text:
    Laura Mathys Poole COLEMAN, Plaintiff-Appellant v. Edward Allen COLEMAN, Jr., Defendant-Appellee.
    No. 47,080-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Ginger West Johnson, Shreveport, LA, for Appellant.
    Kitchens, Benton, Kitchens & Black, Minden, LA, by Paul E. Kitchens, for Ap-pellee.
    Before CARAWAY, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

hln this custody and child support dispute, the trial judge awarded joint custody of the parties’ six-year-old daughter, Emma. Laura Coleman was designated as the domiciliary parent, with supervised visitation in favor of Ed Coleman. The visitations are to be in the home of Ed’s mother, Molly Coleman, and are to be supervised by either his mother or his sister, Beverly Coleman. Ed was ordered to pay child support in the amount of $879.30 beginning on June 1, 2011. The trial judge further ordered that Ed be allowed to petition the court to lift the supervision restriction when Emma reaches the age of ten years. Laura now appeals and Ed has answered the appeal. For the reasons stated herein, we amend the judgment to start the final child support obligation on June 28, 2011. In all other respects, we affirm.

FACTS

Laura and Ed married in 2004 and divorced in 2009. They had one child, Emma, who was six years old at the time of trial. This was Laura’s third marriage and Ed’s fourth and each of them had major children from prior marriages. Laura currently lives with Emma in Min-den, Louisiana. Ed lives with his mother in Haynesville, Louisiana.

Both Laura and Ed are registered nurses. Laura has been licensed since 1994 and works as a director at a home health care agency. Ed works at Brentwood in Shreveport on the weekends and has his own roofing business during the week. Ed has a 30-year history of alcohol and drug abuse. His criminal record includes eight convictions for DWI-three first offenses, three second offenses and two third offenses. Ed has four felony 12convictions, including two of the DWIs, one forgery conviction and one for issuing worthless checks. He has been an R.N. since 1998, but has never had an unencumbered license due to his addiction problems. Ed has been in and out of the Recovery Nurse Program (“RNP”) three times and has participated in other rehabilitation programs. Ed has admitted to a $1,500 per day cocaine habit in 2007. Despite Ed’s history as described, Laura and the expert witnesses who testified at the custody hearing agree that Ed loves Emma, desires to be in her life and that a relationship with her father is important to Emma’s development. Significantly, the record indicates that Emma is unaware of her father’s history of alcohol and drug abuse and she enjoys a loving and secure emotional relationship with him.

Laura filed for divorce on June 28, 2009, and sought joint custody, domiciliary status and use of one of the couple’s vehicles. Ed answered the petition and reconvened, seeking co-domiciliary status and equally shared physical custody, exclusive use of a vehicle and interim and permanent spousal support. On August 8, 2009, an interim order issued providing that Emma live with Laura, with visitation with Ed every other weekend and child support in the amount of $200 to be paid by Ed to Laura. The judge appointed Dr. John Simoneaux to evaluate Laura, Ed and Emma. Ed was ordered to provide Laura all records from the RNP and to submit to drug testing as requested by Laura. The record reveals that the parties had difficulty communicating with each other and facilitating civil transfers of physical custody of Emma under the interim order.

|oDr. Simoneaux evaluated the parties and submitted his report on March 27, 2010. Dr. Simoneaux opined that the then-current visitation schedule was “fairly liberal” and recommended supervised visitation. As a result, on April 8, 2010, a status conference was held during which the trial judge verbally ordered that Ed’s visitation be supervised from that point forward and that Ed no longer sleep in the same bed as Emma. Also as a result of Dr. Simoneaux’s report, Laura filed another Rule for Divorce and Incidental Matters on August 12, 2010, seeking sole custody of Emma with only supervised visitation in favor of Ed.

Amidst several delays in setting and resetting the rule, the divorce was granted on November 12, 2010, and holiday visitation was subsequently set by interim order on December 21, 2010. The custody rule was heard on May 25-26, 2011.

THE TESTIMONY AND EVIDENCE

Laura and Ed testified at trial and additional testimony from lay witnesses was accepted by stipulation. Dr. Simoneaux also testified, along with Dr. Richard Williams, an expert in addiction medicine who evaluated Ed for purposes of the custody litigation and testified on Ed’s behalf. In addition, the reports of Drs. Ken Roy and Alan James Klein, psychiatrist and psychologist respectively, were introduced on behalf of Ed. Dr. Roy evaluated Ed in March 2009 in order to make a recommendation for Ed’s eligibility for admission into the RNP. Dr. Klein also evaluated Ed in March 2009 as a component of the process of his attempts to have his nursing license reinstated by the Louisiana Board of Nursing.

LDr. Williams was qualified as an expert in addiction medicine and testified on behalf of Ed. Dr. Williams interviewed only Ed — not Laura or Emma — and, therefore, could not offer a recommendation on custody. Rather, he opined as to Ed’s current condition regarding his addiction and recovery efforts. Dr. Williams testified that Ed is in full remission. He opined that the safeguards of the RNP, including frequent random drug screening, attendance at AA meetings, counseling and work supervision are strong enough to protect Emma while in the physical custody of Ed and that there is no need for supervision of visitation.

As the trial judge noted, Dr. Williams agreed that, as an addict, Ed is always subject to relapse. His mental health evaluation of Ed concurred with the reports of Drs. Simoneaux, Roy and Klein, that Ed exhibits traits of narcissism and antisocial disorder and he is arrogant, defiant and has trouble with authority.

As stated, Dr. Simoneaux was appointed by the judge and evaluated Ed, Laura and Emma. He testified that Ed’s extensive history of abuse renders him very likely to relapse and that Emma is too young to protect herself if Ed relapses while she is in his custody. He found Laura to be exceptionally “normal,” very stable and, in fact, too lenient and giving with Ed. He found Ed to be antisocial and narcissistic and opined that his visitation should be supervised and that Laura has a good argument for requesting sole custody. Dr. Simoneaux agreed that both Laura and Ed are devoted to Emma, but that Ed’s criminal history and addiction pose a threat to Emma’s safety and that the visitations should be supervised by someone |sother than Ed’s mother to ensure that the visits are appropriately monitored. Significantly, Dr. Simoneaux disagreed with Dr. Williams’ assessment that the external safeguards of the RNP are sufficient to ensure Emma’s safety while she is in the physical custody of Ed.

Dr. Simoneaux’s opinion of Emma was remarkable. He found her to be happy, well-adjusted and healthy. Emma revealed no signs of coaching to Dr. Simo-neaux and he found no evidence that either parent had disparaged the other to her.

Dr. Roy evaluated Ed in 2009 after 18 months of sobriety and recommended that he be admitted to the RNP as part of Ed’s effort to have his nursing license reinstated. Dr. Roy noted that Ed had been found to have anti-social traits and a long history of addiction.

Finally, Dr. Klein’s report was básed on a history provided by Ed and psychological testing. His report explained that alcohol dependency is a manifestation of the antisocial traits exhibited by Ed. Testing revealed an “immature, insecure personality structure” and Dr. Klein noted that Ed would likely have problems with authority figures. Further, Ed’s score elevations were found to be consistent with self-indulgent and impulsive behaviors, poor judgment and failure to consider the consequences of his actions. Dr. Klein found Ed to be prone to moodiness and caustic behavior. Dr. Klein concluded that 18 months is- a relatively short period of sobriety and questioned whether Ed could maintain sobriety and not present a public risk (in his nursing practice). Concerned that the personality traits as described above may trigger a relapses, Dr. Klein recommended a longer | ¿period of sobriety before allowing Ed to be directly involved in patient care, possibly a probationary period during which Ed worked in case management or administration.

