text:
    NEUMIN PRODUCTION COMPANY, et al. v. TIGER BEND, LTD., et al.
    No. CA 10-1307.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Frederick Bernard Alexius, George I. Fine, Provosty, Sadler, deLaunay Fiorenza & Sobel, APC, Alexandria, LA, Marcus L. Fontenot, Fontenot and Associates, Ville Platte, LA, for Defendant/Appellant, The Mikell Group.
    Christopher Brent Coreil, Ville Platte, LA, for Defendant/Appellee, Tiger Bend, Ltd.
    Kyle Patrick Polozola, James H. Dupuis, Jr., Dupuis & Polozola, LLC, Lafayette, LA, for Plaintiffs/Appellees, Neumin Production Company Guardian Oil Gas, Inc.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

h Neumin Production Company and Guardian Oil & Gas, Inc. instituted this concursus proceeding to determine who is the owner of royalty proceeds of production from a well located in Evangeline Parish. Two separate leases are at issue in this proceeding. One lease was executed by Tiger Bend, Ltd., who is the owner of the surface of the land. The other lease was executed by several individuals referred to as the Mikell Group, who claim to have a mineral servitude affecting the subject tracts. Both Tiger Bend and the Mikell Group claim to be entitled to the proceeds deposited in the registry of the court.

FACTS

At issue in this case is the ownership of minerals produced from a well known as the Foreman No. 1 well located in Evangeline Parish. There is no dispute that Tiger Bend is owner of the property. The Mikell Group claims that it owns the right to the minerals through a mineral servitude created by an act of partition and exchange in 1983.

The Mikell Group’s ownership began with the liquidation of two companies, the Haas Land Company, Ltd. and the Haas Investment Company, Inc. The shareholders of the companies at the time of the liquidation became the owners of the lands formerly owned by the companies. The Haas Land Company was liquidated in 1979, and its shareholders at that time included: Succession of Maccie H. Harrison, Montez Henning Haas, Montez Haas Constant, Lulu H. Haas, Joseph M. Haas, Nancy M. Carruth, and Franklin H. Mi-kell. Later, Franklin H. Mikell and Nancy M. Carruth inherited the Succession of Maccie H. Harrison’s portion. The Haas Investment | ^Company was liquidated on November 1, 1983. In addition to the same shareholders as the Haas Land Company, the Haas Investment Company had the following additional shareholders: William David Constant, Samuel D. Haas, Joseph M. Haas, Jr., Suzanne Haas McCann, Thomas B. Haas, Katherine L. Haas, Donna Tebow Taylor, William Mikell Tebow, Minnie 0. Mikell, Franklin 0. Mikell, Martha E. Mikell, and Linda Mikell Wilder. Franklin H. Mikell and Nancy M. Carruth were also individual shareholders in their own right in Haas Investment Company.

On November 1, 1983, an “ACT OF PARTITION, EXCHANGE AND AGREEMENT” was entered into by all of the above parties for the purpose of partitioning and exchanging their undivided interests in certain properties. The heirs of W.D. and Hattie Haas were also included in the partition agreement. The Mikell group claims that this instrument created a single mineral servitude of multiple contiguous tracts of land so that production on a well six-and-two-tenths a mile away in Avoyelles Parish interrupted the running of prescription on the mineral servitude where the Foreman well is located.

Tiger Bend filed a motion for summary judgment contending that there are multiple servitudes and that any mineral rights reserved in the act of partition were extinguished by prescription. A hearing on the matter was held on April 23, 1010. Judgment was signed on September 9, 2010, granting Tiger Bend’s motion for summary judgment and declaring it the owner of the all funds deposited in the registry of the court in addition to all future royalties. The Mikell Group appealed the judgment.

SUMMARY JUDGMENT

Appellate courts review motions for summary judgment de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled Lto judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for 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 as to material fact, and that mover is entitled to judgment as a matter of law.” Id. The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La. Code. Civ.P. art. 966(C)(2).

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, pp. 9-10 (La.4/23/10), 35 So.3d 1053, 1059.

MINERAL SERVITUDE

The Mikell Group contends that they have an existing mineral servitude created in the 1983 act of partition which covers the property in question entitling them to the funds deposited in the registry of the court. Specifically, the Mikell Group contends that they are the owners of single mineral servitude that was created when the lands were partitioned and formed a contiguous tract of land. The Mikell Group claims that production on a well in Avoyelles Parish interrupted prescription on the single mineral servitude which covers the production at issue on the well in Evangeline Parish. As the owner of the surface of the land, Tiger Bend argues that the servitude has prescribed, and that it is entitled to the funds.

“[T]o constitute a single tract of land the lands must be so situated that one may pass from one part to the other without passing over the lands of another.” Lee v. Giauque, 154 La. 491, 493, 97 So. 669, 670 (1923); Energy Dev. Corp. v. Quality Envtl. Processes, Inc., 98-1125 (LaApp. 5 Cir. 5/19/99), 734 So.2d 965.

u"[A] mineral servitude is the active right to explore for and produce minerals, extracting and reducing them to possession and ownership.” Horton v. Mobley, 578 So.2d 977, 983 (La.App. 2d Cir.), writ denied, 582 So.2d 1310 (La.1991). “[A] servitude is a dismemberment of title insofar as it creates a secondary right in the property that is exercised separately from the landowner.” Id. “A mineral servitude also entails ‘executive’ rights.” Id.

A mineral servitude prescribes in ten years as a result of nonuse. La.R.S. 31:27(1). “Prescription of nonuse of a mineral servitude commences from the date on which it is created.” La.R.S. 31:28. “The prescription of nonuse running against a mineral servitude is interrupted by good faith operations for the discovery and production of minerals.” La.R.S. 31:29.

“A single mineral servitude is created by an act that affects a continuous body of land although individual tracts or parcels within the whole are separately described.” La.R.S. 31:63 “An act creating mineral ser-vitudes on noncontiguous tracts of land creates as many mineral servitudes as there are tracts unless the act provides for more.” La.R.S. 31:64. “The owners of several contiguous tracts of land may establish a single mineral servitude in favor of one or more of them or of a third party.” La.R.S. 31:66. “Co-owners of land constituting a continuous whole may partition it and reserve a single mineral servitude in favor of one or more of them.” La.R.S. 31:67. “A single mineral servitude may not be created on two or more non-contiguous tracts of land.” La.R.S. 31:73.

In the 1983 partition act, the parties combined all the land that they owned. When Haas Land Company and Haas Investment Company were liquidated, their shareholders became the owners of the land in proportion to their ownership in the companies. Therefore, before the 1983 partition, the lands were owned by different | ¡jOwners depending on in what companies they owned shares. In the 1983 act of partition the lands were brought together and were partitioned and exchanged. Tiger Bend’s ownership of the land at issue was based on this act of partition.

