author: VICTORY, J. JOHNSON, Justice, KNOLL, J.,

text:
    Robert Malcolm GATHEN v. Vanessa K. GATHEN.
    No. 2010-CJ-2312.
    Supreme Court of Louisiana.
    May 10, 2011.
    Rehearing Denied July 1, 2011.
    Mark David Plaisance, Baker, LA, for Applicant.

      Rebecca Naquin Robichaux, Raceland, LA, for Respondent.
   VICTORY, J.

hWe granted this writ application to determine the appropriate standard of review of a trial court’s decision in a child relocation case, where the trial court does not expressly analyze each factor under La. R.S. 9:355.12 in determining whether relocation is in the best interest of the child. After review of the record and the applicable law, we find that while La. R.S. 9:355.12 mandates that the trial court consider all twelve factors listed in La. R.S. 9:355.12, its failure to expressly analyze each factor in its written or oral reasons does not constitute an error of law such that de novo review is appropriate. Where the trial court has considered the factors listed under La. R.S. 9:355.12 in determining whether relocation is in the best interest of the child or children, this determination is reviewed for abuse of discretion. In this case, the court of appeal erred in reviewing the case de novo. Utilizing the correct standard, we see no abuse of discretion in the trial court’s decision to deny the mother’s relocation request. Therefore, we reverse the judgment of the court of appeal and reinstate the trial court’s judgment denying relocation.

FACTS AND PROCEDURAL HISTORY

Robert Gathen (“Robert”) and Vanessa K. Gathen (“Vanessa”) met in the state of Washington while Robert was serving in the U.S. Navy. On January 6, | ¾1996, they were married in California where their first child, Andru, was born on August 3, 1997. Shortly thereafter, they moved to Thibodaux, Louisiana, where Robert’s family resided. Their second child, Evan, was born there on March 3, 2002. On August 5, 2005, Robert filed a petition for divorce and on October 11, 2005, a consent judgment awarded joint custody of the children with Vanessa designated as the domiciliary parent subject to Robert’s reasonable visitation. A joint implementation plan detailing the custodial arrangements was never filed. Vanessa was awarded monthly child support of $1,320.00 and was granted possession and use of the family home with Robert paying the house note.

On January 18, 2006, Vanessa notified Robert of her desire to relocate with the children to Puyallup, Washington. Robert objected and the trial court denied her relocation request in March of 2006. Vanessa did not appeal that | Judgment. The parties were divorced on April 17, 2006. On November 20, 2006, the parties executed a community property partition agreement in which they stipulated they were equally responsible for the monthly payments of the first and second mortgage notes that were secured by the family home. The parties agreed that Robert would deduct Vanessa’s share of these payments from the child support payments and pay the remainder to Vanessa. The parties agreed not to partition the family home until Vanessa could secure another suitable residence.

In March 2009, Vanessa told Robert that she intended to relocate with the children to Puyallup, Washington, and Robert initially acquiesced. However, after Vanessa filed the required written notice on March 25, 2009, Robert filed an objection to the relocation on April 24, 2009. Subsequently, on May 22, 2009, Vanessa filed a rule seeking past-due child support in the amount of $14,900.00, an income assignment, a contempt of court ruling against Robert, attorney fees, and costs.

The trial court considered the relocation request on June 30, August 6, and August 21, 2009. The evidence presented showed that Vanessa had been the primary caregiver, and that Robert worked offshore every other seven days and had physical custody of the boys twice a month for a weekend. Vanessa testified that she lived in the state of Washington with her parents from first grade until fifth grade, returned for her sophomore year of high school to live with her sister, and returned there after high school graduation, from 1993-1995, at which time she moved with Robert to San Diego. She testified that one reason she wanted to return to Washington was to be with her family, which includes her sister and two |fichildren, and her aunt. Her mother lives in Hawaii to care for her aging grandmother, but visits Washington often and plans to relocate there. Vanessa planned to live with the boys in the bottom floor of her sister’s house rent-free, which includes a living area, two bedrooms, and a full bath. In addition, the oldest child was becoming too old for after-school care, and in Washington, her aunt and sister could pick the children up after school and help her with day care until she finished work. Vanessa presented evidence that she made $10.17 per hour working as an administrative assistant for Nicholls State University, but because of budget cuts she would not receive a merit pay increase, and, Nicholls was instituting a 6 and ½ day furlough, which would decrease her annual income. She testified that a friend in Washington had offered her a job with an orthodontic lab for $15.00 per hour, which would require her to perform the same general duties she performs at Nicholls, and work with study models for various orthodontic offices in the area. Because she would be living rent-free and have an increased salary, she would be much better able to provide for her children. Vanessa testified she has no support system in Louisiana and wants to return to Washington to be with her family and to have her sons be with her family.

Robert argued that the requested relocation is for essentially the same reasons as the 2006 relocation request which was denied, except that now she has been offered a job that pays more money. He testified that his sons have lived their entire lives in Thibodaux, that they have a strong connection to his family, their friends and their school. He testified that the great distance between Louisiana and Washington would greatly diminish the children’s relationship with him and his family.

After hearing the testimony, the judge denied the relocation request with the following oral reasons:

|fiThe evidence establishes that the mother, Ms. Gathen, desires to relocate to the State of Washington for numerous reasons which include she has been offered employment at an orthodontic lab with an increase in income. Her current employer Nicholls State University is scheduled to impose a six and one-half day furlough without pay due to budget cuts, which would result in a reduction in her income. Her employer, Nicholls State University is also scheduled to impose a freeze regarding merit pay increases.
Also, Ms. Gathen has testified that her relocation to the State of Washington would economically benefit her. She would be relieved of the necessity to pay day care expenses because her sister residing in Washington is a homeowner.
Ms. Gathen has also testified that the child Andrew [sic] can no longer attend day care. And there, is the potential that there would be a period of time after school when there would be difficulty in providing adequate supervision.
Also, Ms. Gathen has testified that initially should she relocate to the State of Washington, she would live with her sister. She testified that she was raised in the State of Washington and that she has lived with her sister in Washington at time periods in the past.
She has also stated that a consideration for her desire to relocate to the State of Washington is that she would live closer to her mother, who is a resident of Hawaii.
Mr. Gathen opposes the relocation to the State of Washington. He has provided proof that the children have resided predominantly within the State of Louisiana and within the Parish of La-fourche. The child Evan has lived his entire life within the State of Louisiana and the child Andrew [sic] has lived more than ten years of his life within the State of Louisiana.
The evidence proves that the children have attended all of their time in school in Lafourche Parish. Andrew [sic] has attended school for six years now and Evan has now attended pre-K and kindergarten.
Mr. Gathen has testified that he has a close — that the children have a close relationship with his mother and his aunts and that testimony has been supported by the testimony of his mother and aunt. .
Mr. Gathen also submits that the relocation would significantly limit the children’s contact with their father and the father’s family.
Mr. Gathen also argues or has presented evidence that the children have had a limited relationship with the aunt who lives in the State of Washington. The evidence presented is that this aunt has visited the State of Louisiana approximately two times and that the children and Ms. Gathen visit with the aunt in Washington approximately one time each year during the Christmas break.
17This evidence which has been presented to the Court causes the Court to determine that the relocation of the children to the State of Louisiana would have a significant adverse effect on the children. A relocation to the State of Washington would result in a change of the schools that the children have attended. Andrew [sic] has attended school for a period of six years and Evan has attended pre-K and kindergarten.
Also, a relocation to the State of Washington would remove Andrew [sic] from the friends that he has enjoyed while living here in the State of Louisiana.
A relocation to the State of Washington would limit the children’s contact and, therefore, limit their relationship with their father due to the great distance between the State of Louisiana and the State of Washington. The relocation to the State of Washington would also limit the contact and, therefore, significantly limit the relationship the children have with their paternal grandmother and paternal aunts, again, due to the significant distance between the State of Louisiana and the State of Washington. And the evidence proves that the children have a limited relationship with the maternal aunt who they would reside with in the State of Washington.
Although the child has indicated a preference to live in the State of Washington, the Court will not give any significant weight to the determination of an eleven year old child as to what is in his best interest.
There is no competent evidence before the Court that the educational opportunities in the State of Washington are any greater than the educational opportunities available to the children in the State of Louisiana.
It is for these reasons that the Court will deny the intended relocation of the minor children to the State of Washington.

