text:
    Jarod J. BUTERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4401.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   KHOUZAM, Judge.

Jarod J. Butera appeals an order revoking probation after the trial court found that he had violated the terms of his probation by possessing cocaine and marijuana. Because neither violation was established by the greater weight or preponderance of the evidence, we reverse the order revoking Butera’s probation.

Shortly after being placed on probation, Butera was arrested for possession of cocaine and possession of marijuana. But-era’s arrest led to the filing of an affidavit of violation of probation. The affidavit alleged that Butera had committed the offenses of possession of cocaine and possession of cannabis, thereby resulting in two violations of the condition of Butera’s probation that required him to live without violating the law. The matter proceeded to a revocation hearing.

Evidence introduced at the revocation hearing revealed that the incident giving rise to Butera’s arrest occurred on June 3, 2009. On that date, Butera was the sole backseat passenger of a vehicle that was stopped for a traffic violation. The other occupants of the vehicle included the driver and a female passenger who was sitting in the front seat of the vehicle at the time of the traffic stop.

At the revocation hearing, the driver and the female passenger were called as witnesses but they invoked their right to remain silent. The detective who had arrested Butera and had spoken to the vehicle’s occupants testified that he stopped the vehicle for running a red light and that as he talked to the driver he “could detect the presence of marijuana” — he smelled marijuana. The detective testified that he asked the driver of the vehicle about the odor and that the driver indicated that he had previously smoked in the vehicle but that he was not “currently smoking in it.”

The detective testified that he then conversed with the female front-seat passenger. He testified that the female passenger told him that there were drugs in the back of the car, that Butera had hidden something under her seat, and that Butera had given her certain items of drug paraphernalia to hide from the police when they were pulled over by law enforcement. The female passenger gave the drug paraphernalia to the detective.

The detective testified that he also conducted a search of Butera’s person, but that he did not find any contraband. The detective then searched the vehicle. During the search of the vehicle, the detective found a “small bag” containing crushed pills, a “small baggie” containing marijuana, and a “small baggie” containing cocaine. The detective found all of these items in a compartment on the back of the passenger-side front seat when he pulled the compartment forward. Butera had been sitting directly behind the passenger-side front seat when the vehicle was stopped.

The detective arrested Butera for possession of cocaine and possession of marijuana, but he did not arrest the driver or the female passenger. The detective testified that the main reason he arrested But-era and not the others was the proximity of the drugs in relation to where Butera had been sitting.

After hearing the evidence, the trial court found that Butera had committed the two violations alleged in the affidavit, and it revoked Butera’s probation.

The revocation of Butera’s probation was predicated upon his commission of two offenses — possession of cocaine and possession of cannabis. “[Wjhere the revocation is predicated upon the commission of a crime, mere suspicion that the probationer was involved in criminal activity does not suffice.” Miller v. State, 420 So.2d 681, 633 (Fla. 2d DCA 1982). On the other hand, “evidence to support a criminal conviction is not necessary to sustain a probation revocation order.” Id. at 632-33. Rather, a trial court may revoke a defendant’s probation if “the probationer’s criminal activity is shown by the greater weight of the evidence.” Swift v. State, 473 So.2d 818, 819 (Fla. 2d DCA 1985).

The greater weight or preponderance of the evidence presented at the revocation hearing did not demonstrate that Butera committed either of the offenses alleged in the affidavit of violation. Because the cocaine and cannabis were not found on Butera’s person or in his exclusive possession, the evidence had to establish constructive possession. Generally, in order to establish constructive possession of a controlled substance at the time these alleged violations occurred, the evidence had to demonstrate (1) that the defendant knew of the presence of the contraband and (2) that he or she had the ability to maintain dominion and control over the controlled substance. See Links v. State, 927 So.2d 241, 243 (Fla. 2d DCA 2006).

The State presented evidence of Butera’s proximity to the contraband. However, even in the context of a probation revocation proceeding, a defendant’s knowledge of the presence of contraband and ability to control it cannot be inferred from the defendant’s proximity if the contraband is found in a location that is in joint, rather than exclusive, possession of the defendant. Corker v. State, 31 So.3d 958, 961 (Fla. 1st DCA 2010). These elements must be established by independent proof, albeit only by a mere preponderance of the evidence. Id.

The State presented evidence that the detective smelled the odor of marijuana as he talked to the driver of the vehicle, and that when asked about the odor the driver indicated that he had previously smoked in the vehicle. The State also presented hearsay evidence concerning the female passenger’s conversation with the detective, wherein she claimed that Butera had given her drug paraphernalia to hide from the police, that Butera had hidden something under her seat, and that there were drugs in the back of the car. See Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007). But this hearsay evidence did not provide sufficient proof of Butera’s knowledge of and ability to control the cocaine or the marijuana found in the vehicle to support the revocation.

The greater weight or preponderance of the evidence presented at the revocation hearing did not establish Butera’s knowledge of or his dominion and control over the cocaine or the marijuana found in the vehicle. Accordingly, we reverse.

Reversed.

NORTHCUTT and MORRIS, JJ., Concur.

      . The affidavit of violation did not rely upon or charge possession of paraphernalia.

      . We note that the State did not introduce any evidence with respect to whether the paraphernalia tested positive for the residue of cocaine or marijuana. We also note that the State did not introduce any direct, nonhear-say evidence linking the paraphernalia to But-era.


source: Caselaw Access Project

author: CASANUEVA, Chief Judge.

license: Public Domain

text:
    Robert Franklin SABINE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5378.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

Robert Franklin Sabine, Jr., appeals his convictions for four counts of capital sexual battery on a person under the age of twelve and sixteen counts of lewd and lascivious battery. The twenty charges spanned five years of alleged sexual abuse by Mr. Sabine on his granddaughter. On appeal, Mr. Sabine raises four issues. We conclude that at least two issues constitute reversible error and merit discussion. We decline to engage in unnecessary discussion of the remaining moot issues.

