author: KEATY, Judge. AMY, J.,

text:
    Edward R. BETHEL v. LAKE CITY TRUCKING.
    No. 11-1542.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Edward R. Bethel.
    Jeremy Berthon, Johnson, Stilner & Rahman, Baton Rouge, LA, for Defendant/Appellant, Lake City Trucking.
    Court composed of SYLVIA R. COOKS, MARK T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|TIn this workers’ compensation case, Defendant, Lake City Trucking (Lake City), appeals a judgment of the workers’ compensation judge (WCJ) in favor of its former employee, Edward Bethel. For the following reasons, we affirm and award Bethel additional attorney fees.

FACTS AND PROCEDURAL HISTORY

Bethel filed a 1008 Disputed Claim for Compensation (1008) against Lake City and the Louisiana Workers’ Compensation Corporation (LWCC) (sometimes collectively referred to as “the defendants”) on September 28, 2010, alleging that he injured his neck and right shoulder on June 7, 2010, while “delivering a truck load to Sherman, Tx., when claimant believes he hit a pot hole[, h]is neck jerked sideways and he heard a pop in his neck.” He stated that he had not been paid wage benefits and that no medical treatment had been authorized, and he requested that he be awarded treatment with Dr. Clark Gun-derson, his choice of physician. Bethel sought penalties and attorney fees, in addition to an award of indemnity and medical benefits. The defendants answered, denying that Bethel had been involved in an “accident,” as defined by the Louisiana Workers’ Compensation Act, denying that Bethel was acting in the course and scope of his employment if and when any such accident occurred, and denying that Bethel sustained a disabling injury as the result of any such accident.

The matter was tried on July 11, 2011, and the parties were given an opportunity to file post-trial briefs. On September 29, 2011 the WCJ issued oral reasons for judgment and a written judgment in favor of Bethel awarding him: 1) workers’ compensation indemnity and medical benefits, including but not limited to out-of-pocket medical expenses related to his work place injury; 2) $2,000 in penalties for the defendants’ failure to pay indemnity benefits and $2,000 in |2penalties for the defendants’ failure to pay medical benefits; and 3) $13,000 in attorney fees for prosecution of his claim.

The defendants now appeal, asserting that the WCJ committed manifest error in finding that Bethel met his burden of proving that he was injured in an on-the-job accident, in awarding penalties and attorney fees, and in awarding excessive attorney fees.

DISCUSSION

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted).

In Green v. National Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 358, we explained:

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

“To establish that a claimant is entitled to workers’ compensation benefits, claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability.” Ceasar v. Crispy Cajun Rest., 94-30, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, 473, writ denied, 94-2736 (La.1/6/95), 648 So.2d 931.

| ^Louisiana Revised Statutes 23:1021(1) defines an “accident,” for workers’ compensation purposes, as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” Nevertheless, this court has held that the preceding definition “do[es] not exclude those instances where a worker can establish a work-related event, which may seem to be a customary or routine work activity, which results in an injury to the employee.” Richard v. Workover & Completion, 00-794, p. 4 (La.App. 3 Cir. 12/6/00), 774 So.2d 361, 364. Likewise, “[t]he ‘actual, identifiable, precipitous event’ may include a routine movement or task that the employee regularly performs, if the claimant is able to identify with some particularity as to time, place and manner, the objective manifestation of the accidental injury.” McCall v. Wal-Mart Stores, Inc., 02-1343, pp. 4-5 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, 835-36, writs denied, 03-1329, 03-1343 (La.9/19/03), 853 So.2d 639, 641 (quoting Thompson v. Orleans Parish Sch. Bd., 00-1230, (La.App. 4 Cir. 3/21/01), 786 So.2d 128).

In Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992) (citations omitted), with regard to an unwitnessed accident, the supreme court stated:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Bethel testified that he worked as a long-distance truck driver for Lake City, making deliveries all over the United States and sleeping in a bunk in the back of his 2005 Peterbuilt truck when on a run. He explained that he had an air-ride cab |4that was separate from the truck’s frame and that kept the truck’s load still while it bounced around in response to road conditions.

Bethel stated that in late May or early June of 2010, while making a delivery in Greencastle, Pennsylvania, he ran into “some rough roads, hit a pothole, and it jerked me sideways in the seat and I felt a pop and heard a pop in my neck.” He explained that when he hit the pothole, the cab shifted sideways and slung him back to the left. It did not bother him at the time, but he awoke the next morning with stiffness and some pain. He took aspirin, which helped initially, but the pain progressively intensified. On June 10, Bethel called Jimmy Saltzman, Lake City’s dispatcher, to inform him that he was unable to work. According to emails sent between Saltzman and Sandra O’Connor, another Lake City employee, on June 10, 2010, Bethel reported that he may have a pinched nerve because he had sharp pains in his shoulder and could not feel his thumb and pointer finger. After some discussion, it was decided that Bethel would return to Lake Charles to seek treatment at Business Health Partners (BHP) and that Lake City’s workers’ compensation insurance carrier needed to be contacted.

Bethel arrived back in Lake Charles late on June 10 and took a cab to BHP early the next morning. According to a medical report from BHP dated June 11, 2010, Bethel complained of pain between his shoulder blades and down his right shoulder with numbness to his fingers. At that time, Bethel did not know how he injured himself. X-rays were taken, and an MRI was scheduled. Upon reviewing Bethel’s MRI results, a BHP nurse practitioner certified that he was unable to return to work. In a letter dated June 16, 2010, LWCC Senior Claims Investigator Fran-ziska Cook advised Bethel that a “thorough investigation” had been completed | sand that his claim was being denied as it determined that his “cervical/neck issues were not the result of a specific incident/accident.”

Bethel was examined by Dr. Gunderson, an orthopedic surgeon, on January 21, 2011. Bethel gave him a history of having been injured on June 7, 2010, when he hit a pothole and had developed neck pain over the next three days. At the time of the visit, Bethel was experiencing neck pain radiating into both of his shoulders and down both arms, primarily into his right hand. After examining Bethel and reviewing his X-rays and MRI, Dr. Gun-derson was of the opinion that Bethel had sustained a “cervical straining type injury superimposed on degenerative disc disease” and that he had “a nerve root entrapment.” Dr. Gunderson prescribed anti-inflammatory and pain medications and recommended that Bethel undergo physical rehabilitation but noted that workers’ compensation had previously denied him therapy and other treatment. He further directed that Bethel be put on “no duty” status.

Lake City contends that the WCJ committed manifest error in finding that Be-thel met his burden of proving that he was injured by an accident in the course and scope of his employment. In support of its argument, Lake City places great weight on the fact that Bethel was unable to identify the precise date or location of the accident in which he was injured and that Bethel denied having been involved in an accident. It also attaches great signifi-canee to the fact that when Bethel initially called Saltzman to state that he was unable to work and when Bethel was examined at BHP, he failed to mention that he had hit a pothole, instead stating that he did not know how he injured himself.

Bethel counters that Lake City denied his claim based upon his initial confusion about what constituted an accident for purposes of workers’ compensation and about when and where any such accident occurred even when |fithe evidence later overwhelming supported his claim. Bethel further submits that Dr. Gunderson related his neck symptoms and resulting disability to the work accident described to him by Bethel. Finally, Bethel points out that Dr. James Perry, an orthopedist who evaluated Bethel at Lake City’s request, came to the same conclusion as did Dr. Gunderson: that Bethel was suffering from a cervical strain imposed upon preexisting degenerative disc disease.

In finding that Bethel had suffered from a work-related accident entitling him to workers’ compensation benefits, the WCJ noted that “when and how the accident occurred” were disputed. Nevertheless, it concluded that Bethel proved by a preponderance of the evidence that “as a result of a rough ride and presumably hitting a pothole, he was involved in a workplace accident.” It further determined that no other evidence discredited or cast any serious doubt on Bethel’s version of the accident and that the circumstances following the accident supported and corroborated Bethel’s testimony.

In his March 11, 2011 deposition, Bethel explained that although he initially believed that he hit the pothole in late May of 2010, later, after consulting his driving logs, he realized that the accident happened in early June, that his pain was noticeably worse on June 7 and unbearable by June 10. He further explained that because he was sixty-five years old and suffered with “pops and creaks all the time,” he did not give much thought to the pop that he felt in his neck when he hit the pothole. When his pain increased a few days later, however, he related the rough ride/hitting the pothole to his resulting neck pain. At trial, Bethel testified that after the doctors at BHP “explained what happened as far as — as the injury to 17[his] neck,” he “connected the dots” and realized that his neck injury was a result of hitting the pothole.

