author: ROLAND L. BELSOME, Judge. JONES, C.J.,

text:
    STATE of Louisiana in the Interest of T.E.
    No. 2011-CA-1172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 2012.

      Leon A. Cannizzaro; Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Ali Pearson, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

11 Defendant-Appellant, T.E., appeals his delinquency adjudication for illegal possession of a handgun by a juvenile. For the reasons that follow, we vacate the adjudication and disposition.

FACTS AND PROCEDURAL HISTORY

New Orleans Police Officer Sean Ogden testified that he was monitoring a surveillance camera at a substation in the Fisher Housing Development in Algiers, Louisiana on April 24, 2011, at 5:23 p.m. At that time, he observed T.E., who was in the back seat of a four-door sedan that was stopped in the 2000 block of Hendee Street. T.E. then stepped out of the vehicle with an object in his right hand and placed the object in his waistband, covering it with his shirt.

Officer Ogden testified that he suspected that T.E. was in possession of a handgun, and proceeded with fellow NOPD Officers Carlos Amador and Harry Parker to the sedan’s location. By this time, T.E. was in front of a house on Hendee Street. Officer Ogden testified that when T.E. observed the officers approaching, he fled. Officer Ogden pursued T.E. in his police vehicle while Officers Amador and Parker pursued T.E. on foot, but the officers were ultimately unable to locate him.

| ?Left with only the surveillance footage, the officers zoomed in on the object in T.E.’s hand and determined that it was a handgun, although Officer Ogden conceded that no make or model number of the alleged handgun could be affirmatively identified. Nevertheless, Officer Parker obtained an arrest warrant for T.E., who was arrested by Officer Ogden at his residence. The surveillance tape was played for the court at the adjudication hearing.

On April 29, 2011, T.E. was charged by delinquency petition with illegal possession of a handgun by a juvenile, a violation of La. R.S. 14:95.8. T.E. denied the offense charged, and the matter was set for trial. After the adjudication hearing on July 18, 2011, T.E. was adjudicated delinquent as charged. The disposition provided that T.E. be placed with the Office of Juvenile Justice for a period not to exceed six months and recommended that T.E. be placed in non-secure placement outside the Parish of Orleans. This appeal followed.

STANDARD OF REVIEW

Juvenile delinquency proceedings are subject to the manifest error or clearly wrong standard of review. In re A.J.F., 2000-0948, p. 26 (La.6/30/00), 764 So.2d 47, 61. This Court has recognized that “[j]u-venile delinquency proceedings do not 13fall within the category of criminal prosecutions, as is evident from long established jurisprudence ... and the special juvenile provisions within the judiciary article of the constitution.” State ex rel. D.R., 2010-0405, p. 6 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930 (quoting State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979)). Therefore, “since the constitution does not provide otherwise, the scope of review of this court in juvenile delinquency proceedings extends to both the law and the facts.” Id.

DISCUSSION

T.E. raises two assignments of error for our review. First, T.E. argues that the juvenile court erred in adjudicating him delinquent of illegal possession of a handgun because the evidence adduced at trial was insufficient to sustain an adjudication; second, he argues that the juvenile court erred in imposing a disposition imposing out-of-home placement of T.E. where T.E. was not afforded the opportunity to present evidence regarding whether he was in need of treatment or rehabilitation.

With respect to the first assignment of error, T.E. submits that the State failed to meet its burden and prove beyond a reasonable doubt that the object in his possession was, in fact, a handgun. Although Officer Ogden testified that he believed the object was a handgun because T.E. put the object in his waistband area, placed his shirt over it, and tightened his belt, Officer Ogden admitted that he could not identify a make or model of the handgun that T.E. allegedly possessed. |4No other evidence was introduced to establish that the object was a handgun, and notably, no handgun was ever actually recovered from T.E.

La. R.S. 14:95.8, the statute relative to illegal possession of a handgun by a juvenile, provides that “[f]or the purposes of this Section ‘handgun’ means a firearm as defined in [La.] R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.” La. R.S. 14:95.8(D). That statute provides, in pertinent part, that “[f]or purposes of this Section, ‘firearm’ is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.” La. R.S. 14:37.2(B) (emphasis added). We find that the officer’s testimony regarding his observations of T.E.’s mannerisms in the surveillance video while holding the object does not meet this statutory definition of a handgun. Thus, because insufficient evidence was introduced to establish that the object on the surveillance video met the statutory definition of a handgun, the court erred in adjudicating T.E. for illegal possession of a handgun.

Considering the foregoing, the State simply failed to demonstrate that the object in the surveillance video was actually a handgun. Therefore, the court erred in adjudicating T.E. delinquent pursuant to La. R.S. 14:95.8. T.E.’s adjudication and disposition are hereby vacated.

ADJUDICATION AND DISPOSITION VACATED

JONES, C.J., dissents with reasons.

JONES, C.J.,

dissents with reasons.

11The majority finds that the juvenile court erred in its factual determinations that the evidence of the arresting officer, coupled with the video placed in evidence, were insufficient to adjudicate T.E., a delinquent. Because I disagree, I respectfully dissent.

The majority pronounces a new rule that to find this juvenile delinquent, the juvenile court was required to determine both the make and model of the weapon before the court could determine that the juvenile in fact possessed a weapon. The majority cites no legal authority for this determination, thus pronounces a new rule with which I cannot concur. Thus, for these reasons, I respectfully dissent.

      . T.E.'s date of birth is July 5, 1994.

      . La. R.S. 14:95.8 provides, in pertinent part:
      A. It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.
      B. (1) On a first conviction, the offender shall be fined not more than one hundred dollars and imprisoned for not less than ninety days and not more than six months.
      (2)On a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.
      (3) On a third or subsequent conviction, the offender shall be fined not more than one thousand dollars and imprisoned at hard labor for not more than five years.
      (4) A juvenile adjudicated delinquent under this Section, having been previously found guilty or adjudicated delinquent for any crime of violence as defined by R.S. 14:2(B), or attempt or conspiracy to commit any such offense, shall upon a first or subsequent conviction be fined not less than five hundred dollars and not more than one thousand dollars and shall be imprisoned with or without hard labor for not less than six months and not more than five years. At least ninety days shall be served without benefit of probation, parole, or suspension of sentence.

      . See State ex rel. T.C., 2009-1669, p. 2 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260, 1262 (quoting State in the Interest of G.M., (La.App. 5 Cir. 4/14/93), 617 So.2d 219, 221); State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4th Cir.12/30/93)(recognizing that "[t]he standard for the State’s burden of proof in a juvenile delinquency proceeding is 'no less strenuous then the standard of proof required in a criminal proceeding against an adult’ ”).

      . With regard to T.E.’s second assignment of error, our determination regarding his adjudication and disposition makes this assignment of error moot.


source: Caselaw Access Project

author: GENOVESE, Judge. KEATY, J.,

license: Public Domain

text:
    Dawn Cheryl PEREZ v. Oscar G. PEREZ.
    No. 11-537.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 29, 2012.

      E. Grey Burnes Talley, Alexandria, LA, for Plaintiff/Appellant, Dawn Cheryl Perez.
    Bradley 0. Hicks, Dowden & Hicks, L.L.P., Leesville, LA, for Defendant/Ap-pellee, Oscar G. Perez.

      Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

Ijn this domestic matter, the mother appeals the trial court’s designation of the father, her former husband, as the domiciliary parent of their two sons and permitting him to relocate the minor children’s residence to Texas. For the following reasons, we affirm the judgment of the trial court in its entirety.

FACTS

Dawn Cheryl Petersen married Oscar Guevara Perez on May 22, 1999. Two children were born of the marriage, Oscar Guevara Perez, Jr. (born April 2, 2000), and Sebastian Chong Perez (born May 28, 2001). The parties were divorced on June 25, 2007. No custody orders were issued by the trial court. Rather, by agreement of the parties, the children lived with Dawn in Leesville, Louisiana, while Oscar continued his employment in Iraq.