Jury Selection

Mr. Sabine first contends that the trial court erroneously permitted the State to exercise a peremptory challenge on a prospective juror, who will be referred to as Mr. B. When the State requested this strike, defense counsel requested a gender-neutral reason because it appeared to him that the State was discriminating against men. The trial court stated that it “was not going to require a gender neutral reason,” instead embarking upon an examination of the State’s prior use of its peremptory strikes to determine whether a pattern of improper gender-based strikes occurred. The trial court stated: “I really don’t find a pattern at this point. I think the state has gender neutral reasons for striking at least three of the four [men] that they struck.”

“In Florida, potential jurors, as well as litigants, have an equal protection right to jury selection procedures free from discrimination based on gender, race, or ethnicity.” Welch v. State, 992 So.2d 206, 211 (Fla.2008). Founded on the protection afforded by the Equal Protection Clauses of the United States and Florida Constitutions, both Mr. Sabine and Mr. B. are entitled to a jury selection process free of discrimination. See U.S. Const, amend. XIV, § 1; art. I, § 2, Fla. Const. This court has recognized gender as a valid basis for an objection to the exercise of a preemptory strike. Johnson v. State, 27 So.3d 761, 763 (Fla. 2d DCA 2010). Therefore, Mr. Sabine’s counsel asserted a legally cognizable claim.

The Florida Supreme Court set forth guidelines for resolving claims of discriminatory peremptory challenges in Melbourne v. State, 679 So.2d 759 (Fla.1996).

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.

Id. at 764 (footnotes omitted).

Applying these guidelines to the facts of this case, Mr. Sabine’s counsel made a timely objection to the State’s peremptory challenge, argued that Mr. B was a man, claimed that the State was diserimi-natorily removing men from the panel, and requested a gender-neutral reason for the strike. This objection was sufficient for the trial court to require the State to provide a gender-neutral reason for the strike. See Carrillo v. State, 962 So.2d 1013, 1015-16 (Fla. 3d DCA 2007) (finding the defense counsel’s statement, “Your Honor, I object. He’s a man. She wants to get more women on the jury,” sufficient to require an explanation of the strike). Instead of following the procedure set forth in Melbourne, the trial court began an improper examination to determine whether there was a pattern of gender-based strikes.

In Welch, at the opening of the penalty phase of a capital murder case, the State used its first peremptory strike on a female prospective juror. 992 So.2d at 210. The defense objected and asked for a gender-neutral reason for the strike, arguing that the prospective juror was a female and thus a member of a protected group. The trial court ruled that, without more of a reason, it was “not going to require [a gender-neutral reason] on the State’s first strike.” Id. at 211. The supreme court reversed, holding that, “[s]imply put, the trial court failed to follow Melbourne after Welch made a qualifying step one objection. Instead of requesting the State’s reason for the strike, the trial judge focused on the grounds for the defense’s objection. This failure constitutes reversible error.” Id. at 212.

Similarly, the trial court in this case focused on the grounds for Mr. Sabine’s objection rather than following the well-established procedure from Melbourne. The proper remedy when the trial court fails to conduct the proper inquiry is to reverse and remand for a new trial. See State v. Johans, 613 So.2d 1319, 1322 (Fla. 1993).

Evidence of uncharged collateral crimes

The second claim of error rests in the admission of certain evidence as “inextricably intertwined.” While we question the validity of several of the trial court’s evidentiary decisions, we shall focus on two areas of admitted evidence that are of the greatest concern. We review the trial court’s determination on the admissibility of this evidence for an abuse of discretion. Wright v. State, 19 So.3d 277, 291 (Fla.2009).

The State charged Mr. Sabine with a total of twenty offenses he inflicted upon his granddaughter over a five-year span. The first charged offense took place just after her eleventh birthday and the last occurred just before her sixteenth birthday. The State filed a motion to include “inextricably intertwined” evidence of collateral crimes, which the trial court granted. Pursuant to the ruling, the State first admitted evidence of an uncharged offense that allegedly occurred when the victim was eight years old. She had accompanied Mr. Sabine on a trucking trip to Miami. During this trip, Mr. Sabine exposed his penis to her and required her to take a photograph of it. The victim testified that no further sexual conduct occurred during the two years following this event. The State also admitted evidence of regular sexual intercourse between Mr. Sabine and the victim during the three years following the date of the last charged offense, while the victim was between the ages of sixteen and nineteen.

The supreme court defines “inextricably intertwined” evidence as

evidence [that] is admissible because it is a relevant and interwoven part of the conduct that is at issue. Where it is impossible to give a complete or intelligent account of the criminal episode without reference to other uncharged crimes or bad conduct, such evidence may be used to cast light on the primary crime or elements of the crime at issue.

Wright, 19 So.3d at 292. Inextricably intertwined evidence “is a relevant and inseparable part of the act which is in issue. ... [I]t is necessary to admit the evidence to adequately describe the deed.” McGirth v. State, 48 So.3d 777, 787 (Fla.2010) (quoting Griffin v. State, 639 So.2d 966, 968 (Fla.1994)).

In Wightman v. State, the State charged Mr. Wightman with two counts of sexual battery of a child under twelve over a five-year time span. 982 So.2d 74 (Fla. 2d DCA 2008), review granted, 7 So.3d 1099 (Fla.2009) (table decision), review dismissed, 14 So.3d 211 (Fla.2009). Both counts alleged forms of oral sex. At trial, the State elicited testimony of repeated, multiple incidents of oral sex during the charged time frames, with the victim only specifically recounting one incident. Id. at 76. The jury convicted Mr. Wightman on both counts. Id. at 75.