With two judges dissenting, a five-judge panel of the First Circuit Court of Appeal reversed, finding that a de novo review of the record was necessary because the trial judge “did not articulate its best-interest determination utilizing each of the statutorily-required factors set forth in La. R.S. 9:355.12, factor by factor.” Gathen v. Gathen, 10-0439, p. 7, 46 So.3d 283, 2010 WL 4151880 (La.App. 1 Cir. 9/15/10) (unpublished). Utilizing a de novo standard of review, the court of appeal allowed relocation finding that “factors 2, 3, 5, 6, 8 and 11 weigh in favor of Vanessa and the remaining factors favor neither party.” Id. at p. 16. Further, even under the | ^manifest error standard of review, the court of appeal found the trial court abused its discretion in denying relocation because “mindful of the express statements about the evidence relative to the statutory factors, we cannot say that the evidence as a whole preponderated in favor of the reasonableness of the trial court’s decision.” Id. at p. 17. We granted Robert’s writ application to determine whether La. R.S. 9:355.12 requires that a trial court expressly analyze each of the listed factors in oral or written reasons in making a relocation determination; and, if it does not, to determine the appropriate standard of review. Gathen v. Gathen, 10-2312, 49 So.3d 875, 2010 WL 4940049 (La.11/12/10).

DISCUSSION

A divorced parent seeking to relocate with his or her children to another state bears the following burden of proof:

The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.

La. R.S. 9:355.13. In determining the best interest of the children, La. R.S. 9:355.12 lists the following factors to be considered:

A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelo-eating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
|fl(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.

In Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094, we first discussed the burden of proof in a relocation case. We stated that as in divorce, adoption, and termination of parental rights cases, “Louisiana’s relocation statutes retain the ‘best interest of the child’ standard as the fundamental principle governing decisions made pursuant to its provisions.” 828 So.2d at 1096. As explained, the relocation statutes govern the relocation of a child’s principal |inresidence to a location outside the state, or, if there is no court order awarding custody, more than 150 miles within the state from the other parent, or, if there is a court order awarding custody, more than 150 miles from the domicile of the primary custodian at the time the custody decree was rendered. Id. Pursuant to La. R.S. 9:355.13, the relocating parent has the burden of proving that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. In determining the child’s best interest, the court must consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life. La. R.S. 9:355.13. In Curole, we explained that by placing this two-part burden on the relocating parent and placing no burden on the nonrelocating parent, the legislature chose to assign a very heavy burden to the relocating parent to prove that relocation is in the best interest of the child. Curole, supra at 1097.

After listing the factors provided in La. R.S. 9:355.12, we stated “[t]his statute mandates that all of the factors set forth be considered by the court.” Id. at 1097. “It does not, however, direct the court to give preferential consideration to certain factors.” Id. Finally, Curóle set forth the appropriate standard of review as follows: “[a] trial court’s determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion.” Id. at 1096.

In Courts of appeal have differed somewhat on Curóle’s meaning. In H.S.C. v. C.E.C., 05-1490 (La.App. 4 Cir. 11/8/06), 944 So.2d 738, the Fourth Circuit held that where the record does not support a finding that the trial court actually considered each separate factor of La. R.S. 9:355.12, de novo review, rather than reversal, was the appropriate remedy. However, proof that the trial court actually considered each factor “might be adduced from other than a rigid formulaic factor by factor analysis by the trial court....” Cf. McLain v. McLain, 07-0752 (La.App. 4 Cir. 12/12/07), 974 So.2d 726, 736 (statute does not require that judge must expressly analyze each factor). The Fifth Circuit has also held that where the record does not support a finding that the trial court actually considered each 112factor, prejudicial legal error has occurred and the court of appeal may remedy the deficiency by de novo review of the record. Johnson v. Spurlock, 07-949 (La.App. 5 Cir. 5/27/08), 986 So.2d 724, 728, unit denied, 08-1400 (La.7/25/08), 986 So.2d 670. The Third Circuit has held that even where the written reasons only mention certain of the factors, “the trial court’s decision to emphasize only certain factors does not, in and of itself, constitute error.” Jarnagin v. Jamagin, 09-903 (La.App. 3 Cir. 12/9/09), 25 So.3d 1028, 1033; see also Miller v. Miller, 01-0356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Lastly, in a case where the trial court only expressly considered certain factors, the Second Circuit applied the manifest error standard and held that the trial judge properly focused on the best interest of the children and conducted an “overall analysis” of the factors. Bingham v. Bingham, 44,292 (La.App. 2 Cir. 5/13/09), 12 So.3d 448, 452. One finding common to all these cases is that where it can be determined that the trial court considered the factors, de novo review is inappropriate.

Based on our review of the law, we find that the trial court is not required to expressly analyze each factor in its oral or written reasons for judgment in a relocation case. Not only does La. R.S. 9:355.12 not expressly require it, but a trial court is never required to give oral reasons and is not required to give written reasons for its “findings of fact and reasons for judgment” unless requested by a party in most types of non-jury cases. La. C.C.P. art. 1917. Had either party desired the trial court’s findings of fact and reasons to be in writing, they could have asked. Further, if the legislature had intended the trial court to expressly analyze each and every factor in either oral or written reasons, it could have provided so. Consequently, we find the trial court’s failure to expressly analyze each factor does not constitute an error of law that would allow de novo review. See Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731, 735 (where one or |13more legal errors interdict the fact-finding process, if the record is complete the court of appeal must conduct a de novo review of the record). The appropriate standard of review, as stated in Curóle, is that the trial court’s relocation determination is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion.

That being said, it is readily apparent that a trial court’s failure to expressly analyze each factor makes appellate review for abuse of discretion somewhat difficult. Most certainly an articulation of the trial court’s consideration of each of the factors would better facilitate appellate review. However, based on the reasons given, we can assume that the trial court discussed the factors it felt were decisive to the case, and did not discuss the factors that it believed were not as important and should not be given much weight. As La. R.S. 9:355:12 “does not ... direct the court to give preferential consideration to certain factors,” Curole, supra at 1097, the trial court is free to give whatever weight it deems appropriate to each of the factors. Thus, upon review, it is appropriate for a reviewing court to look to the reasons and factors the trial court did expressly take into account in reaching its ultimate determination, and, for the factors the trial court did not expressly discuss, it is appropriate for the reviewing court to determine whether the trial court’s failure to give weight to these factors led the court to abuse its discretion in reaching its ultimate determination on relocation. Our review follows.

As stated earlier, a relocating parent must prove that the move is in good faith and in the best interest of the child or children. La. R.S. 9:355.13. There is no dispute that Vanessa proved her proposed relocation was in good faith. She testified that she wished to move to Washington to be closer to her family and to pursue an employment opportunity and housing situation that would be beneficial to her. Although Robert claimed the move was not made in good faith in opposing 114the relocation, he presented no evidence that the relocation request was not made in good faith.

Secondly, the court must determine whether relocation would be in the best interest of the children considering the twelve factors enumerated in La. R.S. 9:355.12. In this case, it is significant that this same trial judge considered and denied a relocation request from Vanessa just three years earlier and most of the facts supporting the relocation were the same. Inevitably, the trial judge was cognizant of the considerations he made in 2006. Thus, regarding the facts that remain the same in 2006 and 2009, we will take into account the considerations he made in 2006 in reviewing his decision to deny relocation.

The first factor the court must consider is the nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the children’s lives. The trial judge was well aware of the custody arrangement between the parents and knew the mother was the primary caretaker. He found that the children’s involvement with their father’s relatives in Thibodaux was substantial, while their involvement with their mother’s relatives in Washington was “limited.”