At the conclusion of the trial, the trial judge took the matter under advisement. Subsequently issued written reasons for judgment provide the following rulings relevant to this appeal:

• Joint custody with Laura as domiciliary parent;
• Ed granted supervised visitation of every other weekend, one-half holidays and one week in each of the summer months, to be supervised by his mother, Molly Coleman;
• Ed to pay child support of $879.30 beginning June 1, 2011;
• Ed may petition the court for change of custody regarding the supervision of visitation when Emma reaches the age of ten without having to establish a change of circumstances;
• Laura will not allow Emma to be around Laura’s adult son, Cody;
• Neither parent will take Emma out of state without two weeks’ prior notice to the other parent and consent of that parent or court order.

This appeal by Laura ensued and Ed has answered the appeal.

DISCUSSION

Reliance on Facts not in Evidence

Before addressing the merits of the appeal, we note that Laura complains throughout her brief and assigns as error that the trial judge improperly relied on facts not in evidence in fashioning her ruling. Specifically, Laura cites the trial judge’s reference to pretrial custody issues which required conference calls and the judge’s participation to resolve, as well as the trial judge’s finding that Ed’s mother is a retired school teacher |7which weighs in favor of her suitability as a supervisor of Ed’s visitation. We are not persuaded that the trial judge’s reference to such facts constitutes reversible error. These facts are borne out by the record before us and our review of the same leaves this court convinced that the trial judge considered all relevant facts peculiar to this case in her effort to effect a workable and safe custodial arrangement for Emma. Specifically, we note that the testimony of Ed’s mother and sister was accepted by stipulation of the parties. Ms. Coleman’s testimony was that she is a retired high school teacher, plays the organ at her church and is well aware of Ed’s history of abuse and also of the loving bond between Ed and Emma. Ed’s sister Beverly’s testimony was that she is a high school teacher, attends church and Sunday school with her brother and sees him on a daily basis. This argument is without merit.

Joint Custody and Supervised Visitation

Four of Laura’s seven assigned errors on appeal challenge the trial judge’s failure to consider the factors in La. C.C. art. 134 and the determination by the trial judge that joint custody with supervised visitation in favor of Ed, to be supervised by his mother, is in the best interest of Emma. Ed has answered the appeal and, in his first assignment of error, requests that his visitation with Emma be unsupervised.

The paramount consideration in any child custody case is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. The court is to consider all relevant factors in | sdetermining the child’s best interest. La. C.C. art. 134. The court is not required to make a mechanical evaluation of the statutory factors, but should decide each case on its own facts in light of those factors. Barrios v. Barrios, 45,295 (La.App.2d Cir.3/3/10), 32 So.3d 324; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. The factors are not exclusive, but are meant as a guide for the court to assess their relative weight and fashion a custody order within its great discretion. Barrios v. Barrios, supra. Furthermore, in Walker v. Walker, 38,982 (La.App.2d Cir.8/18/04), 880 So.2d 956, this court explained:

| flOur jurisprudence is clear and extensive that a trial court is not required to mechanically evaluate the article 134 factors considered in determining the best interest of a child. We take that to mean that a literal articulation of the factors considered is unnecessary when a trial court reaches a conclusion regarding a child’s best interest. Although it would certainly be helpful in reviewing a trial court’s disposition pertaining to a child’s best interest, the trial court’s means of weighing and balancing the article 13^ factors need not be specifically stated.

(Emphasis added.)

Moreover, underlying the trial court’s great discretion in child custody cases is its opportunity to better evaluate the credibility of witnesses. Accordingly, a trial court’s determination in the establishment or modification of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Mayo v. Henson, 42,250 (La.App.2d Cir.5/9/07), 957 So.2d 318, and cases cited therein.

The trial judge’s written reasons reveal an exhaustive and thorough review of the testimony and psychological reports in this case. The judge’s reasons are replete with references to factual considerations and findings that mimic the factors suggested in article 134. The trial judge closely considered Ed’s addiction and mental state, the parties’ capacity to care for Emma and their ability to provide her a safe and loving environment. We find no legal error in the trial judge’s failure to specifically reference the factors as enumerated in article 134. Such specificity is not required in determining the best interest of the child. Walker v. Walker, supra.

Next, Laura argues that the trial judge manifestly erred in determining that joint custody, rather than sole custody, was in Emma’s best interest. We disagree.

10Under La. C.C. art. 132, Laura’s burden was to prove by clear and convincing evidence that sole custody, as opposed to joint custody, was in the best interest of Emma. In order to prove a matter by clear and convincing evidence, a party must demonstrate that the existence of a disputed fact, in this instance, that sole custody was preferable, is highly probable or much more probable than its nonexistence. White v. Kimrey, 37,408 (La. App.2d Cir.5/14/03), 847 So.2d 157, unit not considered, 03-1943 (La.8/1/03), 849 So.2d 534. We find that Laura failed to show by clear and convincing evidence that sole custody was in Emma’s best interest. While Dr. Simoneaux opined that Laura would have a good argument for sole custody, the trial judge reviewed the history of the parties’ sharing of physical custody, the lack of cooperation on Laura’s part on exchanging physical custody of Emma and her inability to be flexible with the custody arrangements prior to trial. There was no evidence presented that clearly favored sole custody or that tended to show that joint custody would in any way be harmful to Emma or not in her best interest. The trial judge noted that Emma has a loving and healthy relationship with both parents. From her reasons for judgment, it is apparent that the trial judge endeavored to fashion the best arrangement for Emma to continue a close relationship with both parents while ensuring her safety through supervised visits with her father. We find no manifest error in the trial judge’s factual findings and conclusions in this regard.

Laura further submits that the trial judge manifestly erred in allowing overnight supervised visits to be supervised by Ed’s mother. First, we note l„that the judgment provides for the visitation to take place in Ed’s mother’s home, but may be supervised by either Ed’s mother or his sister. We find ample evidence in the record to support the trial judge’s conclusion that, on the particular facts of this case and the options available to the court, it is in Emma’s best interest that her visits extend overnight and be supervised by one of the woman who are most familiar with Ed and Emma and have persuaded the court that they are appropriate persons to ensure Emma’s safety. Emma has enjoyed overnight visitation with her father without incident prior to trial, and Ed’s mother has supervised those visits. Again, the record contains no evidence to suggest that this arrangement is not in Emma’s best interest.

As previously stated, in his answer to the appeal, Ed argues that the trial court erred in imposing the supervision requirement on his visitation with Emma. He submits that there is no evidence in the record that suggests that he poses a threat the child. We are not persuaded by Ed’s argument.

The trial judge concluded that, because of Emma’s tender age, the external safeguards of the RNP are not enough to ensure her safety with Ed. There is no dispute regarding Ed’s history of alcohol and drag abuse. There is no dispute that he exhibits traits of personality disorders which may affect his behavior with Emma. There is no dispute that Ed, or any addict, may relapse at any given time. The experts disagreed on whether the safeguards of the RNP were sufficient to ensure Emma’s safety while in Ed’s physical custody. The trial judge weighed those opinions and concluded that six-year-old Emma’s best interest would be served by having her visits | ^supervised until she is of the age that she is more able to protect herself in the event that her father relapsed while she is in his custody. We find no manifest error in that conclusion.

In summary, the trial judge, in her discretion, found that sole custody in favor of Laura was not in Emma’s best interest; rather, joint custody with supervised visitation sufficiently addressed Laura’s valid and justified concern for Emma’s safety. This conclusion is well supported by this record and is within the vast discretion of the trial judge.

No Contact with Laura’s Adult Son Permission to Travel out of State

In her fourth assignment of error, Laura challenges the trial judge’s rulings that Laura’s adult son, Cody, may not be around Emma and that each parent must provide notice to the other parent of the intent to take Emma out of state. The traveling parent must also obtain the consent of the other parent or the permission of the court before leaving the state with the child.

Cody is the adult son of Laura from a prior marriage. It is undisputed that Cody abuses drugs and alcohol and refuses rehabilitation. Cody also has a criminal history, including one incident where he held a gun to someone’s head. In addition, his probation was revoked due to cocaine abuse. No evidence was presented that Cody is not presently abusing drugs and/or alcohol. Drs. Simoneaux and Williams both expressed concern over Cody being allowed around Emma. Dr. Simoneaux opined that, without serious intervention, one can “bank on” the fact that this type of individual | iswill commit another act of violence. We find no manifest error in the trial judge’s order that Emma not be in the presence of this influence.