On appeal, the State argued that the evidence of uncharged crimes was admissible as inextricably intertwined. This court rejected the argument, holding that “the assertion that Wightman committed the similar acts of molestation multiple times on different undetermined dates was not necessary for an understanding that the two discrete acts charged in the information took place at any time.” Id. at 76.

Similarly in this case, evidence of the Miami photography incident and the later sexual conduct was unnecessary to describe the charged acts, provide an intelligent account of the charged crimes, establish the context of the charged offenses, or describe the events leading up to the offenses. See Kates v. State, 41 So.3d 1044, 1045-46 (Fla. 1st DCA 2010) (identifying possible bases for the admission of inextricably intertwined evidence); Parker v. State, 20 So.3d 966, 970 (Fla. 3d DCA 2009) (same). The victim testified how Mr. Sabine sexually battered and molested her during the four-year charged time period. No explanation of prior or subsequent conduct was necessary for the jury to understand the evidence of the twenty discrete acts charged in the information.

Further, regarding the Miami photography incident, “when there is a ‘clear break between the prior conduct and the charged conduct or it is not necessary to describe the charged conduct by describing the prior conduct, evidence of the prior conduct is not admissible on this theory.’ ” Wright, 19 So.3d at 292 (quoting Charles W. Ehrhardt, Florida Evidence § 404.17, at 237 (2005 ed.)). The victim testified that after the Miami incident, no further sexual conduct occurred between her and Mr. Sabine for two years. This temporal break rendered the evidence of the Miami trip unnecessary to fully explain the charged conduct. See also Parker, 20 So.3d at 970 (holding that evidence of two prior drug sales was not inextricably intertwined with the charged offenses of possession of marijuana and trafficking in cocaine that occurred days later).

Although we hold that these acts were not inextricably intertwined, the State argues that affirmance is still proper because the evidence was admissible as similar fact evidence pursuant to section 90.404(2)(b)(1), Florida Statutes (2004). That statute provides that “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” Id.

To introduce evidence of uncharged crimes of child molestation under section 90.404(2)(b)(l), the State must first “furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information.” § 90.404(2)(c)(1). Then “the trial court must find that the prior acts were proved by clear and convincing evidence” and must assess “whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice.” McLean v. State, 934 So.2d 1248, 1262 (Fla.2006).

Here, the State contends that it provided notice in the form of its motion to include inextricably intertwined evidence. However, that motion did not contain dates, locations, or details of the uncharged sexual conduct that it sought to introduce. So it was not sufficiently particular to satisfy section 90.404’s notice requirement. Further, the trial court did not make any of the findings required by the holding in McLean.

The State also argues that any of these errors involving introduction of this collateral crime evidence was harmless. An erroneous admission of irrelevant collateral crime evidence is presumed harmful. Fitzsimmons v. State, 935 So.2d 125, 128-29 (Fla. 2d DCA 2006). The State has not proven that “there is no reasonable possibility that the error contributed to the conviction.” See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The evidence of these collateral crimes was extremely prejudicial, minimally relevant, and became a feature of the trial. See McLean, 934 So.2d at 1256 (holding that collateral crime evidence cannot become a feature of the trial).

Conclusion

Both the errors in jury selection and in admitting the collateral crime evidence require reversal. Accordingly, we reverse and remand for a new trial.

KELLY and WALLACE, JJ„ Concur.

      . Melbourne involved race-based discrimination during jury selection. These same guidelines apply to claims of gender-based discrim-¡nation. See Welch v. State, 992 So.2d 206 (Fla.2008) (reversing defendant’s death sentences and remanding for a new penalty phase when the trial court declined the defendant's request for a gender-neutral reason for the State’s peremptory strike); Johnson v. State, 27 So.3d 761, 763 (Fla. 2d DCA 2010).


author: WHATLEY, Judge.

text:
    Ascour NATAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5667.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.

      Joseph P. Klock, Jr. and Hilton Napoleon, II, of Rasco Klock Reininger Perez, Coral Gables, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Ascour Natan appeals his convictions of aggravated stalking and arson. He raises several issues on appeal, and we find that the error committed by the bailiff in handling an improperly tagged piece of evidence sent back with the jury during deliberations requires reversal for a new trial.

Several days after the jury returned its verdict finding Natan guilty as charged, the assistant state attorney (ASA) who prosecuted the case sent a letter to the trial court and Natan’s counsel informing them of actions by the bailiff. The ASA stated that as the verdict was being returned, the bailiff told him that the jury had advised the bailiff that a piece of evidence introduced during trial and sent back with the jury during its deliberations had an extra tag on it. Apparently, in addition to being properly tagged for Na-tan’s case, the evidence was also improperly tagged in someone else’s case. The bailiff brought the evidence to the courtroom, showed it to the ASA, and advised him that he had taken care of the situation, the ASA had some help, and not to bring it up. The ASA wrote in his letter that although he had gotten to know the bailiff and believed his comments were likely made in jest, he believed he had to disclose the comments. We commend the ASA for his disclosure.

The Florida Supreme Court applies a “per se reversible error rule when a bailiff has unsupervised communications with a jury. See State v. Merricks, 831 So.2d 156, 161 (Fla.2002).... ” Johnson v. State, 53 So.3d 1003, 1008 (Fla.2011). See also § 918.07, Fla. Stat. (2007) (prohibiting officers in charge of jurors from communicating with jurors “on any subject connected with the trial”). Although we do not know if the bailiff in this case said anything to the jury when it advised him of the improper tag, because he told the ASA that he had taken care of the situation, the ASA had some help, and not to bring it up, we must reverse Natan’s convictions and remand for a new trial.