The second factor is the age, developmental stage, needs, and likely impact the relocation would have on the child’s physical, educational, and emotional development, taking into account any special needs of the child. In his 2006 reasons, the trial judge considered that Andru had been attending school for three years, was doing well there and had developed a circle of friends at the school that would end if her were to relocate. In its 2009 reasons, he recognized that there would be a problem with daycare for Andru if they were to remain in Louisiana which would be solved by a move to Washington. However, he also considered 11sthat Andru had attended school in Thibodaux for six years and Evan for two years and a move would result in a change in schools that the children have attended, which apparently he found would be detrimental, and Andru would be removed from his friends in Thi-bodaux. Finally, he found no evidence that the educational opportunities are better in Washington than they are in Thibo-daux.

Third, the court must consider the feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances. The trial judge found the move would “limit their relationship with their father due to the great distance between the State of Louisiana and the State of Washington.” In 2006, he also considered the fact that Vanessa was offering extensive summertime visitation for Robert, just as she is now, but found that the use of visitation to maintain Robert’s relationship with the children was not very feasible.

The fourth factor is the child’s preference, taking into consideration the age and maturity of the child. Although there was testimony that Andru wanted to move to Washington, the trial judge decided not to give “any significant weight to the determination of an eleven year old child as to what is in his best interest.” This was within his discretion.

Fifth, the court must consider whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party. The testimony was consistent that the mother was very accommodating to Robert regarding visitation and Robert never disputed this. In the 2006 oral reasons, the trial judge commended Vanessa for continuing to allow the children to attend gatherings with Robert’s family every Friday and Sunday even after they had separated.

hfiSixth, the court must consider whether the relocation will enhance the general quality of life for both the custodial parent seeking the relocation and the children, including but not limited to financial or emotional benefit or educational opportunity. While the trial judge did not find any emotional or educational benefit to the relocation, he recognized that she had been offered a job at a dental lab with an increase in income and that her current employer was scheduled to impose a work furlough and a pay increase freeze. He also recognized that she would be relieved of paying day care expenses. This is one significant situation that changed since 2006, when she did not have a firm job offer in Washington and the trial judge found their quality of life would be the same in both Washington and Louisiana. While the trial judge could have discussed the other ways in which Vanessa and the children would financially benefit from the move, i.e., she would no longer be paying a mortgage and thus would have the entire $1,320.00 for child support, the trial judge did recognize and consider that Vanessa and the children would financially benefit from the move.

Seventh, the court must consider the reasons of each parent for seeking or opposing the relocation. As stated earlier, the trial judge recognized Vanessa’s reasons early in the oral reasons, apparently in an effort to consider whether the relocation request was in good faith. The trial judge also considered that Robert opposed the relocation because it would limit his contact and his family’s contact with the children, and remove them from the community they have known all their lives.

Eighth, the court must consider the current employment and economic circumstances of the each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation. The trial judge recognized the economic circumstances regarding Vanessa’s current |17employment, the increase in pay her new job would afford her, and the fact that she would no longer have to pay day care expenses. In fact, because Vanessa would not have to pay rent and would be making $5.00 more an hour, the proposed relocation was necessary to improve Vanessa’s economic circumstances. However, Curóle directs that the trial court is not to give preferential consideration to any one factor; therefore, even though we may have placed more emphasis on Vanessa’s economic situation, the trial court did not abuse its discretion by not giving it more weight.

Ninth, the court must consider the extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations. While the trial judge did not mention this factor in its oral reasons, Vanessa filed a rule seeking past-due child support payments, an income assignment, and a finding that Robert was in contempt of court for failure to pay child support. The trial judge issued judgments on both matters the same day, denying Vanessa’s relocation request, but finding Robert in contempt of court for failure to pay child support and ordering him to pay $14,900 in arrearages along with interest, court costs, and attorney’s fees. Thus, while the trial judge did not mention Robert’s failure to fulfill his financial obligations in his oral reasons at the relocation hearing, these matters were essentially heard together and the trial court had to have considered this factor in his relocation decision. Undoubtedly, this factor weighs against Robert, but does not mandate that relocation be approved.

The tenth factor is the feasibility of a relocation by the objecting parent. As stated earlier, the trial judge determined in 2006 that it was not practical for Robert to relocate to Washington, given his job in Louisiana that provides the necessary income for the family to maintain their lifestyle. Robert maintains the same job as hshe did in 2006, thus this factor has not changed and the trial court has considered it.

The eleventh factor is any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation. The trial judge did not make any determinations regarding this factor. The only evidence presented on this subject was Vanessa’s testimony that Robert told her he became intoxicated at a friend’s house after a family dinner and could not remember how he arrived home with the boys. While serious, this isolated incident does not constitute a “history or substance abuse or violence.”

The twelfth factor directs the court to consider any other factors affecting the best interest of the child. This catch-all provision basically supports the “best interest of the child” focus in relocation cases and allows the trial court to consider any other factor that affects the best interest of the child, even if not listed. Here, the trial judge did not expressly consider any other factors.

Based on a thorough review of the record, we cannot say that the trial judge abused his discretion in denying the relocation request. The trial judge expressly analyzed the factors he felt were most decisive, and ultimately determined, as he did in 2006, that relocation was not in the best interest of the children. Nothing in the record or the trial judge’s reasons leads us to the conclusion that the trial judge abused its discretion in determining relocation would not be in the best interest of the children.

CONCLUSION

While La. R.S. 9:355.12 requires the trial court to consider twelve factors in determining whether a relocation is in the best interest of the child, the trial court is not required to expressly analyze each factor in its oral or written reasons and its 11flfailure to do so does not constitute an error of law allowing de novo review. Here, it can be gleaned from the record as a whole that the trial judge followed the law in reaching his ultimate determination, and his decision cannot be overturned because there was no abuse of discretion.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

JOHNSON, J., dissents and assigns reasons.

KNOLL, J., dissents with reasons.

JOHNSON, Justice,

dissents.

Ill respectfully dissent from the majority opinion, which finds no abuse of the trial court’s discretion in denying Vanessa Gathen’s relocation request.

In deciding what serves the best interests of these two children, the majority of this Court has adopted the parochial attitude that because Andru and Evan have resided predominantly within the State of Louisiana, they would be adversely impacted if they relocate. The majority focuses on the boys’ close ties to the father’s extended family, friends and school. In my view, the majority overemphasizes these factors, and fails to give sufficient weight to the boys’ parental relationships and resulting benefits from relocation. The father, who opposed relocation, is not the primary caretaker of these boys, and spends only a few days a month with his sons. Thus, the practical effect of denying the mother’s relocation request in this case does not so much preserve a close father-child relationship, but only serves to force the primary caretaker (the mother) to stay in Louisiana to care for these children.

The mother has unquestionably demonstrated that the family would benefit financially with this move. And, I have no doubt the schools in Washington state are as good as those in Louisiana. Moreover, the record establishes that the mother has | ¡>been the primary caretaker of these boys. Rather than focusing on each parent’s relationship to the boys, the majority, like the trial court, places too much emphasis on the boys’ relationship with the father’s extended family. In so doing, I find the majority opinion violates the spirit of the Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, paternal grandparents, following the death of their son, filed suit to obtain increased court ordered visitation with their grandchildren pursuant to a Washington statute. Troxel, 530 U.S. at 60-61, 120 S.Ct. 2054. The mother, Granville, believed the amount of visitation sought by the grandparents was excessive. Id. In a plurality opinion, the Court held that the Washington state statute, which essentially allowed any person to be awarded visitation at any time if the court determined it would be in the children’s best interest, to be unconstitutional as applied to the facts of the case. The Court reasoned that the trial court, in considering the grandparents’ petition for visitation, placed on “the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters,” thereby “directly contravening] the traditional presumption that a fit parent will act in the best interest of his or her child.” Id. at 69, 120 S.Ct. 2054. “In that respect, the court’s presumption failed to provide any protection for Gran-ville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.” Id. at 69-70, 120 S.Ct. 2054. Troxel supports my belief that parents have a fundamental right to make decisions about raising their children, and the primary parental relationship cannot be outweighed by the boys’ relationship with the father’s extended family.