Likewise, we find no manifest error in the trial judge’s determination that each parent should give the other notice of that parent’s intent to travel out of state with Emma. The requirement that Ed and Laura obtain the other parent’s consent or the permission of the court to make such a trip is a reasonable condition to be placed on parents who have exhibited difficulties in cooperating with each other concerning physical custody of the child.

Retroactivity of Child Support

Laura also assigns as error the trial judge’s failure to begin the award of final child support on the date of judicial demand, which was June 23, 2009. The final judgment awarding child support in the amount of $879.30 payable by Ed to Laura was signed on June 28, 2011. As previously stated, the trial judge ordered the child support to begin June 1, 2011. Laura mistakenly argues that La. R.S. 9:310 controls and provides that child support be made retroactive to the date of judicial demand, absent a showing of good cause why it should not be made retroactive. The retroactivity of child support awards, however, is currently governed by La. R.S. 9:315.21, Retroactivity of child support judgment, which provides:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
| mB. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
D. Child support of any kind, except that paid pursuant to an interim child support allowance award, provided by the judgment debtor from the date of judicial demand to the date the support judgment is signed, to or on behalf of the child for whom support is ordered, shall be credited to the judgment 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, but in no case shall this date be a date prior to the date of judicial demand.

Here, there was an interim order of child support in effect when the final judgment awarding child support was signed. Section B(l) of the statute provides, therefore, that the final award of child support begin on June 28, 2011 — the date the judgment was signed — and the interim award terminated on that date. Upon a showing of good cause, however, a trial court may order a final child support award retroactive to the date of judicial demand, even though there has been an interim award in effect. Vaccari v. Vaccari, 10-2016 (La.12/10/10), 50 So.3d 139. On the record before us, we find no showing of good cause why the final award of child support should be made retroactive to June 23, 2009. There was an interim award in place of $200 |1sper month, which Ed voluntarily increased to $600 per month. Laura reported to Dr. Simoneaux that she was unconcerned with the amount of child support. Absent a showing of good cause, the statute requires the award of final child support to begin on the date of the signing of the judgment, thus terminating the interim award. We amend the judgment to reflect that the final child support award shall begin on June 28, 2011.

Future Lifting of Supervision Restriction

Finally, Laura asserts that the trial judge was without authority to order that Ed may petition the court to change custody when Emma reaches the age of ten years without having to show a change in circumstances as would otherwise be required under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). This argument lacks merit.

A modification of visitation rights is not so substantial as a change in actual physical custody. Adams v. Adams, 39,-424 (La.App.2d Cir.4/6/05), 899 So.2d 726, citing Acklin v. Acklin, 29,193 (La.App.2d Cir.2/26/97), 690 So.2d 869. As such, the higher burden of Bergeron does not apply and a showing that the modification is in the best interest of a child is sufficient. Adams v. Adams, supra. In the case sub judice, Ed may petition the court at any time to have the supervision restriction lifted and the trial court retains jurisdiction to so lift the restriction on a showing that it is in Emma’s best interest to do so.

\mED’S ANSWER TO THE APPEAL

Ed assigns two errors in his answer to the appeal. The first assignment was addressed above and concerned his challenge to the restriction that his visitation with Emma be supervised.

In his second assignment of error, Ed requests additional summer visitation with Emma. The trial judge awarded Ed three weeks out of the summer and he is requesting two additional weeks, so that he would have the first two weeks of June, the first two weeks of July and the first week of August with Emma. The judgment also provides, however, that the alternating weekend visitation schedule shall continue in effect during the summer months, which means that Ed will enjoy liberal summer visitation of three weeks in addition to his weekend visitations. Accordingly, we find no manifest error in the trial judge’s summer visitation award.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to begin the award of child support on the date of the signing of the judgment, June 28, 2011. In all other respects, the judgment is affirmed. Costs of appeal are assessed to Laura Mathys Coleman.

AMENDED AND, AS AMENDED, AFFIRMED.

      . La. C.C. art. 134 enumerates the relevant factors that a trial court shall consider in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

        (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . In his brief, Ed asserts an error in calculation of the amount of child support. We have reviewed the mathematical calculations and find no error.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Respondent v. Dadrien Tremain UPDITE, Applicant.
    No. 47,007-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      F. Edward Mouton, Shreveport, LA, for Defendant-Applicant.
    Charles R. Scott, District Attorney, Jacob Broussard, Brian H. Barbel', Assistant District Attorneys, for Plaintiff-Respondent.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

11The defendant, Dadrien Updite, was convicted of a misdemeanor, domestic abuse battery, a violation of La. R.S. 14:35.3. He was sentenced to six months in the parish jail, suspended, and placed on seven months of supervised probation, with the condition that he enter and complete a domestic violence counseling program. The defendant appealed, the appeal was converted to a writ application, and a writ of certiorari was granted. The defendant’s conviction and sentence are affirmed.

FACTS

The defendant, a Shreveport police officer, married the victim, Joney Pillows-Updite, in January 2010. On the evening of Thursday, March 4, 2010, and into the early morning of Friday, March 5, 2010, there was an altercation between the couple that was both verbal and physical. The victim’s nine-year-old daughter was present in the apartment during this event.

On Saturday, March 6, 2010, the victim called the police and reported the incident. In the early morning hours of Sunday, March 7, 2010, she and her daughter gave recorded statements to the police. According to the victim’s statement, the defendant came home on Thursday after attending a class at the police academy; he called her lazy and began yelling at her. At this point, they “tussled” but no blows were struck. According to the victim, the defendant shoved her at this time. The defendant then left the apartment to go to a movie. After he returned, their dispute resumed. She was in bed and wanted to go to sleep. The defendant yelled at her, calling her names. He shoved her first. He then began to hit her with a closed fist |2on the left side of her face, her left arm and chest. In addition to “punching” her, the victim said the defendant also choked her.

According to the victim’s statement to the police, she wanted to go to the hospital the next morning; she had a preexisting problem with her wrist and shoulder and feared that the defendant had caused a re-injury to her wrist. The defendant did not want her to go because he was worried about medical personnel seeing the bruises on her body. At some point, the victim told him to take his things and leave; he complied. Because she continued to experience pain from her injuries, for which she took Aleve, the victim decided to contact the police.

In her police statement, the victim also stated that the defendant had choked her previously. About a month before, he had choked her until she had trouble breathing. She said he knew how to press enough to make her lose her breath but not pass out.

The police also took a brief statement from the victim’s daughter. She stated that her stepfather was mad when he came home. He and her mother went into their room. The daughter said she could hear him hollering and screaming and “knocking stuff down.” She said she heard her stepfather hit her mother and her mother crying.

The police then spoke to the defendant and informed him that he was under investigation for domestic abuse battery. He initially declined to give a statement. He then changed his mind and agreed to talk to the officers in the presence of his mother, who is a pastor. He stated that on Thursday evening, he made a remark to his wife about her being lazy. She hit him in |sthe face four times; he grabbed her shoulder and pushed her against the wall to stop her. He said they were in the bathroom and his stepdaughter was in another room. He denied hitting the victim and said she threatened to call the police, knowing that he could not afford to get in trouble.

In his statement, the defendant said that his wife had hit him previously and that she had left a scar and busted his lip three weeks before. However, he had not pressed charges.

On March 11, 2010, the victim signed a notarized “withdrawal of complaint” in which she stated that she wanted to withdraw her complaint of March 6, 2010. She asserted that it was not her husband’s intent to hurt her and that they both “misinterpreted” and “overreacted” during the incident. She claimed that she just wanted to make a “home report” but did not want charges filed against him. She further accused the police officers involved of “intimidating” and “misleading” her and forcing her to give a statement while she was “groggy” and “foggy” from medication.