Reversed and remanded with directions.

DAVIS and KELLY, JJ., Concur.


author: GASKINS, J. STEWART, J.,

text:
    Shauna Kay BICKHAM, Née Howard, Plaintiff-Appellee v. Ewell Dewitt BICKHAM, M.D., Defendant-Appellant.
    No. 46,264-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2001.
    Rehearing Denied April 7, 2011.

      Charles E. Griffin, II, St. Francisville, for Appellant.
    John Scott Sartin, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

12Ewell Dewitt Bickham appeals from a trial court judgment which designated his former wife, Shauna Kay Bickham, as the domiciliary parent of their six-year-old son, set child support, granted the father the tax credit for the child every third year, and awarded interim spousal support. We affirm.

FACTS

The mother and the father were married in November 2004. It was the second marriage for the mother. She and her first husband had a son, J.S. (born in August 1992). The father had been married three times prior to his marriage to the mother. He and his third wife had two sons: D.B. (born in June 1998) and T.B. (born in August 1999). Together, the parties had one son, C.B. (born in February 2005).

During the marriage, the couple lived in East Feliciana Parish. The father worked as an emergency room physician while the mother was a stay-at-home mother carrying for her sons and her stepsons. The couple separated several times during the marriage; their final separation occurred in September 2007 at which time the mother moved to Richland Parish with C.B. and J.S. The parties shared physical custody of C.B., alternating one-week periods.

In October 2007, the mother filed for divorce in Richland Parish, seeking sole custody of C.B., among other things. In November 2007, following a disagreement over custody, the mother filed for temporary sole custody; the parents were awarded temporary shared custody by which they alternated one-week custody periods. The parents agreed that neither parent would have overnight guests of the opposite sex in the child’s presence. In December 2007, the parents entered into an interim stipulated judgment by which shared custody was continued and the father agreed to pay child support of $890 per month. In lieu of interim spousal support, he also agreed to maintain the mother and C.B. on his medical insurance and maintain the mother’s car insurance and cell phone contract.

|3In August 2009, the father filed a rule for ex parte custody and restricted visitation. He also sought to restrict anyone other than immediate family members from being present during the mother’s periods of custody and to prohibit anyone from using corporal punishment on C.B. The father alleged that the mother had a male companion living in her home, that he slept in the same bed with the mother and C.B., and that she allowed the man to spank C.B. The only portion of the request that the trial court granted was that the mother’s older son, J.S., be the only other person living with her when C.B. was present. In October 2009, the father filed another request for sole custody, this time alleging that the mother was inadequate in her supervision of her older son. He further asserted that the wife of the mother’s alleged boyfriend had an order of protection against the man.

The case was tried on November 12, 2009, March 26, 2010, and March 31, 2010. At the end of trial, the trial court allowed the parties additional time to submit financial information; this included an option to depose the parties if needed. On July 16, 2010, the trial court issued a thorough and thoughtful 63-page written opinion giving reasons for judgment. The court found that both parents failed to prove by clear and convincing evidence that sole custody was in the best interest of the child. Given the distance between the parents’ residences (more than two hours by car) and the child being of age to attend kindergarten in the fall of 2010, continuing shared equal custody was not an option. Joint custody was awarded with the mother being the domiciliary parent. The trial judge painstakingly evaluated all of the La. C.C. art. 134 factors in reaching this decision. Among the reasons given for this ruling were the fact that she had been the child’s primary caregiver for most of his life, her greater willingness to cooperate with the other parent, her ability to give the child her full attention, and previous incidents of physical and verbal abuse by the father against his two older sons. Noteworthy facts mentioned in the trial court’s opinion include the following: C.B. enjoys close relationships with all three of his half-brothers; each parent lost custody of the child/children from a former marriage due to allegations of misconduct (the mother for facilitating inappropriate behavior by J.S. and the father for physical and l4verbal abuse of his older sons); and the father’s older sons have been in counseling since 2004 because of the bitter conflict between their parents. Also, the father hired private detectives to obtain evidence of the mother’s alleged romantic relationships, and the father apparently does not admit to any personal shortcomings in the failures of his four marriages.

On the issue of interim spousal support, the court awarded $800 per month from November 12, 2007, to June 15, 2010; the father was allowed to deduct any amounts he spent during that period on the mother’s cell phone contract and medical and auto insurance. However, finding that the spouses were mutually at fault, the court denied the mother final periodic support. The father’s monthly child support was set at $1,200; however, it was reduced to $800 per month in June and July and $1,000 in August, since C.B. would be spending most of the summer with the father. On the issue of federal and state tax credits for C.B., the court ordered a rotation whereby the father received this benefit every third year. Judgment was signed September 15, 2010.

The father appeals.

CHILD CUSTODY

Law

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. Joint custody is preferred unless it is shown by clear and convincing evidence that sole custody is in the best interest of the child. La. C.C. art. 132. Custody determinations are made on a case-by-case basis. Robert v. Robert, 44, 528 (La.App.2d Cir.8/19/09), 17 So.3d 1050, writ denied, 2009-2036 (La.10/7/09), 19 So.3d 1.

The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Semmes, supra; Robert, supra.

The trial court has vast discretion in deciding matters of child custody and visitation. Slaughter v. Slaughter, 44,-056 (La.App.2d Cir.12/30/08), 1 So.3d 788; Semmes, supra. This discretion is based on the trial court’s opportunity to better evaluate the credibility of the witnesses. Slaughter, supra; Semmes, supra; McCready v. McCready, 41,026 (La.App.2d Cir.3/8/06), 924 So.2d 471. Therefore, its determination will not be disturbed absent a clear showing of an abuse of discretion. Semmes, supra. As long as the trial court’s factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not reverse even though convinced it would have weighed the evidence differently if acting as the trier of fact. Slaughter, supra.