Further, the majority does not fully take into account certain of the father’s actions that have necessarily negatively impacted his children. While the father opposed the mother’s relocation request, he was also cast in contempt for failure to pay child support, and found to be $14,900 in arrears. In addition to not fulfilling his | (¡financial obligations to his children, he also failed to fully take advantage of his available visitation with his sons. The record establishes that while the mother has agreed to virtually all of the father’s visitation requests, the father has routinely limited his monthly physical custody of his sons to only four of the fourteen days he is off of work and at home from his job offshore.

Finally, even considering extended family relationships in this case, extended family support is not limited to Lafourche Parish. The record reflects the mother and boys would be living with their maternal aunt in Washington, and would be able to have frequents visits with their maternal grandmother, who lives in Hawaii. The move to Washington state would allow the boys to further develop relationships with their maternal grandmother, aunt and cousins. I see no reason why Andru and Evan should not have the same opportunity to bond with their maternal extended family.

KNOLL, J.,

dissents.

| TThere are several important aspects of this parental relocation case that I feel the majority opinion either inappropriately glossed over as unimportant or failed to consider, which prompts me to dissent with all due respect.

As an initial matter, I disagree with the majority’s characterization of the burden of proof which the relocating parent must meet. La.Rev.Stat. § 9:355.13 states that the “relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child.” Although we examined this statute in Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094, we did not address whether the moving parent’s burden was simple preponderance of the evidence or a heightened standard such as clear and convincing evidence. The majority opinion, however, claims that the relocating parent bears a “very heavy burden” to prove that relocation is in the best interest of the child. I disagree. Preponderance of the evidence is the usual standard in non-criminal cases, and neither La.Rev.Stat. § 9:355.13 nor this Court’s prior jurisprudence support imposing a stricter standard for a motion to relocate.

I also disagree with the majority’s treatment of the primary question before this Court, that is, whether a trial court judgment must explicitly address each one of the twelve factors set forth in La.Rev.Stat. §- 9:355.12. I find the majority opinion creates ambiguous precedent — although it states a trial court is not required to examine each individual statutory factor set forth in RS 9:355.12, the | ^pinion goes on to discuss each factor one by one. This suggests that, even if the trial court has not explicitly ruled on each factor, a reviewing court must.

Although I do not believe that a trial judge must go down the list of every factor, at the very least the trial court must make sufficient factual findings to allow for appellate review of those factors. Put otherwise, the factors must be applied in each case, even if they are not specifically enumerated. The legislature drafted twelve highly specific factors for a reason, and it must have intended courts to give due consideration to each factor. Here, the trial court failed to make adequate factual findings to support a finding as to each factor. Indeed, the record reflects the court all but ignored some highly relevant factors while giving undue weight to others.

In its oral reasons for judgment, the trial court gave undue weight to the factors favoring Robert and his extended family. The evidence is uncontroverted that the children’s relationship with Vanessa is significantly closer than their relationship with Robert. The children lived with Vanessa the vast majority of the time and stayed with Robert every other weekend, or approximately four days a month. Vanessa was primarily responsible for raising the children during the marriage and remained the principal caretaker after the separation and divorce. Yet, as appropriately noted by the court of appeal, the “trial court did not make any reference to the nature, quality, extent of involvement, and duration of the children’s relationships with Vanessa.”

Moreover, Robert did not take full advantage of the opportunities he did have to spend time with his children. Of the fourteen days a month Robert spends at home, he only takes his children for four days. Vanessa would have been willing to let Robert spend additional time with his children, but he never asked. After moving, Vanessa offered to let the children spend their summers in Thibodaux and to rotate major holidays in Louisiana. This arrangement would have given Robert | ¡¡roughly the same amount of time with his children as he currently spends. Given Robert’s unwillingness to devote equal amounts of time to his children while he lives in Louisiana, I do not believe he should have a veto on them moving to Washington.

The trial court also gave disproportionate consideration to the children’s relationship with their paternal grandmother and aunts. Although relationships with extended family are no doubt important, the primary focus must always be on the children’s relationship with their parents and the children’s best interest. The trial court seemed more concerned with the interests of the extended family than the interests of Vanessa and the children themselves.

Moreover, there are no grounds for favoring Robert’s extended family over Vanessa’s family. The record reflects Vanessa had a good relationship with her sister in Washington, and there is reason to believe the children will form equally beneficial relationships with their mother’s family after the move. The court apparently did not even consider these possible benefits to the children, and instead focused only on the detrimental effect a move would have on Robert’s family in Louisiana.

The trial court also put great emphasis on the fact the children had lived in Louisiana for most of their lives and leaving Lafourche Parish would require changing schools and finding new friends. But this alone cannot be determinative. If it were, no motion for relocation would ever be granted. Neither party suggests the children would be unable to cope with starting at a new school or finding new friends. It appears both children were progressing well socially and in school and were looking forward to moving to Washington.

|4By far the most important factor in this case is the improvement in the children’s standard of living that would result from moving to Washington. Vanessa is struggling to make ends meet. She makes just over $10 an hour as a secretary at Nieholls State University and is understandably concerned that budget cuts to higher education will lead to a long-term freeze in pay and that, eventually, cuts may have to be made. The university has already imposed one unpaid involuntary furlough. Given her meager income and the expenses of raising two boys, she pays her monthly living expenses by relying on student loans. This is obviously not a sustainable financial situation.

By moving to Washington, she would start a new job with an increased salary of $15 an hour, a house to live in rent-free, and free childcare assistance from her sister. In the long term, her mother had tentatively agreed to help her pay a down payment on a new house of her own. This is not an ancillary or minor benefit; it represents a marked increase in the standard of living for both Vanessa and the children. The statute clearly states a court must consider the “current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.” La.Rev.Stat. § 9:355.12(8). It is beyond dispute that moving to Washington would materially improve Vanessa’s current employment and economic circumstances.

Perhaps most egregiously, the trial court did not consider the root cause of Vanessa’s financial stress — Robert’s ongoing nonpayment of child support. A consent judgment signed by both parties required Robert to pay $1,320 in child support per month. However, within a month of the divorce Robert was already in [¿arrears. In May 2006 he paid $660; half what he owed. From June through October 2006 he did not pay anything at all; as he tells it, Vanessa agreed to “relax” the child support. Robert claims that sometime in the fall of 2006 he convinced Vanessa to accept about $900 a month — the $637.84 which was Vanessa’s share of the mortgage, and $300 in cash. For her part, Vanessa testified she never agreed to accept less money and repeatedly asked him for the full amount. This went on through June 2008, during which time Vanessa applied for government aid to make up for the shortfall. From June 2008 to March 2009 Robert paid the full $1,300. However, in April 2009 Robert again decided he had been paying too much, allegedly because the house note changed, and unilaterally reduced the monthly payments by $130. In May 2009, Vanessa filed a rule to show cause to recover past due payments of $14,900.

Vanessa’s rule on child support was originally set for hearing on June 30, 2009. The hearing, along with the hearing on the motion to relocate, was reset for August 9, 2009. When Robert’s attorney withdrew from the case and new counsel substituted, the hearings were again reset for August 21, 2009. On August 21 the hearing on the motion for relocation ran long and the rule for child support was continued to September 1, 2009. After hearing testimony from the parties, the court awarded Vanessa the full $14,900, plus attorney’s fees and court costs, and ordered that Robert’s wages be garnished effective immediately. In my view, the trial court committed reversible error in not considering this important child support rule first.

La.Rev.Stat. § 9:355.12(A)(9) states a trial court must consider the “extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.” Because the court ruled on the motion to relocate first, it did not have the benefit of the evidence showing Robert’s repeated failure to pay his child support obligations. Although the majority opinion claims the court “had to have considered this factor” in ruling on the motion to relocate, there is no evidence to support that speculation. Indeed, the trial court could not have considered this factor when ruling on the motion to relocate. At that point, all it had before it was Vanessa’s allegations.