In March of 2007, the two children began living with their paternal grandmother in Oscar’s home, also located in Leesville, Louisiana. When Oscar returned from Iraq in November 2007, his mother moved out of his house, and Oscar moved back into his home along with his two children. The children have continued to reside with Oscar since his return from Iraq.

In 2008, Dawn sought employment in Iraq. Her employment began in November of 2008, and was expected to continue through November of 2010.

During 2008, Oscar met Marie Perez. In February of 2008, Marie and one of her sons moved into Oscar’s home along with Oscar and his children. Oscar and Marie got married at the end of April, 2008. In 2009, Oscar moved to Conroe, Texas. For the remainder of the school year, Marie and the children moved into |2Oscar’s mother’s home, and Marie and the children commuted to Conroe on the weekends to be with Oscar.

In December of 2009, while Dawn was in Iraq, Oscar sent her notice of his intention to relocate the residence of the children to Texas. Dawn filed an objection to the relocation on January 8, 2010. The trial court issued a temporary restraining order prohibiting the relocation, set a hearing date for the injunction, and appointed Dr. John Simoneaux to perform psychological evaluations. On May 20, 2010, the trial court dismissed the injunction. Oscar then relocated the children to Texas.

Trial in this matter began on September 28, 2010, and resumed on October 7, 2010, for the taking of Dr. Simoneaux’s testimony. After taking the matter under advisement, the trial court issued Written Reasons and signed a Judgment on Rule and Implementation Plan for Joint Custody granting the parties joint custody, designating Oscar as the domiciliary parent, and permitting the relocation of the children to Texas. Dawn appeals.

ASSIGNMENTS OF ERROR

On appeal, Dawn asserts that “[t]he trial court erred in making Oscar Perez the domiciliary parent of the minor children.” Additionally, she contends that “[t]he trial court erred in permitting Oscar Perez to relocate the minor children’s residence to Texas.” The trial court’s ruling on joint custody was not appealed.

LAW AND DISCUSSION

Domiciliary Status

In designating the domiciliary parent for purposes of a joint custody determination, the best interest of the children is paramount. In making this determination, a trial court is guided by La.Civ. Code art. 134, which provides as follows:

| oThe court shall consider all relevant factors 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.

After hearing the evidence in this case, the trial court issued Written Reasons wherein he concluded that “[i]n carefully considering all of the factors of Article 134 and the testimony of the parties, it appears that the best interest of these children would be served by allowing them to stay in the environment that they are now enjoying.” The trial court noted that the children have been in Texas, where they are enrolled in school and doing well. “Both are making good grades and are |4happy with their situation.” They reside, along with their father, step-mother, and her son, in a four-bedroom home. The children also “have a very good relationship with their step-mother.” The family attends church and both children have been baptized.

On the other hand, Dawn’s future, including her employment and her living arrangements, are much more uncertain. She is currently living with her sister’s family and, while she is a student at Northwestern State University, she is not employed. Additionally, the trial court noted that Dawn was in a relationship and testified that she will probably marry a man who lives in Lufkin, Texas. Although she testified that she hoped to remain in Louisiana, that was dependent on job opportunities.

We also note the trial court’s decision not to adopt the opinion of Dr. Simoneaux. Dr. Simoneaux testified in detail at trial, being questioned by both counsel as well as the trial court judge. The trial court’s Written Reasons confirm that Dr. Simo-neaux’s opinion was carefully considered. However, the trial court expressly noted that it did “not feel that Dr. Simoneaux was apprised of some important facts that may have changed his opinions and cannot follow his recommendations.”

Although relevant, a trial court has much discretion in determining the weight to be given expert testimony, and it is free to accept or reject the opinion expressed by any expert. See Dooley v. Dooley, 10-785 (La.App. 3 Cir. 2/2/11), 55 So.3d 985. This is particularly true when, as in the instant matter, the expert is not apprised of all the relevant facts. In this case, it is noteworthy that although he expressed the opinion that the children should remain in Vernon Parish, Dr. Simoneaux had not interviewed the parties for approximately five months before the hearing, and he admitted that he did not revisit this case since that initial | ¡¡interview occurred. Dr. Simoneaux, also, was not present in the courtroom during the first day of trial when all of the other witnesses testified.

We find that the trial court’s consideration of the relevant factors set forth in La.Civ.Code art. 134, as expressed in its Written Reasons, are reasonably supported by the record. Therefore, we find no error with the trial court’s best-interest determination or its designation of Oscar as the domiciliary parent.

Relocation to Texas

This court, in Cass v. Cass, 10-327, pp. 3-4 (La.App. 3 Cir. 11/17/10), 52 So.3d 215, 218-19, writ denied, 11-178 (La.2/25/11), 58 So.3d 460, recently stated the following relative to issues of relocation:

A parent seeking relocation must prove two things: (1) that the proposed relocation is in good faith and (2) that the proposed relocation is in the best interest of the child. La.R.S. 9:355.13. Louisiana Revised Statutes 9:355.12 enumerates factors the trial court shall consider in deciding a contested relocation, as follows:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonre-locating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
|fi(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
This statute mandates that the trial court consider the enumerated factors; however, it does not require the court to give preferential consideration to any certain factor. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094. A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. Id. Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson, 09-609 (La.App. 3 Cir. 11/18/09), 25 So.3d 203, citing Mart v. Hill, 505 So.2d 1120 (La.1987). On review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.

|vAs this court has noted, La.Civ.Code art. 134 “supplements and to a great extent overlaps with La.R.S. 9:355.12.” Miller v. Miller, 01-356, p. 5 (La.App. 3 Cir. 10/31/01), 799 So.2d 753, 756. In the instant matter, as with the issue of domiciliary status, we find that a reasonable factual basis exists for the trial court’s ruling on the issue of relocation. Without a recitation of the facts relative to each factor delineated in La.R.S 9:355.12, we find no manifest error in the trial court’s determinations. Considering the evidence in the record, we find no abuse of the trial court’s discretion in concluding that the evidence weighs in favor of relocation of the children to Conroe, Texas, with Oscar.

The extent of involvement and the duration thereof of the children’s relationship with their father is significant. Even while in Iraq, Oscar maintained communication with his children. Curiously, for reasons not explained in the record, beginning in March of 2007, while Oscar was still in Iraq, instead of remaining with Dawn, the two children went to live with Oscar’s mother until he returned in November, 2007. Upon Oscar’s return, the children resided with him, which they have continued to do to date. The ability of preserving the relationship of the children with their mother is feasible despite some distance between the parties. Although Oscar did not historically and actively promote the relationship between the children and their mother, leaving that to a great extent to her to initiate or for the children to request, he did not thwart that relationship. The overall impact of the relocation on the children has been positive, and the quality of life that the children enjoy in Conroe has been established.

Perhaps most importantly, the stability which a life in Conroe provides for the children is very significant. They reside in a four-bedroom home with their father, stepmother, and her son. Marie does not work and cares for the children after school. Their father works and is home every evening, helping with | ^homework and playing with the children. The children are doing well in school and even showing more of an interest in school. Moreover, they have, in fact, been in this stable and positive environment since May of 2009.

To the contrary, allowing the children to reside in Leesville would not provide the same stability and is replete with unknowns. Dawn currently resides with her sister and her family. Dawn testified that she would “get her own place” if the children were to reside with her; however, she provided no details, and she has no income. Although Dawn is a full-time student, her education and employment future remain completely uncertain. Further, Dawn testified that she was in a relationship with a man who resided in Texas and that she anticipated that they would get married. Even if these plans came to fruition, Dawn was unable to say with any reasonable degree of certainty whether they would reside in Texas or in Louisiana, that being dependent on future employment opportunities.