After reviewing the testimony and evidence presented at trial, we find no manifest error in the WCJ’s determination that Bethel was injured by an accident that occurred in the course and scope of his employment with Lake City, as that determination necessarily required the WCJ to assess the credibility of the witnesses. We conclude that, when viewed in its entirety, the evidence supports Bethel’s explanation as to why he initially was confused about exactly when and where he was injured and that he had, in fact, been involved in an accident. Moreover, the courts of this state have consistently applied a liberal interpretation to the work-related accident requirement. Iberia Med. Ctr. v. Ward, 09-2705 (La.11/30/10), 53 So.3d 421. Lake City’s first assignment of error lacks merit.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201(F) provides that a claimant is entitled to an award of penalties and attorney fees for its employer’s failure to pay compensation or medical benefits unless the WCJ finds that the employer reasonably controverted the claim or that nonpayment was the result of conditions not under control of the employer. “Furthermore, the employer has a continuing duty to gather factual and/or medical information in its investigation of the employee’s workers’ compensation claim.” Celestine v. Firestone Polymers, L.L.C., 09-1534, p. 14 (La.App. 3 Cir. 5/5/10), 38 So.3d 527, 538, writ denied, 10-1237 (La.9/17/10), 45 So.3d 1055.

“Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes |sare to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

In this case, the WCJ assessed Defendants with a $2,000 penalty for failing to pay indemnity benefits and another $2,000 penalty for failure to pay medical benefits. Defendants were assessed with $13,000 in attorney fees.

Lake City contends that because it reasonably controverted Bethel’s claim, this court should reverse the WCJ’s imposition of penalties and attorney fees. It submits that an employee should not be entitled to an award of penalties and attorney fees simply because he prevails on the underlying issue of compensability. Further, it contends that because this case presented such a close factual question, an award of penalties and attorney fees is not warranted under the circumstances. Alternatively, Lake City contends that even if we were to conclude that the WCJ did not err in imposing penalties against it, this court should reduce the attorney fee award “to a more reasonable and realistic amount.”

Bethel counters that penalties and attorney fees were properly awarded because Lake City’s denial of his claim was unreasonable. He contends that despite his clarification of the specifics surrounding his injury and the accident that caused it, Lake City continued to ignore the mounting evidence that corroborated his claim. Bethel also points out that Lake City continued to maintain the denial of his claims despite its lack of a medical opinion contradicting Dr. Gunderson’s opinion that his neck injury and current disability were caused by his workplace accident. Finally, citing Uniform Rules — Courts of Appeal, Rule 1-3, Bethel argues that Lake City waived any arguments concerning the amount of attorney | flfees awarded because it failed to contemporaneously object to the fee petition offered by his attorney at trial, thus, never putting the issue of ex-cessiveness before the WCJ.

In sticking with its hasty decision to deny Bethel’s claim in the face of the growing evidence that uniformly supported and corroborated that claim, Lake City acted at its own peril. We are convinced that the WCJ did not manifestly err in finding that Lake City failed to reasonably controvert Bethel’s claim for medical and indemnity benefits. In addition, because Lake City did not present the issue of whether the attorney fees award was excessive, we will not address that issue for the first time on appeal. Accordingly, we affirm the WCJ’s awards of penalties and attorney fees in their entirety.

Answer to Appeal

In his answer to appeal, Bethel requests additional attorney fees for having to answer and defend this appeal. In Nash v. Aecom Tech. Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” We award Bethel an additional attorney fee of $3,500 for the work done on appeal.

DECREE

For the forgoing reasons, we affirm. We award Edward Bethel additional attorney fees of $3,500 for having to answer and defend this appeal. Lake City Trucking is cast with all costs of this appeal.

AFFIRMED AND RENDERED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

hi agree with the majority in its affirmation of the award of compensation. However, I find that the workers’ compensation judge was manifestly erroneous in its award of penalties and attorney fees. Instead, my review of the evidence indicates that the employer reasonably controverted the claim. Accordingly, I would reverse the underlying award of penalties and attorney fees.

      . See Defendant’s Exhibit 5.

      . In conjunction with the trial, Bethel offered into evidence copies on Lake City’s manifest printouts and bills of lading covering the period of May 26, 2010 through June 19, 2010, which it marked as Exhibits P-1 and P-2. Those exhibits were accepted by the WCJ without objection from the defendants.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Joseph PRESCIA, et al. v. Gary O’BRIEN.
    No. 11-1560.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Natalie B. Broussard, Attorney at Law, New Iberia, LA, for Plaintiffs/Appellees, Joseph Prescia Laura Prescia.
    R. Michael Moity, Jr., The Moity Law Firm, New Iberia, LA, for Defendant/Appellant, Gary O’Brien.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| ]In this child custody case, the father, Gary O’Brien, appeals a trial court judgment that granted joint custody to the father and the children’s maternal grandparents, Joseph and Laura Prescia, with the Prescias designated as “temporary domiciliary parent(s).” The judgment ordered O’Brien to undergo a complete psychological evaluation, the results of which were to be supplied to the trial court and all counsel of record and granted him “restricted visitation” at Avec Les Enfants visitation center or at the home of the children’s maternal aunt. For the following reasons, we affirm.

Facts and Procedural History

Gary O’Brien and his deceased wife, Sherry, are the biological parents of two minor children, Brendan and Casey O’Brien. After Sherry died in 2004, the children lived with their father and spent most weekends and some evenings after school with their maternal grandparents, Joseph and Laura Prescia. For several years, these adults formed a cohesive family unit for Brendan and Casey. In 2007, O’Brien began to refuse visitations between the Prescias and the children. The Prescias filed suit against O’Brien, seeking visitation. The trial court found that visitation was warranted and established a visitation plan. The visitation plan worked well until January 2009, when O’Brien began denying visitation and phone contact to the grandparents, claiming that the children did not want to see or speak with them.

The parties filed cross motions for contempt. The parties attended several hearing officer conferences and objected to those recommendations. A rule for contempt was set and was reset. During that time, in late March 2009, O’Brien moved the minor children from New Iberia, Louisiana, to Anacoco, Louisiana, without notifying the Prescias or obtaining judicial permission for the relocation. 12After a hearing on the rule for contempt, the Pres-cias again enjoyed visitation and telephone conversations with their grandchildren.

In 2010, O’Brien began denying visitation and telephone communication to the Prescias for a third time. They filed to have the trial court’s order clarified. The matter was set for a hearing officer conference on May 17 and a rule on June 4. In late April 2010, O’Brien moved the children to Florida and enrolled them in school, again without permission from the trial court. After the fact, he told Lisa DiMarco, the children’s maternal aunt, that he moved to get the children away from his wife’s family and because he believed the state he had moved to did not recognize grandparents’ rights to custody. He refused to tell her which state he was in. At that time, the Prescias sought custody of the children. Temporary custody was granted to the Prescias on June 4, 2010. A hearing on permanent custody was scheduled for July 23, 2010. O’Brien was denied any visitation pending the July 23, 2010 hearing unless it was supervised by DiMarco.

Shortly after the children were removed from his custody in Florida, O’Brien, who had tried to commit suicide fifteen years before and who had lost a son of a previous marriage to suicide, left a message on the children’s therapist’s voicemail stating that he was going to join their mother and to tell the children that he loved them. Alarmed by the implicitly suicidal nature of the message, the therapist called authorities in Florida, and O’Brien was brought to a mental health hospital. While at the hospital, O’Brien told doctors that he moved to Florida to get the kids away from their grandparents and that he suffered from depression. Although it was recommended that he undergo a psychological evaluation, he did not and was released after two days.

|sOn July 23, 2010, after a hearing on permanent custody, the trial court found O’Brien in contempt of court and sentenced him to a suspended thirty-day jail sentence. It also ordered that O’Brien have two meetings with Steven Hargrave, the children’s therapist, first independently and then with the children. At that time, O’Brien stated to the trial court, “[s]o I am going to go ahead and say that they can have custody of my children because this has devastated me financially and emotionally, and I don’t really see how I can take care of the kids right now.” The matter was reset for August 3, 2010. After the August 3 hearing, the trial court ordered that custody of the children remain with the Prescias, that O’Brien complete a mental health evaluation, that all of O’Brien’s mental health records be released to Hargrave, and that O’Brien only be allowed supervised visitation with his children.