The defendant was charged with domestic abuse battery, in violation of La. R.S. 14:35.3, by bill of information filed on May 5, 2010.

On May 28, 2010, the victim filed a petition for protection from abuse in which she alleged that the defendant had slapped, punched, choked, shoved and threatened her with bodily harm. Specifically, she asserted that in February 2010, he had pushed and choked her and that on March 4, 2010, he slapped, punched, pushed and choked her. She claimed to be afraid of his “explosive temper, threats and abuse.” She signed an affidavit verifying the petition. An order of protection was signed on May 28, 2010.

|4On June 29, 2010, the victim filed a petition for divorce in which she alleged that she and the defendant had separated on May 17, 2010, without reconciliation. She further asserted that the defendant had physically abused her and that she feared harm during the pendency of the proceedings. She requested and received a temporary restraining order against the defendant. The victim signed an affidavit of correctness.

On February 24, 2011, and April 21, 2011, the instant criminal matter was tried. The first witness to testify was the victim’s daughter. She testified that the defendant was again living with her and her mother. She initially denied recalling the March 2010 incident; however, the audio recording of her police statement was played without objection. Thereafter, she recalled details of the incident, including hearing her mother telling the defendant, “Get out of my face. Leave me alone, and stop grabbing my arm.”

The victim took the stand and recanted her allegations of abuse. She admitted signing the divorce petition verification but said she didn’t read the petition “line byline” beforehand. She said the protective order petition was written by a woman at the YWCA from the police reports and that she did not read it before signing it. However, she admitted supplying the dates that were filled in. She asserted that she wrote a typed four-page statement dated March 18, 2011, in which she accused the police of “manipulating]” and “deceiving]” her and the DA of defaming her when it requested a material witness warrant for her. When asked if she had told someone that the typed statement was actually written by her mother-in-law, she admitted |Bthat she might have said that “just being angry.” When her recorded statement was played without objection, she said she remembered “some” of it. She accused the police officers of misleading her and asserted that she “wasn’t in my right mind” when the statement was taken because it was late and she was on “medication.” She claimed that she did not want her husband arrested; instead she wanted marital counseling and for his supervisor to “talk” to him.

In her trial testimony, the victim insisted that her husband did not intend to hurt her. She said she told the officers that it was dark and she could not see if the defendant punched or pushed her to cause the bruises on her chest. She said that instead of punching her, he could have “just fell on the bed.” She additionally insisted he restrained her because she threw something at him and he might have thought she was going to hit him. She admitted that she was physically sore from their “quarrel.” In fact, she testified that the next day she was in so much pain, she could not roll over in any direction.

Sergeant Jody Jones, one of the two officers who interviewed the victim and her daughter, testified. He stated that the victim was able to give a clear statement about what happened. She had bruises on her left upper arm, left chest, left upper, back and right upper arm. She stated that she got these bruises from being struck by the defendant and that he also twisted her arm. Additionally, she told him that the defendant choked her but she had no visible bruises indicating that. Although she said she had taken some Aleve, the victim appeared lucid and aware. Neither he nor the other | ^detective prompted her to say where the bruises came from. She never said it was too dark to see whether the defendant hit her. Nor did she say she threw anything at him or hit him first.

The defendant testified in his own defense. He insisted that he only restrained his wife when she was physically violent toward him. He also stated that she had hit him three weeks before the instant incident. The defendant’s mother testified that he called her about the argument with his wife. He told his mother that he had grabbed the victim’s arm to keep her from hitting him. He thought they could work things out, and she suggested that the couple get counseling. When she spoke to her daughter-in-law, the victim did not tell the defendant’s mother that he had hit her.

At the conclusion of the evidence, the trial court found the defendant guilty as charged, concluding that the testimony indicated that there was a battery initiated by the defendant. The court sentenced him to six months in the parish jail, suspended, and seven months of supervised probation. The defendant was also ordered to complete a domestic violence counseling program.

The defendant sought review of his conviction.

SUFFICIENCY OF EVIDENCE

Law

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under 7Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When |sthe direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Domestic abuse battery is the intentional use of force or violence committed by one household member upon the person of another household member. La. R.S. 14:35.3(A).

Discussion

The evidence presented at trial demonstrated the following events. The defendant and the victim- engaged in an argument after he called her lazy. Subsequently, they argued again and the situation escalated to the defendant choking, punching and hitting the victim. The victim received bruises which she photographed. She gave a recorded statement to the police detailing the abuse. Although she later attempted to justify and 19excuse her husband’s actions, the victim testified that the defendant’s confrontation with her became physical. The detective who interviewed the victim testified that she had visible bruising and that the victim had not mentioned any of her later excuses for the defendant’s actions in her statement to the police. While the victim’s daughter did not see the fight, she heard noises and statements that indicated that the defendant struck the victim. All of the testimony accepted by the trial court as credible indicated that there was a battery initiated by the defendant.

We find that the evidence at trial presented by the state and accepted by the trial judge proves every element of the crime of domestic abuse battery beyond a reasonable doubt and that the Jackson standard has been met. Accordingly, this assignment of error lacks merit.

VICTIM’S INCONSISTENT STATEMENTS

In two assignments of error, the defendant complains that the trial court improperly relied upon evidence that was used to impeach the victim as substantive evidence.

Law

While prior inconsistent statements are admissible to attack credibility under La. C.E. art. 607(D)(2), such nonhearsay statements may also be admissible for their assertive value. See State v. Rankin, 42,412 (La.App.2d Cir.9/19/07), 965 So.2d 946, writ denied, 2007-2067 (La.3/7/08), 977 So.2d 897; State ex rel. D.W., 09-855 (La.App.5th Cir.9/14/10), 47 So.3d 1048; State v. Wells, 2010-1338 (La.App.4th Cir.3/30/11), 64 So.3d 303.

Imln relevant part, La. C.E. art. 801 now provides:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement; ...

In State v. Rankin, supra, a domestic abuse victim who suffered facial injuries and a broken finger recanted at trial. However, she had previously given two statements to the police identifying the defendant as the person who inflicted her injuries. Following a bench trial, the trial court convicted the defendant of second degree battery. We affirmed the defendant’s conviction. The prior inconsistent statements were corroborated as required by La. C.E. art. 801(D)(1)(a), and were thus nonhearsay. We noted that since the defendant failed to object to the use of the prior inconsistent statements at trial, it was impossible to determine whether they were used for strictly impeachment purposes or for their assertive value as well. Therefore, it could only be assumed that they were admitted for both purposes. We found no abuse in the trial court’s discretion in deeming the statements admissible under La. C.E. art. 801(D)(1)(a).

In the instant case, the prior inconsistent statements of the victim were corroborated by other evidence. The victim, her daughter and thejjjdefendant all testified as to an argument between the victim and the defendant that turned violent. The victim sustained visible bruises that were consistent with her police statement and were observed by the officer who took her statement. Shortly after the incident, the victim contacted the police to report her injuries. The recorded statement she gave to the officers was internally consistent. The officer who took the victim’s statement testified that she never mentioned it being too dark to see, throwing anything at the defendant or otherwise provoking him into “restraining” her for his own protection.

We find no abuse of the trial court’s discretion in admitting the statements under La. C.E. art. 801(D)(1)(a). This assignment of error is meritless.

TESTIMONY OF CHILD WITNESS

In two assignments of error, the defendant attacks the testimony of his stepdaughter. He contends that the trial court improperly relied upon her hearsay testimony to establish elements of the offense, 1.e., her recitation of what she heard her mother say to the defendant to prove that the defendant touched the victim. Additionally, he argues that the record does not demonstrate that the child was a competent witness.

In her testimony, the child stated that she heard her mother say, “Get out of my face. Leave me alone, and stop grabbing my arm.” The defendant now complains that this statement was hearsay which the trial 112court impermissibly relied upon in convicting him. However, we find that the statement falls under the excited utterance exception to the hearsay rule, La. C.E. art. 803(2); its admission was proper.