A conveyance of property includes all incidents of ownership including mineral rights that are not expressly reserved. Hayden v. Phillips, 94-130 (La.App. 1 Cir. 11/10/94), 646 So.2d 1014, writ denied, 95-244 (La.3/24/95), 651 So.2d 291.

The pivotal case on the creation of a single servitude as opposed to multiple servitudes when land is partitioned is Whitehall Oil Co. v. Heard, 197 So.2d 672 (La.App. 3 Cir.), writ refused, 250 La. 924, 199 So.2d 923 (1967). In discussing the principles of a mineral servitude, Justice Tate, writing for this court, stated:

[A] landowner cannot create a single servitude or mineral royalty right on two or more non-contiguous tracts; and if this is attempted by a single instrument, there are nevertheless as many servitudes or royalty interests as there are non-contiguous tracts of land. On the other hand, there is no limitation in the area or configuration of a contiguous mineral interest.
... [OJwners of land may create a single mineral servitude or royalty so long as they own the lands in question and so long as the tracts in question are contiguous and form a single, continuous body of land. Determination of whether a landowner reserving or granting mineral servitude or mineral royalty rights intends to create a single servitude or royalty interest or instead multiple interests is, therefore, dependent upon construction of particular conveyances. For example, it has been held that two separate deeds by the same landowner conveying mineral interests in two contiguous tracts of land create separate mineral servitudes although acquired by the same mineral owner. Thus, whether the landowner intends to reserve a single or multiple interests by a particular reservation must similarly depend upon principles of contractual construction.

Id. at 675-76 (citations omitted) (footnote omitted).

PARTITION

In the 1983 partition agreement, there were three separate conveyances of property. The first conveyance was a transfer of property from Haas-Constant Group |fito Mikell-Carruth Group. The second conveyance was a transfer of property from the Mikell-Carruth Group to Haas-Constant Group. The third, and final conveyance, was from the Mikell-Car-ruth Group to Joseph M. Haas and Montez Haas Constant.

One of the initial paragraphs in the partition agreement (emphasis supplied) provides:

WHEREAS, the said parties do desire to partition and exchange certain of their undivided interests to the end that the Haas-Constant Group (as hereinafter identified) receives certain properties or interests in properties, and the Mikell-Carruth Group (as hereinafter identified) receives certain other properties and interests in properties, in each case subject to complete mineral reservation;

Paragraph VIII further provides:

All parties transferor in this Act declare, and all parties transferee of any interest in property herein recognize, that each conveyance herein effected is made by the transferor with full and complete reservation of all oil, gas and other fugacious or similar mineral, of whatsoever nature, located in, on or under any property transferred. It is not the intention of this mineral reservation to cover or affect any sand, gravel, lignite, ore or other solid minerals.

The usual scenario in the cases that have been before the courts is one in which property that is co-owned is partitioned with each co-owner receiving a tract in full ownership. The present situation is different in that the co-owners of the properties that were partitioned were not all the same co-owners of each contiguous tract of land that was partitioned. When the Haas Land Company and the Haas Investment Company were liquidated, their properties were distributed to the shareholders. Eighteen people owned the properties of the Haas Investment Company, and eight people owned the properties of the Haas Land Company. The only two parties who were members of both the Haas Land Company and the Haas Investment Company properties which were the subject of the partition agreement were Nancy Car-ruth and Franklin H. Mikell.

|7It is clear to this court that there would be no necessity to reserve the minerals if the parties intended that a single servitude be created over all the properties to the partition. Obviously, the parties intended to reserve the minerals in the same proportion on any property they owned prior to the partition by inserting the reservation language in the partition agreement.

With the reservation of the minerals pri- or to combining the lands for partition, the owners of the minerals on each piece of property are different from the owners of the surface of the property after the partition. Different tracts of land had different owners prior to the partition; therefore, different mineral servitudes were created on each tract of property that was part of the partition.

Nancy Carruth and Franklin Mikell point out that they each had an undivided ownership interest in all of the lands when the reservation was made. They argue that their reservation of the minerals in the properties created a single mineral servitude over all the property in their favor.

While Ms. Carruth and Mr. Mikell may have an ownership interest in each mineral servitude on each tract or property, this does not create a single mineral servitude. They are co-owners in each separate mineral servitude with the different parties who had an interest in a particular tract before the partition agreement. The effect of the reservation of the minerals was to create multiple mineral servitudes.

We find that there is no question of material fact that prescription on the mineral servitude on the tract of land in question had not been interrupted by the operation of the well in Avoyelles Parish, six- and-two-tenths miles away from the well in question in Evangeline Parish, since there was no single mineral servitude. The mineral servitude created in 1983 prescribed in 1998, and Tiger Bend is the owner of the minerals on the property as the owner of the surface of the property. | ¾ The granting of the motion for summary judgment filed by Tiger Bend is affirmed. Costs of this appeal are assessed to the Mikell Group.

AFFIRMED.

      . The Mikell Group consists of Nancy Mikell Carruth, Donna Tebow Taylor, William Mikell Tebow, Franklin H. Mikell, Minnie O’Shee, Franklin O. Mikell, Martha Mikell Abshire, and Melinda L. Mikell.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Vickie HANKS, Appellant.
    No. 46,110-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 9, 2011.

      Kimberly R. Norris, Douglas L. Har-ville, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny W. Douci-ere, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   WILLIAMS, J.

|2The defendant, Vickie Hanks, was charged by bill of information with distribution of a Schedule II, Controlled Dangerous Substance (cocaine), a violation of LSA-R.S. 40:967. Pursuant to a plea agreement, the state amended the bill of information and the defendant pled guilty to the charge of attempted distribution of cocaine, in violation of LSA-R.S. 40:979 and 40:967. The defendant was sentenced to serve 10 years of imprisonment at hard labor. The district court denied defendant’s motion to reconsider sentence. The defendant appeals her sentence as excessive. For the following reasons, we affirm.

DISCUSSION

The record shows that in June 2008, defendant went to the Embers Motel in Franklin Parish and sold $80 worth of crack cocaine to an undercover agent. Defendant was arrested and charged with distribution of cocaine. As a result of the plea agreement, the defendant pled guilty to the reduced charge of attempted distribution of cocaine and the state agreed not to charge her as an habitual offender. Subsequently, the district court sentenced defendant to serve 10 years at hard labor. This appeal followed.

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the 10-year sentence is excessive considering that she is a 50-year-old grandmother who desires treatment for her acknowledged substance abuse problem.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge |sis not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581.

Second, the court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, the appellate court will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. The sentencing range for a |4conviction of distribution of cocaine is two to 30 years at hard labor, the first two years of said sentence being without benefit of parole, probation or suspension of sentence, and an optional fíne of not more than $50,000. LSA-R.S. 40:967(B)(4)(b). The penalty for conviction of attempted distribution of cocaine is imprisonment and a possible fine not to exceed one-half of the maximum punishment for distribution. LSA-R.S. 40:979.