O’Brien met with his children four times at Hargrave’s office between August 2010 and December 2011. He saw the children on Christmas day for an hour or two and again in February 2011 for an hour or two on his daughter’s birthday. Though he was in New Iberia the day before his son’s birthday in May 2011, he did not ask to see his children. He made only one phone call to DiMareo to arrange visitation with his children between August 2010 and July 2011. He did not telephone the Prescias at all, not even to get information on the children’s well-being.

On May 18, 2011, O’Brien filed a “Motion to Return Children to Father.” The matter went to trial on July 21, 2011. At trial, O’Brien admitted that he had only set up four visits with his children through Hargrave, that he had not submitted to a complete psychological evaluation, and that he had seen his children | J'or a short period of time on Christmas and on his daughter’s birthday in February, but had not seen them or asked to see them since that time even though he was in New Iberia the day before his son’s birthday in May.

Hargrave testified that he still sees the children for therapy and they are torn; they love their father, but they also love their grandparents, and what they really want is for both sides to get along. Har-grave further testified that O’Brien has a lot of animosity toward the Prescias and that he seems to thwart the grandparents’ efforts to include him in family events. When he was invited to Thanksgiving dinner, he immediately declined, asserting that he would have the children back by then. Hargrave stated that it is important for the children to have contact with the grandparents and their maternal aunt because it makes them feel connected to their mom. He stated that they are thriving with the Prescias, but with O’Brien, they only survived. He further stated that he felt that their living with O’Brien would emotionally and mentally harm the children because of the continued animosity O’Brien harbors against the Prescias. Further, Hargrave did not think that O’Brien was capable of fostering and promoting a meaningful relationship with the Prescias or DiMareo.

The Prescias and DiMareo also testified. Their testimony revealed that the Prescias have tried to get O’Brien to see the children or to visit them, but he has chosen not to. They explained that their primary and ultimate goal is for O’Brien and the children to reach a healthy reunification in the future. Further, testimony revealed that the Prescias are happy to take care of their grandchildren and are able to provide for them financially and emotionally.

Ultimately, the trial court denied O’Brien’s request. It found that he was discharged from the mental health facility prematurely, as a neuro-psychiatric evaluation was ordered but never performed. It further found:

| s[H]e has demonstrated over the past three (3) years he in no way places the best interest of the children first, that he places his own selfish desire to have his children and exclude them from the lives of their grandparents first, and he has done everything within his power to accomplish that. He moved suddenly and with out [sic] notice to Anococo [sic] in the middle of the school year against the children’s best interest and lied about his reasons why he moved at prior hearings. He moved again to Florida, against the children’s best interest, with no real reason to move in the middle of a school year — well, toward the end of the school year with one (1). month left, which was completely against the best interest of the children. He said to Lisa (his sister-in-law) that he was moving to a state that did not recognize grandparents’ rights and he had no intention of having these children see there [sic] grandparents again.
He has no credibility. He consistently attempts to mislead the Court. Numerous examples of his lack of credibility have previously been pointed out and are in the transcript of the prior hearings. Today, again, he demonstrated his lack of credibility on several occasions. He told the [sic] directly that he was moving to go see his brother who was going to Iraq; and yet, he tells the sister-in-law that he moved to Florida because it is a no-contact state with grandparents. The Court accepts her testimony as a credible. The medical records reflect that the reason he told the doctors why he was in Florida completely contradicts his testimony and says with crystal-clear clarity that he was moving to get them away from their grandparents and had nothing whatsoever to do with his brother.
... And in spite of all the efforts the Court has made to try to get him to see the light, go to counseling, work with the grandparents in the children’s best-interest, he still adamantly refuses to do so and then blames everybody else for his problems. I don’t know that anything can be done at this stage. Certainly it is going to be up to him how much contact he has with the children.

The trial court then granted the parties joint custody of the children, with the Preseias as temporary domiciliary parents. It ordered that O’Brien was to have restricted visitation to be scheduled at Avec Les Enfants or at the home of DiMarco on every other Sunday from 9:00 a.m. until 4:00 p.m. It further ordered O’Brien to submit to a psychological evaluation and allowed him to seek visitation once that evaluation was completed.

Issues

O’Brien is now before us on appeal, assigning three errors:

|fil. The District Court abused its discretion by perverting La. R.S. Art. [sic] 9:344 and reversing legislative intent by forcing the biological parent to have restricted visitation while giving the grandparents joint and physical custody of the children for almost two (2) years.
2. Through the use of consecutive “Temporary Order”(s), the District Court has abused its discretion by application of La. R.S. Art. [sic] 9:344 and/or La. C.C. Art. [sic] 136 to violate Appellant’s fundamental right to parent and raise his children.
3. Abuse of discretion and unconstitutionally Applied Louisiana Law [sic] that was meant to build family relations and respect a parent’s constitutional rights.

Standard of Review

Appellate courts employ the “abuse of discretion” standard when reviewing custody determinations. Dalme v. Dalme, 09-524 (La.App. 3 Cir. 10/14/09), 21 So.3d 477, writ denied,, 09-2560 (La.1/8/10), 24 So.3d 868.

Discussion

The first two arguments asserted by O’Brien refer to La.R.S. 9:844, which allows the parents of a decedent to enjoy reasonable visitation rights with their grandchildren. Although the pleadings initially filed in this case were based on La.R.S. 9:344, the judgment that is before us on appeal specifically involves custody of the children. Accordingly, these assignments are without merit. Insofar as O’Brien’s second assignment of error refers to La.Civ.Code art. 136, this assignment is also without merit as this article references visitation rights of parents or grandparents not granted custody or joint custody. The judgment on appeal specifically grants joint custody to the Prescias and to O’Brien. Accordingly, any error raised based on La.Civ.Code art. 136 is without merit.

[ 7We now turn to O’Brien’s third assignment of error: that the trial court abused its discretion and “unconstitutionally applied Louisiana Law that was meant to build family relations and respect a parent’s constitutional right.” In Louisiana, biological parents have paramount rights to custody of their children. Whitman v. Williams, 08-1133 (La.App. 3 Cir. 2/4/09), 6 So.3d 852. They can only be deprived of those rights for compelling reasons. Id.

Louisiana Civil Code Article 131, however, grants trial courts the power to make custody determinations. Although La.Civ. Code art. 132 states that the trial court “shall award custody to the parents jointly” or to one parent if clear and convincing evidence proves that custody in one parent would be in the best interest of the child, La.Civ.Code art. 133 allows a trial court to award custody to a non-parent “[i]f an award of joint custody or of sole custody to either parent would result in substantial harm to the child.”

In the instant case, O’Brien made two erratic mid-school-year moves, one to a new city and one to a new state, in the two years leading up to the grandparents obtaining custody of the children. In both instances, he failed to notify any of the children’s maternal family members beforehand, and in the second instance, he refused to tell them where he had relocated. The moves occurred without permission from the trial court.

O’Brien admittedly suffers from depression and has attempted suicide before. When the children were removed from his custody, he left a voicemail message that alluded to his having suicidal thoughts. He was admitted to a hospital for psychological reasons, where he admitted to suffering from depression and to moving out of state to keep the Prescias away from the children. Although a neuro-psychological evaluation was ordered, there is no evidence of it having been | «performed. He has not submitted to psychological testing since his release from the hospital despite court orders mandating that he do so.

At the July 2010 hearing on custody, O’Brien voluntarily gave custody of the children to the Prescias, admitting that he was unable to care for them. The trial court ordered that he undergo a psychological evaluation and ordered supervised visitation. He did not submit for psychological evaluation. He has not made sufficient efforts to see his children.

Conversely, the Prescias have emotionally and financially supported their grandchildren, especially since they were awarded custody. They provide a stable and loving home. They take the children to regular counseling sessions. They check with the children’s therapist to make sure that certain actions (such as showing the children home movies of their mom) would not upset them. They invite O’Brien to family holiday events. They give the children birthday parties and more.

In Carroll v. Carroll, 476 So.2d 976 (La.App. 1 Cir.1985), the court found that proof of stability and a wholesome environment in the grandmother’s home coupled with evidence that removing the children from her home would not be in the children’s best interest was sufficient to support the trial court’s award of custody to the grandparents. In its discussion of that case, the first circuit stated “a parent now enjoys a paramount right of custody which can be outweighed by a sufficiently grave detriment to the child’s best interest, present in awarding custody to that parent, which requires that custody be awarded to a nonparent.” Id. at 981.