Robert’s failure to pay his child support is directly relevant to his fitness as a parent and is highly relevant in any motion to relocate. Financially supporting your children is the first, fundamental obligation of parenthood. Civ.Code art. 227. In my opinion, by failing to meet his bare minimum obligation, Robert effectively lost his right to object when Vanessa sought to move to Washington to improve her financial position — a financial position which was caused in large part by Robert’s failure to pay. Robert did not pay his child support, thereby sending his ex-wife and children into severe financial distress. He should not have veto power over her right to try to escape that predicament. The legislature obviously believes what it calls “deadbeat” parents are a serious problem — serious enough that Robert’s failure to pay is a crime punishable by a fine in the amount of $500 and six months’ imprisonment. La.Rev.Stat. § 14:75. This Court should treat this serious problem with the same gravity.

I therefore respectfully dissent and would affirm the judgment of the court of appeals.

      . In oral reasons dated March 13, 2006, the trial court reasoned:
      Louisiana Revised Statutes Title 9, Section 355.13 provides the burden of proof which Ms. Gathen must meet in order to relocate the children from the state of Louisiana to the state of Washington. That article provides as follows: The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child.
      Ms. Gathen, the law provides that you have to prove those two factors. I believe that you’ve proven the first one, that your desire to relocate is made in good faith. You’ve testified that one of the reasons you want to move to the state of Washington is that you can enhance or improve your relationship with your only sister. Observing your testimony, I believe that your testimony was truthful that you do have a desire to have a closer relationship with your sister and you want your children to have a closer relationship with your sister.
      Also, you testified that another reason you wish to move to Washington is that you wish to obtain an associate's degree as a dental hygienist. Although there are programs here in Louisiana which would allow you to become a dental hygienist, the program which is closest which was earlier in New Orleans and they currently relocated to Baton Rouge is a four year program, a bachelor's program. The only associate degree program is in Shreveport, a considerable distance from where you currently live. Obtaining an associates degree as a dental hygienist would benefit yourself. It would also benefit your children. You'd have a greater ability to earn money to support yourself and the children. So, clearly your intention to relocate is made in good faith.
      I then have to evaluate whether or not the relocation is in the best interest of the children and the statute further provides that in determining the child’s best interest the court shall consider the benefits which the child derived either directly or indirectly from the enhancement from the relocating parent's general quality of life. Based upon the evidence that’s been presented today, it appears that the quality of life both for yourself and for the children would be essentially the same either here in Thibo-daux or in the state of Washington. Both communities provide an excellent opportunity for the education of the children. Both communities provide the necessary infrastructure for your children to enjoy their recreational activities.
      But there are other factors that the Court has to consider. The evidence clearly proves that the children have a very close and loving relationship with their father. The testimony proves that when he works a seven and seven work schedule and the very day that he returned from work he immediately goes to see his youngest child and would see the older child but for the fact that the child was in school. If the children were to relocate to the state of Washington this would significantly diminish the contact with their father and the contact with their father is very important to their development as young children.
      Also, the evidence proves that both the children, Mr. Gathen and also yourself have benefitted for approximately eight years from the extended family that exists here in Louisiana. There’s a larger extended family here in Louisiana than there is in the state of Washington. Here they have the paternal grandmother and two paternal aunts who are very much involved in the lives of these children and have been very beneficial to you and your husband over these past eight years. It’s clear from this testimony that’s been presented that these children are very close to their extended family here in Louisiana. Every Friday and every Sunday there’s a family gathering. In fact, much to your credit, even after you and your husband separated you continued to allow the children to enjoy that contact on Fridays and Sundays with their father’s family. And I say that much to your credit. Most mothers would have stopped that to the detriment of their child. It is obvious to me that if the children were to relocate to the state of Washington this would significantly diminish their contact with the paternal extended family.
      Also, Andrew has been attending St. Joseph for a minimum of three years, possibly longer. It was not clear from the evidence how many years he had been attending that school. In your testimony you acknowledged that this is a good school, that he has done well there. And although there wasn’t any direct evidence about the amount of friendships that have developed with other students while he is at this school, it would be obvious to me that he has developed a circle of friends at the school that he attends and that would end if he were to relocate to the state of Washington.
      Your attorney has argued that the father could maintain his relationship with the children through visitation. In fact, he has argued that you appear to be prepared to offer extensive summertime visitation. But interaction with children is better when it’s on a continuing basis than just on a periodic basis. And clearly the distance between the state of Louisiana and the state of Washington will not make it very likely that Mr. Gathen will be able to visit on a regular basis during most of the year. So, the use of visitation to maintain this very, very close and very strong relationship between the father and children is not very feasible.
      And although the attorneys have not brought this issue before the Court, it is one of the factors that I’m required to look at is whether or not it’s practical for Mr. Gathen to possibly relocate to the state of Washington. And from the evidence that's been presented, I don’t believe that that is practical. He has a job here in the state of Louisiana. It’s a very beneficial job to the family. It provides the necessary income for the family to maintain the lifestyle that the family has enjoyed over the last eight years. And if he were to relocate, it would result in him, Mr. Gathen, also having diminished contact with his family. And it is clear from the evidence that has been presented today that Mr. Gathen also has a very close and loving relationship with his mother, his aunts and the other members of his extended family.
      Ms. Gathen, it is for these reasons that the Court will deny your request to relocate the children to the state of Washington. Court costs of today's motion will be assessed to the defendant, Ms. Gathen.

      . At the time of Curole, La. R.S. 9:355.12 contained only eight factors. While now La. R.S. 9:355.12 contains twelve factors, the holding of Curóle is unaffected.

      . In Curole, the Court explained that in adopting the language of La. R.S. 9:355.13, the legislature was presented with three alternatives by the drafters of the Model Act regarding the burden of proof. The first placed the burden of proving good faith and best interest on the relocating parent, the second placed the burden of proving good faith and best interest on the nonrelocating parent, and the third placed the burden of proving good faith on the relocating parent and best interest on the nonrelocating parent. The legislature chose the first option. 828 So.2d at 1096-97.

      . This Court has previously discussed the reasons for the abuse of discretion standard in child custody cases, stating:
      Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse of discretion.

        Fulco v. Fulco, 259 La. 1122, 1129, 254 So.2d 603, 605 (1971) (citing Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952)).
      While Curóle stated that abuse of discretion was the correct standard of review in a relocation case, it interchangeably referred to the manifest error standard in parts of the opinion. This was not technically correct. In Cleeton v. Cleeton, 383 So.2d 1231, 1235 (La.1979) (on reh'g), we granted a rehearing in part to address an "important particular” overlooked by the Court on original hearing, which was that it erred in applying the manifest error standard. The Court explained that while the manifest error standard reverses "for error,” "[t]he better standard of review in custody matters gives the trial court decisions great weight, to be overturned only when there is a clear abuse of discretion.” 383 So.2d at 1235. See also Thompson v. Thompson, 532 So.2d 101 (La.1988) and Stephenson v. Stephenson, 404 So.2d 963 (La.1981) (both applying the abuse of discretion standard in child custody cases). Similarly, in Bergeron v. Bergeron, 492 So.2d 1193, 1197 (La.1986), we criticized an earlier Court’s characterization of manifest error and abuse of discretion as being "substantially similar,” see Bordelon v. Bordelon, 390 So.2d 1325, 1329 (La.1980), calling this treatment of the appropriate standard "equivocal.” In Berger-on, the Court conducted a very thorough analysis of whether the heavy burden of proof and abuse of discretion standard of review in child custody cases had been legislatively abrogated by the rejection of the maternal preference rule and found that they had been retained. The Court explained that the abuse of discretion standard "preserves the trial court’s determination of the child's best interest, except in case of an abuse of discretion.” 492 So.2d at 1196. Commentators have likewise distinguished the abuse of discretion standard as being a “a higher standard of deference” than the manifest error standard. applicable to cases where “the substantive law vests a high degree of discretion in the trial judge.” Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure, Volume I, § 14:14, p. 558 (2nd ed.2008). Relocation cases, like other cases involving determinations of the best interest of the child, are such cases where the trial court is vested with a high degree of discretion and, as stated in Curóle, where the abuse of discretion standard is appropriate. Thus, while the manifest error and abuse of discretion standards may be similar, it is the abuse of discretion standard that applies here and the phrase should not be used interchangeably with manifest error.