Prior to imposing sentence, the district court reviewed a presentence investigation (PSI) report and recited defendant’s criminal history, which included prior felony convictions for simple burglary and forgery. The court noted that defendant was placed on probation for the simple burglary conviction, but her probation had been revoked after positive drug screens. The court considered the guidelines of Article 894.1, finding that there was an undue risk the defendant would commit another crime if not incarcerated, that she was in need of correctional treatment most effectively provided by her commitment to a penal institution, and that a lesser sentence would deprecate the seriousness of her offense.

Regarding defendant’s social history, the court was aware of defendant’s age, that she had graduated from high school and that her employment provided the primary financial support for her family. However, the court found several aggravating factors, including defendant’s status as a third felony offender, her poor performance during probation and her continued use of cocaine despite previous substance abuse treatment. The court also pointed out that defendant had reduced her sentencing exposure through the plea agreement, which provided that the state would not file a multiple offender bill of information.

IsThe record demonstrates that the district court considered the appropriate factors and articulated adequate reasons for the imposition of this 10-year sentence, which is neither grossly disproportionate to the seriousness of the offense committed nor an abuse of the court’s discretion. Thus, we cannot say the sentence imposed is constitutionally excessive. The assignment of error lacks merit.

In reviewing the record for error patent, we note that the district court failed to specify that the first year of defendant’s sentence must be served without benefit of parole, probation or suspension of sentence pursuant to Sections 967(B)(4)(b) and 979. When a district court fails to order that a sentence should be served without benefits as mandated by statute, those required restrictions are self-activating and there is no need to remand for correction of an illegally lenient sentence. LSA-R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Sudds, 43,689 (La.App.2d Cir.12/3/08), 998 So.2d 851.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: PICKETT, Judge.

text:
    STATE OF LOUISIANA v. Jeffrey Paul DENBY.
    No. 10-983.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      David W. Burton, District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant-Appellant, Jeffrey Paul Denby.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe defendant, Jeffrey Paul Denby, appeals his conviction for first degree murder. For the following reasons, we affirm the defendant’s conviction.

FACTS

On June 18, 2009, eighteen-month-old John Thomas Anthony Brewer, known as J.T., arrived at the Beauregard Memorial Hospital with severe head injuries. He was having a seizure when his mother ran into the emergency room with him. His mother told emergency room physician John McMillan that her son had fallen on the steps and hit his head on the steps and stairs. Dr. McMillan found a number of bruises to the child’s head and to the body. J.T.’s eyes were irregular. One pupil appeared enlarged and the other was a pinpoint, a sign of severe brain injury. J.T. was also not breathing appropriately. His score on the Glasgow Coma Scale was a three, indicating that he had a traumatic brain injury that was major and life-threatening.

Dr. McMillan explained at trial that J.T.’s symptoms indicated a brain herniation. The injury to J.T.’s head caused his brain to swell to the point it was no longer able to fit inside his skull. A subdural hematoma compressed the brain, and the pressure of that hematoma pushed J.T.’s brain through the opening at the lower portion of his skull, where the brain stem connects the skull and the spinal cord.

As he tried to determine the mechanism of J.T.’s injuries, Dr. McMillan found multiple sets of bruises on the child’s face and head, with different phases of bruising. Of most concern to Dr. McMillan was a significant amount of bruising to J.T.’s left eye as well as the left ridge of his cheekbone and to the ear. Dr. McMillan found blood behind the left eardrum, which was a serious concern. Dr. McMillan suspected | ¡.abuse because the history was not consistent with the mechanism of injury and the series of injuries. He gave J.T. medication to stop his seizure activities and to sedate and paralyze him to prepare him for transport to Lake Charles Memorial Hospital. Dr. McMillan took seven photographs of J.T. that were admitted into evidence:

• Exhibit A-l shows bruising to both eyes of the intubated child.
• Exhibit A-2 was taken from the child’s left side showing bruising to both eyes, predominantly on the left; old and new bruises to the cheekbone; and an old bruise to the forehead.
• Exhibit A-3 is another frontal photograph showing the different ages of the bruises and a bite block in place in the case of seizure activity.
• Exhibit A-4 shows the left side, primarily the cheekbone bruising, and also bruising to the left ear.
• Exhibit A-5 is another photograph showing bruising to the eyes and upper part of the forehead, causing Dr. McMillan to suspect “assault that occurred more than just this one time.”
• Exhibit A-6 shows the most significant bruises to the eye, cheekbone, and pin-na of the ear.
• Exhibit A-7 shows a new bruise to the back part of J.T.’s head and bruising behind the ear.

The photographs were admitted over the defendant’s objection. Dr. McMillan documented an immediate need for neurosurgery because of the traumatic brain injury and time was of the essence because J.T. was going to die unless neurosurgical intervention could take place.

At Lake Charles Memorial Hospital, J.T. had another CT scan. Dr. Jamel Saqer, a pediatric intensive care specialist with the Children’s Clinic of Southwest Louisiana, testified as an expert in pediatric critical care. His comparison of the | .¡Beauregard and Lake Charles CT scans showed that J.T. had brain swelling on the entire left side, and also on the front of the right side, causing herniation of the brain. An accumulation of blood, a subdural he-matoma, was in the membrane between the skull and the brain. The swelling ultimately affected blood circulation to the brain and deprived the brain of oxygen, causing an anoxic infarction that would lead to brain death.

J.T. underwent surgery to relieve the pressure in his brain and to prevent further damage from increased brain pressure. Dr. Wolf removed a portion of the skull so that possible continued swelling would not be detrimental to the circulation in the brain. The pressure in J.T.’s brain initially came down, but the force supplying blood to his brain also gradually declined.

After the surgery, J.T. experienced tensing motions referred to as “posturing movements,” where he would involuntarily stretch his arms and legs. The posturing movements, treated with sedatives, pain medication, and seizure medication, were caused by increasing pressure inside J.T.’s head. By June 20, 2009, it was evident that the swelling was actually infarction, and the posturing movements were the only movements that J.T. exhibited. On June 21, 2009, Dr. Wolf and Dr. Saqer shared the opinion that “[tjhere [was] no reasonable, recovery of brain function.” Despite mechanical ventilation by a breathing machine, blood pressure medication, intravenous fluids to prevent dehydration, medications to regulate body temperature and brain activity, and the use of a cooling blanket, intracranial pressure continued to escalate, and CT scans showed no improvement. Life support was stopped at 9:30 p.m. on June 21, and J.T.’s heart stopped at 12:15 a.m. on June 22.

L4Pr. Saqer could not say with medical certainty that J.T. would have died if the life support had not been discontinued. However, he opined that J.T.’s best case scenario would have been a vegetative state requiring machine support and a feeding tube, and he would have had no intellectual activity. J.T.’s brain damage was irreversible, and he was being kept alive by the ventilator. Dr. Saqer did not reach the point of declaring J.T. brain dead because of the family’s request to discontinue life support. Severe brain injury was the sole cause of death.