It is clear to this court that O’Brien has a propensity to disregard the orders of the trial court and to act rashly without considering the best interest of his children. He continually denied visitation to the Prescias, in absolute disregard of the trial court’s order. He moved twice in the middle of the school year, uprooting |flhis children and enrolling them in new schools each time. This was done with obvious disregard for how the move would affect the children. He has a history of depression and suicide attempts and threats, yet has not undergone a psychological evaluation that would assist the trial court in determining if he is able to care for his children.

In addition to his failure to submit for psychological testing and denying the Prescias visitation, O’Brien has also failed to maintain regular and reliable visitation with his children. At the initial hearing on custody in July 2010, O’Brien voluntarily “gave” custody of his children to the Pres-cias, admitting to the trial court that he was unable to care for them. Once the children began living with the Prescias, O’Brien visited them six times, and each of those visits occurred before March 2011. After March 2011, O’Brien did not visit, or ask to visit, his children, even when he was in the same town. O’Brien did not communicate with the Prescias about the children and only spoke with the approved visitation supervisor once in nearly a year.

Conclusion

After carefully reviewing the record, we find no error with the trial court’s decision to award joint custody to O’Brien and the Prescias, to designate the Prescias as the domiciliary parents, to allow O’Brien restricted visitation, and to require that O’Brien submit to a psychological evaluation. We note that in the judgment before us on appeal, the trial court has also allocated that O’Brien may petition the trial court for visitation rights once the psychological evaluation has been completed. Costs of this appeal are assessed against appellant, Gary O’Brien.

AFFIRMED.

      . The judgment states that the matter came before the trial court pursuant to "the Hearing on contempt” but the Judgment on Rules from June 4, 2010 indicates that "a hearing on permanent custody” was set for July 23, 2010, and there is no evidence of the custody hearing having been reset.

      . We note that O'Brien did not appeal any of the trial court’s earlier judgments concerning visitation, nor did he appeal the July 23, 2010 or August 3, 2010 judgments granting custody of the children to the Prescias. Rather, at the July 23, 2010 hearing, he acquiesced to the Prescias having custody of his children, as the proceedings had "devastated [him] financially and emotionally, and [he didn’t] really see how [he could] take care of the kids right now.”


author: AMY, Judge.

text:
    STATE in the Interest of I.D.
    No. 11-1570.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Annette Fuller Roach, 15th JDC Public Defenders Office, Lake Charles, LA, for Appellant, C.D.
    Diane E. Cote, Lafayette, LA, for Ap-pellee, State of Louisiana, Department of Social Services.
    Nicole M. Guidry, Abbeville, LA, for Appellee, I.D.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

1 ,The State filed a petition seeking to terminate C.D. and J.J.’s parental rights as to their daughter, I.D. At the hearing, J.J. stipulated to the termination of her parental rights. After hearing the evidence, the trial court ordered that C.D.’s parental rights as to I.D. be terminated. C.D. appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, I.D. was born in 2003 and, at one point, was placed in her grandmother’s custody. In 2008, the State of Louisiana, Department of Children and Family Services received a report that I.D. was being physically abused and removed her from her grandmother’s care. Her father, C.D., was incarcerated at that time.

In February of 2008, I.D. was determined to be a child in need of care and placed with foster parents. The State initially attempted to reunify I.D. with both C.D. and her mother, J.J. However, in April of 2010, the State filed a petition seeking termination of both C.D. and J.J.’s parental rights as to I.D. According to the trial court’s minutes, the termination hearing was rescheduled several times, in part to allow C.D. and J.J. more time to work on their case plans. Eventually, the termination hearing was held on October 24, 2011. At the hearing, J.J. stipulated to the termination of her parental rights, stating that LD.’s foster parents are wonderful people and that she did not want to take away the stability I.D. had in her life. Therefore, the majority of the hearing focused on C.D.

Contending that C.D. had failed to substantially comply with his case plan, the State introduced evidence to the effect that C.D. had been incarcerated, for various reasons, for twenty-nine of the forty-five months prior to the hearing and was 12incarcerated at the time of the hearing. The State also introduced evidence that, even when not incarcerated, C.D. failed to meet several other requirements of his case plan, including failing to attend AA/NA meetings, failing to pay for the cost of foster care, failing to provide verification of employment, and failing to provide a housing environment free from drugs, alcohol, and persons who had committed felonies. C.D. contended that he had substantially complied with his case plan. C.D. testified that he had been gainfully employed during the periods that he was not incarcerated, that he paid $50.00 per month towards child support and child support arrearages, that his drug screens were “always negative,” and that he had obtained adequate housing. Further, C.D. acknowledged that his case plan required him to attend AA/NA meetings. According to C.D.’s testimony, he went to those meetings when he was incarcerated, and “partial[ly]” when he was not. C.D. also testified that he attended anger management meetings.

After receiving all of the evidence, the trial court issued both written and oral reasons for judgment. The trial court found that there had been no substantial compliance of the case plan by C.D. and that there was no reasonable expectation of significant improvement in his condition or conduct in the near future. As part of this finding, the trial court cited C.D.’s “rather infrequent” and “haphazard” visitation with I.D. and his failure to contribute towards the costs of foster care. The trial court was particularly concerned about C.D.’s drug abuse problems and his “pattern of incarceration,” stating:

It’s clear to me that one of the main conditions that caused this whole problem was drug use and drug abuse and the consequences of that abuse, including anger and violence.
And it’s clear [C.D.], although not convicted, the minute he gets out of jail for that offense that he has committed now and is serving time, he’s facing an additional drug charge. The fact that he could not successfully complete probation and is incarcerated as a result of not completing his probationary period successfully is a sign that he has | ^difficulty, is unable to get himself right for — even to stay out of jail, much less take care of a child.

The record indicates that the trial court interviewed I.D. in chambers about her preferences. The trial court noted that I.D. was happy and thriving with her foster parents and that I.D. had stated that she wanted to remain with them. The trial court also observed that I.D. did not want to live with C.D. or spend any time with him outside of a supervised situation. Accordingly, the trial court ordered that C.D.’s parental rights as to I.D. be terminated.

C.D. appeals, asserting that:

I. The trial court erred in terminating the parental rights of C.D. as the State failed to prove by clear and convincing evidence that C.D. had failed to substantially comply with the case plan. The State also failed to establish that C.D.’s incarceration was of such duration that he would be unable to care for the child for an extended period of time or that there was no reasonable expectation that C.D. would substantially comply with the case plan, as deemed necessary for the safe return of the child, upon his release from incarceration.
II. The trial court erred in considering whether termination was in the best interests of the child.

Discussion

Insufficiency of the Evidence

In C.D.’s first assignment of error, he contends that the State failed to prove by clear and convincing evidence that he did not substantially comply with his case plan. Further, C.D. contends that the trial court erred in finding that his incarceration was of such duration that he was unable to care for I.D. for an extended period of time.

The supreme court discussed termination of parental rights cases in State in the Interest of J.A., 99-2905, pp. 7-9 (La.1/12/00), 752 So.2d 806, 810-11, stating:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 4640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Serv.’s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. La. Child. Code art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. State in the Interest of A.E., 448 So.2d at 185.
Title X of the Children’s Code governs the involuntary termination of parental rights. La. Child. Code art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, La. Child. Code art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Child. Code art. 1039. See State in Interest of ML & PL, 95-0045 (La.9/5/95), 660 So.2d 830, 832. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Child. Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof in termination of parental rights cases is clear and convincing evidence).

15Thus, the State has to prove one of the statutory grounds for termination of parental rights by clear and convincing evidence. In this case, the trial court cited La.Ch.Code art. 1015(5) and (6) as grounds for termination. Those provisions state:

(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.
(6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

The manifest error standard of review is applicable to involuntary termination of parental rights cases. State in the Interest of K.G. & T.G., 02-2886, 02-2892 (La.3/18/03), 841 So.2d 759.

Louisiana Children’s Code Article 1036(C) provides a list of factors which may evidence a lack of parental compliance with a case plan. It states:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
|fi(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

“A trial court’s factual determinations as to whether there has been substantial compliance with a case plan, whether a significant indication of reformation has been shown, and whether the parent is likely to reform will not be set aside unless the record reflects that the trial court was clearly wrong.” State in the Interest of G.O., 10-571, pp. 5-6 (La.App. 3 Cir. 6/8/11), 68 So.3d 636, 640, writ denied, 11-1512 (La.7/21/11), 67 So.3d 479.