Discussion

The trial court carefully considered each of the factors set forth in La. C.C. art. 134. It found that the mother had the advantage in four areas (the love, affection, and other emotional ties between each party and the child; the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child; the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party; and the responsibility for the care and rearing of the child previously exercised by each party), the father in three areas (the capacity and disposition of each party to provide the child with food, clothing, medical care and other material needs; the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment; and the permanence as a family unit, of the proposed custodial homes), and that neither could claim superiority in three areas (the moral fitness of each party, insofar as it affects the welfare of the child; the mental | fiand physical health of each party; and the home, school and community history of the child). Because of his age, the child’s preference was not a factor, and the distance between the respective residences of the parties mandated that shared custody was no longer an option for this now school-age child.

Neither parent presented clear and convincing proof that sole custody was in the best interest of the child. The evidence overwhelmingly demonstrated that the child was thriving in the shared custody of his parents. Therefore, the issue before us is whether the trial court abused its discretion in designating the mother as the domiciliary parent under a joint custody plan.

The father essentially argues that he is superior to the mother in every area. In particular, he attacks the mother’s moral fitness, accusing her of sexual relationships with multiple men. However, the father’s proof on this issue is scant. His main evidence came from a private investigator and the wife of an alleged paramour, who were — at best — poor witnesses. Even assuming arguendo that the mother had any such relationships, there is nothing in this record to suggest that the child’s welfare has been adversely affected as a result. See Hobbs v. Hobbs, 42,353 (La.App.2d Cir.8/15/07), 962 So.2d 1148. The father also assails the mother’s supervision of her elder son, J.S. However, the evidence demonstrated that this young man is a hard worker and a good student who was about to commence his college education. After he was emancipated at the instigation of his father, he opted to live with his elderly paternal grandparents to help care for them instead of living with his mother, with whom he has a close and loving relationship. Most importantly, J.S. has a close and loving relationship with his younger half-brother, C.B., and there is nothing in this record to suggest that anything related to J.S. has adversely affected the boy. Furthermore, the trial court was apparently satisfied that the mother had not condoned any inappropriate behavior by J.S.

The factor which the father claims weighs heaviest in his favor is the fact that if he is named domiciliary parent, C.B. will grow up with and attend school with the father’s two older sons, who are closer in age to him than J.S. The record shows that C.B. has good relationships with all three of his 17half-brothers. No evidence established that it would be in C.B.’s best interest to live with his father, where he would be one of three children vying for attention, as opposed to living with his mother, where he would be the recipient of his mother’s undivided attention while J.S. is away at college. Even a psychologist called by the father who testified that C.B.’s brothers are important to him and he should spend time with them declined to make a recommendation as to custody because she had not conducted a full custody evaluation. The trial court recognized the importance of C.B. spending time with his brothers and endeavored to craft a joint custody plan which would afford him such time.

The trial court had the advantage of viewing the .witnesses. It carefully weighed and considered their testimony before concluding that the best interest of C.B. would be served by naming his mother as his domiciliary parent. In so deciding, the trial court emphasized several important factors: the mother’s role as C.B.’s primary caregiver for much of his young life and her ability to provide him with consistency of care; her greater willingness to cooperate with the father; her ability to offer C.B. her full attention in a loving and comfortable home environment; and the father’s past incidents of unduly harsh discipline of his older sons. Although the father denied these incidents and argued that the allegations were irrelevant to C.B.’s custody, the evidence demonstrated that the custody situation involving the older boys was contentious at best and had resulted in a continuing need for psychological counseling for these children.

We find no abuse of the trial court’s discretion. Accordingly, we affirm the trial court’s designation of the mother as domiciliary parent under a joint custody plan.

CHILD SUPPORT

Mother’s Income

La. C.C. art. 227 provides that parents, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. The obligation to support their children is conjoint upon the | ^parents and each must contribute in proportion to his or her resources. Kirkpatrick v. Kirkpatrick, 41,-851 (La.App.2d Cir.1/24/07), 948 So.2d 390.

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq.; Kirkpatrick, supra. The guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children in an efficient, consistent and adequate manner. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. La. C.C. art. 141. An appellate court is not to disturb the trial court’s factual findings absent an abuse of its discretion or manifest error. Resell v. ESCO, 549 So.2d 840 (La.1989); Kirkpatrick, supra.

Discussion

The father contends that the trial court erred in calculating child support because it did not consider the mother’s “true” income. He maintains that the mother’s bank statements — which are included in the record as a proffer — showed deposits for 2009 averaging more than $5,000 per month. Although given the option of deposing the mother on financial matters after the trial, the father elected not to do so. Consequently, the record fails to demonstrate whether these funds were income.

In setting child support, the trial court utilized the figures from the parties’ respective income tax returns. It then allowed the father a downward deviation based upon his obligation to support his two older sons. It further reduced the father’s child support obligation for C.B. during the summer months when the child would be primarily residing with the father. We find no error in the trial court’s calculation of child support in the instant case.

TAX CREDITS

Law

In relevant part, La. R.S. 9:815.18 provides:

A. The amounts set forth in the schedule in R.S. 9:315.19 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section.
|qB. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obli-gor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

Both elements of La. R.S. 9:815(B)(1) must be satisfied in order for the nondomiciliary parent to be entitled to the tax dependency deduction. Harrington v. Harrington, 43,373 (La.App.2d Cir.8/13/08), 989 So.2d 838. If there is no evidence to prove that the income tax deduction would substantially benefit the nondomiciliary parent, without substantially harming the domiciliary parent, the non-domiciliary parent has not proven entitlement. See Neill v. Neill, 33,398 (La.App.2d Cir.6/21/00), 764 So.2d 235; Semmes, supra; Harrington, supra.