A video and eight photographs were taken at Lake Charles Memorial Hospital. The state sought to admit the still photos which depicted the same scene as the video. It sought to use:

approximately a minute or so of the video to fulfill the purpose of showing the extent of injuries and the treatment required as a result of those injuries and the movement of the child known as seizures or posturing as will be described by Dr. Saquer [sic].

Over the defendant’s objection, the trial judge allowed the first minute of the video to be shown, but none of the still pictures. Dr. Saqer testified that the video showed the posturing movements. Although J.T. had multiple bruises on the frontal part of his face, a laceration and bleeding in the left ear, and a bruise on the right temple, those injuries were not visible on the video because of the bandage on J.T.’s head.

Dr. Terry Welke performed the autopsy on J.T. and testified as an expert in forensic pathology. He found bruises above J.T.’s left eyebrow, in the left ear, on the right ear, in front of the right ear, on the mid-portion of the forehead, another bruise above the left eyebrow, and one in the left back of the head. He also found petechia, little red marks on the nose area, often seen in individuals that have died as a result of asphyxia. Dr. Welke reviewed photographs consistent with a possible bite wound on J.T.’s right upper arm. J.T. had two bruises above the right buttock, two bruises | sabove the left buttock, and a little superficial scrape on the inner portion of the right lower leg. Dr. Welke also found brain swelling and an accumulation of blood between the dura and the brain. He believed that the cause of death was head injury as a result of blunt force to the head, and he believed that the manner of death was homicide. The injuries were not consistent with a fall down stairs.

Detective Jared Morton believed that a criminal investigation was necessary, based upon the inconsistencies in the information given to Dr. McMillan. That investigation began with an interview of the defendant at the Beauregard Parish Sheriffs Department on June 18, 2009. After the defendant gave his statement, he was arrested and charged with attempted first degree murder and second degree cruelty to a juvenile. After J.T. died on June 22, the charge was changed to first degree murder, and the defendant gave another statement.

Prior to J.T.’s death, the defendant lived in a home owned by the grandfather of Paul Hilliard. Also residing there were Hilliard; Hilliard’s fiance, Miranda Den-by; Clara, Miranda’s three-year-old child; Courtney, Miranda’s eighteen-month-old child; Holly Brewer, J.T.’s mother and the defendant’s girlfriend; Allison, the three-month-old child of Holly and the defendant; and J.T. In the defendant’s first statement on June 18, 2009, he said he had run Hilliard’s paper route for him that morning. He came home around 6:00 a.m. and slept until 9:80 or 10:00 a.m. Holly and the four children were in the home when he awoke. Holly left around 11:00 a.m., leaving the defendant to watch the four children.

The defendant stated that he went outside. Just as he returned indoors, J.T. “grabbed the bassinet where Allison was sleeping and, and dumped it over.” The defendant Rstated that he picked her up, got her “quieted down,” and “made sure she’s fine.” According to the defendant’s first version, he then took J.T. “to the couch, laid him over, across [his] lap, and whooped him 4 times across the butt,” over J.T.’s shorts and diaper. J.T. cried for a while and pouted a little; the defendant held him and watched a movie for about an hour.

The defendant said when he fell asleep, J.T. “had got ahold” of a baby gate in front of the stairwell. The safety bar of the gate broke, and J.T. fell and “bumped his head on the floor.” J.T. cried, but he seemed to be all right. The defendant said he quieted J.T. again and left the room. About ten minutes later, the defendant said he returned to the room and found the baby gate down again and J.T. was standing at the top of the stairs. As the defendant started up the stairs, he said J.T. tripped over his feet and fell from around the third or fourth stair about five or six steps, until the defendant caught him around the second stair. The defendant said he checked J.T.’s pupils with a flashlight, and they were responsive. The defendant said that he “[d]idn’t nothing feel broke” when he checked J.T.’s arms and legs. The defendant said he kept J.T. awake for about an hour. He noticed a little bit of redness on the back of J.T.’s head, close to the top.

Shortly after 2:00 p.m., the defendant said he gave the children a snack, and J.T. lay down in his bed in the girls’ room where he normally slept. When Holly returned home around 2:45 or 3:00 p.m., the defendant told her that the children were all asleep. The girls awoke and began to play, but J.T. was still asleep. The defendant checked on him, and said “he wasn’t jerking or nothing like he was when we brought him to the hospital.”

L7The defendant was outside when Holly told him J.T. was not waking up. The defendant found J.T. with a high temperature, “shaking real bad,” with a non-responsive left pupil. They tried to cool him in a bath and tried to awaken him. When they were unsuccessful, they took him to the hospital around 5:30 p.m.

During the interview, detectives told the defendant that J.T. had old and new bruises and hemorrhaging inside his head. They told the defendant that they thought he was lying, that J.T. had been abused, and that he was responsible for it. The defendant admitted that he had probably hurt J.T., but he did not know how.

The defendant then admitted that J.T. had not fallen down the stairs. When detectives again noted that J.T. had been abused for some time, the defendant responded, “I’m not the only one that does it though.”

When J.T. turned over the bassinet, the defendant proceeded to spank J.T. He admitted that the spanking got out of hand. He said that he began spanking J.T. “on his butt” with and without the diaper. The defendant admitted to “popping him in the head” with his fingertips, all over J.T.’s head. He picked up J.T. and held him under his arms, “hollering at him why did he do that.” He “sat [J.T.] down hard” on the couch and “continued to whip his butt.” He “smacked him in the top of the head a couple more times.” The defendant “put [J.T.] in the bed and walked off,” but J.T. would not stop screaming and crying. The defendant said he then “whooped him a little more and popped him in the head with his pillow” as he routinely did. J.T. “shut up” for about three minutes, and the defendant left the room. When J.T. began to cry again, the defendant grabbed the pillow again and “popped him a couple more times in the head, it was pretty hard.” J.T. “cocked his head back and forth because [the |sdefendant] went one direction, then [he] went another one” about three times, and the defendant admitted he knew he hurt him.

For about five minutes, J.T. was quiet. The defendant went to the living room to hold the baby, who was crying again. J.T. began screaming and crying again. The defendant said, “he kept crying and kept crying, and kept crying, and it just heated me up, heated me up and I got mad again because I had calmed down.” The defendant said he picked up J.T. and put him down hard on the twin bed. J.T. hit his head on the wooden footboard. Not meaning to hurt him like that, the defendant said that he rubbed J.T.’s head, put him in the toddler bed, and told him to go to sleep and be quiet. According to the defendant, “that normally works, it didn’t this time so he kept crying, so I hit him a little harder in the top of his head.” When J.T. cried harder, the defendant “popped him in his face, on his face.” According to the defendant, “that’s where he got the, the dots under his eyes.”