Finally, this court again acknowledges the opinion expressed by Dr. Simoneaux that the children should remain in Lees-ville. However, Dr. Simoneaux had performed his interviews and evaluation of these parties approximately five months before the hearing. He had not performed any further evaluations since the children had moved to Texas, and circumstances had already changed considerably. Additionally, Dr. Simoneaux was not present in court on the first day of the hearing to hear and consider the evidence and testimony of all the other witnesses. At the time he provided his testimony to the trial court, Dr. Simoneaux had only been provided with Oscar’s testimony from the first day of trial. Thus, it is clear that Dr. Simoneaux did not have all of the current relevant facts available at the time that he reiterated his initial opinion on the second day of trial.

LFor the foregoing reasons, considering the evidence of record, we find that the trial court did not abuse its discretion in designating Oscar as the domiciliary parent of the two minor children. Likewise, we find no abuse of the trial court’s discretion in permitting the relocation of these children to Texas.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. The costs of this appeal are assessed to Plaintiff/Appellant, Dawn Cheryl Perez.

AFFIRMED.

KEATY, J., dissents and assigns written reasons.

COOKS, J., dissents for the reasons assigned by Judge KEATY.

KEATY, J.,

dissenting.

11 In its judgment on relocation, the trial court allowed a father, who had already moved his children out of state without permission from the court and in obvious disregard of their mother’s objection, to change the children’s residence to Texas. The trial court analyzed the facts of this case pursuant to the incorrect statute and ignored the recommendation of its appointed expert. The majority opinion, which affirms the trial court’s judgment, fails to utilize the appropriate standard of review. Together, these rulings create legal precedent that is in direct conflict with existing relocation law and jurisprudence. To the detriment of Louisiana families, this new precedent will be relied on in the future to support the propositions that a parent need not prove that the relocation is in the best interest of the children nor obtain permission from the court before physically moving the children. For these reasons, and the ones that follow, I respectfully dissent.

Relocation

Relocation is governed by La.R.S. 9:355.1-17. In La.R.S. 9:355.12, the legislature enumerated twelve factors to be considered by trial courts when determining whether relocation should be granted. Although similar to La.Civ.Code art. 134, which sets forth factors for determining the best interest of children in custody cases, the two statutes are not identical. “A court commits | flegal error when it fails to consider the factors for relocation and instead completes an evaluation of the best interest of the child under La. C.C. art. 134.” Smith v. Smith, 44,663, p. 18 (La.App. 2 Cir. 8/19/09), 16 So.3d 643, 654. In Gathen v. Gathen, 10-2312, p. 1 (La.5/10/11), 66 So.3d 1, 2, the supreme court stated, “La. R.S. 9:355.12 mandates that the trial court consider all twelve factors listed in La. R.S. 9:355.12.” Failure to consider the factors set forth in La.R.S. 9:355.12 is a “prejudicial legal error that materially affect[s] the outcome [of the case] and deprive[s] a party of substantial rights.” Johnson v. Spurlock, 07-949, p. 7 (La.App. 5 Cir. 5/27/08), 986 So.2d 724, 728.

In its written reasons for ruling, the trial court stated,

In carefully considering all of the factors of Article 134 and the testimony of the parties, it appears that the best interest of these children would be served by allowing them to stay in the environment that they are now enjoying. Therefore, this Court will allow the relocation of the children to their father’s home in Conroe, Texas[.]

Because the trial court did not consider the proposed relocation in light of the factors set forth in La.R.S. 9:355.12, and instead relied on the factors enumerated in La.Civ.Code art. 134, the trial court committed legal error, and its decision should be reviewed de novo. The majority opinion employed an incorrect standard of review when it reviewed the trial court’s judgment for manifest error/abuse of discretion.

Relocation is a two-prong test, requiring that the relocating parent prove that the proposed relocation is made in good faith and that it is in the best interest of the child. La.R.S. 9:355.13. In conducting a de novo review, the record might support a finding that Oscar’s proposed relocation was in good faith, as he moved to be closer to his wife’s family. Oscar’s actual relocation, however, should be considered bad faith, as he moved the children to Conroe without permission from the Court and against Dawn’s objections. Further, despite Dawn’s attempts to Rob tain an injunction prohibiting him from doing so, he enrolled the children in school in Conroe before the issue of relocation could be adjudicated and without the necessary temporary permission from the court pursuant to La.R.S. 9:533.5 and La.R.S. 9:355.10.

Even if Oscar is given credit for meeting the first prong of the relocation test, he still bears the burden of proving that the relocation is in the best interest of the children. To determine whether a parent has met its burden of proving' that the relocation is in the best interest of the child, “the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.” La.R.S. 9:355.13. Additionally, La.R.S. 9:355.12(A) requires a court to consider twelve enumerated factors before reaching a decision regarding a proposed relocation. Section B of La.R.S. 9:355.12 prohibits the court from considering “whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.”

The twelve factors that a court must consider before making a decision on relocation are:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelo-cating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
14(4) The child’s preference, taking into consideration the age and maturity of the child.
(5)Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

La.R.S. 9:355.12(A).

In conducting a de novo review of the case, each factor should be considered before determining whether relocation is in the best interest of the children. Although each factor must be considered, courts are not required to give preferential consideration to any certain factor or factors. H.S.C. v. C.E.C., 05-1490 (La.App. 4 Cir. 11/8/06), 944 So.2d 738. Accordingly, I will only address the factors that I think weigh in favor of, or against, the proposed relocation. Paramount in my review is the opinion of Dr. John Simoneaux, the court’s appointed expert. Although the trial court determined that it could not follow his recommendations because it felt that Dr. Simoneaux had not been apprised of some |skey changes since he initially met with the parties, Dr. Simoneaux had been given a copy of the transcript from the first day of trial, which is the only day that he missed. Accordingly, he was aware of any new developments that had been presented during trial. After reviewing it, he testified that his opinion on the proposed relocation and custody of the children remained unchanged.

A “trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence.” Smith, 16 So.3d at 653. “The weight given expert testimony is dependent upon the experts’ professional qualifications and experience and the factors upon which the opinions are based.” Id. “Further, a trial judge may substitute his/ her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole.” Id.

The trial court chose to ignore the opinion of Dr. Simoneaux, its court-appointed expert, claiming that he had not been apprised of certain new developments. Dr. Simoneaux testified that he had been given a transcript from the first portion of the trial and had reviewed it, and his opinion would not change. Dr. Simoneaux met with Dawn, Oscar, their children, and Marie, Oscar’s new wife. He performed various diagnostic tests on the parties in addition to interviewing them. His report to the court and the recommendations he makes are drawn from the test results and his interviews with the parties. Dawn’s test results were valid. Dr. Simoneaux determined that although Dawn had made mistakes in her past, she was honest about them, was the more stable parent, and would be most likely to foster a relationship with the other parent. Conversely, he found that Oscar and Marie’s test results were invalid, that they tried to present themselves as perfect, that their statements were inconsistent, that neither of them was likely to foster a relationship between the children and Dawn, that the relocation was more Uikely for their best interests than the children’s, and that the relocation “would severely compromise the children’s relationship with their mother.” Given the amount of time he spent with the parties individually and the interviews and tests he conducted, he proposed that if the parties lived in the same town, Dawn should be domiciliary parent, and the parties should split custody 50/50. He opposed the proposed relocation.

After reviewing the record, I find nothing to support the trial court’s substitution of its own common sense and judgment for that of Dr. Simoneaux, and I propose that the trial court’s failure to give credence to Dr. Simoneaux’s recommendations was erroneous. In continuing with the de novo review of the record, factors one, two, three, five, six, seven, eleven and part of factor twelve weigh against relocation. A second part of factor twelve weighs in favor of the relocation. Because the majority of the factors weigh against relocation, Oscar should have been prohibited from relocating the children’s residence to Texas.