Discussion

The father asserts that the trial court erred in awarding him tax credit for C.B. only every third year. He contends that as nondomiciliary parent, he should receive the tax benefit for the child every year because he would be paying more than two-thirds of the designated expenses associated with C.B. The mother argues that since the father, as nondomiciliary parent, failed to establish that the deduction would substantially benefit him and that taking the deduction from the mother would not significantly harm her, he should not have been allowed to claim the boy even every third year.

In determining this issue, the trial court candidly admitted that it did not recall any evidence being presented on the issue of substantial benefit to the father and significant harm to the mother. It crafted its solution of rotating the tax credit in an attempt to be equitable to both parties.

Since no evidence was submitted to prove that the income tax deduction would substantially benefit the father as the non-domiciliary parent, without substantially harming the domiciliary parent, the father is the one who has not proven entitlement. Accordingly, the trial court erred in allowing the father the deduction every third year. Since the mother did not |inappeal from the trial court judgment, we cannot grant her relief on this issue. Accordingly, we affirm the trial court judgment as to the awarding of the tax credit.

INTERIM SPOUSAL SUPPORT

Law

In a proceeding for divorce, the court may award an interim periodic support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. arts. Ill and 113; Brown v. Brown, 44,989 (La.App.2d Cir.1/27/10), 31 So.3d 532; Kirkpatrick, supra.

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Brown, supra. A spouse’s right to claim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage and thus provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. Brown, supra. The needs of the wife have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay. Brown, supra; Kirkpatrick, supra.

Once the claimant spouse has established need, the court must examine the ability of the payor spouse to provide support. Brown, supra.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Brown, supra; Kirkpatrick, supra. An abuse of discretion will not be found if the record supports the trial court’s conclusions about the needs of the claimant spouse or the means of the payor spouse and his or her ability to pay. Brown, supra.

There is no requirement in the Louisiana Civil Code or our jurisprudence that the court must make a determination of fault prior to awarding interim spousal support. Interim support is based solely on the |nneed of the claimant, the non-claimant’s ability to pay, and the standard of living enjoyed during the marriage. Brown, supra.

Discussion

The father argues that the trial court erred in granting interim spousal support to the mother. Our review of the record reveals no such error. The trial court meticulously reviewed the financial evidence in the record and applied the correct legal standard in awarding the mother interim spousal support from November 12, 2009, the first day of trial, until June 15, 2010,180 days after the judgment of divorce. The father was given appropriate credits for his payments of the mother’s health and car insurance and her cell phone plan pursuant to the interim stipulated judgment.

Accordingly, we affirm the trial court’s award of interim spousal support to the mother.

TIME RESTRICTIONS

Law

La. C.C.P. art. 1631(A) recognizes the court’s power to require that proceedings be conducted with dignity and in an orderly and expeditious manner and to control trial proceedings so that justice is done. The trial court has great discretion in directing the manner in which proceedings are conducted, and only upon a showing of a gross abuse of that discretion will the appellate court intervene. Youngblood v. Lee, 40,314 (La.App.2d Cir.11/2/05), 914 So.2d 1186, writ denied, 2006-0088 (La.4/17/06), 926 So.2d 522; Teague v. Teague, 44,005 (La.App.2d Cir.11/25/08), 999 So.2d 86.

In Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993), unit denied, 623 So.2d 1340 (La.1993), this court set forth general guidelines to be followed by a trial judge who found it necessary to impose time limits on the presentation of evidence. In that case, we reasoned that a litigant has the right to present all evidence that he or she possesses with regard to a contested issue at trial if the evidence is relevant, admissible, and not cumulative. However, this right is limited by La. C.E. art. 403, regarding evidence where the probative value is substantially outweighed by undue delay and waste of time, and by the power granted to trial judges in La. C.C.P. art. 1631 to ensure that relevant, admissible, and noncumulative evidence is presented in such a way that time will not be unnecessarily | ^wasted. Due process does not mean litigants are entitled to an unlimited amount of the trial court’s time. This court then stated that in imposing time limits to carry out this objective, the trial court should consider the following: (1) before imposing time limitations in a case, the trial judge should be thoroughly familiar, through pretrial proceedings, with the claims of the parties, the proposed testimony and number of witnesses, and the documentary evidence to be presented; (2) if they are used, time limits should be imposed on all parties, before any party presents any evidence, and sufficiently in advance of trial for the litigants to prepare for trial within the limits imposed; (3) the trial judge should inform the parties before the trial begins that reasonable extensions of the time limits will be granted for good cause shown; (4) the trial judge should develop an equitable method of charging time against each litigant’s time limits; and (5) the trial judge should put all of his rulings regarding time limits and the reasons for the rulings on the record. Additionally, we held that these guidelines are not exclusive and do not cover all contingencies, and that the court should also use its common sense and sound discretion to ensure that relevant, admissible, and noncumulative evidence is presented in a timely fashion so that justice is done.

Discussion

Finally, the father contends that the trial court erred in placing time constraints on the presentation of evidence. In particular, he asserts that the time constraints placed on trial of the matter prevented him from cross-examining the mother on financial matters. We note at the outset that the father failed to contemporaneously object to the time constraints — of which he was well aware — at trial. Although the court originally gave each side five hours in which to present evidence, it later opted to increase the time to six hours per side. Additionally, the parties were given alternatives to present additional evidence if necessary, i.e,, the option to depose witnesses and submit their depositions in lieu of live testimony; however, the father failed to avail himself of that opportunity.