J.T. quieted down again, and the defendant left the room. When he returned, J.T. was screaming again. The defendant said he “popped him in the side of the head and [he] accidentally hit him in his ear.” J.T. cried even harder, and the defendant carried him to the living room as J.T. “started screaming even louder.” The defendant laid him in his arms and “tossed him over on the couch ... and his head hit the couch arm.” The defendant described the blow as “another lick on the back of his head,” and he described the arm of the couch as “a pretty hard arm.” J.T. looked at the defendant with “his mad face,” so the defendant again “popfped] him on his mouth” and sent him to his room. The defendant laid J.T. in his toddler bed, and J.T. was quiet. The defendant “was mad so [he went] outside and smoke[d] a cigarette.” 19 When Holly arrived home around an hour later, J.T. was not awake. “A little while later,” Holly told the defendant J.T. was “not wanting to wake up.” She said J.T. had bruises on his head and his arm. He went inside with Holly and found bruises on J.T.’s head, arms, and face. J.T.’s left pupil was not responsive.

The defendant said J.T. was not unconscious when he put him in the bed. He was tossing and turning like he normally did when he did not want to go to bed. The defendant had not yet told Holly what he had done when J.T. was at the hospital. He told police “[t]his is the first time I’ve lost it that bad.” Normally, he would “just pop him around a couple of times,” spank J.T. on his arms, sometimes spank him on his butt and sometimes “use the, the broom head, which is the bristles and then pop him across his face and go just down his face like that.” At the end of the interview, the defendant stated, “it’s never been this bad. I’ve never done it though like this. It’s just when he dumped Allison over I, I, I snapped. I couldn’t_”

In the defendant’s second interview on June 22, 2009, he said he “had a bad feeling in the back of his head” about J.T. when he left him in his bed, and he was afraid he may have hurt him. He felt like “something about the situation told me something here is not right.” The defendant said he “was pretty mad” when J.T. pulled over the bassinet, and J.T. made him more mad when “he kept screaming at [him],” babbling, and giving the defendant “the mean look.” The defendant tried to quiet J.T., but he just kept “screaming and screaming his head off,” not crying, just screaming; this “kinda made [Defendant] mad and it kinda made [him] worried.”

The defendant said he did not know why he did not stop. He said, “[h]onestly it was one of them sorta things w[h]ere you just sorta black out and things happen ... I knew what was happening. I just, its [sic] kinda like one of them things w[h]ere | inyou’re trying to control yourself but you just can’t.” He told the deputies this had never happened to him before. The defendant said he knew what he was doing, but he could not stop, and he knew he “went overboard.” It was “like [he] couldn’t control what [he] was doing.” He kept thinking he needed to stop, but he “kept going.” The defendant said he “think[s][he] went to the point where [he] was so mad that [he] just couldn’t stop.”

J.T. turned over the bassinet between 12:30 p.m. and 1:00 p.m. The defendant lay him in his bed around 2:30 p.m. The beatings took place in spurts, where J.T. would stop screaming, and the defendant would stop hitting him. When J.T. would scream again, the defendant would hit him again. The defendant said he could not think when he lost control; it was like he was watching a movie, with no control over what took place. The longest J.T. was quiet was about ten minutes.

When the defendant learned of J.T.’s death, he said he believed he was responsible for it. He had lied about J.T. falling down stairs because Miranda had been “in trouble with OCS a few times before,” and she “didn’t want OCS coming to her house.”

Paul Hilliard corroborated much of the defendant’s story. He and Miranda returned to the home around 5:45 p.m. on June 18, 2009. By the time they arrived, Holly had returned from Lake Charles, and the defendant was there also. Holly told Hilliard that J.T. was sleeping, and Hilliard checked on him. J.T. was moving and “appeared to be asleep on his bed.”

When Hilliard first arrived at the home, the defendant told him that he had given J.T. the whipping of his life. The defendant told Hilliard that J.T. had knocked over his daughter’s bassinet and that he had whipped him for it and put him to bed. |n When J.T. did not appear for supper, Hilliard gave his plate to Holly to go feed him. Holly screamed and ran outside for the defendant; Miranda went into J.T.’s room and saw that “he wasn’t waking up.” Hilliard saw no bruises or markings, but J.T. was not waking, and he had “[s]udden twitches, here and there; like a bad dream.” Holly said J.T. had a fever, and she took him to the bathtub to cool him. Hilliard shined a flashlight in J.T.’s eyes; J.T.’s right eye “seemed to appear normal,” but his left eye “didn’t respond at all and it had a — what looked like a crack going on all the way across it.” The defendant and Holly took J.T. to the hospital around 7:00 p.m. The defendant “just said before he left that he didn’t know how all of this could have happened.”

At trial, the jury saw one minute of the video taken at Lake Charles Memorial Hospital during the state’s direct examination of Dr. Saqer. The video showed movements to which Dr. Saqer referred as “posturing.” A bandage on J.T.’s head covered multiple bruises on his face, left ear, and right temple.

Fifteen seconds of the one-minute video were also presented during the state’s closing argument. The state’s counsel asked the jury to render a verdict of first degree murder and commented, “And don’t show him anymore [sic] sympathy or mercy than he did J.T.”

The defendant, Jeffery P. Denby, was convicted by a jury of the first degree murder of an 18-month-old child, J.T., on May 21. He was sentenced to life in prison, without benefit of probation, parole, or suspension of sentence, on May 27, 2010. He argues on appeal that the trial court erred in allowing into evidence a one-minute video showing the child, close to death in the hospital, having seizures.

¡^ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

The defendant argues that the trial court erred in admitting into evidence the video taken in the hospital, during the time the defense argues J.T. was having seizures. He further objects to its use by the state during closing argument to bolster the state’s position that the jury should show the defendant no mercy.

Louisiana Code of Evidence Article 403 provides as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

The Louisiana Supreme Court has set forth the standard for the use of gruesome photographs and videos at trial, holding that the issue of the admissibility of a video is similar to the issue of the admissibility of a photograph. A video, like a photograph, may be admitted into evidence to corroborate other testimony in a case such as the location of the body, the manner of death, the specific intent to kill, the number, location and severity of wounds, and the cause of death. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

“Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they shed light upon the matter before the court.” State v. Strickland, 398 So.2d 1062, 1065 (La.1981).

| 1sThe video at issue is a portion of a video taken at Lake Charles Memorial Hospital and was shown during the testimony of Dr. Saquer. The video depicts J.T. in the hospital bed with his head heavily bandaged. Bruises on his face and body are visible. The video depicts movements that are not seizures, as argued by the defense counsel, but in fact are movements referred to as “posturing.” While certainly disturbing, they are neither overly gruesome nor unduly prejudicial. In addition to the video, the jury was shown seven photographs taken at Beauregard Memorial Hospital. These photographs were taken before J.T.’s brain surgery and before his head was bandaged. They graphically depict the location and extent of the bruises that the defendant inflicted. The defendant has not appealed the introduction into evidence of these photographs. The video which is the subject of this appeal is arguably less gruesome than the photographs. The trial judge limited the amount of the video displayed to the jury and disallowed the admission of the still photos taken with the video. The video accurately depicts J.T.’s injuries and “shed[s] light upon the matter before the court.” See Id. We find no error in the trial court’s determination that the video’s probative value out weighed any prejudicial effect. This assignment of error is without merit.