      . Although the record on this issue is limited, Andru, the older son, had ongoing communication with his cousins in Washington. An-dru, who was eleven at the time of the hearing, is certainly old enough to express a meaningful opinion as to whether he would like to move to Washington.

      . At the time of the judgment Robert's income was $6,708 per month and Vanessa’s was $0 per month. The $1,320 figure is roughly in line with the child support schedule set forth in La.Rev.Stat. § 9:315.19.

      . Robert told Vanessa she should be more like his buddy’s ex-wife, who (according to Robert) didn’t make her ex-husband pay.

      . The majority opinion states that the trial court "issued each judgment on the same day.” Not so. While it is true that the trial court signed both written judgments on November 3, 2009, the court gave its oral judgment and reasons on the dates of the hearings. There is no question that the court had given its final ruling on the motion for relocation before the rule for child support had been heard.

      . Robert’s arrearages were only $100 shy of the $15,000 minimum which would have made him eligible for even harsher criminal punishments.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Donald J. AARON.
    No. 2011-K-0307.
    Supreme Court of Louisiana.
    June 24, 2011.
   PER CURIAM.

| T Granted. The decision of the court of appeal is reversed to the extent that it vacates the sentence of five years’ imprisonment at hard labor without benefit of suspension of sentence, probation, or parole imposed by the trial court pursuant to the firearms enhancement provisions of La.C.Cr.P. art. 893.3, on defendant’s conviction for the crime of negligent homicide, following his trial for the charged crime of manslaughter.

The notice provisions of La.C.Cr.P. art. 893.1(B), that a motion to invoke the firearms enhancement penalties “shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed,” should not serve as technical traps for the state when it otherwise clearly signals its intent before trial to seek enhancement of defendant’s sentence under the provisions of La.C.Cr.P. art. 898.3, which specify mandatory 1 minimum terms within the sentencing range provided by the legislature for the underlying offense when the offender possesses, uses, or discharges a firearm during commission of the offense. In the present case, the state’s pre-trial notice clearly expressed its intent “to move for imposition of sentence under the provisions of La.C.Cr.P. art. 898.8 should the [ ] defendant! ] be convicted.” Because the state had charged defendant with a violent felony, ie., manslaughter, in which it alleged “he actually discharged a firearm during the commission of the offense,” the motion specifically referred defendant to La.C.Cr.P. art. 893.3(E)(1)(a), which provides a mandatory minimum term of 20 years’ imprisonment without benefit of suspension of sentence, probation, or parole, for the discharge of a firearm during the commission of certain crimes, including manslaughter, as enumerated in La.C.Cr.P. art. 893.3(E)(1)(b).

The jury’s return of the responsive verdict of negligent homicide considerably reduced defendant’s overall sentencing exposure from a maximum term of imprisonment of 40 years at hard labor to five years with or without hard labor. La.R.S. 14:31; 14:32. However, while the state’s notice under La.C.Cr.P. art. 893.1 did not expressly anticipate the return of a lesser and included responsive verdict, the motion, which signaled the state’s intent to invoke the firearms enhancement provisions of La.C.Cr.P. art. 893.3 “should defendant be convicted,” was broad enough to encompass not only the charged offense of manslaughter but also its responsive verdicts. See State v. Jackson, 480 So.2d 263, 268 (La.1985)(“Notice permits, among other things, proper preparation to defend and specific knowledge about the penalty to which the defendant is exposed in the event he chooses to plead guilty.”). The system of responsive verdicts employed by the trial court in the present case, which gave jurors the | ^option to find expressly that defendant used or discharged a firearm during commission of the offense of negligent homicide, the verdict they actually returned, gave defendant full opportunity to contest at trial, if he could, the state’s allegation that he used and discharged a firearm in the commission of the homicide and thereby to preclude, if he could, a post-verdict finding of the trial court by clear and convincing evidence that he had used or discharged a firearm during commission of the offense and was therefore subject to the enhancement provisions of La.C.Cr.P. art. 893.3.

In all other respects, the decision of the court of appeal is affirmed.


author: KUHN, J.

text:
    Jennifer L. CAMINITA, Wife of/and Frank L. Caminita v. Regina Wife of/and Barney CORE, Smith and Core, Inc., ABC Insurance Company, XYZ Insurance Company, MNO Insurance Company, John Doe Supply and John Doe Subcontractors.
    No. 2010 CA 1961.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Scott G. Wolfe, Jr., Seth J. Smiley, New Orleans, LA, for Plaintiffs-Appellants Jennifer L. Caminita and Frank L. Caminita.
    Patrick K. Reso, Frank J. Divittorio, Hammond, LA, for Defendants-Appellees Barney Core, Regina Core and Smith and Core, Inc.
    Valerie Briggs Bargas, Baton Rouge, LA, for Defendant-Appellee Farmers Insurance Exchange.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

1 gPlaintiffs-appellants, Jennifer and Frank Caminita, appeal the trial court’s judgment, which sustained a peremptory exception raising the objection of peremption urged by defendants-appellees, Regina and Barney Core, as the builders of the Caminitas’ new home, based on the conclusion that the periods of limitations set forth in the New Home Warranty Act provide the exclusive prescriptive periods for their claims for damages resulting from a defect in the home, specifically, the installation of “Chinese drywall.” We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 2009, the Caminitas filed a petition for breach of contract, warranty, and damages, naming the Cores as defendants. According to the allegations of the petition, on April 11, 2007, they purchased a new home in Franklinton, Louisiana, from the Cores. The Caminitas moved into their new home in May 2007 and soon began to experience problems with the air conditioning system. They notified the Cores as the builders of their home that they believed the house contained contaminated drywall. Subsequently, the Caminitas assert, they began to experience additional problems with blackened copper wiring and faulty appliances as well as negative effects to their health. The Caminitas allege that “Chinese drywall” was installed into their home by the Cores and that it is the cause of the physical damages and personal injuries they have sustained.

On September 1, 2009, the Caminitas sent a letter to the Cores by registered mail, advising them of the defects in their new home and providing the Cores a treasonable opportunity to remedy the defects but to no avail. They then filed this lawsuit.

The Cores filed a peremptory exception objecting to the Caminitas’ petition on the basis of peremption. After a hearing, the trial court signed a judgment, sustaining the exception and dismissing the Camini-tas’ claims against the Cores. The Cami-nitas appeal.

DISCUSSION

An objection of peremption is a peremptory exception. La. C.C.P. art. 927 A(2). Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Raudo v. Anco Insulations Inc., 2008-1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Id.; see also La. C.C. art. 3461 (providing that peremption may not be renounced, interrupted, or suspended). As such, the rules governing the burden of proof as to prescription apply to peremption. Rando, 2008-1163 at p. 20, 16 So.3d at 1082.

If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992). When no evidence has been introduced at a hearing on an exception of prescription, all allegations of the petition are to be accepted as true. Louisiana Employers-Managed Ins. Co. v. Litchfield, 2001-0123, p. 3 (La.App. 1st Cir.12/28/01), 805 So.2d 386, 388.

|4In reviewing a peremptory exception raising the objection of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Reggio v. E.T.I., 2007-1433, p. 4 (La.12/12/08), 15 So.3d 951, 954; Boquet ex rel. Billiot v. SWDI, LLC, 2007-0738, p. 4 (La.App. 1 Cir. 6/6/08) 992 So.2d 1059, 1062, writ denied, 2008-2086 (La.9/4/09), 17 So.3d 958.

As the builders of the new home, the Cores contend that the Caminitas’ claims are perempted under La. R.S. 9:3144 A(l). Specifically, they urge that the one-year (and thirty days) peremptive period applies to the Caminitas’ claims of defective drywall.

La. R.S. 9:3144 provides in relevant part:

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards ....
(3) Five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

The Caminitas do not dispute that the one-year time limitation of La. R.S. 9:3144 A(l) has elapsed but suggest that the five-year time period contained in Subsection A(3), addressing major structural defects, is the applicable limitation. LAs such, they urge that their petition filed on November 23, 2009, for claims arising from major structural defects in the home they agreed to purchase on April 11, 2007, is timely.