The trial court found that C.D. failed to comply with several of the statutory factors contained within La.Ch.Code art. 1036(C). Specifically, the trial court found that C.D.’s visitation with I.D. was “haphazard” and “rather infrequent.” Regarding his assertion that the State failed to prove that he had not substantially complied with his case plan, C.D. contends that, because the State did not allege that he had failed to pay or had underpaid his child support obligations, the trial court should not have considered any allegations to that effect. At the hearing, C.D. testified that he was paying $50.00 per month in child support and was approximately $6,000.00 in arrears when he was released from one of his periods of incarceration. According to C.D., these payments were for child support for I.D. for when she was with her grandmother and when he was incarcerated. The caseworker, Stacey Mire, testified that C.D. had not contributed to the cost of I.D.’s foster care. Given this testimony, the trial court was able to distinguish C.D.’s payment of child support arrearages and his non-payment towards the costs of foster care.

17Further, C.D. asserts that he visited I.D. regularly and that the trial court erred in finding that his visitation was “haphazard” and “rather infrequent.” According to C.D.’s testimony, he did not visit with I.D. when he was incarcerated because “they wouldn’t let her,” but he had sent her two letters. We particularly note that C.D. conceded that he had been incarcerated for at least twenty-nine of the forty-five months preceding the hearing. Additionally, Ms. Mire testified that when C.D. visited with I.D., “[h]e had a hard time engaging [I.D.] after about 15 minutes. He would stay on his cell phone a lot, or he would call people and let her talk to them instead of using the hour for him and [I.D.]”

C.D. further contends that he substantially complied with the requirement that he attend AA/NA. C.D. contends that he attended AA/NA while he was incarcerated, as well as other substance abuse classes. According to C.D.’s testimony, when he was not incarcerated, he “only partially” attended AA/NA. C.D. claimed that his parole officer told him that he did not have to attend AA/NA as long as he was passing his drug screens. However, Brian Kelly, C.D.’s first caseworker, testified that C.D. did not follow through with the AA/NA classes and that C.D. failed to get a sponsor, either in or out of jail.

We further observe that C.D.’s case plan required him to complete parenting classes and go to counseling. Mr. Kelly testified that C.D. was late to the first parenting class and did not attend the other four classes. Additionally, according to Mr. Kelly, C.D. was inconsistent in his visits with the counselor. To his credit, C.D. testified that he completed an anger management class and submitted a certificate to that effect. Notably, Ms. Mire testified that, after he was arrested for suspicion of DUI, C.D. admitted to using synthetic marijuana. The trial court found that C.D.’s problems with drug use and drug abuse constituted “repeated failure to comply with the required program of treatment and rehabilitation services provided in the case |splan” as well as “lack of substantial improvement in redressing the problems preventing reunification” and “the persistence of conditions that led to removal or similar potentially harmful conditions.”

Given this evidence, we find that the trial court did not err in determining that the State met its burden of proof with regard to showing a lack of parental compliance with the case plan.

C.D. also asserts that the trial court erred in considering his incarceration as grounds for termination. C.D. specifically contends that the State failed to prove that his incarceration was of such duration that he would be unable to care for the child for an extended period of time, as contemplated by La.Ch.Code art. 1015(6). However, although Article 1015(6) was cited by the trial court in his reasons for judgment, in discussing C.D.’s incarceration, the trial court also cited La. Ch.Code art. 1036(D), which concerns the evidence of the “lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future.” That article states, in relevant part:

Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.

Contrary to C.D.’s assertion concerning the duration of his incarceration, the trial court found that C.D.’s incarceration constituted “a pattern of repeated incarceration” such that C.D. would be unable to care for I.D. for extended periods of time. On this issue, the trial court stated:

Clearly that has been shown in the case. Something like more than half of the time since the child has been removed [C.D.] has been incarcerated, and not just on one incarceration, but over and over again, |9periods of incarceration, and he may be facing another one at this point. He was incarcerated at the time ... the child was removed the first time. He got out. The child was with him for a period of time. He could not improve. He’s been in and out of jail ever since.

C.D. conceded that he had been incarcerated for approximately twenty-nine of the forty-five months preceding the termination hearing. Particularly, the record indicates that C.D. was incarcerated when I.D. was initially taken into the State’s custody and that he was incarcerated when the termination hearing was held. Ms. Mire testified that C.D. was arrested on suspicion of DUI in November of 2010. As a result of that arrest, C.D.’s probation was revoked and he was ordered into an intensive drug program in Concordia Parish until April 1, 2011. Ms. Mire also noted that C.D. was arrested in April of 2011 for simple battery or domestic abuse of an ex-girlfriend. Further, according to Ms. Mire’s testimony, C.D. was arrested for possession of hydrocodone in June of 2011 and his probation was again revoked. C.D. testified that he was incarcerated for violating his probation by using prescription medication.

At the time of the termination hearing, C.D. had not been convicted on those pending charges. However, the new charges resulted in the revocation of his probation and his subsequent incarceration. Accordingly, we find no error in the trial court’s determination that C.D.’s pattern of repeated incarceration was such that there was a “lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future.” La.Ch.Code art. 1036(D). See State in the Interest of B.B., 11-252 (La.App. 3 Cir. 6/8/11), 67 So.3d 1268, writ denied, 11-1812 (La.8/31/11), 68 So.3d 517; State in the Interest of L.W., 09-243 (La.App. 3 Cir. 6/3/09), 11 So.3d 1225.

This assignment of error is without merit.

11 (¿Best Interests of the Child

In his final assignment of error, C.D. contends that, because the State failed to prove by clear and convincing evidence one of the statutory grounds for termination, the trial court erred in considering whether the termination of parental rights was in I.D.’s best interests.

In addition to finding that the State has proven a ground for termination of parental rights by clear and convincing evidence, the trial court must also find that the termination is in the best interests of the child. State in the Interest of J.A., 752 So.2d 806. C.D.’s assignment of error presupposes that the trial court erred in finding that the State met its burden of proof with regard to the statutory grounds for termination. As discussed, we have determined that the trial court did not err in finding that the State proved by clear and convincing evidence at least one of the statutory grounds for termination of parental rights. Therefore, C.D.’s argument in this regard must fail.

Further, we find no error in the trial court’s determination that the termination of parental rights was in I.D.’s best interests. In discussing the statutory grounds for termination, the trial court noted that “[fit’s clear to me that one of the main conditions that caused this problem was drug use and drug abuse and the consequences of that abuse, including anger and violence.” The trial court believed that C.D. had not been able to change this pattern of behavior. The record also indicates that the trial court interviewed I.D. in chambers. In his written reasons for judgment, the trial court stated that I.D. is “happy in her current placement and well-adjusted.” In his oral reasons for judgment, the trial court also stated that I.D. called her current caretakers “Mom” and “Dad” and that she wanted to be adopted. Further, the trial court explained that I.D. did not want to return to a home inhabited by C.D., nor did she want to have unsupervised visitation with C.D. The trial court also stated that he was convinced that there would be a serious risk involved if there were any | nchance of I.D. returning home with C.D. We also observe that I.D. was adjudicated a child in need of care in February 2008. At the time of the termination hearing, she had been in the State’s custody for more than three years.

In light of the evidence concerning C.D.’s long-standing drug abuse problems and his pattern of incarceration, as well as I.D.’s attachment to her caretakers, we find no error in the trial court’s consideration of this issue and in the trial court’s finding that termination of C.D.’s parental rights would be in I.D.’s best interests. This assignment of error is without merit.

DECREE

For the foregoing reasons, judgment of the trial court terminating C.D.’s parental rights as to I.D. is affirmed in its entirety. Costs of this proceeding are cast to the appellant, C.D.

AFFIRMED.

      . The initials of the child and her parents are used to protect the identity of the minor child. Uniform Rules-Courts of Appeal, Rules 5-1, 5-2.


author: THIBODEAUX, Chief Judge.

text:
    Charles CUTLER v. Leah WHITE.
    No. 11-1382.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      See also, 38 So.3d 481.
    Kendrick J. Guidry, Plauche, Smith & Nieset, Leah White, Lake Charles, LA, Defendant/Appellee, Leah White.
    Charles Cutler, Alexandria, LA, Plaintiff/Appellant, Charles Cutler.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

hln this legal malpractice dispute, Charles Cutler, currently incarcerated, claims that the trial court erred by granting an exception of prescription in favor of Leah White, an attorney who previously represented Cutler in connection with Cutler’s parole revocation. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether Cutler’s legal malpractice claims are prescribed where Cutler originally filed suit against White (and other individuals) in June, 2008, where that suit was dismissed without prejudice for vagueness and failure to state a cause of action, where Cutler filed a premature appeal of that dismissal, and, therefore, the appeal was not considered, and where Cutler, instead of amending his petition or filing a timely appeal of the dismissal, filed a new petition in December, 2010, making virtually identical allegations against White as he did in his 2008 petition.