Our review of the record reveals that the trial court utilized its common sense and sound discretion in formulating a workable timetable for l^the presentation of evidence in the instant case. Finding no abuse of the trial court’s great discretion, we reject the father’s argument on this issue.

CONCLUSION

We affirm the trial court judgment. Costs of this appeal are assessed to the father.

AFFIRMED.

STEWART, J., concurs with reasons.

STEWART, J.,

concurring.

I concur with all aspects of the majority opinion, except I would find that under La. R.S. 9:315.18 the father was entitled to the right to claim the annual federal and state dependency deductions and any earned income credit.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY and MOORE, JJ.

Rehearing denied.

      . During the marriage, the mother traveled to Rayville every other week to exercise her right to joint custody of J.S.; C.B. accompanied her to Rayville during these periods.
      The father became domiciliary parent of D.B. and T.B. in July 2006 after their mother moved to Ohio.

      . In December 2009, the parties were divorced.

      . The factors listed in La. C.C. art. 134 include: (1) the love, affection, and other emotional ties between each party and the child: (2) the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child; (3) the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs; (4) the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment; (5) the permanence, as a family unit, of the existing or proposed custodial home or homes; (6) the moral fitness of each party, insofar as it affects the welfare of the child; (7) the mental and physical health of each party; (8) the home, school, and community history of the child; (9) the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference; (10) the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party; (11) the distance between the respective residences of the parties; and (12) the responsibility for the care and rearing of the child previously exercised by each party.

      . This psychologist praised both parents and noted that C.B. appeared to be adjusting to the changes in his custody better than the father's two older sons were handling their custody situation. She attributed this to the parents’ efforts to avoid conflict in C.B.’s presence. She also praised the mother for her efforts in conjunction with issues related to the father’s two older sons.


author: MOORE, J.

text:
    CITIBANK (SOUTH DAKOTA) N.A., Plaintiff-Appellee v. Johnathan MAYO, Defendant-Appellant.
    No. 45,945-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Johnathan Mayo, In Proper Person.
    W. Jarred Franklin, for Appellant.
    Edward F. Bukaty, III, Metairie, Warren W. Wingerter, Jr., for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

h Johnathan Mayo appeals a summary judgment ordering him to pay the balance on a Citibank (South Dakota) NA MasterCard account, $16,233.84, plus contractual interest of 29.99% and an attorney fee of 25%. For the reasons expressed, we amend and affirm.

Procedural History

Citibank’s petition alleged that Mayo agreed to the terms of the account agreement when he opened the account; he failed to pay despite amicable demand; and Citibank had previously sent him a demand letter that complied with La. R.S. 9:2781, entitling it to an attorney fee. Mayo answered, in proper person, that all Citibank’s information was false and he never executed any document with respect to this MasterCard account.

Citibank then filed this motion for summary judgment. In support, it attached the affidavit of Leola Phenix, an agent for Citicorp Credit Services, which does debt collection for Citibank. She stated that Mayo applied for the MasterCard by phone on May 23, 2002; he received with the card a “card agreement” setting out all terms and conditions; he accepted these by using the card and making some payments; but he still owed $16,233.84. She attached certified copies of (1) the latest card agreement, dated June 2006, (2) Mayo’s monthly statements from June 2002 through February 2008, and (3) the last four checks for payments on the account. By statement of uncontested facts, Citibank asserted that the card agreement has been amended over the years, but Mayo consented to each change by continuing to use the card, and that the 2006 version attached to Ms. Phenix’s affidavit was the current version. In support of its motion for summary judgment, Citibank argued that Mayo had never contested this account, and because the card ^agreement specified acceptance by using the card, no signed agreement was necessary. Bank of Louisiana v. Berry, 94-576 (La.App. 5 Cir. 12/14/94), 648 So.2d 991.

Mayo opposed the motion, reiterating that Citibank had produced no document bearing his signature, only a copy of the card agreement, and that Ms. Phenix neither was an employee of Citibank nor had any personal knowledge of the account. By affidavit he asserted “no recollection of ever executing any document with regard to any credit card account that is the subject of this lawsuit[.]” Mayo waived his appearance at the hearing.

After a brief hearing, the city court granted summary judgment as prayed for. Mayo retained counsel and filed this devol-utive appeal, raising three assignments of error. After receiving a copy of Mayo’s appellate brief, Citibank moved to supplement the record, pursuant to La. C.C.P. art. 1474 C(3), with copies of the discovery responses it had mailed to Mayo but not filed in the court record. The city court ordered supplementation on November 19, 2010.

Discussion

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The mover need not negate every essential element of the opponent’s claim, action or |sdefense; he need only point out the absence of factual support for one or more essential element. La. C.C.P. art. 966 C(l). If the opponent then fails to produce support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37. Appellate courts review summary judgments de novo, using the same criteria that govern the lower court’s grant or denial of the motion. Hill v. Shelter Mutual Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691.

By his first two assignments of error, Mayo urges the court was clearly wrong in holding the evidence sufficient to prove that he entered a contractual agreement with Citibank and in failing to assign any weight to his own affidavit disputing the account debt. He concedes that under Bank of Louisiana v. Berry, supra, no signed document was needed, but argues that Citibank failed to prove that he, Mayo, actually used the card. He shows that under 15 U.S.C. § 1643(b), the card issuer must prove that the use of the card was authorized, and argues that other jurisdictions have strictly enforced this. Crestar Bank NA v. Cheevers, 744 A.2d 1043 (D.C.App.2000); Michigan Nat’l Bank v. Olson, 44 Wash.App. 898, 723 P.2d 438 (1986). He also argues that if, as alleged by Citibank, this account was opened in 2002, it cannot possibly be governed by a card agreement dated June 2006, an anomaly which he contends defeated Citibank’s motion for summary judgment in Citibank South Dakota NA v. Stanford, 42,191 (La.App. 2 Cir. 5/9/07), 956 So.2d 756. Finally, he contends that Ms. Phenix’s affidavit was entitled to no weight as she works for a nonparty to the case and did not establish any personal knowledge of the claim, while by contrast his own |4affidavit swears “that he has never seen these statements prior to this litigation and * * ⅜ never used the card to incur any of the charges listed,” and hence creates a genuine issue.