Factor one of La.R.S. 9:355.12 requires the court to look at the children’s history with each parent and their relationship with other significant persons in the children’s lives. The boys, who were nine and ten when the matter was tried, had lived in Leesville for their entire lives. Their maternal grandparents and paternal grandmother also lived in Leesville, as well as extended family members including aunts, uncles, and cousins. They often visited their maternal grandparents, and lived, on two separate occasions, with their paternal grandparents.

There is no indication that the children lived with anyone other than their parents while they were young. For four years, beginning in 2003 and ending in November 2007, Oscar worked in Iraq. He was given leave every four months. From the time Oscar left until March 2007, the children lived with Dawn. From March 2007 until November 2007, the children lived in their home with Oscar’s |7mother. Upon his return in November 2007, the children resided with Oscar, and at some point, Marie moved in with them. In late 2009 or early 2010, Oscar moved to Conroe. Marie and the children lived with his mother during the school week and commuted to Conroe on the weekends until school let out in May, at which time Marie and the children moved permanently to Conroe. In Con-roe, the children live with Oscar, Marie, and Marie’s son. There has been some friction between the Perez children and Marie’s son. Oscar works long hours, from early in the morning until late in the evening and nearly all of the parenting is done by Marie. Other than their father, the children do not have family in Conroe. In contrast, the children have an extensive network of family members in Leesville who have been actively present for the entirety of their lives, and who have also stepped in as temporary caretakers for the children. Accordingly, this factor weighs against relocation.

Factor two requires the court to consider the age and needs of the child and the impact the relocation will have on the children’s physical, educational, and emotional development. Dr. Simoneaux noted that the boys had lived with Oscar for the majority of the three years prior to his interview with them, and they had significant behavioral and emotional difficulties, which was “particularly troublesome” to Dr. Simoneaux. He found that the boys long for a relationship with their mother and that the proposed relocation would severely hinder that relationship. Accordingly, this factor weighs against relocation.

Factor three requires the court to consider the feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements. In his report to the court, Dr. Simoneaux opined that the relocation “would severely compromise the children’s relationship with their mother.” Dawn asserted that, when on a sixteen-day leave, she was only allowed |sto see the boys four days and that she was not given any significant time with the boys during the summer. She asserted that although she encouraged the boys to send their dad letters and cards while he was in Iraq, he did nothing to encourage them to communicate with her. Oscar did not prove otherwise. Accordingly, this factor weighs against relocation.

Factor number five requires the court to consider the parent seeking relocation’s history in either promoting or attempting to thwart the relationship of the children and the nonrelocating parent. As previously discussed, Oscar has done little to nothing to facilitate a relationship between Dawn and her children. Accordingly, this factor weighs against relocation.

Factor six requires the court to determine whether the relocation will enhance the general quality of life for the relocating parent and the children, including, but not limited to, financial, emotional, or educational benefits. Oscar’s move to Conroe was a lateral one. Although the family currently lives in a four bedroom house, we do not know how this home differs from the one the family lived in Leesville. Oscar makes $45,000 per year, and his is the only source of income. The record does not contain evidence that Oscar or the children have benefitted from the move, financially or emotionally. Rather, the record seems to support the conclusion that, at least emotionally, the relocation will be harmful to the children. Evidence was not introduced to support a proposition that the Conroe schools provide a more advantageous educational opportunity to the boys than the Leesville school. This factor weighs against relocation.

Factor seven requires the court to consider the reasons of each parent for seeking or opposing the relocation. Oscar sought relocation because he wanted to be closer to Marie’s family and his best friend. The move was not mandated by his employer and was not the result of a promotion. Dawn opposes the relocation [(because she won’t be able to be involved in the children’s lives on a daily basis, and it will be a struggle to foster a close and continuous relationship with them, given Oscar’s predilection to thwart those attempts. Further, the boys will be removed from their extended family and from their school and friends. This factor weighs against relocation.

Factor eleven requires the court to consider any history of substance abuse or violence by either parent, including the severity of that conduct and the failure or success at any rehabilitation attempts. Oscar has a history of perpetuating violence against Dawn. At one point, he wrapped a towel around her neck and dragged her to the bathroom, placed her near the bathtub, and began choking her. This violence was corroborated by statements Marie made to Dr. Simoneaux. The record lacks evidence that Oscar has enrolled in a rehabilitation program. The statute requires the court to consider any history of violence by either parent. There is a history of violence by Oscar, and the record does not contain evidence that he has done anything to rehabilitate himself. Accordingly, this factor weighs against relocation.

Factor twelve allows the court to consider any other factor affecting the best interest of the child. I suggest that there are two factors that need to be considered here: Dawn’s relinquishment of physical custody of her children to Oscar’s mother and her subsequent move to Iraq, and Oscar’s relocation of the children to Con-roe without court approval.

Admittedly, Dawn handed custody over to Oscar’s mother in March 2007. Oscar’s mother cared for the boys from March 2007 until November 2007, at which time Oscar returned home and began caring for the boys. Dawn began working overseas in November 2008 and returned home in the Spring of 2010. Her actions certainly do not depict those of a stable, caring mother who put her | inchildren’s best interests before her own wants or needs. However, she did terminate her employment contract nearly a year early so that she could return to Leesville and actively participate in the children’s lives. In her evaluation with Dr. Simoneaux, he found her to be honest about her past and her mistakes and remorseful about her actions. Regardless, at the time the relocation was proposed, Dawn was working overseas and had relinquished custody of her children twenty months before taking the overseas assignment. This factor weighs in favor of relocation.

The final factor that needs to be addressed is the fact that Oscar moved the children to Texas and enrolled them in school without permission from the court. La.R.S. 9:355.5 mandates judicial permission before a parent can relocate with a child if the nonrelocating parent objects to the proposed relocation. Oscar showed flagrant disregard for the law when he moved the boys to Conroe and enrolled them in school there, absent court permission. This factor weighs against relocation.

Having considered all and analyzed the relevant factors in La.R.S. 9:355.12, it is clear that the proposed relocation was not in the children’s best interests. Accordingly, Oscar failed to prove the second prong of the two-part relocation test, and the relocation should be denied. The boys should be returned to Leesville.

Custody

I do not think that the issue of custody, domiciliary status, and implementation of a joint custody plan was properly before the court. In the objection to relocation, Dawn sought an injunction prohibiting Oscar from relocating the children before a hearing and evaluations by a court-appointed expert. Although she prayed that Oscar not be allowed to relocate the children to Texas, she did not pray for a determination of custody, including the establishment |nof a domiciliary parent. Oscar did not file a reconventional demand to establish custody. “ ‘[Njothing in the article [art. 862] is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it.’ Otherwise, ‘[a] judgment beyond the pleadings is a nullity.’” Domingue v. Bodin, 08-62, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted). For these reasons, I would find that the portion of the judgment determining custody is null.

Louisiana law, however, allows a court to address issues not raised by the pleadings when those issues were tried by the express or implied consent of the parties. La.Code Civ.P. art. 1154. In those situations, the issue “must be treated in all respects as if the issue had been raised by the pleadings.” Wexler v. Martin, 367 So.2d 111 (La.App. 4 Cir.1979). If one were to determine that the issue of custody had been tried with either the express or implied consent of the parties, then a determination of custody might be appropriate in the instant case.

If La.Code Civ.P. art. 1154 is determined applicable in the instant case, the portion of the judgment granting Oscar domiciliary status should be reversed. The domiciliary parent is the parent with whom the child resides most of the time. La.R.S. 9:335. A new order should be issued granting domiciliary status to the parent living in Leesville. If both parents live in Leesville, the court should rely on Dr. Simoneaux’s report and award domiciliary status to Dawn or order that the parties submit for a new evaluation for use in a custody determination.