II.

FACTS

Cutler’s allegations of malpractice against White stem from White’s alleged failure to properly represent Cutler that resulted in Cutler’s parole revocation and incarceration. Cutler was arrested in January of 2008 for possession of marijuana. Two days prior to the parole board hearing, the possession charge was dismissed. After the hearing, Cutler’s parole was allegedly revoked for, among other things, possession of marijuana. In June of 2008, Cutler filed a lawsuit against White and other persons. In that suit, Cutler alleged that White committed malpractice by not requesting a delay of the parole board hearing.

12White filed exceptions of vagueness and no cause of action, which the trial court granted. Cutler was permitted to amend his petition, and he did. White, again, filed the same exceptions. Prior to the ruling on the second set of exceptions, the trial court signed an order allowing Cutler to appeal. This court did not consider the appeal because there was no signed final judgment against White in the record. See Cutler v. McGee, 09-1290 (La.App. 3 Cir. 5/5/10), 38 So.3d 481, writ denied, 10-1879 (La.11/19/10), 49 So.3d 393.

The trial court granted White’s second set of exceptions in open court in April, 2009, signing a judgment to that effect in June, 2009. The trial court dismissed Cutler’s claims without prejudice. Cutler filed for supervisory writs and/or appeal, which the trial court denied as untimely.

In December of 2010, Cutler filed another petition making almost identical allegations of malpractice against White as he did in his previous suit discussed above. White filed exceptions of prescription, res judicata, no cause of action, vagueness, and nonconformity of the petition to La.Code Civ.P. art. 891. The trial court granted the exception of prescription, denied the exceptions of res judicata and no cause of action, and did not address the exceptions of vagueness and nonconformity as moot. The trial court also partially granted White’s motion for sanctions against Cutler requiring Cutler to pay all court costs. The trial court also ordered the Clerk of Court not to file any of Cutler’s claims against White without a written authorization from the Chief Judge. Cutler appealed, and we now consider the matter.

III.

STANDARD OF REVIEW

The manifest error standard of review applies to an appellate court’s consideration of prescription and/or peremption. Strahan v. Sabine Ret. & Rehab. 3Ctr., Inc., 07-1607 (La.App. 3 Cir. 4/30/08), 981 So.2d 287; Dauterive Contractors, Inc. v. Landry & Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242.

IV.

LAW AND DISCUSSION

No action for damages against any attorney at law duly admitted to practice in this state ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

La.R.S. 9:5605(A). “The one-year and three-year periods of limitation provided in Subsection A of this Section are peremp-tive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.” La. R.S. 9:5605(B). “Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La.Civ.Code art. 3458. “[Pjeremption commences to run in a legal malpractice case when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice.” Jenkins v. Starns, 11-1170, p. 15 (La.1/24/12), 85 So.3d 612, 612.

Here, Cutler was aware of the facts that would have enabled him to state a cause of action against White in June of 2008, when he filed his first suit against White and other persons. Instead of properly amending that petition or timely appealing its dismissal, Cutler chose to file a new petition. One year from June of 2008 has long since passed, and Cutler’s causes of action arising from the alleged 14White’s malpractice have been extinguished and ceased to exist. Unlike the mythological phoenix, Cutler’s claims cannot rise from the ashes. Therefore, the trial court committed no error by granting White’s exception.

V.

CONCLUSION

The trial court’s judgment granting an exception of prescription in favor of Leah White is affirmed. Costs of this appeal are assessed to Charles Cutler.

AFFIRMED.


author: PAINTER, Judge.

text:
    Shane TRAHAN v. MONTGOMERY ELECTRIC & MAINTENANCE, INC.
    No. 11-1426.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Scott J. Pias, Lake Charles, LA, for ClaimanL-Appellant, Shane Trahan.
    M. Jeremy Berthon, Baton Rouge, LA, for Defendant-Appellee, Montgomery Electric & Maintenance, Inc.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ] Claimant, Shane Trahan, appeals the finding of the Workers’ Compensation Judge (WCJ) that he failed to carry his burden of proving his lower back and neck symptoms are causally related to the accident that occurred on August 18, 2009 at Montgomery Electric & Maintenance, Inc. (Montgomery). For the following reasons, we affirm.

FACTS

It is undisputed that on August 18, 2009, while Claimant was in the course and scope of his employment with Montgomery, the wall of a trench in which Claimant was standing collapsed on him, throwing him against the other wall of the trench. He was stuck for a short time, after which a co-worker dug him out. Claimant continued working for Montgomery until September 20, 2009. He did not report the incident until October 2009.

Claimant’s average weekly wage was $900.00 and his weekly compensation rate is $546.00. No workers’ compensation benefits have been paid. However, Montgomery paid its part of Claimant’s health insurance premium until October 2009 and the full amount in November 2009. A hearing was held on October 4, 2011. The WCJ gave oral reasons for her determination that Claimant had not carried his burden of proving a causal connection between the cave-in and his symptoms. Claimant appeals.

DISCUSSION

Claimant asserts that the WCJ erred in failing to apply the presumption that his cervical pain resulted from the incident where he was in reasonably good health as to his cervical region prior to the incident and had an onset of pain shortly thereafter. Further, Claimant asserts that the WCJ erred in failing to accept his uncon-tradicted testimony as to his condition |2where there was nothing of record to cast suspicion on the reliability of his testimony.

A claimant is entitled to a presumption that his or her disability was caused by the accident if before the accident the claimant was in good health but afterwards began having symptoms which continuously manifested. Fluitt v. Christus Health Cent. La., 05-945 (La.App. 3 Cir. 6/28/06), 935 So.2d 369, writ denied, 06-2302 (La.12/8/06), 943 So.2d 1094.

The requirement that the claimant be “in good health” to benefit from the presumption of causation has been interpreted as not requiring that the afflicted body part be “in perfect health.” However that does not abrogate the requirement that, in order to be entitled to the presumption, the plaintiff offer sufficient evidence to establish the requisite elements.

Brown v. Town of Ferriday, 11-570, p. 6 (La.App. 3 Cir. 11/2/11), 76 So.3d 155, 160.

Among those requisite elements is the requirement that there be either sufficient medical evidence to show a reasonable possibility of causation or that the nature of the accident, combined with the other surrounding circumstances, raises an inference that there is a causal connection between the accident and the injury. Richard v. Vermilion Hosp., 10-385 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, writ denied, 10-1611 (La.10/8/10), 46 So.3d 1269.

The WCJ stated, correctly, in her reasons for judgment, that:

The records of chiropractor Chad Richard reflect that he began treating the claimant in June of 2009. The claimant had neck and lumbar complaints. On August 27, 2009, the claimant was seen by Dr. Timothy Best at the referral of Dr. Rubino. The September 21st, 2009 records of Dr. Best indicate that claimant was seen after calling in with a significant flare-up of pain in his left shoulder and arm. He diagnosed the claimant with degenerative disc disease. Dr. Rubino performed the anteri- or cervical discectomy on claimant on December 3rd, 2009.
. Before the incident, claimant saw several medical providers and had complaints of chronic back pain, pain into the legs and lower back with numbness and tingling. In fact, there is no mention of a work incident in any of the medical records and many record indicate that the problems began months before the cave-in incident.
.... The presumption of causation cannot apply here because claimant was not in good health before the accident. Further, the medical evidence does not show a reasonable possibility of a causal connection between the accident and the disabling condition. In fact, the medical evidence does not mention the work accident. Aside from the medical evidence, the claimant did not report the accident until a couple of months after the cave-in.

Given the failure of the post-accident medical records to mention the accident, the WCJ found that those records did not support the existence of a causal connection between the accident and the reported symptoms, especially in light of the fact that Claimant reported similar symptoms prior to the accident. As a result, she found that the evidence left the probabilities as to causation evenly balanced. We agree. As the WCJ found, in such a situation the claimant has failed to carry his burden of proof. Francis v. Quality Brands, Inc., 03-1662 (La.App. 3 Cir. 4/7/04), 870 So.2d 589.

We find no error in the WCJ’s conclusions herein. Accordingly, her judgment is affirmed.

CONCLUSION

For these reasons, the judgment of the WCJ is affirmed. Costs are assessed to the Claimant.