CONCLUSION

We find no error in the trial court’s admission into evidence of the one-minute video from Lake Charles Memorial Hospital. The defendant’s conviction is affirmed.

AFFIRMED.

      . Miranda Denby and the defendant were legally married at the time.

      . Presumably, these "dots” are the petechia to which Dr. Welke referred, a sign of lack of oxygen to the brain.


author: SAUNDERS, Judge.

text:
    J. Marc WILEY v. Leota Gail Leverett WILEY.
    No. 10-1306.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      James Nathan Prather, Jr., Attorney at Law, Lafayette, LA, for Defendant/Appellant, Leota Gail Leverett Wiley.
    Andre Doguet, Attorney at Law, Lafayette, LA, for PlaintiffAppellee, J. Marc Wiley.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

| |This is a case involving final spousal support. The trial court awarded the wife $200.00 per month in final spousal support under La.Civ.Code Art. 112. The wife appealed contending error by the trial court in fixing that amount and in crediting the husband for voluntary payments made to the wife under La.R.S. 9:321(D). We affirm.

FACTS AND PROCEDURAL HISTORY:

Leota Gail Wiley (Gail) and J. Marc Wiley (Marc) were married on October 3, 1969. The couple acquired substantial assets during their marriage. Gail and Marc physically separated on or about October 27, 2006.

Marc filed a petition for divorce on December 20, 2006, and the parties were divorced by judgment dated August 3, 2007. The judgment of divorce also provided that the community of acquets and gains terminated effective December 20, 2006. Gail judicially demanded final support from Marc on July 31,2009.

The parties partitioned some community assets prior to the trial on final support that is the subject of this appeal. Gail received $213,304.00 as her share of the proceeds in the sale of their marital home. Marc and Gail also divided two financial accounts at Smith Barney in May of 2008. The division of these accounts resulted in Gail receiving $269,511.00. Gail also received $45,498.00 from May of 2007 through January of 2008 as her share of payments received by Marc from the sale of a community owned business. Further, on May 19, 2010, the day of trial, Gail received $158,529.00 from Marc as her share of Marc’s 401(k), $12,497.00 as her share of Marc’s IRA, and $40,000.00 for payment of Gail’s net interest in a rental home owned by the couple. Finally, Marc voluntarily paid support to Gail totaling approximately $100,000.00 prior to the trial regarding final support on May 19, 2010.

l2After the May 19, 2010 trial, the trial court rendered a ruling and judgment on final spousal support on June 16, 2010. In that judgment, the trial court awarded Gail $200.00 in monthly, final spousal support. Thereafter, on June 21, 2010, the trial court rendered an addendum to the June 16, 2010 judgment. In the addendum, the trial court stated that pursuant to La.R. S. 9:321(D) Marc was entitled to receive credit for voluntary support payments made to Gail from July 31, 2009, the date of judicial demand for final support, to the date Marc ceased making voluntary payments to Gail in January 2010. Gail has appealed both the June 16, 2010 judgment and its addendum dated June 21, 2010.

ISSUES PRESENTED FOR REVIEW:

1. Has the Lower Court manifestly erred after having found Gail is entitled to final support, but fixing same at a nominal figure which is inadequate for the support and maintenance of said party?
2. Has the Lower Court manifestly erred in drawing upon its speculation as to present and future health, earning capacity, and financial means of Gail herein after expert medical testimony established otherwise?
3. Has the Lower Court clearly and manifestly erred in not considering the time which may be necessary for the claimant (Gail) to acquire appropriate education, training, or employment should she possibly be considered employable?
4.Has the Lower Court manifestly erred in granting Appellee relief which was not sought, prayed for, or pleadings expanded to include? i.e. Lower Court granting retroactive relief to Appellee by allowing full credit for payments made to Gail prior to final support being sought.

ISSUE PRESENTED FOR REVIEW NUMBER ONE:

Gail fails to list specific assignments of error in brief. Rather, she lists the four issues presented for review above and proceeds to address each under the same heading. The first issue she raises is that the trial court was manifestly erroneous in fixing her final support at $200.00 monthly. We do not agree.

IsThe standard of review applicable in reviewing an award of final support is “three-tiered.” Baggett v. Baggett, 96-453, p. 4 (La.App. 3 Cir. 4/23/97), 693 So.2d 264, 266.

First, we must determine whether the trial judge correctly applied the proper legal standard or standards. We do not defer to the discretion or judgment of the trial judge on issues of law. Second, we must examine the trial judge’s findings of fact. We will not overturn the trial judge’s factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous (or clearly wrong). Third, we must examine the propriety of the alimony[, i.e., final support,] award. If it is within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge’s great discretion to set such awards.

Davy v. Davy, 469 So.2d 481, 482 (La.App. 3 Cir.1986) (parenthetical in original).

Gail’s first issue presented for review questions the appropriateness of the amount of final support as set by the trial court. Thus, if the amount set by the trial court, $200.00 per month, “is within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge’s great discretion to set such awards.” Id.

The factors that a court is to consider when setting an amount for final spousal support are delineated in La.Civ.Code art. 112(B). Louisiana Civil Code Article 112 states:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
|4(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C.The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

In the case before us, the trial court found that Gail was entitled to $200.00 per month in final spousal support. It reached this determination after making a thorough review of the testimony and exhibits before it as evidenced by the ruling and judgment on final spousal support located in the record.

First, the trial court found that Gail had monthly expenses totaling $3,566.65. Gail argues that this figure is erroneous, as the trial court failed to consider the rise in her future health care expenses when it reached this total. We find no credence in this argument.

The sole item that Gail submitted to support her argument is a Louisiana Health Plan HIPAA Brochure dated 2007. According to Gail, this brochure, if applied to the situation that she will face in the future, indicates that her premiums for health care coverage may rise to $735.00 per month rather than the $522.66 that was used by the trial court in calculating her expenses. Further, Gail asked the trial court to consider the $5,000.00 yearly deductible as an accruing monthly expense under the plan annunciated in the 2007 brochure. We agree with the trial court that the brochure is 1 aspeculative. Moreover, the proper procedural method for Gail to pursue a change in final spousal support should any of her current circumstances materially change in the future is through La.Civ.Code arts. 114 and 116. Thus, we find no abuse of discretion by the trial court in fixing Gail’s monthly costs.