The majority opinion affirms a trial court judgment that relied on the wrong statute to reward a father who failed to comply with Louisiana relocation laws before moving his children to Texas and who failed to meet both prongs of the two-part relocation test at hearing. In applying the wrong standard of review, manifest error rather than de novo, the majority opinion affirms the trial court’s | ^travesty of a judgment. The majority opinion creates divergent jurisprudential precedent that will have destructive effects on Louisiana relocation law, as it will be relied on in the future as proof that a party need not obtain judicial permission to change a child’s residence, either temporarily or permanently, as required by La.R.S. 9:355.5 and La.R.S. 9:355.10, and that a party seeking to relocate need not prove both prongs of the two-part relocation test: good faith and the best interest of the child as determined by La.R.S. 9:355.12-.13. If these permissions and determinations were not of the utmost importance and instead were simply to be established by the whim and fancy of any parent wanting to change his child’s residence, the legislature would not have made them law. It pains me to think about the pernicious effects this opinion will have on our relocation laws. For the reasons I have set forth, I respectfully dissent.

      . Oscar was employed as a heavy equipment foreman in Iraq for approximately four years.

      . According to her testimony, Dawn actually returned from Iraq in April of 2010.

      .Marie’s oldest son lived with his biological father in Pearland, Texas. He, too, later came to live with Marie, Oscar, and Oscar’s children for a period of time.

      . Dr. Simoneaux had been provided with a transcript of the trial testimony of Oscar.


author: CHANDLER, Justice,

text:
    Jimmy Steven FOWLER, Jr., Individually and for and on Behalf of the Wrongful Death Beneficiaries of Jimmy Steven Fowler, Deceased v. John Paul WHITE, M.D., Marilyn Lehman, R.N. and the Sanctuary Hospice House, Inc.
    No. 2011-CA-00286-SCT.
    Supreme Court of Mississippi.
    March 29, 2012.

      Steven J. Irwin, attorney for appellant.
    Margaret Sams Gratz, L.F. Sams, Jr., Tupelo, John G. Wheeler, attorneys for appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. The Circuit Court of Lee County dismissed Jimmy Steven Fowler Jr.’s wrongful-death action for failure to timely serve presuit notice on the defendants as required by Mississippi Code Section 15-1-36(15) (Rev. 2003). The trial court denied Fowler’s motion for reconsideration. Fowler appeals, arguing that (1) he presented evidence which raised a presumption of timely presuit notice; (2) the trial court erred by denying his motion for reconsideration; and (3) the defendants, John Paul White, M.D., Marilyn Lehman, R.N., and The Sanctuary Hospice House, Inc. (collectively, Sanctuary), waived the affirmative defense of lack of presuit notice because they failed to timely pursue the defense while actively participating in the litigation.

¶ 2. We affirm. The trial court’s finding that Fowler failed to present sufficient evidence to create a presumption of presuit notice was supported by substantial evidence. The trial court was within its discretion in denying Fowler’s Rule 59(e) motion for reconsideration. And Fowler’s waiver argument is proeedurally barred because he raises it for the first time on appeal.

FACTS

¶ 3. Fowler filed the complaint on August 4, 2009. He alleged that his father, Jimmy Steven Fowler, had congestive heart failure and chronic obstructive pulmonary disease, and was maintained on multiple medications. Four months prior to Jimmy’s death on January 31, 2007, he was admitted as a resident to The Sanctuary Hospice House. The complaint alleged that Sanctuary had committed medical negligence by discontinuing Jimmy’s medication and placing him on high doses of pain medication and sedatives, which proximately caused his death from morphine neurotoxicity and benzodiazepine toxicity. The complaint further alleged that Dr. White and Nurse Lehman, the clinical coordinator for The Sanctuary Hospice House, had provided medically negligent care to Jimmy. Finally, the complaint alleged that Sanctuary had actively concealed its medical negligence and that Fowler had not discovered the negligence until so notified by the Medical Fraud Unit of the Office of the Mississippi Attorney General on August 16, 2007. Fowler’s counsel attached a certificate of expert consultation as required by Mississippi Code Section 11-1-58 (Supp.2011).

¶ 4. Fowler did not serve the complaint on the defendants. Instead, on October 16, 2009, he filed a first amended complaint that added Fred C. Sandlin Jr. and Fred’s Rexall Pharmacy as defendants. On November 19, 2009, Dr. White answered and filed a motion to dismiss due to the lack of sixty days’ presuit notice. Lehman and The Sanctuary Hospice House also raised that defense in their answers filed on November 20, 2009. On November 23, 2009, Lehman and The Sanctuary Hospice House filed a motion for summary judgment on the basis of lack of sixty days’ presuit notice. Dr. White filed a motion for summary judgment on the same ground on December 9, 2009.

¶ 5. In its motion for summary judgment, The Sanctuary Hospice House asserted that it had received presuit notice postmarked August 6, 2009, two days after Fowler had filed the complaint on August 4, 2009. Lehman asserted she never had received presuit notice in the case. Dr. White asserted that he had not been given sixty days’ written notice prior to the filing of the complaint.

¶ 6. Fowler filed a consolidated response to the motions for summary judgment. He attached as exhibits signed copies of four presuit-notice letters addressed to Lehman, Dr. White, Nancy Collins, R.N., the president of The Sanctuary Hospice House, and Linda Gholston, the administrator of The Sanctuary Hospice House. These letters were dated May 6, 2008, more than sixty days prior to the date the complaint was filed on August 4, 2009. Fowler asserted that he had mailed these notices on May 6, 2008. Fowler averred that he had decided to withhold service of the original complaint pending further investigation. When further investigation revealed the identities of Fred C. Sandlin Jr. and Fred’s Rexall Pharmacy, Fowler renotified all defendants by certified mail on August 6, 2009, notified Sandlin and Fred’s Rexall Pharmacy, and filed the first amended complaint on October 16, 2009, more than sixty days after sending the August 6, 2009, notice letters. Fowler asserted that he had complied with the sixty days’ written-notice requirement because the defendants never had been served with the August 4, 2009, complaint and they had been given sixty days’ written notice of the first amended complaint.

¶ 7. The hearing occurred on May 11, 2010. The day before the hearing, Fowler filed the affidavit of Cindy Luton as a supplementary exhibit to his response. In the affidavit, Luton testified that she worked as a paralegal for Fowler’s counsel. Luton stated that, on May 6, 2008, she had prepared notice letters dictated by counsel and addressed to Lehman, Collins, Gholston, and Dr. White, all addressed to their place of business at The Sanctuary Hospice House. Luton stated that, after she had prepared the letters, counsel had signed them and she had placed sufficient postage on them and had placed them in the United States mailbox outside the law office. That afternoon, she had cheeked the mailbox and the letters were no longer in the mailbox.

¶ 8. In rebuttal, Sanctuary filed the affidavit of Gholston. Gholston stated that she had received several presuit-notice letters dated May 6, 2008, filed by Fowler’s counsel, but those letters pertained to other plaintiffs’ cases against Sanctuary, not Fowler’s case. Sanctuary attached copies of four such presuit-notice letters, all of which were dated May 6, 2008, and none of which pertained to Fowler’s case. All those letters had been sent via certified mail.

¶ 9. At the summary judgment hearing, Fowler’s counsel explained that on May 6, 2008, he had directed Luton to prepare presuit-notice letters in several cases he had pending against Sanctuary. He specifically recalled dictating the Fowler letters, giving them to Luton to type, proofing them, signing them, and returning them to Luton for mailing. Then he watched Luton deposit them in the mailbox the same day. Fowler’s counsel explained that, after mailing the presuit-no-tice letters in Fowler’s case, he had spoken with his sister-in-law, an attorney specializing in medical-malpractice work in Mississippi. This attorney informed Fowler’s counsel that, although it is not required, it is considered preferable to mail presuit-notice letters via certified mail. Then, Fowler’s counsel instructed Luton to send the presuit-notice letters in the other cases against Sanctuary via certified mail. These certified letters were sent over a period of several days.