As to the child’s competency to testify, the record does not contain a contemporaneous objection by the defendant challenging her participation in the trial. Therefore, this issue was not preserved for review as required by La. C. Cr. P. art. 841.

These assignments of error are merit-less.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . This article was amended to its present wording in 2004, apparently in part to "address cases of domestic violence ... which are among the most fertile grounds for non-cooperative nonparty witnesses.’’ State v. Rankin, supra.

      . Our review of the audio recording belies the victim’s later assertions that she was medicated, sleepy or “not in her right mind” at the time she gave her statement to the police. To the contrary, the victim sounded calm and coherent; she was able to answer the interviewer's questions in a competent and intelligent fashion.

      . We note that proper understanding, not age, is the single general test of witness competency. La. C.E. art. 601, Comment (b). The victim’s daughter testified at trial that she was 10 years old; she stated that she was in the fifth grade and made good grades. She affirmed that she knew to tell the truth. The trial judge — who is tasked with determining the competency of a witness under La. C.E. art. 104(A) — had the benefit of personally observing the child and obviously accepted her testimony.


author: MOORE, J.

text:
    William Gregory CARPENTER, and Mrs. Nyava Dee Carpenter, Plaintiff-Appellants v. FOREMOST SIGNATURE INSURANCE COMPANY and Winn Parish Police Jury, Defendant-Appellees.
    No. 47,008-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Rehearing Denied April 5, 2012.

      Culpepper & Carroll, PLLC, Jonesboro, LA, by Bobby L. Culpepper, for Appellants.
    Plauché, Smith & Nieset, Lake Charles, LA, by Eric W. Roan, for Appellee Foremost Ins. Co.
    Gold, Weems, Bruser, Sues, & Rundell, Alexandria, LA, by Eugene J. Sues, Sarah Spruill Couvillon, for Appellee Winn Parish Policy Jury.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

|! William and Nyava Carpenter appeal a summary judgment that dismissed their property damage claim against the Winn Parish Police Jury. For the reasons expressed, we affirm.

Factual Background

On Wednesday, August 23, 2006, a Winn Parish road crew was operating a road grader on Ed Carpenter Road near the Carpenters’ trailer home in the Village of Calvin. The crew accidentally cut the underground water and phone lines running to the Carpenters’ trailer. A crew member reported the damaged water line; the mayor of Calvin sent an employee to patch the line on the afternoon of Friday, August 25. The employee could not restore full pressure until the glue dried; he intended to return the following Monday to “bleed” the line. The mayor did not say that anyone ever notified him about the damaged phone line.

Early on Saturday morning, August 26, the Carpenters’ trailer caught fire as a result of electrical problems unrelated to the road crew’s acts. The Carpenters were unable to phone the fire department (in rural Calvin, there is no cell phone reception), and the response was delayed about 30 minutes while Mr. Carpenter drove to the nearest phone. Mrs. Carpenter stayed at the trailer, but the water pressure was so low that she could not control the fire. The trailer was heavily damaged.

The Carpenters filed this suit against their homeowners’ insurer, Foremost Signature, and the Winn Parish Police Jury, alleging that their property damage would have been much less had the phone and water lines been functioning. Foremost Signature settled by paying the Carpenters the |2amount of the insurance claim, $55,047.55, and then intervened to assert a subrogation claim against the police jury.

The Motion for Summary Judgment

The police jury filed this motion for summary judgment, conceding that its road crew severed the lines but arguing that it did not cause the fire. It also argued that it fully discharged its obligation to the Carpenters. In support, it attached several documents:

• Affidavit of Cranford Jordan Jr., parish coordinator of Winn Parish Fire District # 3. He was notified of the fire at 12:47 a.m., arrived at the scene at 12:57, and had the fire under control by 5:01. His department does not rely on water lines or fire plugs, but uses tanker and pumper trucks; the lack of water supply to the scene had no effect on fighting this fire.
• Affidavit of Perry Holmes, road superintendent for the Winn Parish Police Jury. A grader operator reported the severed water line around 11 a.m. on August 23; Holmes relayed this information to the mayor. Village employees repaired the line around 1:30 p.m.; invoices showed the village wrote two checks on August 25 to David Carter for water line repair. There was no record that the Carpenters ever reported the severed phone line to the police jury.
• Printout from AT & T labeled “2006 History”; according to the police jury, this shows that the Carpenters never reported the damaged phone line to AT&T.

The police jury argued that it had no duty to protect against risks that cannot be reasonably foreseen or expected. Todd v. State, 96-3090 (La.9/9/97), 699 So.2d 35. Specifically, loss of electricity does not encompass the risk of a house fire from using candles, Davis v. Cindy Preferred, 99-1422 (La.App. 4 Cir. 9/8/99), 743 So.2d 772, and loss of phone service does not encompass the risk of being struck by a car while walking home, Many v. Palmer, 557 So.2d 973 (La.App. 4 Cir.1989), writ denied, 561 3So.2d 117 (1990).

The Carpenters opposed the motion, urging that various factual issues precluded summary judgment. They argued that they reported the severed lines to their police juror the day it happened, but the police jury took no steps to repair the water line; instead, the Village of Calvin did this, and service was not restored until after the fire. In support, they attached several documents:

• Affidavit of the Carpenters, stating that Winn Parish road crews knew where the telephone cables were and had cut them several times before; the cables were “clearly marked.” Wednesday afternoon, they went to a neighbor’s house and called BellSouth to report the problem. The operator (named “Ben”) told them a line crew would repair it the following Monday (this occurred, after the fire). Later Wednesday afternoon they reported both the phone and the water lines to their police juror, John Edward Garrett, who came and looked at the damage Thursday morning. When the fire broke out early Saturday, Mr. Carpenter had to drive to a neighbor’s house 1 ½ miles away to report it; Ms. Carpenter tried to douse the flames, but there was no water pressure.
• Affidavit of Robert Wheeler, a village employee. The mayor called him to Ed Carpenter Road on August 23 to repair the water line. Wheeler and another employee had to order parts; they returned on Friday and repaired the line, but could not run full pressure through it until the glue had dried. They intended to return and finish on Saturday. Until that time, little if any pressure came through the line.
• Affidavit of David Carter, the worker who accompanied Wheeler to the broken water line on Wednesday and Friday; he mostly corroborated Wheeler, but said they intended to “bleed” the line the following Monday, not Saturday.
• Affidavit of Bob Carpenter, the mayor of Calvin, saying it was not Perry Holmes, the road superintendent, who reported the damaged water line, but William Carpenter, the plaintiff. Also, his employees did not “bleed” the line on Friday afternoon. He did not mention the phone line.
14* Supplemental affidavit of Cranford Jordan Jr., the Fire District #8 coordinator. Had the department been notified shortly after midnight, it would have arrived at the fire at approximately 12:17 a.m., “or 30 minutes before we actually arrived.” Although “obtaining water and the delay in the response time did not affect the outcome of the fire, the fact is a delay in notification will affect the outcome of a fire. I have no knowledge of a delay in notification.”

They also argued that Mang v. Palmer, supra, was inapposite, as that case presented an obvious, intervening cause of the plaintiffs harm; by contrast, the 57-min-ute delay in getting to the fire obviously affected the outcome of the fire.

Action of the District Court

After a hearing limited to argument, the district court granted the police jury’s motion. In written reasons, the court found that the police jury did in fact sever the water and phone lines running to the Carpenters’ trailer. However, the police jury promptly notified the Village of Calvin, which began repairs, and this satisfied the police jury’s duty to the Carpenters. Further, there was no evidence that the Carpenters notified the police jury of the severed phone line. The court also found that the police jury did not cause the fire in the trailer, and cited with approval Cranford Jordan’s affidavit that “a delay in obtaining water or a delay in response time would not have affected the outcome of the fire.” The court therefore dismissed the Carpenters’ claim and Foremost Signature’s intervention.