Next, the trial court calculated that Gail had received a total of $693,841.00 from the community in addition to a 2002 Toyota Avalon free from any indebtedness. Gail does not dispute that she received this considerable sum. Rather, she alleges that the majority of these funds are subject to penalties and taxes for early withdrawal and that she would only receive sixty percent of the funds available should she withdraw them. Gail fails to point to any evidence in the record to bolster this allegation. Rather, Gail seems to contend that the asset depletion required of her per the trial court’s calculations is not reasonable.

Our Supreme Court, in Loyacano v. Loyacano, 358 So.2d 304, 311 (La.1978), rev’d on other grounds, 375 So.2d 1314 (La.1979) stated the following:

On the question of what extent of asset depletion, if any, should be required of a spouse before he or she may receive [final spousal support], it is impossible to say what relative weight must be given to any one factor in a particular case. The court should instead apply a rule of reasonableness in light of all the factors named herein and any other circumstance relevant to the litigation. For example, in determining the rate at which a spouse may be required to deplete his or her assets, it may be pertinent to consider the mental and physical health of the [ ¿parties, their age and life expectancy, the parties’ other financial responsibilities, the relative ability, education and work experience of the parties, and the potential effect of any contemplated depletion of assets upon the children of the marriage. The problem is of such a nature as to be insusceptible of solution by any exact formula or monetary index, and the court should proceed with great caution and due regard for the probable long range effects of any depletion contemplated.

The trial court’s ruling and judgment on final spousal support indicates that it took into account the relevant factors as stated in Loyacano. Gail’s life expectancy was addressed by Deborah Gordon, a Certified Public Accountant. Gordon testified that Gail could withdraw $2,588.00 monthly in after tax income for her expenses and still have $180,279.00 left in her accounts at the age of eighty-three, Gail’s current life expectancy. Further, given that Gail makes these withdrawals, the trial court calculated that Gail would also have approximately $245,000.00 in equity in the home she purchased after the couple divided a portion of their community assets.

Moreover, Gail’s health, education, ability, and work experience were taken into account by the trial court in concluding that Gail could contribute $800.00 monthly to her support. There is no evidence raised by either party that the potential effect of any contemplated depletion of assets upon the children would be adverse. Accordingly, we find that the trial court did not abuse its discretion in expecting Gail to deplete some of her substantial assets in order to help support herself.

Finally, the trial court used Gordon’s withdrawal figure to conclude that Gail would need approximately $1,000.00 per month to meet her expenses ($3,566.65 in monthly expenses minus the 2,588.00 in withdrawal). Gail’s ability to provide $800.00 per month towards her support via working, as discussed in issues presented for review numbers two and three, was then properly subtracted from the $1,000.00 deficit. This left the trial court with the conclusion that Marc should pay Gail |7$200.00 per month in order to make up the difference between the $1,000.00 per month needed to meet expenses and the $800.00 per month that Gail could provide for herself. We find ample basis in the record to support each calculation made by the trial court. Thus, we find that its conclusion that Marc should pay Gail $200.00 per month in final spousal support was not an abuse of discretion.

ISSUE PRESENTED FOR REVIEW NUMBER TWO:

Gail next asserts that the trial court’s award of final support was erroneous because “the Lower Court manifestly erred in drawing upon its speculation as to present and future health, earning capacity, and financial means of Gail herein after expert medical testimony established otherwise.” This issue questions factual determinations made by the trial court. Therefore, “[w]e will not overturn the trial judge’s- factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous (or clearly wrong).” Davy, 469 So.2d at 482 (parenthetical in original).

The trial court, in ruling as it did regarding Gail’s ability to work, stated the following:

[Gail] testified she is unable to work. She claims her back injury renders her disabled. At trial she introduced the deposition of Dr. David Muldowny. Although he testified her complaints of pain could limit her ability to work, he had not limited her from working or placed any work restrictions on her. He did opine she would be unable to sit at a desk for eight hours a day.
The evidence indicates [Gail] owned a flooring business for seven years, was a teacher’s aide for eight years and worked as a self-taught computer draftsman for a year. She earned a bachelor’s degree from the University of Louisiana at Lafayette, graduating with honors. While based upon [Gail’s] age and back problems, she cannot be expected to work an eight hour day, five days a week, her education and intelligence qualifies her for at least part-time employment. At a minimum she should be capable of earning $12 per hour and working 20-25 hours per week. After taxes, she would be able to contribute at least $800 per Rmonth to her own support.

Gail bases her assertion that the trial court unreasonably found that she could return to work on two reports of Dr. David Muldowny. The first report, dated January 28, 2009, states, “[Gail] has been a housewife for a long time. She is in the process of trying to supplement her income, but does not feel like she will be able to go back to work and I agree.” The second report, dated October 27, 2009, states, “I don’t think [Gail] is capable of working at this point, primarily because her previous occupation was retail and I don’t see that she can sit or stand for more than two or three hours at a time.”

We agree that these reports indicate that Gail would not likely be able to work at the time they were made. However, Dr. Muldowny, during his deposition on May 13, 2010, testified to the following:

Q. And obviously, the more mobility [Gail] has and the higher function that she has, the more capable she would be of doing any sort of work, correct?
A. Correct.
Q. All right. And really, whether of not she returned to you, you have not limited her from returning to work in any way, shape, or form?
A. No.
Q. That’s totally a decision by Gail?
A. Yes. I don’t have the specific restriction for work, correct.
Q. All right. And she wants to do a wellness program as well as Pilates. And she’s now at a point where she feels' like she wants to engage I those activities?
A. Yes.
|nQ. Do you know whether or not she started them?
A. I don’t, at this point.
Q. All right. And you gave her a release to do it. So from your standpoint, she’s well enough, from a medical — your medical expertise, to authorize her to engage in those activities?
A. Yes.
Q. All right. Can she do routine household chores? Would you have any restrictions for her doing those?
A. No.
Q. Okay. You have not been asked to help her return to work or find work?
A. No.
Q. You haven’t been asked by any — to assist in any vocational rehabilitation efforts of any kind?
A. No.
Q. All right. You’re still recommending that she exercise and walk. ■ Those things would strengthen her muscles and her joints, right?
A. Potentially, yes.
Q. And that would be good for her?
A. Yes.
Q. In fact, Doctor, wouldn’t work be good — isn’t work typically a good thing for people to engage in? It takes their mind off their physical or medical conditions?
A. Typically, yes. I encourage everyone to try to continue working in some capacity, if they can.
Q. So depending on Gail’s educational background and her ability to find accommodations for her physical limitations, that would necessarily change your opinions about her ability to work?
|1IVA. It potentially could, yes.
Q. Now, if somebody says, “Okay. You’re in retail. You’ve got to sit at this desk for eight hours a day,” do you think [Gail] can do it, based on what you’ve seen in your report and your history on this case?
A. No.
Q. Okay. So it’s a case-by-case basis is what it comes down to?
A. Correct.

This testimony indicates that Gail’s ability to work depends on the position offered to her. Further, it indicates that Gail’s condition has been improving since the reports issued by Dr. Muldowny in 2009.