¶ 10. On November 8, 2010, the trial court granted Sanctuary’s motions to dismiss and dismissed the case without prejudice. The trial court found that Gholston’s affidavit established that Sanctuary had received presuit-notice letters from Fowler’s counsel dated May 6, 2010, in several other cases. The trial court found that, while Luton’s affidavit established she had mailed presuit-notice letters on that date, she did not specify that they were the letters in Fowler’s case. Therefore, the trial court found that Fowler had not presented sufficient evidence to support a presumption under Mississippi Rule of Civil Procedure 5 that the May 6, 2010, presuit notice had been delivered.

¶ 11. Fowler timely filed a motion for reconsideration. He attached a second affidavit from Luton and signed copies of four presuit-notice letters in Fowler’s case, dated May 6, 2008, addressed to Sanctuary. In the affidavit, Luton stated that she had mailed the four attached notice letters via United States mail on May 6, 2008. The four notice letters were addressed to Lehman, Dr. White, Gholston, and Collins at The Sanctuary Hospice House. Fowler argued that the basis of the motion for reconsideration was to correct a clear error of law or correct a manifest injustice. He argued that the trial court had misinterpreted Luton’s first affidavit due to its lack of specificity, and that Luton’s second affidavit specifying she had sent the attached letters would allow the court to correct the error.

¶ 12. The trial court denied the motion for reconsideration, stating that Luton’s original affidavit was insufficient to create a presumption of delivery because it was vague and ambiguous as to whether pre-suit notice was mailed in Fowler’s case, and the court could not allow Fowler a “second bite at the apple” by submitting an additional affidavit in the matter. Fowler now appeals from the trial court’s grant of the motions to dismiss and the denial of his motion for reconsideration.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY GRANTING SANCTUARY’S MOTION TO DISMISS AND DENYING FOWLER’S MOTION FOR RECONSIDERATION.

¶ 13. Mississippi Code Section 15-1-36(15) provides:

No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.

Miss.Code Ann. 15-1-36(15) (Rev. 2003). This Court requires strict compliance with Section 15-1-36(15); the failure to satisfy the presuit-notice requirement mandates dismissal without prejudice. Williams v. Skelton, 6 So.3d 428, 430 (Miss.2009). We begin by noting that the trial court correctly treated the motions for summary judgment based on noncompliance with Section 15-1-36(15) as motions to dismiss. This Court has held that a dispositive motion based on noncompliance with Section 15-1-36(15) is properly deemed a motion to dismiss, not a motion for summary judgment. Brewer v. Wiltcher, 22 So.3d 1188, 1190 (Miss.2009).

¶ 14. In Proli v. Hathorn, 928 So.2d 169, 173 (Miss.2006), this Court determined that the mechanics of Mississippi Rule of Civil Procedure 5 control the service of presuit notice under Section 15 — 1— 36(15). See also Brocato v. Mississippi Publishers Corp., 503 So.2d 241, 243 (Miss.1987) (stating that the mechanics of Rule 5 may be used in a situation where notice is required as a preliminary step before filing a lawsuit). Rule 5(b) concerns the filing of pleadings and other papers. M.R.C.P. 5(b). The rule provides, in pertinent part, that “every written notice” shall be served by “mailing it to [an attorney or party] at his last known address,” and that “service by mail is complete upon mailing.” M.R.C.P. 5(b).

¶ 15. This Court has held that “[t]here is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed.” Thames v. Smith Ins. Agency, Inc., 710 So.2d 1213, 1216 (Miss.1998). The presumption is raised when the proponent presents sufficient evidence that the letter was stamped and mailed. Brewer, 22 So.3d at 1191 (Miss.2009) (citing New York Life Ins. Co. v. Quinn, 171 Miss. 396, 157 So. 902, 903-04 (1934)). “Once the presumption is established, the burden shifts to the party denying receipt to present evidence to rebut the presumption.” Id. (quoting Holt v. Mississippi Employment Sec. Comm’n, 724 So.2d 466, 470 (Miss.Ct.App.1998)).

¶ 16. Fowler argues that the trial court erred by finding he had not submitted sufficient evidence to raise a presumption of delivery. “When a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings.” Brewer, 22 So.3d at 1190 (quoting Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994)). The trial court held that the affidavit submitted by Fowler did not raise a presumption of delivery because it did not specify that Luton had mailed presuit notice in Fowler’s case as opposed to counsel’s other cases against the defendants. Certainly, the trial court’s decision was supported by substantial evidence; it was undisputed that Fowler’s counsel had prepared pre-suit-notice letters dated May 6, 2008, in several other cases against Sanctuary, and Luton’s affidavit was ambiguous as to whether she had mailed those letters as opposed to the letters in Fowler’s case.

¶ 17. Fowler argues that the trial court erred by not considering his counsel’s statements at the hearing that he specifically recalled dictating the Fowler letters, giving them to Luton to type, proofing them, signing them, returning them to Luton for mailing, and watching Luton deposit them in the mailbox. The trial court’s order did not mention these statements by Fowler’s counsel; therefore, the trial court either did not consider them, or found them to be unpersuasive. Without citation to authority, Fowler argues that the trial court should have accepted his representations made as an officer of the court. Whether to permit live testimony at a summary judgment hearing is within the trial court’s discretion. MST, Inc. v. Miss. Chem. Corp., 610 So.2d 299, 305 (Miss.1992). The statements of Fowler’s counsel were not sworn testimony, and the trial court had no obligation to consider them in making its ruling. We find that it was within the trial court’s discretion not to consider the unsworn statements of Fowler’s counsel, or to find them unpersuasive.

¶ 18. Fowler further argues that the trial court erred by denying his motion for reconsideration. Mississippi Rule of Civil Procedure 59(e) permits a party to move the court to alter or amend its judgment. City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 66 (Miss.2005). Under Rule 59(e), “a party may only obtain relief upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice.” Rankin v. Am. Gen. Fin., 912 So.2d 725, 727 (Miss.2005). This Court reviews the trial court’s denial of a Rule 59(e) motion for abuse of discretion. Internal Engine Parts, 903 So.2d at 66.

¶ 19. Fowler argues that he sought Rule 59(e) relief to prevent a manifest injustice created by the trial court’s “misinterpretation” of Luton’s affidavit. In furtherance of this goal, he attached a second affidavit from Luton which clarified that on May 6, 2008, she had stamped and mailed the presuit-notice letters in Fowler’s case, along with signed copies of those letters. The trial court denied the motion, finding that, because Luton’s second affidavit was not newly discovered evidence, the court’s consideration of it would allow Fowler “a second bite at the apple.” In affirming the denial of a Rule 59 motion to alter or amend, the Fifth Circuit has held that “the unexcused failure to present evidence which is available at the time summary judgment is under consideration constituted a valid basis for denying a motion to reconsider.” Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir.1991).

¶ 20. This Court finds that the ruling was within the trial court’s discretion, because the evidence had been available to Fowler from the time Sanctuary filed the dispositive motions in November 2009, until November 8, 2010, when the trial court entered its ruling on the motions to dismiss. The insufficiency of Luton’s affidavit was discussed extensively at the hearing on May 11, 2010, giving Fowler approximately six months between the hearing and the ruling to submit a more specific affidavit. The trial court’s decision denying Fowler’s motion for reconsideration is affirmed.