[ ⅝Applicable Law

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2315 A. Louisiana uses the duty-risk analysis to determine whether to impose liability under Art. 2315. This analysis comprises five elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damage element). Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), p. 7, 923 So.2d 627, 633, and citations therein. In deciding whether to impose a duty in a given case, the court must make a policy decision in light of the unique facts and circumstances presented. Carrier v. City of Amite, 2010-0007 (La.10/19/10), p. 3, 50 So.3d 1247, 1249, and citations therein. The scope of the duty is ultimately a question of policy. Rando v. Anco Insulations Inc., 2008-1163 (La.5/22/09), p. 38, 16 So.3d 1065, 1092-1093, and citations therein. A risk may be outside the scope of a duty when the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Id. Rules of conduct are designed to protect some persons under some circumstances from some risks. Wex Malone, Ruminations on Cause-in-Fact, 9 Stan. L.Rev. 60 lfi(1956). The requirement of legal cause prevents the imposition of liability “in an indeterminate amount for an indeterminate time to an indeterminate class.” PPG Industries Inc. v. Bean Dredging, 447 So.2d 1058 (1984), 1061, and citations therein.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App. 2 Cir. 8/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441. 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.” La. C.C.P. art. 966 B.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La. App. 2 Cir. 7/15/09), 17 So.3d 69.

Discussion

By their sole assignment of error, the Carpenters urge that the district court erred as a matter of law in granting summary judgment. As a general | -^principle, they contend that the police jury “had a duty to plaintiffs not to interrupt them telephone [and] water service.” They then allege that various factual issues precluded summary judgment. Citing their own affidavit, they argue that the Police Jury took no action to repair the severed water line, but instead called on the Village of Calvin to do so; they also argue that “phone lines were cut and reported,” but not repaired. Citing Cranford Jordan’s supplemental affidavit, they argue that the 30-minute delay in notifying the fire department obviously affected the outcome of the fire. They conclude that the existence of the legal duty, and the various factual issues, all make the summary judgment improper.

We agree with the Carpenters’ basic premise that the police jury owed a duty not to interrupt their phone and water service. The police jury negligently severed both lines, obviously breaching a duty. PPG Industries Inc. v. Bean Dredging, supra.

This finding, however, does not end the analysis. The Carpenters must prove that the police jury’s conduct was a legal cause of the damages. Lemann v. Essen Lane Daiquiris, supra. This element of the duty-risk analysis requires proof of the scope of protection. The Carpenters have not cited, and this court has been unable to find, any statute or jurisprudence in which liability was imposed for remote consequences of interrupted phone or water service. In somewhat analogous cases, in fact, the courts have declined to find legal cause.

In PPG Industries v. Bean Dredging, supra, Bean was dredging the Calca-sieu River when it negligently damaged a Texaco natural gas pipeline | Rthat provided gas to PPG. PPG sued Bean to recover its added cost of obtaining fuel from an alternative source. Affirming the lower courts, the supreme court found no ease of association between Bean’s negligent conduct and PPG’s increased business expense, even though such a loss was conceivable. In Mang v. Palmer, supra, Hang’s son was unable to call home because the phone leased from AT & T was allegedly defective; he therefore started walking home and was struck and killed by a driver. The court held that AT & T’s duty to provide reliable phone service encompassed some risks but not the risk that someone unable to make a phone call would try to walk home and get hit by a car. In Antoine v. South Central Bell Tel. Co., 374 So.2d 117 (La.App. 4 Cir.1979), Ms. Antoine got sick and tried to phone her sister, but got a busy signal; the operator refused to interrupt the call because Ms. Antoine could not certify it was a “life or death situation”; exasperated that she could not get help, Ms. Antoine fainted, fell and injured herself. The Fourth Circuit affirmed the phone company’s motion for summary judgment, finding no breach of duty. In Davis v. Cindy Preferred, supra, Entergy failed to connect the electricity to Ms. Davis’s new apartment after she moved; because of the darkness, she lit some candles that set the apartment on fire and resulted in her son’s death. The court found that the lack of electricity was not a legal cause of the fatal fire.

While these cases are not completely factually apposite, they convince us that the relationship between the interruption of the Carpenters’ phone and water service and the property damage they sustained in the fire was too speculative or conjectural to support a finding of legal cause. The ^damage was a conceivable consequence of the police jury’s negligence, but not a reasonably foreseeable or anticipated one. Carrier v. City of Amite, supra; Rando v. Anco Insulations, supra;

Moreover, the summary judgment evidence shows that the police jury took reasonable steps to fix the damaged lines. The Winn Parish road supervisor called the mayor of Calvin to report the water line. There is no showing that this delegation of authority was illegal, unusual or needlessly delayed repairs. As for the phone line, there is a minor factual dispute: the Carpenters testified that they pointed it out to them police juror, Mr. Garrett, while the road supervisor testified there was “no record” they ever reported it to the police jury. However, accepting the Carpenters’ affidavit as true, we find that Ms. Carpenter phoned BellSouth on Wednesday afternoon and reported the outage. The operator, “Ben,” told her linemen would not be able to repair it until the following Monday. There is no evidence that the police jury could have fixed the phone line any faster than BellSouth.

In short, the record shows that the police jury negligently cut the underground water and phone lines to the Carpenters’ trailer. While this was a breach of the police jury’s duty not to interrupt their water and phone service, damages from a fire occurring three days later are not reasonably foreseeable consequences of the breach. We are unable to find the ease of association required by a duty-risk analysis.

|inOn this record, we find the district court did not err in granting the motion for summary judgment.

Conclusion

For the reasons expressed, the judgment is affirmed. All appellate costs are to be paid by the plaintiffs, William and Nyava Carpenter.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.

Rehearing denied.

      . The police jury filed a motion to strike portions of the Carpenters’ attachments as hearsay and speculation. The record shows no ruling on this, but neither side has challenged on appeal the court’s apparent denial of the motion.

      . The police jury also argues that the printout from AT & T shows that nobody reported the phone outage to the phone company, but this court is reluctant to "interpret” the dense columns and code numbers without some expert input.


author: DANIEL L. DYSART, Judge.

text:
    Debra L. LEARD v. William F. SCHENKER, Jr.
    No. 2011-CA-1509.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2012.
    Rehearing Denied April 9, 2012.
    See also, 930 So.2d 75.

      Debra L. Leard, Metairie, LA, for Plaintiff/Appellee/In Proper Person.
    Marynell L. Piglia, Robert C. Lowe, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY C. LOBRANO).
   DANIEL L. DYSART, Judge.

| (William F. Schenker, Jr., appeals a judgment denying him the right to change the surname of his son to his own. For the following reasons, we reverse and remand.

PROCEDURAL HISTORY:

Mr. Schenker is the biological father of a minor son, born to him and appellee, Debra Leard, on March 27, 1995. On June 7, 2011, Mr. Schenker filed a Petition for Change of Name of Minor Child, and requested personal service on Ms. Leard at her place of employment, and service on the district attorney for the Parish of Orleans. By letter, the district attorney answered the petition, stated that he had no objection to the name change, and waived appearance at trial.

| ¡After a hearing, the trial court ruled in favor of Ms. Leard, stating that it denied Mr. Schenker’s motion. Because Mr. Schenker had filed a petition, the proper disposition was to dismiss his suit; nonetheless, the effect of the ruling is the same, and this Court will consider the merits as presented.

DISCUSSION:

Louisiana Revised Statute 13:4751 addresses name changes. It provides, in pertinent part:

A. The name of a person may be changed as provided in this Section.
C. If the person desiring such a change is a minor or if the parents or parent or the tutor of the minor desire to change the name of the minor:
(2) If one parent has been granted custody of the minor by a court of competent jurisdiction, the consent of the other parent is not necessary if the other parent has been served with a copy of the petition and any of the following exists:
(b) The other parent has failed to support the child for a period of three years after judgment awarding custody to the parent signing the petition.

Mr. Schenker alleged in his petition that he was granted sole custody of the minor by Judgment dated May 31, 2002. He further alleged that Ms. Leard had not provided any financial support for the benefit of the minor for more than three years since the entry of the custody judgment.