Additionally, it is clear from his deposition that Dr. Muldowny was unaware of Gail’s education when issuing his opinion regarding Gail’s ability to work, as he stated in that deposition that he did not know Gail had a degree from ULL. Thus, the contents of his notes from January and October of 2009 regarding Gail’s ability to work were limited to an opinion regarding Gail’s ability to obtain work in retail.

Finally, according to his deposition, Dr. Muldowny was not asked to help Gail find work, nor was he involved in her vocational rehabilitation. Therefore, it is reasonable that Dr. Muldowny’s opinion was not made completely focused on whether Gail was unable to work. Rather, according to his deposition, Dr. Muldowny left that decision up to Gail.

Accordingly, we find that the testimony by Dr. Muldowny does not indicate that Gail is unable to work, as Gail claims. Her argument is that the expert medical testimony made the trial court’s conclusion that she could contribute to her support manifestly erroneous. To the contrary, we find that Dr. Muldowny’s testimony is not | ninconsistent with the trial court’s factual determination that Gail is able to work. Therefore, Gail’s argument lacks merit. ISSUE PRESENTED FOR REVIEW NUMBER THREE:

Gail’s next issue listed is that “the Lower Court clearly and manifestly erred in not considering the time which may be necessary for [her] to acquire appropriate education, training, or employment should she possibly be considered employable.” Gail fails to point out any evidence in the record to support this assertion, nor does she argue this point in brief Rather than simply finding that she waives this issue, we will look to the record to determine whether the trial court’s finding that Gail could contribute to her support was reasonable.

Again, this issue calls into question factual determinations made by the trial court. Therefore, “[w]e will not overturn the trial judge’s factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous (or clearly wrong).” Davy, 469 So.2d at 482 (parenthetical in original).

We already found in Issue Presented for Review Number Two that the medical testimony of Dr. Muldowny did not necessitate a finding that Gail could not physically contribute to her support. Here, we will determine whether the record supports a finding that Gail possessed the necessary mental attributes to contribute to her support.

Our review of the entire record supports the trial court’s finding regarding Gail’s ability to contribute to her own support. Gail operated a floor covering business for seven years which required her to handle inventory, make sales, line up installers, and handle customer complaints. According to Gail she did “the whole sehmo.” Further, Gail was a teacher’s aide for eight years and worked as a self-taught | ^computer draftsman for a year. She accomplished this while raising the couple’s children. Further, while balancing these acts, Gail obtained a degree from ULL, with honors, finishing second in her class. Thus, it is clear that Gail already has the education and training to obtain part-time employment earning $12.00 per hour, as she is clearly an intelligent and capable person. Accordingly, given the record on Gail’s ability to work, we find that the trial court’s determination that Gail was fully able to contribute $800.00 per month to her support is reasonable. ISSUE PRESENTED FOR REVIEW NUMBER FOUR:

In her final issue presented for review, Gail contends that “the Lower Court manifestly erred in granting [Marc] relief which was not sought, prayed for, or pleadings expanded to include? i.e. Lower Court granting retroactive relief to [Marc] by allowing full credit for payments made to Gail prior to final support being sought.” We find these contentions lack credence.

These issues raised by Gail pose questions of law. Therefore, “we must determine whether the trial judge correctly applied the proper legal standard or standards.” Davy, 469 So.2d at 482.

Louisiana Revised Statutes 9:321 (emphasis added) states:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim spousal support allowance shall be retroactive to the date of judicial demand.
B. (1) A judgment that initially awards or denies final spousal support is effective as of the date the judgment is rendered and terminates an interim spousal support allowance as of that date.
(2) If an interim spousal support allowance award is not in effect on the date of the judgment awarding final spousal support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown.
C. Except for good cause shown, a judgment modifying or revoking a | l3final spousal support judgment shall be retroactive to the date of judicial demand.
D. Spousal support of any kind, except that paid pursuant to an interim allowance award, provided by the debtor from the date of judicial demand to the date the support judgment is rendered, to or on behalf of the spouse for whom support is ordered, shall be credited to the debtor against the amount of the judgment.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence.
F. A judgment extinguishing an obligation of spousal support owed to a person who has cohabited with another person of either sex in the manner of married persons shall be retroactive to the date of judicial demand.

Gail first asserts that the trial court’s addendum to the ruling and judgment on final spousal support was not proper because its issuance was never requested of the trial court. We find this assertion misguided.

The trial court, in its initial judgment, failed to credit Marc for his voluntary payments to Gail. Had the initial judgment stood as originally issued, it would have been improper because the trial court failed to consider Marc’s voluntary payments to Gail. While it is true that Marc did not file any pleading or request to have this credit granted to him, he need not do so, as the language of La.R.S. 9:321(D) is such that it is mandatory for the trial court to consider voluntary payments made by one spouse to another during the period of time between the date of judicial demand and judgment on final spousal support. Thus, Gail’s argument that Marc must request this credit in order to receive it is incorrect.

Moreover, the record indicates that this issue was raised both prior to and during the trial. Thus, Gail’s complaint regarding the inability to elicit testimony regarding this issue is unfounded. Gail was aware of La.R.S. 9:321(D) and had ample | uopportunity to testify regarding its application at trial.

Gail next asserts that, assuming it was proper for the court to render the addendum, it was improperly done because it credited Marc for amounts he paid to Gail prior to her demand for final spousal support. This assertion is unfounded.

The trial court issued the addendum to its ruling and judgment on final support that stated “[Marc] is entitled to receive a credit for voluntary spousal support payments made to [Gail] from July 31, 2009, the date of judicial demand for final support, to the date [Marc] ceased making voluntarily [s.i.c] payments in January 2010.” The language of the addendum is clear. Marc’s credit is for voluntary payments made to Gail starting on the date of Gail’s judicial demand. This is exactly the mandate of La.R.S. 9:321(D) that “[s]pousal support of any kind ... provided by the debtor from the date of judicial demand to the date the support judgment is rendered ... shall be credited to the debtor against the amount of the judgment.” Therefore, there is no merit to Gail’s assertion that the addendum was improper because it credited Marc for amounts he paid to Gail prior to her demand for final spousal support.

Accordingly, both assertions raised in this issue presented for review are without merit. Therefore, we find no error by the trial court in issuing the June 21, 2010 addendum.

CONCLUSION:

Gail presents four issues for review. We addressed each issue presented finding no error by the trial court in its judgment. All costs of this appeal are taxed to Leota Gail Wiley.

AFFIRMED.

      . Louisiana Civil Code Article 114 states:
      An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obligor spouse shall not constitute a change of circumstance.

        Louisiana Civil Code Article 116 states:
      The obligation of final spousal support may be modified, waived, or extinguished by judgment of a court of competent jurisdiction or by authentic act or act under private signature duly acknowledged by the obli-gee.