La. R.S. 9:3143, providing definitions for the New Home Warranty Act, includes the following relevant provisions:

(5) “Major structural defect” means any actual physical damage to the following designated load-bearing portions of a home caused by failure of the load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:
(a) Foundation systems and footings.
(b) Beams.
(c) Girders.
(d) Lintels.
(e) Columns.
(f) Walls and partitions.
(g) Floor systems.
(h) Roof framing systems.

The Caminitas urge that based on the allegations of their petition, their home has sustained a major structural defect in the walls and partitions. Their petition includes the following pertinent allegations of fact:

The drywall itself is defective and an inferior product compared to domestic-made drywall, and thereby renders the walls to the Property defective. Further, the drywall causes damage to other building elements, such as what is commonly referred to as the “building studs.” ...
The Chinese Drywall is not suitable for its intended use, is inherently defective, and causes actual physical damage to the walls and partitions of the ... Property, affecting the function of the walls and | (¡partitions to the extent that the home becomes unsafe, unsanitary or otherwise unlivable....
The presence of inferior drywall in the home constitutes a major structural defect to load bearing portions of the home.

Thus, they urge, on the face of the petition, their claims have not been perempt-ed, having been filed within the five-year time limitation contained in La. R.S. 9:3144 A(3). We disagree.

A close scrutiny of the allegations of their petition alongside the relevant portions of the definition of “major structural defect” set forth in La. R.S. 9:3143(5) shows that the Caminitas have indeed averred “physical damage” and that they have alleged that physical damage is to “the ... [wjalls and partitions” of their home. They may have also asserted that the alleged physical damage “affects [the walls’ and the partitions’] load-bearing functions” because the petition contains the allegation that “the drywall causes damage to other building elements, such as what is commonly referred to as the ‘building studs.’” And we clearly recognize they have claimed that the alleged physical damage affects the load-bearing portions of the walls “to the extent that the home becomes unsafe, unsanitary, or is otherwise unlivable.” But lacking from the allegations of the Caminitas’ petition is a claim that the alleged physical damage to “the ... [w]alls and partitions” of their home was “caused by failure of the load-bearing portions.”

Reading their petition as favorably to the Caminitas as possible, we note that the only reference to any load-bearing portion of the walls or partition is the allegation that “the drywall causes damage to other building elements, such as ... the ‘building studs.’ ” Notably, they have not alleged that the building studs are already damaged. They do not assert that the physical damage to the walls and 17partitions was caused by the building studs themselves or by any failure of the building studs. We further note the Cami-nitas neither alleged in their petition nor introduced any evidence at the hearing on the exception that the sheet rock (dry wall) was load-bearing. See La. R.S. 9:3144 A(3) and 9:3143(5). As such, their petition does not aver a major structural defect as defined in La. R.S. 9:3143(5) so as to fall within the five-year time period of La. R.S. 9:3144 A(3).

Accordingly, the trial court correctly sustained the peremptory exception raising the objection of peremption and dismissed the Caminitas’ claims against the Cores. The allegations of the petition established that the contaminated “Chinese drywall” is a defect in materials or workmanship subject to the one-year limitation of La. R.S. 9:3144 A(l). Having filed their lawsuit over two years after they entered into a purchase agreement with the Cores, the Caminitas’ claims have been perempt-ed under the New Home Warranty Act.

DECREE

For these reasons, the trial court’s judgment is affirmed. Appeal costs are assessed against plaintiffs-appellants, Jennifer and Frank Caminita.

AFFIRMED.

      . See La. R.S. 9:3142.

      . The Caminitas named unidentified parties in their original petition, including the supplier of the drywall products and the subcontractor who installed the drywall. By an amendment to their petition, they also added their homeowners' insurer, Farmers Insurance Company. Interior Exterior Building Supply, L.P. has filed a third-party demand in this lawsuit, naming various Knauf entities as third-party defendants.

      . See La. R.S. 9:3146, which provides, "Any action to enforce any warranty provided in this Chapter shall be subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.” The parties do not dispute that after the tolling of thirty days, the time periods set forth in La. R.S. 9:3144 are peremptive rather than prescriptive. See La. C.C. art. 3458 (noting that unless timely exercised, the right subject to the time limitation is extinguished upon expiration of the peremptive period).


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Peter F. GARCIA, Jr.
    No. 10-KA-755.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jacquelyn F. Maloney, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Defendant/appeIlant, Mr. Peter Garcia, appeals his convictions and sentences for attempted first degree murder and attempted armed robbery arguing that the state’s action in filing a bill of information charging him with the two offenses subjected him to double jeopardy. He argues that his conviction and sentence for attempted armed robbery, the less severely punishable offense, should be vacated. We agree. Finding a double jeopardy violation, we affirm the conviction and sentence imposed on attempted first degree murder and reverse and vacate the sentence imposed on attempted armed robbery.

Facts and Procedural Background

The facts elicited at the motion hearings in this case are as follows.

On August 3, 2005, defendant/appellant, Mr. Peter Garcia, was outside the Wal-greens’ pharmacy on West Esplanade in Kenner, Louisiana when Ms. Robertson exited with bags and cash she had gotten back at the register. Mr. Garcia approached her and demanded money. She threw $20 at him, and he shot |sher in the leg. He then stood over her and shot her twice more — once in the chest and once in the neck. Mr. Garcia did not take any of her belongings but instead fled the scene on foot where he was apprehended in a nearby neighborhood.

At the time of his apprehension, Mr. Garcia was found to be in possession of a briefcase and a gun. That gun, however, was not the one used to shoot Ms. Robertson. The gun used in the shooting was located in a nearby vacant lot. Det. Robert McGraw arrived at the location where Mr. Garcia was apprehended and Miran-dized him. Mr. Garcia, thereafter, waived his rights and made a brief statement about his involvement in the shooting and armed robbery which had just occurred at Walgreens.

Witnesses who were waiting in line at the Walgreens’ pharmacy drive-thru were taken to the neighborhood to identify Mr. Garcia. None of the witnesses saw the actual shooting. Rather, they each saw a man hurriedly leaving the parking lot after the gunshots were fired. Each witness positively identified Mr. Garcia as the man they had seen fleeing Walgreens’ parking lot. In addition, Ms. Robertson positively identified Mr. Garcia from a photographic lineup a few hours after the shooting.

Once identified, Mr. Garcia was taken to the Kenner Police Department where he was questioned further by Det. Brian McGregor. There, he was again advised of his rights, signed the Advice of Rights form, and gave a voluntary statement about the events that had transpired. Mr. Garcia was subsequently charged with attempted first degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30 and armed robbery in violation of La. R.S. 14:64. He pled not guilty to each offense. During the course of the proceedings, Mr. Garcia filed a motion to suppress the statement made at the scene and at the police station, a motion to suppress the photo identification of each witness, and a motion to suppress the evidence. Each motion was denied.

Thereafter, Mr. Garcia withdrew his not guilty pleas and tendered pleas of guilty to each offense pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) on March 9, 2009. Pursuant to the plea agreement, Mr. Garcia was sentenced to 30 years imprisonment at hard labor for each offense without the benefit of probation, parole, or suspension of sentence. The sentences were to run concurrently. The State then filed a multiple-bill in reference to count one — attempted first degree murder. Mr. Garcia pled guilty to being a second felony offender. The court vacated the sentence it imposed on that offense and resentenced him pursuant to La. R.S. 15:529.1 to 30 years imprisonment at hard labor without the benefit of probation or suspension of sentence. That sentence was to run concurrently with the other sentences imposed.

DISCUSSION

In his sole assignment of error, Mr. Garcia contends that his convictions and sentences for attempted first degree murder and attempted armed robbery violate the double jeopardy clause of the United States and Louisiana constitutions. The State contends, however, that this issue was not properly preserved for appeal because of Mr. Garcia’s unconditional pleas of guilty. But “even an unqualified plea of guilty does not preclude review of what are regarded as ‘jurisdictional’ | ¡¡defects— those which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged,” i.e. the conviction represents double jeopardy. State v. Crosby, 338 So.2d 584, 588 (La.1976).