AFFIRMED.


author: ROBERT A. CHAISSON, Judge.

text:
    Daniel QUAINOO v. Carla MORELON-QUAINOO.
    No. 11-CA-766.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.
    Rehearing Denied May 14, 2012.
    Jane E. Booth, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

LThis is an appeal by Carla Morelon Quainoo from a judgment denying her permission to relocate her two minor children from Jefferson Parish to Decatur, Georgia. For the following reasons, the judgment is reversed, Carla Morelon Quainoo is hereby authorized to relocate the children as requested in her petition, and the matter is remanded to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Carla Morelon was studying for her Ph.D. at Indiana University when she met Daniel Quainoo. Mr. Quainoo, then a citizen of Ghana, was employed by the university as an assistant residence manager. He has a master’s degree in student personnel administration. They were married in Indiana in 2006, and shortly thereafter Mrs. Quainoo finished her degree and got a job at Dillard University in New Orleans. In part through Mrs. Quainoo’s help, Mr. Quainoo was also hired by Dillard as dean of residential life and campus life. The couple bought a home in Jefferson Parish. They then had two children: a son, Daniel, Jr., born on July 9, |s2007, and a daughter, Shila, born on July 30, 2009. During this period, Mr. Quainoo became a U.S. citizen. Neither parent has any historic affiliation with the New Orleans metropolitan area, nor has any family there.

In September of 2008, Mr. Quainoo lost his job at Dillard, where his salary was $48,500 per year. During the following year, he drew unemployment benefits and applied for numerous jobs in other states, but without success. Shortly before his unemployment benefits ran out, he took a job as a janitor with Sunrise Assisted Living, an elderly care facility company with operations in other states. His salary there is $9.50 per hour. During this period, Mrs. Quainoo took a second job working part-time to help with the couple’s finances.

In 2010, Mrs. Quainoo began receiving information that her $76,000 salary at Dillard might be cut by 10% due to financial constraints at the school. She also testified that after Mr. Quainoo was terminated, her workplace became somewhat uncomfortable for her. She too began looking for a job elsewhere, and Mr. Quainoo was aware of this search. In November of 2010, she was offered a job as coordinator of training and research with the Southern Association of Universities and Schools (SACS) in Atlanta, Georgia, with a salary increase of $11,000. She testified that this position was not only more secure than her job at Dillard, but that it was a career move which could open the way for consideration for positions as president, vice-president or chancellor of universities and colleges. She further testified that she had worked at Emory University in Atlanta for eight years, and had friends in the area. Additionally, her sister Yvette, a school social worker, also lives near Atlanta and has a very close relationship with the children. Considering |4all of these factors, she accepted the job in November of 2010. She informed Mr. Quainoo about this development and his comment was “congratulations.”

It was her initial impression that Mr. Quainoo would move to Atlanta with her and the children. He had in fact earlier applied, albeit unsuccessfully, for a job at Emory University in Atlanta, and she took this as an indication that he would move there if he had the opportunity. However, he informed her in late November that he had no intention of moving with her. At about that time, Mrs. Quainoo traveled to Georgia to look for an apartment, and Mr. Quainoo was aware of this. When she returned to Jefferson Parish, she began to prepare for the move. On December 7, after Mr. Quainoo left for work, she left with the children and her furniture for Decatur, a city near Atlanta where she had found a convenient apartment. Mr. Quai-noo did not learn that she had left with the children until he returned home from work.

Mrs. Quainoo testified that she assumed that Mr. Quainoo would eventually change his mind and follow her and the children to Atlanta. Instead, he filed a petition in Jefferson Parish seeking return of the children, and for divorce. The children were duly returned, and Mrs. Quainoo then filed a petition to relocate the children.

During the relocation proceedings, the trial judge appointed J. Stephen York, Ph. D., as a mental health professional to complete a custody and relocation evaluation. Over the course of six weeks, Dr. York interviewed each parent three times and administered the Minnesota Multiphasic Personality Inventory-2 test to both of them. He also observed both parents independently with the children. Other information which he considered related to the parents’ education and work histories, comparisons of schools and services in the Atlanta versus New Orleans |sareas, various records relating to the children, and other applicable data. His pertinent observations were as follows:

Carla Quainoo has been offered and accepted a promotion in Georgia. It offers her a significant increase in salary as well as job security and prestige in her field of expertise. She has leased an appropriate home in an area with good schools and excellent recreational opportunities. Mr. Quainoo has a job as a janitor in which he is underemployed compared to his education and background, yet he does not want the children to move. He specifically said he did not want a more demanding [job].

Dr. York also noted that Mrs. Quainoo’s sister Yvette, had offered Mr. Quainoo a place to stay in the Atlanta area, and Mrs. Quainoo had contacted the Atlanta office of Sunrise Assisted Living and determined that there were jobs available there. He also pointed out that there are numerous universities and colleges in the Atlanta area which might offer opportunities in both parents’ fields. In regard to Mr. Quainoo’s position on his moving to Atlanta, he said: “Mr. Quainoo has decided he does not want to leave Louisiana. There is no feasible explanation for this. If he is going to work as a janitor, I am sure he could find such work in Atlanta or one of its suburbs. Factually, he could choose to move, and Mrs. Quainoo found the company for whom he works now has jobs in the Atlanta area.”

He reviewed the twelve criteria of La. R.S. 9:355.12 and found that both parties have been good, responsible and loving parents who met their obligations to the children. He acknowledged that by its very nature, relocation presents problems for visitation by the non-locating parent, but deemed these problems at least amel-iorable by reasonable visitation arrangements and modern means of communication. His overall view was that the move would be advantageous to the mother in her career, and also to the children as to schools. His conclusion was that allowing the relocation would be best for the children.

| (¡During the April 25, 2011, relocation hearing, Mrs. Quainoo’s sister Yvette testified to her close relationship with the children and her availability to help out with them. She also corroborated Dr. York’s finding that she had offered Mr. Quainoo a room in her house while he got settled in Georgia.

Mr. Quainoo testified in opposition to the relocation. The thrust of his testimony was that he felt himself to be a very good parent. This was borne out by all of the evidence presented. He stated that he had developed close friendships in his Catholic Church community, and that these people were more than willing to help with the children. Several of these friends corroborated this information. He admitted to applying for almost 100 jobs, some in other states, after he was terminated at Dillard, and one of which was at Emory University in Atlanta, thus exhibiting a willingness to at least consider moving. However, when asked if he would consider transferring within his employer’s company in Atlanta he responded, “I have no intention of transferring for my company because that is not what I want to do.”

At the end of the hearing, the trial judge denied the petition for relocation. This appeal followed.

LAW AND ANALYSIS

In Gathen v. Gathen, 2010-2312 (La.5/10/11), 66 So.3d 1, the Supreme Court explained that in relocation cases, La. R.S. 9:355.12 provides that the relocating parent has the burden of proving that the relocation is 1) made in good faith, and 2) in the best interest of the child. The statute further requires the court to consider the benefits which the child will receive either directly or indirectly from an enhancement in the relocating parent’s general quality of life. In discussing this burden, the Court noted that the legislature has decided to place the entire burden of proof on the relocating parent, and to place no burden on the 17nonrelocating parent, and it further described this burden as a “very heavy burden.” While the Court did not further elaborate on the meaning of the term “very heavy burden,” it is apparent that this expression simply refers to the fact that the entire burden falls to the relocating parent to prove that relocation is in the best interest of the child, while the other parent need not put on evidence to show that it is not. We therefore do not construe it as establishing a burden beyond the normal civil standard of “preponderance of the evidence.” See Gathen, Knoll, J, dissenting, at 13-14. The Court also held that the proper standard of review in relocation cases is whether the trial judge abused his discretion in approving or disapproving of the relocation. It further noted that the trial judge could place more emphasis on some of the twelve criteria set forth in La. R.S. 9:355.12, and that the failure to analyze each factor individually did not constitute legal error requiring de novo review.

In the present case, the trial judge did in fact touch on all twelve factors in his reasons for judgment. He found some of the factors inapplicable, others having equal weight for or against relocation, and several as strongly pointing against relocation.

Factor 1. The Nature of the Children’s Relationship with Both Parents. The trial judge deemed this of little weight for or against relocation because the children have strong ties to both parents.

Factor 2. The Impact that the Move Would Have on the Children’s Emotional, Educational and Physical Development. He deemed this factor to weigh against the move. The evidence bearing on this point was that the children, and especially Daniel, Jr., were confused while in Georgia about where their father was and why they could not see him.

