an articulate, intelligent, and rational woman. The trial court noted that Barbara Givens raised her own children and several stepchildren, and further, that she gave the court no reason to be concerned for the welfare of Olivia while in her company. Based on our review of Barbara Givens’ testimony, we find no manifest error in the trial court’s decision in this regard.

Lastly, with regard to Dorothy Day, Frances Givens claims that because she was an “unqualified family counselor who did not evaluate the child or speak to [Frances Givens],” the trial court erred in “relying on [her] testimony.” Again, we must disagree with Frances Givens’ characterization that the trial court “relied” on the testimony of Dorothy Day to support its reasons for judgment. The trial court’s reasons for judgment are approximately eight-and-a-half legal pages. The testimony of Dorothy Day was mentioned in one three-sentence paragraph, as follows:

In February, 2009, Mr. Givens sought counseling with Dorothy Day, a licensed marriage and family therapist in Mississippi. Ms. Day is satisfied that Mr. Givens is faithful to his present wife and that he no longer engages in internet pornographic activities. She visited the home where Mr. Givens and his present wife live and she described the same as “pristine”.

The trial court accepted Dorothy Day as an expert in family and marital counseling. To the extent that Frances Givens challenges this ruling on appeal, we find no abuse of the trial court’s discretion to accept Dorothy Day as an expert in this regard. Dorothy Day’s testimony established that she received a masters’ degree in marriage and family therapy from Mississippi College, that she was a Licensed Marriage and Family Therapist in the state of Mississippi, that she had been engaged in family and marriage counseling for 15 years, and that she has |isbeen accepted in the courts of Mississippi as an expert in the area of family and marital counseling.

Dorothy Day testified that she was aware of what Dr. Simoneaux’s concerns were with regard to internet pornography in the home of Kenneth Givens and overnight visitations in favor of Kenneth Givens, and that Dr. Simoneaux desired to shelter Olivia from the unknown, such as Barbara Givens. Dorothy Day stated that she was fully aware of the nature Kenneth and Barbara Givens’ previous pornographic activities on the internet and their sexually uninhibited communications with each other. Dorothy Day testified that she had observed Kenneth and Barbara Givens’ current behavior, discussed with Kenneth Givens the inappropriateness of internet pornography, infidelity, and adultery, and that Kenneth Givens acknowledged to her they were inappropriate.

Dorothy Day also testified with regard to several factual issues, such as the condition of Kenneth and Barbara Givens’ home (and its amenities), the medical services and recreational opportunities available in Wesson, Mississippi, and its surrounding areas.

Although Frances Givens contends that the trial court erroneously relied on or accepted Dorothy Day’s testimony because she did not evaluate Olivia or Frances Givens and because she was friends with Barbara Givens, we note that the Dorothy Day testified at the outset that her role was counseling therapy for Kenneth and Barbara Givens with regard to the requirements set forth in Dr. Simoneaux’s report. She was not performing a custody evaluation or rendering an opinion as to the mental health of any of the parties. To the extent that Dorothy Day knew Barbara Givens prior to performing counseling services, that was simply a factor to be considered by the trial court when weighing her testimony. After reviewing the testimony of Dorothy Day in light of all of the evidence, we do not find that weight assigned to her testimony by the trial court was an abuse of its 119discretion.

Therefore, after considering all of the evidence in this matter, we do not find any manifest error in the trial court’s factual determination that overnight physical custodial time with Kenneth Givens was in Olivia’s best interest, nor do we find that the trial court abused the discretion afforded it determining the proper allocation of physical custody as set forth in the joint custody plan.

CONCLUSION

For all of the above and foregoing reasons, the July 24, 2009 judgment of the trial court and its incorporated joint custody plan are affirmed.

All costs of this appeal are assessed to the plaintiff/appellant, Frances Jean Crow Givens.

AFFIRMED.

      . Frances Givens and Kenneth Givens were awarded joint custody of their minor child. However, we note that both parties and the trial court have used the term "visitation” with reference to Kenneth Givens’ custodial time. "Visitation,” as provided for in La. C.C. art. 136, applies only when a parent does not have custody or joint custody. The time that parents with joint legal custody share with their children is more properly described as physical custody allocation of a joint custody plan, rather than as visitation. La. R.S. 9:335; Cedotal v. Cedotal, 2005-1524, p. 5 (La.App. 1st Cir. 11/4/05), 927 So.2d 433, 436; see Evans v. Lungrin, 97-0541, pp. 10-11 (La.2/6/98), 708 So.2d 731, 737.

      . See La. R.S. 9:331.

      . The original judgment of divorce was signed on May 23, 2008. Pursuant to La. C.C.P. art. 1951(1), an amended judgment of divorce was signed on April 17, 2009.

      . No issues have been raised with regard to the trial court’s decision to award the parties joint custody of the child or insofar as it designated Frances Givens as the domiciliary parent of the child.

      . We also find no merit to Frances Givens’ insinuation in her brief that Kenneth and Barbara Givens refused the inspection for nefarious reasons, such as because Kenneth and Barbara Givens were “disinterested in [Olivia's] best interest,” and did not "want the courts to know where they intendfed] to keep Olivia,” or “what she may be exposed to.” Kenneth Givens specifically objected to the inspection not only on the basis that the home was owned by a nonparty, but also that the inspection was sought to harass him and Barbara Givens and was an invasion of their privacy. In light of the record as a whole, particularly, the bitter nature of many of the pleadings filed in this case, Kenneth and Barbara Givens’ reasons for objecting to the request — whether true or not — were not unreasonable.

      . Given the distance between the residences of the parties, there is no dispute that equal sharing is not feasible in this case.

      . In Frances Givens' brief, she asserts that in formulating a physical custody allocation that allows Kenneth Givens physical custody periods that are overnight, the trial court placed the best interest of the Olivia "dead last behind the suspect desires of [Kenneth Givens] to sleep with his child, the convenience of [Barbara Givens] and her family, and their questionable claim of a right to privacy at the sake of the child’s safety.” The record before us is completely devoid of any evidence to support these assertions.

      .In Frances Givens’ last assignment of error, she also asserts that the trial court erred by applying incorrect principles of law, which errors were prejudicial to her, and by making clearly erroneous findings of fact that were not supported in the record. However, other than her contention that the joint custody plan or physical custody allocation set forth by the trial court was not in Olivia’s best interest, she does not specify what other prejudicial legal errors or manifestly erroneous factual findings were made. Accordingly, we will address this assignment of error solely as it relates to the allocation of physical custody.

      . Francis Givens specifically referred to Wesson, Mississippi as a "hick town."

      . We note that, contrary to Francis Givens’ assertion, Dr. Simoneaux and Dr. Ginzberg were not the only "qualified experts." Dorothy Day, whose testimony is hereinafter discussed, was also accepted by the trial court as an expert.