II. WHETHER SANCTUARY WAIVED ITS AFFIRMATIVE DEFENSE OF LACK OF PRE-SUIT NOTICE.

¶21. Fowler argues that Sanctuary waived the affirmative defense of lack of presuit notice by failing to pursue the defense while actively participating in the litigation. Sanctuary correctly argues that, because Fowler raises this issue for the first time on appeal, the issue is procedurally barred. “This Court has long held that it will not consider matters raised for the first time on appeal.” Triplett v. Mayor and Bd. of Aldermen of Vicksburg, 758 So.2d 399, 401 (Miss.2000). This Court has stated that

We have been consistent in holding that we need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.

Alexander v. Daniel, 904 So.2d 172, 183 (Miss.2005) (citations omitted). Because Fowler raises this issue for the first time on appeal, it is procedurally barred. Sanctuary has filed a motion to supplement the record arguing that, if the Court considers the issue, then Sanctuary should be permitted to present the evidence it would have presented to the trial court had the issue been raised. Because the waiver issue is procedurally barred, Fowler’s motion to supplement the record is denied.

CONCLUSION

¶ 22. We find that the trial court’s decision that Fowler failed to present sufficient evidence to create a presumption of presuit notice was supported by substantial evidence. The trial court did not abuse its discretion by denying Fowler’s Rule 59(e) motion for reconsideration. Fowler’s waiver argument is procedurally barred because he raises it for the first time on appeal.

¶ 23. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, PIERCE AND KING, JJ„ CONCUR. KITCHENS, J., NOT PARTICIPATING.

      . The defendants also raised a statute-of-limitations defense, which is not an issue in this appeal.


author: KING, Justice,

text:
    Jeremy Daniel ROGERS, Sr. a/k/a Jeremy Rogers v. STATE of Mississippi.
    No. 2010-KA-01790-SCT.
    Supreme Court of Mississippi.
    April 5, 2012.

      Office of Indigent Appeals by Hunter Nolan Aikens, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, attorneys for Appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. A jury in DeSoto County found Jeremy Rogers guilty of statutory rape, sexual battery, and fondling of his twelve-year-old stepdaughter, Mary. Aggrieved, Rogers has filed this appeal. Finding no violation of Rogers’s constitutional rights, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 8, 2009, Mary was living with her mother, Margaret, and Rogers. Margaret, a nurse, left for work at approximately 6:30 p.m., leaving Mary at home with Rogers. Margaret, concerned for another daughter, who was enrolled in college in Oxford, left work early, at approximately 7:30 p.m., and returned home. When Margaret arrived home, she found Rogers and Mary in her bedroom, both naked.

¶ 3. On the way to school the next morning, Margaret confronted Mary about what had occurred the previous day between her and Rogers. Mary admitted to her mother that they had had sexual relations. Immediately, Margaret contacted the police, and both she and Mary gave statements. Mary was taken the Rape Crisis Center, and Nina Sublette, a nurse practitioner, performed a sexual-assault exam and documented the following injuries: excoriation to the labia minor, acute laceration at her posterior fourchette and an area of cervical ectropion.

¶ 4. Rogers was charged with statutory rape, sexual battery, and fondling. On September 20, 2010, the matter proceeded to trial. Margaret testified to the events of September 8, 2009, including that she had returned home from work find to Rogers and Mary in her bedroom, both naked, and that once she had confronted Mary about the situation, Mary had admitted that she had sex with Rogers. Mary testified that, on September 8, 2009, she had had sex with Rogers. According to Mary, on numerous prior occasions, Rogers had touched her in a sexual nature, including engaging her in oral sex. Sublette corroborated Mary’s testimony of a sexual encounter and stated that Mary’s injuries were “caused by blunt, penetrating trauma from a sexual assault.”

¶ 5. The jury convicted Rogers of all three counts. Rogers was sentenced to serve thirty years for the statutory-rape conviction and thirty years for the sexual-battery conviction, -with the sentences to run concurrently. For the fondling conviction, he was sentenced to serve fifteen years with two years to serve and thirteen years suspended, with the sentence to run consecutively to the other two sentences.

DISCUSSION

¶ 6. Rogers raises the following issues on appeal: (1) whether Rogers was denied his fundamental right to a fair trial by the introduction of extensive prior-bad-acts evidence, and (2) whether Rogers received ineffective assistance of counsel.

¶ 7. Rogers argues that he was denied his right to a fair trial because during cross-examination of Margaret, his attorney elicited a lengthy story which portrayed Rogers as a “hot-tempered reckless drunk driver, a racist, and a violent wife-beater.” Rogers argues the following statements were inadmissible:

What was your and Jeremy’s relationship back on 9-8-09?
We were husband and wife.
What was your relationship like?
I was completely in love with him, and I thought he was completely in love with me. He was the first person I wanted to go to when I thought my daughter was in danger because [Rogers] protected us always. Jeremy never let anything happen to any of us.
Had you and him had any marital problems prior to 9-8-09?
We had normal marital problems that everyone has.
Was there three incidents in particular where you had left and didn’t come home that irritated Jeremy in the past?
There was one incident, yes, sir.
What happened on that incident?
[Attorney for the State objected to relevance; the objection was overruled.]
So what occasion is that that you left?
I can’t recall the date. I can recall the incident. We had been out—
Let me ask you this before you get into it. Could you give us a time frame?
How close was it to 9-8-09?
It wasn’t close, but it was during the time that we lived at W.E. Ross Parkway, but it was not close.
Tell me what happened.

¶ 8. Margaret then testified about a night in which she and Rogers had been drinking in Tunica. On their way home, Margaret rode on the back of Rogers’s motorcycle, and he was “really, really, really, really way to[o] drunk to even be driving.” She testified that Rogers wanted to go to Waffle House, and as they pulled into the parking lot, “he thought it would be funny to whiz by [people in the parking lot] and act like he was going to hit them.” Margaret stated she was “scared to death” because “when [Rogers] gets to drinking that much, it can not end well sometimes.”

¶ 9. According to Margaret, once inside the restaurant, she sent Rogers to apologize to the people in the parking lot. While he was outside, a teenager sitting near her gave her a cigarette. When Rogers returned, he addressed the teenager, “Well if you’re going to give my wife a cigarette, how about giving me the whole [expletive] pack?” Margaret testified that Rogers then told the teenagers that they talked “like niggers, and then proceeded to try and educate them on how to be white.” According to Margaret, soon after Rogers’s outburst, they decided to leave, and while in the parking lot, Rogers began screaming at her and calling her a “nigger lover.”

¶ 10. At this point in her testimony, Rogers’s attorney stated: “My question was: When were you gone for a period of time. Are you getting to that part of it?” Margaret responded by stating, “Yes, sir, but I have to tell you the circumstances around that.”

¶ 11. Margaret continued to testify and stated that Rogers then drove them to their home, and once they had arrived home, Rogers had “started to become more and more violent.” Margaret testified that Rogers had begun beating her with her a lawn chair. Margaret testified that eventually he had stopped and she had sneaked out of the house.

¶ 12. Rogers acknowledges that the evidence at issue was introduced without objection and elicited by Rogers’s trial counsel. This Court consistently has held that a defendant cannot complain of evidence introduced as a result of cross-examination by the defense counsel.

¶ 13. In Fleming v. State, 604 So.2d 280, 289 (Miss.1992), the Court stated:

It is axiomatic that a defendant cannot complain on appeal concerning evidence that he himself brought out at trial. See Singleton v. State, 518 So.2d 653, 655 (Miss.1988); Davis v. State, 530 So.2d 694, 699 (Miss.1988); Brown v. State, 534 So.2d 1019, 1024 (Miss.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989); Lewis v. State, 445 So.2d 1387, 1389 (Miss.1984); Simpson v. State, 366 So.2d 1085, 1086 (Miss.[1979]), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Sanders v. State, 219 So.2d 913 (Miss.[1969]), cert. denied, 396 U.S. 913, 90 S.Ct. 228, 24 L.Ed.2d 188 (1969); see also Shannon v. State, 321 So.2d 1, 2 (Miss.1975) (no error where objectionable statements “were to a great extent the product of the cross and direct examinations by the defense attorney”). As the Court stated pithily in Reddix v. State, 381 So.2d 999, 1009 (Miss.[1980]), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980): “If the defendant goes fishing in the state’s waters, he must take such fish as he catches.”