Factor 3. The Feasibility of Preserving Good Relationships between the Nonrelo-cating Parent and the Children through Visitation, Considering the | ^Logistics and Financial Situation of the Parents. The trial judge concluded that this factor weighed against relocation because Mr. Quainoo would have difficulty in travelling to Georgia. He further speculated that Mr. Quainoo would have to stay in a “hotel or something like that” to exercise visitation. He found that this factor weighed strongly against relocation.

Factor 4. The Preferences of the Children. The trial judge determined this factor not to be applicable given the children’s ages of one and three years.

Factor 5. Whether the Relocating Parent Had Established a Pattern of Promoting or Hindering the Other Parent from Having a Relationship with the Children. The trial judge found that this factor was neutral on the issue of relocation.

Factor 6. Whether the Relocation Would Enhance the General Quality of Life for the Relocating Parent and the Children. On this point, the trial judge concluded that Mrs. Quainoo’s quality of life would be marginally enhanced, and did not consider an $11,000 (or 15%) increase in salary to be particularly significant.

Factor 7. The Reasons of Each Parent for Seeking or Opposing Relocation. On this point the trial judge stated that he did not deem the reasons given by Mrs. Quai-noo to be sufficient to justify breaking up the home, while Mr. Quainoo’s roots in the community and his strong interactions with the children weighed against relocation.

Factor 8. The Economic Situation of the Parties and Whether the Relocation Would Improve the Circumstances of the Parent Seeking Relocation. On this point, the trial judge found that Mrs. Quainoo’s situation would be improved somewhat, and that this improvement weighed in favor of relocation.

| aFactor 9. The Extent to Which the Objecting Parent Had Fulfilled His Financial Obligations. The trial judge found that Mr. Quainoo had fulfilled these obligations and that this factor did not weigh one way or the other.

Factor 10. The Feasibility of the Objecting Parent Relocating. On this point, the trial judge found that the feasibility of the objecting parent to relocate was low and improbable. He also elaborated on the fact of Mrs. Quainoo’s secretive move with the children as having created such a level of distrust on the part of Mr. Quainoo so as to make him unwilling to move to be near his family.

Factor 11, relating to drug or physical abuse, and factor 12, relating to any other factors concerning the best interest of the child, were found by the trial judge not to be applicable here.

The trial judge also cited La. R.S. 9:355.6, which provides that failure to give notice of a proposed relocation may be considered in any decision regarding relocation.

In reviewing the totality of the trial judge’s reasons for judgment, it is evident that he deemed the fact that Mrs. Quainoo had taken the children to Decatur, Georgia, without Mr. Quainoo’s permission to be a significant factor in his decision. He viewed this act as undermining any opportunity for the marriage to survive. It is equally clear that in his analysis of Mr. Quainoo’s ability to see the children under a visitation regime and the feasibility of the father relocating, he analyzed the problems from Mr. Quainoo’s perspective, as much as from that of the best interest of the children.

There are a number of problems in the above analysis. While we certainly do not condone the manner in which Mrs. Quai-noo chose to leave, for the trial | 10judge to place undue emphasis on it when the relocation is otherwise clearly in the best interest of the children, would serve to penalize the children as much as it would Mrs. Quainoo. The role of a parent is not only to love and nurture their children, but also to provide for their basic needs. The more financially secure the parents are, the better they are able to provide for their children’s needs. Mr. Quainoo has a master’s degree and earned $48,500 per year working in his field. After losing his job in 2008 and collecting unemployment for over a year, he found employment as a janitor with Sunrise Assisted Living. He is currently a care manager for Sunrise and earns $18,000 per year. Unfortunately for Mr. Quainoo and his family, since 2008, he has been dramatically underemployed in relation to his career potential. Mr. Quainoo indicated to Dr. York that he did not want a more demanding job, the unmistakable inference being that he is satisfied with his job and salary. Whether or not his underemployment is due to any fault on his part or is completely beyond his control is of no moment; it is simply the experience that he has had.

Fortunately for the Quainoos and their children, Mrs. Quainoo has had the opposite experience with her career. Not only has she maintained employment in the field of her education and expertise, but she now has the opportunity for significant career advancement to a more secure job with a 15% pay increase. This opportunity to enhance the financial security of the Quainoo children becomes even more pronounced in light of the unfortunate career limitations that Mr. Quainoo has experienced since 2008. Mrs. Quainoo told Mr. Quainoo about accepting the Georgia job, and he knew that she had gone to Atlanta to look for housing. Although she departed abruptly with the children, it apparently came as no surprise to Mr. Quainoo that she wanted to move the children to Georgia. It was shown that she had lived in Atlanta for eight years, had personal contacts | n there, and a sister living nearby who enjoyed close bonds with the children and was willing to help out whenever needed. Dr. York reported that his review of Mrs. Quainoo’s total situation, as well as the emotional, educational and recreational opportunities resulting from the move, indicated that the relocation would be in the children’s best interest. Moreover, Mrs. Quainoo undertook to look into the job market in Atlanta for Mr. Quainoo’s benefit, and her sister offered assistance with lodging. It was Mrs. Quainoo’s expectation that he would soon follow them to Atlanta, and she tried to make his move as easy as possible. While the manner in which Mrs. Quainoo chose to move the children was certainly inappropriate, it is clear that the move itself, and the resulting enhanced financial benefits to the Quainoo family, especially in light of Mr. Quainoo’s inability or unwillingness to provide financial resources to his family commensurate with his abilities, is in the best interest of the children.

The trial judge also made several findings concerning the feasibility of Mr. Quai-noo relocating to Georgia and concluded that his relocation was not feasible. We find that this conclusion is contradicted by a number of evidentiary factors relating to Mr. Quainoo. The evidence shows that he has no historical ties to Louisiana or Jefferson Parish, and has lived in a number of places in his lifetime. He was born and raised in Ghana, attended universities in California and Illinois, and was employed at Indiana University, where he met Mrs. Quainoo and moved to Jefferson Parish in 2006. He has thus exhibited the ability to adapt well to relocation. When he lost his job at Dillard, he applied for positions outside of the New Orleans metropolitan area, including one in Atlanta, indicating a willingness to consider work elsewhere. It was shown that there are job opportunities with his company in the Atlanta area, and his sister-in-law offered him temporary housing until he could obtain permanent housing.

| ijWhen asked at the hearing whether he would be willing to take a job with his company in Atlanta, he said that he simply did not want to move. His apparent reason was that he has made friends with neighbors and church members. When presented with all of the above evidence, Dr. York concluded that “Mr. Quainoo has decided he does not want to leave Louisiana. There is no feasible explanation for this.” It is apparent that based upon Mr. Quainoo’s expressed lack of a willingness to move, the trial judge concluded that such a move was not feasible. We find this conclusion to be in error. Mr. Quai-noo is perfectly capable of moving to Georgia but simply does not wish to move because of his social contacts in the New Orleans area. To deny the relocation of the children places Mrs. Quainoo in the position of having to choose between her career advancement and the resulting enhanced financial security of her children, or having to forego that opportunity in order to live in the same state as her children so that Mr. Quainoo can maintain his social contacts.

Finally, the trial judge noted that if Mr. Quainoo wished to see the children in Georgia he would possibly have to do so in a hotel. This idea presupposes that no visitation decree could be confected which would allow Mr. Quainoo to have physical custody for significant periods of time at his home in Jefferson Parish. This is simply not a reasonable supposition.

Considering all of the above evidence, it is this Court’s opinion that the trial judge abused his discretion in denying the relocation of the children. What the record unequivocally shows is that the only impediment to the relocation is Mr. Quainoo’s obstinate refusal to agree to it. If he insists on continuing with his present Jefferson Parish position, in which he is significantly underemployed, that is his choice, but that does not provide any reasonable basis for him to oppose the relocation of his children. While admittedly relocation will create some hardships |1sfor both parents in regards to visitation, those problems can in large part be ameliorated by a well-crafted custody, visitation, and child support regime.

For the foregoing reasons, the judgment denying Mrs. Quainoo permission to relocate the children is set aside, judgment is hereby entered permitting the relocation of the children, and the matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . SACS is one of six national institutions recognized by the U.S. Department of Education and the Council for Higher Education Accreditation as the accrediting agency for universities, colleges and schools. SACS operates in the southeastern United States in seven states, and also in Mexico and the Caribbean in schools for U.S. students.

      . It is not at all clear to this Court that the relocation statutes. La. R.S. 9:355.1, et seq., require a parent to obtain court authorization to relocate children when the parents are still married and there is no divorce or custody proceeding pending, nor any custody orders issued by a court. Only upon the divorce proceeding being initiated by Mr. Quainoo did those statutes become applicable.