When reviewing claims of double jeopardy, review is limited to the charging documents and plea colloquy. State v. Arnold, 01-1399 (La.4/12/02), 816 So.2d 289. In this case, count one of the bill of information states that Mr. Garcia “did attempt to commit first degree murder of Hydrede-cine Robertson, during the commission of an armed robbery.” (emphasis added). Then count two of the bill further charges him with armed robbery.

As this Court stated in State v. Stack, 95-218, p. 3 (La.App. 5 Cir. 7/25/95), 659 So.2d 853, 855:

It is well settled law that when proof of a felony ... is an essential element of a first degree murder or an attempted first degree murder, double jeopardy precludes conviction and punishment of a defendant for both murder or attempted murder and the underlying felony, (citations omitted).

In this case, it is apparent on the face of the record that “the court had no power to enter the conviction[s] or impose the sen-temos].” Id., citing United States v. Broce, 488 U.S. 563, 575-76, 109 S.Ct. 757, 765, 102 L.Ed.2d 927.

The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. State v. Barton, 02-163 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1201; see La.C.Cr.P. art. 591. The concept of double jeopardy, under both the federal and state constitutions, embodies the dual purpose of preventing both multiple punishments and multiple convictions for a single criminal wrong. State v. Cotten, 438 So.2d 1156, 1160 (La.App. 1 Cir.1983). Thus, every double jeopardy analysis begins with the inquiry into whether a single offense or several offenses are involved. Id.

| ^Louisiana courts utilize two tests in examining violations of double jeopardy. The “distinct fact” or Blockburger test is applicable where the same act or transaction constitutes a violation of two distinct statutory provisions. Barton, supra. In that instance, “the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not.” Id.

The other test, the “same evidence test,” is primarily relied upon by Louisiana courts. Id. citing State v. Miller, 571 So.2d 603, 606 (La.1990). The Louisiana Supreme Court explained the “same evidence test” as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy for only one. The test depends on the evidence necessary for conviction, not all evidence introduced at trial. State v. Steele, 387 So.2d 1175, 1177 (La.1980).

The “same evidence test” is slightly broader in concept than Blockburger — the central idea being that one should not be punished twice for the same course of conduct. Id., Barton supra.

In this case, the crux of Mr. Garcia’s claim is that his convictions for attempted first degree murder and attempted armed robbery have placed him in jeopardy twice for the same course of conduct. First degree murder is the “killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of armed robbery,” inter alia. La. R.S. 14:30. Armed robbery is “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by force or intimidation, while armed with a dangerous weapon.” La. R.S. 14:64. In this case, the same evidence adduced at trial on the ^underlying felony — armed robbery — was necessary to prove the offense of attempted first degree murder, thereby subjecting Mr. Garcia to double jeopardy.

“Once convicted of attempted ‘felony murder,’ the defendant is punished for the felony which he was perpetrating at the time of the attempted murder and he cannot be punished a second time for the same offense.” Cotten, supra at 1160-1; citing State v. Stewart, 400 So.2d 633, 635, n. 4 (La.1981). Where multiple punishment has been erroneously imposed, the proper appellate procedure is to eliminate the effect of the less severely punishable offense. Id. When imposition of this general rule is not feasible, however, courts should affirm the conviction with the more severe actual sentence, even though it may require vacating the conviction for the more severely punishable offense. State v. Butler, 558 So.2d 552, 554 (La.1990).

The less severely punishable offense in this case is attempted armed robbery as it carries a potential sentence of five to 49½ years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence; whereas, attempted first degree murder carries a potential sentence of ten to 50 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. In this case, however, the attempted first degree murder sentence was vacated and Mr. Garcia was resentenced pursuant to La. R.S. 15:529.1 and received a sentence of 30 years imprisonment at hard labor without probation or suspension of sentence. The newly imposed sentence failed to place a restriction on parole, seemingly making the actual sentence imposed for attempted armed robbery more severe than the actual sentence imposed for attempted first degree murder.

The State argues that in this instance, the general rule which requires elimination of the less severely punishable offense is inapplicable because it would | ¿result in the vacation of the attempted armed robbery even though it seemingly has an actual sentence that is more severe than the sentence imposed for attempted first degree murder. Rather, the State argues that we apply the exception and affirm the attempted armed robbery conviction and sentence which was imposed without the benefit of probation, parole, or suspension of sentence and vacate the attempted first degree murder conviction and sentence which was imposed with no restriction on parole. We disagree.

The exception provides that when the general rule is not feasible, appellate courts should affirm the conviction with the more severe actual sentence, even though it may require vacating the conviction for the more severely punishable offense. Butler, supra at 554. For reasons discussed more fully in the error patent discussion below, we find that the general rule is applicable and vacate the less severely punishable offense. Therefore, the attempted first degree murder conviction and sentence is affirmed. The conviction and sentence imposed on attempted armed robbery is reversed and vacated.

Error Patent Discussion

We have reviewed the record for errors patent in conformity with La.C.Cr.P. art. 920. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals that there are errors patent which do not require corrective action.

First, we note that the multiple offender bill is not included in the record. According to the commitment, the State filed a multiple bill on March 9, 2009, charging Mr. Garcia as a second felony offender. That bill, however, is not a part of the record. Nonetheless, the multiple-bill hearing occurred on March 9, 2009, wherein the transcript reflects that the State filed the multiple bill into the record. | ^Moreover, the transcript also reflects that Mr. Garcia’s attorney informed the court that she reviewed the multiple bill with him.

Considering the commitment reference and the March 9th transcript reference to the multiple bill coupled with the fact that Mr. Garcia did not object prior to appeal that a written multiple bill had not been filed, this Court will assume that the it was indeed filed. See State v. Burks, 02-1939 (La.App. 4 Cir. 3/19/03), 843 So.2d 444.

Finally, we note that Mr. Garcia was sentenced to 30 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for attempted first degree murder. However, when resentenced pursuant to the multiple bill, his sentence was imposed without the benefit of probation or suspension of sentence. Contrary to the penalty provision for attempted first degree murder, no restriction was placed on parole.

Nevertheless, when a criminal statute requires that all or portion of a sentence, be served without the benefit of probation, parole, or suspension of sentence, La. R.S. 15:301.1(A) provides:

[t]he failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence, (emphasis added).

In addition, the Louisiana Supreme Court stated in State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, that in instances where the restrictions are not recited at sentencing, La. R.S. 15:301.1(A) “deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court.” La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction. Id.

|inDue to the self-activating provision of La. R.S. .15:301.1, Mr. Garcia’s multiple-bill sentence on the attempted first degree murder conviction is also imposed without the benefit of parole, thereby making it the most severely punishable offense.

Conclusion

We find that Mr. Garcia’s convictions and sentences on attempted first degree murder and attempted armed robbery violate the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution of 1974. We, therefore, eliminate the effect of the less severely punishable offense. Accordingly, the conviction and sentence imposed on attempted armed robbery is hereby reversed and vacated. And the conviction and sentence imposed on attempted first degree murder is hereby affirmed.

AFFIRMED IN PART; REVERSED AND VACATED IN PART

      . The transcript from the motion to suppress hearing which was held on October 30, 2008 does not indicate exactly what the statement was. It only indicates that Mr. Garcia gave a brief statement about his involvement.

      . Det. Jeff Adams visited Ms. Robertson at Charity Hospital where she was able to identify Mr. Garcia on August 4, 2005, at 12:15 A.M. from a photographic lineup.

      . In a separate case (case no. 05-5888), Mr. Garcia was also charged with felon in possession of a firearm; possession of hydromor-phone; possession of stolen property; simple escape; and possession of cocaine. The sentences imposed in that case were to run concurrently with the sentences imposed in the present case.

      .The armed robbery offense was amended to attempted armed robbery.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.

      . See La. R.S. 14:30(C) and La. R.S. 14:27(D)(3).