In response to the petition, Ms. Leard filed an exception of res judicata, or alternatively, a motion for summary judgment. She also filed a rule to show cause why Mr. Schenker should not be held in contempt of court for filing the petition because of the previously filed motion for name change.

The trial on the petition was held on July 27, 2011. The only persons to testify were Mr. Schenker and Ms, Leard. After taking the matter under ^advisement, the trial court ruled in favor of Ms. Leard, denying Mr. Schenker’s request to change his minor son’s name.

In its Reasons for Judgment, the trial court stated that Mr. Schenker had failed to carry his burden of proving that Ms. Leard had failed to pay any support for the child for three years after the judgment awarding Mr. Schenker sole custody. The trial court concluded that the proper standard of proof was a preponderance of the evidence because no substantive rights were at issue in a name change pursuant to La. R.S. 13:4751. The trial court then determined that Mr. Schenker failed to elicit from Ms. Leard whether she gave the child any money during her visits with him.

Generally, a reviewing court may not set aside a trial court’s finding of fact in the absence of manifest error. Chambers v. Village of Moreauville, 2011-898, p. 2 (La.1/24/12), 85 So.3d 593, citing Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. However, if a legal error interdicts the fact finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should made an independent de novo review of the record and determine which party should prevail by a preponderance of the evidence. Id. Because we find that the trial court erred as a matter of law, we will conduct a de novo review.

Mr. Schenker testified that he had been the sole custodian of the minor since 2002. He admitted that Ms. Leard was never ordered to pay child support by the trial court. Lastly, he testified that Ms. Leard has never paid any support of any kind for or to the minor since he became the sole custodian.

|4Ms. Leard, who was representing herself, took the stand and stated, “... what’s before Your Honor is they claim that financial support is owed. I would like to know how financial support is owed if I never have access to my child?” The trial court pointed out to Ms. Leard that child support and visitation are two distinct issues. She then stated, “There have been no motions for financial support brought against me by William Schenker. There exists no judgment against me that I owe child support to William Schenker.”

Mr. Schenker gave uncontroverted testimony that Ms. Leard has not paid any support for the minor child since Mr. Schenker became the sole custodian. Although Ms. Leard did not testify that she had paid any support, she admitted that she was not obligated to do so. The trial court erred in finding that Mr. Schenker failed to establish that Ms. Leard had failed to support her child for a period of three years.

Thus, we find that Mr. Schenker has met his burden of proof by a preponderance of the evidence, and that the trial court erred in dismissing his petition. Accordingly, we find in favor of William Schenker and remand this matter to the trial court for further proceedings to accomplish the change of the minor’s name as prayed for in the petition.

REVERSED AND REMANDED

      . For a full history of this case, see Leard v. Schenker, 05-1125 (La.App. 4 Cir. 3/22/06), 930 So.2d 75, rev'd in part by Leard v. Schenker, 06-1116 (La.6/16/06), 931 So.2d 355; and, Leard v. Schenker, 09-1438 (La.App. 4 Cir. 3/24/10), 35 So.3d 1152.

      . Mr. Schenker had filed previously a motion to change the minor's name. It is unclear from this designated record on what date it was filed or ruled upon. Nonetheless, a motion was an improper procedural vehicle for a change of name; it must be done by petition, and served on the district attorney for the venue. La. R.S. 13:4751. Therefore, any ruling made in connection with that motion is void ab initio.

      .Mr. Schenker moved to supplement the designated record with a copy of the aforementioned pleading. Ms. Leard objected on the grounds that it was not introduced at trial. This Court granted Mr. Schenker’s motion pursuant to La.Code Civ. Proc. art. 2132.

      . The trial court noted that there were no reported cases on situations where there was no court-ordered child support, and cited to La. Child. Code Ann. art. 1015(4)(b)(there is a requirement that support be monetary or substantial), which requires clear and convincing evidence.


author: ROSEMARY LEDET, Judge. BONIN, J.,

text:
    MENTZ CONSTRUCTION SERVICES, INC. v. Julie D. POCHE.
    No. 2011-CA-1474.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2012.
    Rehearing Denied April 17, 2012.

      Pablo Gonzalez, Douglas M. Kleeman, Jay Russell Sever, Phelps Dunbar LLP, New Orleans, LA, for Plaintiff/Appellee.
    Victoria L. Bartels, Law Offices of Joseph C. Bartels, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

1,Julie D. Poche, defendant/plaintiff-in-reconvention/third-party plaintiff/appellant, appeals from a judgment granting an exception of no right of action in favor of third-party defendant/appellee, Scottsdale Insurance Company (“Scottsdale”). After reviewing the record and applicable law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 2008, Ms. Poche entered into a written construction contract with Mentz Construction Services, Inc. (“MCS”) for renovation and repair of her home at # 6 Jay Street, New Orleans, Louisiana. Within a few months of commencement of the construction, issues began to arise between the parties regarding the renovation. The parties attempted to resolve their issues; however, their attempts were unsuccessful. Ultimately, on April 30, 2008, Ms. Poche terminated the contract with MCS.

On June 10, 2008, MCS filed suit against Ms. Poche for non-payment of funds under the contract. In response, Ms. Poche filed a reconventional demand against MCS asserting claims that MCS breached the written contract between the ^parties because the work performed was not done in accordance to the terms of the contract and that it was performed in an unwork-manlike or negligent fashion. In addition to the reconventional demands asserted against MCS, Ms. Poche added as third-party defendants Scottsdale, MCS’s insurer, and Charles Mentz III, Vice President/Treasurer and employee of MCS.

Mr. Mentz filed a peremptory exception of no cause of action, arguing that Ms. Poche could not hold him liable for the alleged misdeeds of MCS. Scottsdale filed a peremptory exception of no right of action, arguing that Ms. Poche’s reconven-tional demand does not satisfy the requirement of the Louisiana Direct Action Statute (“DAS”), La. R.S. 22:1269 (formerly La. R.S. 22:655), because her claims arise out of contract, not tort. On November 6, 2009, the district court held a hearing on the exceptions filed by Mr. Mentz and Scottsdale. The exceptions were sustained. Subsequently, Ms. Poche filed a timely appeal of the rulings on both exceptions. This Court affirmed the district court’s ruling in reference to the peremptory exception of no cause of action filed by Mr. Mentz, except to dismiss it without prejudice rather than with prejudice. Mentz Constr. Services, Inc. v. Poche, 10-0904, p. 5 (La.App. 4 Cir. 12/22/10), 54 So.3d 1221, 1225. However, in reference to Scottsdale’s peremptory exception of no right of action, this Court reversed the district court’s ruling and remanded the matter. Mentz Constr. Services, Inc., 10-0904, p. 6-7, 54 So.3d at 1225-26. This Court held that there was no way to determine whether a right of action exists in Ms. Poche’s favor Rsince Scottsdale did not introduce a copy of the insurance policy issued by it to MCS in support of its exception. Id.

Following remand, Ms. Poche filed a second amended reconventional and third-party demand. Subsequently, Scottsdale filed a motion to re-urge its peremptory exception of no right of action, attaching as exhibits to the motion, Scottsdale’s policies of insurance issued to MCS. The district court granted the exception, finding that Ms. Poche’s claims against MCS arise solely out of the alleged breach of construction contract. From this judgment, Ms. Poehe appeals.

STANDARD OF REVIEW

A peremptory exception of no right of action is designed to determine whether the plaintiff has a real and actual interest in the action. Hood v. Cotter, 08-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829, citing La. C.C.P. art. 927(A)(6). Its objective is to determine whether the plaintiff belongs to a particular class of persons to whom the law grants a cause of action asserted in a lawsuit. Marchand v. Asbestos Defendants, 10-0650, p. 4 (La.App. 4 Cir. 7/21/10), 44 So.3d 355, 358. The exception assumes that the petition sets forth a valid cause of action and questions whether the plaintiff in a particular case has a legal interest in the subject matter of the litigation. Id. The determination of whether a plaintiff has a right of action is a question of law; thus, we review the trail court’s decision de novo. Marcel v. Delta Shipbuilding Co., 10-0168, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 634, 637.