Citibank concedes its burden of proving authorized use under 15 U.S.C. § 1643(b). It contends, however, that under another provision of the Consumer Credit Cost Disclosure law, 15 U.S.C. § 1666(a), any obligor who wishes to dispute a credit statement must give the creditor, within 60 days of the statement, written notice which “indicates the obligor’s belief that the statement contains a billing error and the amount of such billing error[.]” Citibank argues that Mayo never challenged any statement; to the contrary, he made many payments and continued using the card. Citibank concludes that it is too late for Mayo to argue that his lengthy credit history was all unauthorized use.

The record fully supports Citibank’s position. The certified copies of Mayo’s monthly statements show thát he made two large balance transfers to this account, $5,000 in 2002 and $7,200 in 2004, which he paid off by April 2005; however, he made additional balance transfers of over $7,400 later in 2004 and a took a cash advance of $2,250 in 2006, after which he made only minimum payments. The final payment was a check drawn on Mayo and his -wife’s joint account for $323.00 on September 1, 2006, and signed by his wife. Simply put, Mayo never contested any statement as he might have under 15 U.S.C. § 1666(a); this distinguishes his position from that of the obligor in Michigan Nat’l Bank v. Olson, supra. Moreover, Mayo’s continued use of the card and solid payment history (at least until September 2006) refute any claim of persistent unauthorized use, unlike the situation in | Crestar Bank NA v. Cheevers, supra. The summary judgment evidence is not sufficient to create a genuine issue of material fact as to whether any or all of the charges to Mayo’s MasterCard were authorized.

The June 2006 version of the card agreement contains a paragraph labeled “Changes to this Agreement,” printed in boldface, stating that Citibank may change the terms of the agreement “at any time for any reason” and “these changes are binding on you.” It further states:

If you do not agree to the change, you must notify us in writing within 25 days after the effective date of the change and pay us the total balance, either at once or under the terms of the unchanged Agreement. Unless we notify you otherwise, use of the card after the effective date of the change shall be deemed acceptance of the new terms, even if the 25 days have not expired.

The record shows that after this notice of change took effect in June 2006, Mayo made a payment on the account on September 1, 2006, and took a cash advance of $2,250 on October 19, 2006. These actions constituted acceptance of the June 2006 agreement. Further, all the attachments to Ms. Phenix’s affidavit were certified as required by La. C.C.P. art. 967 A, thus distinguishing the case from Citibank South Dakota NA v. Stanford, supra.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967 A. Ms. Phenix’s affidavit stated that she was employed by Citicorp Credit Services Inc. (USA), which provides debt collection for Citibank; Citibank’s account records are electronically maintained on computer systems in the ordinary course of its business by persons with personal knowledge of the events, or from information | (¡transmitted by someone with personal knowledge of the events; as part of her job Ms. Phenix has access to these records and reviewed Mayo’s account history; and he still owed a balance of $16,233.84. This adequately established her connection to Citibank’s accounts and satisfied the requirement of personal knowledge. Ford Motor Credit Co. v. Jackson, 45,447 (La.App. 2 Cir. 8/11/10), 47 So.3d 558, writ denied, 2010-2273 (La.11/24/10), 50 So.3d 830. By contrast, Mayo’s affidavit stated merely that he had “no recollection” of executing any document with regard to the credit card account. This weak denial is conelusory and does not raise a sufficient disagreement with his established use of the card and payment history over a four-year period to create a genuine issue of material fact. Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952; Sears, Roebuck & Co. v. Richardson, 32,951 (La.App. 2 Cir. 4/5/00), 759 So.2d 190. The city court did not err in finding this evidence sufficient to grant Citibank’s motion for summary judgment. These assignments lack merit.

By his third assignment of error, Mayo urges the court erred in granting summary judgment even though Citibank had not answered discovery requests. He argues that under La. C.C.P. art. 1467, these requests should be deemed admitted and the summary judgment should be vacated. As noted above, Citibank complied with La. C.C.P. art. 1474 B by not filing its discovery requests in the court record but by serving them on Mayo personally. After counsel made an issue of the apparent failure to comply, Citibank obtained supplementation of the record under La. C.C.P. art. 1474 C(3). This proves that Citibank answered Mayo’s interrogatories, requests [ 7for production and requests for admissions. There is no failure to complete discovery, and this assignment of error lacks merit.

On its own motion, however, this court notes that the June 2006 version of the card agreement, a certified copy of which was attached to Ms. Phenix’s affidavit and appears at page 22 of the appellate record, recites, “The Default APR equals the Prime Rate plus up to 23.99%, or up to 28.99%, whichever is greater.” The maximum of 28.99% is reiterated on page 23. When the contract provides for interest, the court may award it only “at the rate agreed by the parties.” La. C.C. art. 2000; Hollenshead Oil & Gas, LLC v. Gemini Explorations, Inc., 45,389 (La.App. 2 Cir. 7/21/10), 44 So.3d 809. The judgment will be amended to change the rate of interest from 29.99 to 28.99%, but is in all other respects affirmed.

Conclusion

For the reasons expressed, the judgment is amended to reflect an interest rate of 28.99%, but is otherwise affirmed. Costs are to be paid by Johnathan Mayo.

AMENDED AND AFFIRMED.