\ ¿DISCUSSION

Ms. Poche alleges that the district court erred by granting Scottsdale’s exception of no right of action. In her petition, Ms. Poche asserted a claim against Scottsdale under the DAS. However, Scottsdale’s exception of no right of action argued that the lawsuit did not satisfy the requirement of the DAS as Ms. Poche’s claims arose out of contract, not tort. The district court agreed.

The DAS grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. Hood, 08-0215 at p. 17, 5 So.3d at 829. La. R.S. 22:1269 provides in pertinent part:

It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability the insured may have as or for a tortfeasor within the terms and limits of the policy.

Construing the DAS, the Louisiana Supreme Court determined that “the statute applies to any insurance against the liability of the insured for the personal injury or corporeal property damage to a tort victim ... further the statute affords a person sustaining any other type of tortious loss or damage a direct action against the tort-feasor’s insurer.” Quinlan v. Liberty Bank and Trust Co., 575 So.2d 336, 347 (La.1990). Thus, the DAS does not apply to all claims of any nature simply because an insurer is a defendant. Taylor v. Fishing Tools, Inc., 274 F.Supp. 666, 673 (E.D.La.1967). Louisiana courts have consistently held that the “injured person”, contemplated by the statute, accorded a right of direct action, is a person | ¿injured as a result of tortious conduct and not one injured as a result of breach of contract. Id.

Although direct actions against insurers are limited to tort liability and not authorized in actions stemming from breach of contract, a lawsuit which sets forth numerous theories for recovery may proceed under the DAS. Orleans Parish School Bd. v. Chubb Custom Ins. Co., 162 F.Supp.2d 506, 516 (E.D.La.2001). When a party has been damaged by the conduct of another arising out of a contractual relationship, the party may have two remedies, a suit in contract or a suit in tort, and he may elect to recover his damages under either of the two actions. Corbello v. Iowa Prod., 02-0826, p. 32 (La.2/25/03), 850 So.2d 686, 708, quoting Federal Ins. Co. v. Ins. Co. of North America, 262 La. 509, 263 So.2d 871, 872 (1972).

However, this court in Certain Underwriters at Lloyd’s, London v. Sear-Lar Mgmt., 00-1512 (La.App. 4 Cir. 5/9/01), 787 So.2d 1069, has set forth the distinctions between an action on a contract and a tort action. The court noted that where a cause of action arises from breach of a promise set forth in contract, the action is “ex contractu”, but where it arises from a breach of duty growing out of contract, it is “ex delicto.” Certain Underwriters at Lloyd’s, London, 00-1512 at p. 6, 787 So.2d at 1074. Thus, the main distinction between an action on a contract and a tort action is that the former flows from the breach of a special obligation contractually assumed by the obligor, whereas the latter flows from the violation of a general duty owed to all persons. Certain Underwriters at Lloyd's, London, 00 — [1512ñ at p. 7, 787 So.2d at 1075, citing Ridge Oak Development, Inc. v. Murphy, 94-0025 (La.App. 4 Cir. 6/30/94), 641 So.2d 586.

It is well settled in Louisiana law that the same acts or omissions may constitute a breach of both general duties and contractual duties and may give rise to both actions in tort and actions in contract. Id. However, the parties to a contract have a right to elevate a general duty to a contractual obligation by including that duty as a provision of the contract. Id.

Since the DAS applies only to tort claims and not to breach of contract claims, we must look to the nature of the claims asserted in Ms. Poche’s reconven-tional demand to determine whether the statute applies. Taylor, 274 F.Supp. at 673.

In addition to the claims against MCS for respondent superior due to the negligence of its employees and agents, Ms. Poche asserts the following claims of breach of contract against MCS in her reconventional demand:

a. MCS failed to properly supervise its subcontractors, failed to adhere to contract specifications, failed to perform in a workmanlike manner, failed to timely repair work under the contract, and failed to timely pay subcontractors.
b. MCS attempted to unilaterally modify terms of the contract.
c. MCS communicated with Ms. Poche in an unprofessional manner.

Although Ms. Poche’s claims sound in tort, they arise from duties set forth in the contract between the parties. As it relates to Ms. Poche’s claims, a review of the written contract between the parties shows that MCS contracted to:

a. Furnish all labor and material to perform the project in a workmanlike manner.
b. Work according to the contract specifications.
|7c. Work according to the industry standards and safety practices.
d. Complete the project when the property can be occupied or utilized as intended.
e. Conduct “change orders” (alter the contract) only with the consent of the contractor and owner.

According to Ms. Poche’s re-conventional demand, the alleged duties breached are detailed in the contract between the parties. Therefore, Ms. Poche’s causes of action arise from the breach of promises outlined in the contract and considered “ex contractu.” Although each of Ms. Poche’s claims are not specifically stated in minute detail in the contract, La. C.C. art. 2054 provides for “implied” contractual obligations; it states:

When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

Certain Underwriters at Lloyd’s, London, 00-1512 at p. 8, 787 So.2d at 1075-76. Although expressly stated in the contract between the parties in the instant case, implicit in every construction contract is the requirement that the work be performed in a good, workmanlike manner, suitable for its intended purpose and free from defects in material or workmanship. Austin Homes, Inc. v. Thibodeaux, 01-1282, p. 6 (La.App. 3 Cir. 5/8/02), 821 So.2d 10, 15; Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Elec., Inc., 36,361, p. 8 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, 887. Further, an implied contractual obligation arises just as much ex contractu as |san explicit one. Certain Underwriters at Lloyd’s, London, 00-1512, p. 8, 787 So.2d at 1076.

The alleged duties that were breached according to Ms. Poche’s reconventional demand are both explicitly and implicitly set forth in the contract between the parties. Further, based on the facts and claims in Ms. Poche’s reconventional demand, there are no general tort duties alleged which do not arise as a result of the existence of the contract that would form the basis of tort liability established by La. C.C. art. 2315. The duties allegedly breached by Scottsdale’s insured arise solely out of contractual obligations. Therefore, the DAS does not provide Ms. Poche a right of action to pursue claims against Scottsdale. The exception of no right of action was properly sustained.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

BONIN, J., concurs in part and dissents in part with reasons.

BONIN, J.,

concurs in part and dissents in part with reasons.

Iil concur in affirming the judgment sustaining the exception of no right of action. I dissent, however, from affirming the relief of dismissal with prejudice.

When this matter was previously before us on an exception of no cause of action filed by Mr. Mentz personally, “we recognize[d] that, as Ms. Poche proceeds with her lawsuit against MCS, discovery may uncover evidence supporting her claims of negligence against Mr. Mentz.” Mentz Const. Services, Inc. v. Poche, 10-0904, p. 5 (La.App. 4 Cir. 12/22/10), 54 So.3d 1221, 1225. As a result, while affirming the trial court’s ruling sustaining the exception, we modified the relief to dismiss the action without prejudice. Id.

Because we prudently previously left open the possibility that the circumstances of this case may change, in order to be consistent, we should amend the trial court’s judgment to provide that today’s dismissal is also without prejudice.

Accordingly, I dissent from affirming the dismissal with prejudice.

      . If MCS demanded Scottsdale to provide a defense based upon Ms. Poche’s allegations, it is likely that Scottsdale would be back in this case. Moreover, if after further discovery Ms. Poche is able to state a cause of action against MCS and its employee, Mr. Mentz, for negligence, then MCS could demand indemnity as well. If it turns out that Scottsdale also owed MCS indemnity for its negligence, but our affirmation of dismissal with prejudice stands, we would have an anomalous result in which Ms. Poche' could not assert her right to collect directly from Scottsdale. The Direct Action Statute is not just for joining an insurer, but also for enabling the injured party to directly execute a judgment against the insurer.