¶ 14. Because the statements at issue were elicited by Rogers’s defense counsel, this issue is without merit. Rogers argues that his trial counsel’s elicitation of the evidence, failure to limit the prejudicial statements from Margaret, and failure to request a limiting instruction regarding Margaret’s statements deprived him of his right to effective assistance of counsel.

¶ 15. This Court has determined that, in order to prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney’s overall performance was deficient and (2) that the deficient performance, if any, was so substantial as to prejudice the defendant and deprive him of a fair trial. Smiley v. State, 815 So.2d 1140, 1146 (¶25) (Miss.2002) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). There is a presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and in order to overcome this presumption, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. (citing Schmitt v. State, 560 So.2d 148, 154 (Miss. 1990)). “Only where it is reasonably probable that, but for the attorney’s errors, the outcome of the trial would have been different will this Court find the counsel’s performance was deficient.” Id.

¶ 16. No evidence supports the argument that Rogers’s trial counsel’s performance was deficient in any manner. This Court previously has determined that “Counsel’s choice of whether to ask certain questions or make certain objections falls within the realm of trial strategy and does not generally amount to ineffective assistance of counsel. Such choices are presumed strategic “unless counsel’s tactics are shown to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.’ ” McGilberry v. State, 843 So.2d 21, 31 (¶26) (Miss.2003) (citations omitted). The record indicates a strong likelihood that Rogers would have been convicted even without Margaret’s statements elicited during cross-examination. During trial, Mary testified in detail regarding the sexual abuse, and both Margaret and Sublette corroborated her testimony. The overwhelming evidence of Rogers’s guilt forestalls the possibility of finding that mistakes by his trial counsel affected the final outcome at trial. Richmond v. State, 751 So.2d 1038, 1049 (¶ 31) (Miss.1999). A fundamental reason why no prejudice can be demonstrated in this case is that it is clear from the record that Rogers is guilty. Id.

¶ 17. Rogers failed to prove that his attorney’s overall performance was deficient and that the deficiency was so substantial as to prejudice him and deprive him of a fair trial. Accordingly, this issue is without merit.

CONCLUSION

¶ 18. Based on the discussion, the judgment and sentences of the DeSoto County Circuit Court are affirmed.

¶ 19. COUNT I: CONVICTION OF STATUTORY RAPE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF FONDLING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO (2) YEARS TO SERVE AND THIRTEEN (13) YEARS POST-RELEASE SUPERVISION WITH FIVE (5) YEARS REPORTING, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY TO THE SENTENCE IN COUNT I. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I AND II. APPELLANT SHALL PAY A FINE OF $1,000, COURT COSTS, $1,000 TO THE MISSISSIPPI CHILD VICTIM’S TRUST FUND AND $865 RESTITUTION TO THE MISSISSIPPI CRIME VICTIMS COMPENSATION FUND, WITH CONDITIONS. APPELLANT IS GIVEN CREDIT FOR 102 DAYS TIME SERVED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . The Court uses the name "Mary” to refer to the victim in an effort to protect her privacy; the name is also consistent with the briefs presented to the Court.


author: GRIFFIS, P.J.,

text:
    Brian SNEED, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00326-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.
    Brian Sneed, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Brian Sneed appeals the circuit court’s denial of his second motion for post-conviction collateral relief. He contends that his motion is not subject to the applicable procedural bars because his fundamental constitutional rights were violated. We find no error and affirm.

FACTS

¶ 2. Sneed was indicted on two counts of burglary of a business. His indictment was later amended to charge him as a habitual offender. On March 9, 2005, Sneed pleaded guilty to both counts, and he was sentenced to serve two consecutive seven-year terms as a habitual offender without eligibility for parole or probation.

¶ 3. Sneed filed his first motion for post-conviction collateral relief on September 28, 2006. The circuit court denied the motion, and this Court affirmed the denial on appeal. Sneed v. State, 990 So.2d 226, 229 (¶ 16) (Miss.Ct.App.2008).

¶ 4. Sneed filed a second motion for post-conviction collateral relief on May 9, 2009. The circuit court found that Sneed’s motion was procedurally time-barred and successive-writ barred. Additionally, the order thoroughly addressed each of Sneed’s assignments of error, finding no merit to any of the claims. The motion was denied, and Sneed now appeals.

STANDARD OF REVIEW

¶5. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 6. The circuit court denied Sneed’s motion as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2011). Further, the circuit court held that Sneed’s motion was filed outside the three year time limitation under Mississippi Code Annotated section 99-39-5(2) (Supp.2011). Thus, Sneed’s motion is procedurally barred unless an exception applies.

¶ 7. Sneed does not assert any of the statutory exceptions to the procedural bars. Instead, he contends his fundamental constitutional rights were violated because (1) his counsel’s performance was deficient and prejudicial to his case, and (2) he is actually innocent of the burglaries to which he pleaded guilty. Sneed is correct that “errors affecting fundamental constitutional rights are excepted from the procedural bars.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). Yet we are unconvinced that Sneed’s current claims fall within this exception.

¶ 8. Sneed argues that his counsel advised Sneed that he was guilty of burglary simply because he possessed the stolen property. Sneed contends that this violated his fundamental right to competent counsel. The Mississippi Supreme Court has held:

It is conceivable that under the facts of a particular case, this Court might find that a lawyer’s performance was so deficient, and so prejudicial to the defendant, that the defendant’s fundamental constitutional rights were violated. However, this Court has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.

Bevill v. State, 669 So.2d 14, 17 (Miss.1996).

¶ 9. Similar to his first appeal to this Court, Sneed raises this issue without sufficient proof of counsel’s deficiency. He offers merely his own assertions of ineffective assistance of counsel. This time, Sneed did attach an affidavit from his mother, but her testimony merely evidences what Sneed told her. We do not find that the performance of Sneed’s counsel was so deficient and prejudicial as to violate Sneed’s fundamental constitutional rights. As such, his current claim is procedurally barred.

¶ 10. Sneed further argues that he is innocent of the two counts of burglary. Again, in order to raise this issue despite the procedural bars, Sneed claims that his fundamental constitutional rights have been violated. But he has provided no authority that raising a claim of innocence after entering a valid guilty plea invokes the fundamental-rights exception.

¶ 11. This issue was addressed by this Court in Adams v. State, 954 So.2d 1051, 1054 (¶¶ 11-12) (Miss.Ct.App.2007):

Adams further contends that counsel’s argument about the existence of a favorable witness and the witness affidavits attached to his PCR establish his actual innocence and except the claims in his PCR from the time bar. A post-conviction relief petitioner’s contention that his actual innocence excepted his claim from the procedural bar was rejected in Howard v. State, 945 So.2d 326, 369 (¶95) (Miss.2006). In Howard the petitioner relied upon federal case law concerning the actual innocence exception to the procedural bar in successive, abusive, or defaulted habeas claims. Id. The supreme court held that, even if federal habeas case law on actual innocence applied to Howard’s PCR, Howard had failed to prove his actual innocence. Id. Similarly in this case, even if the federal standard applied, Adams has failed to meet the requirement of a demonstration that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Trotter v. State, 907 So.2d 397, 401 (¶ 12) (Miss.Ct.App.2005) (quoting Bousley v. U[nit-ed] S[tates], 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).

¶ 12. Sneed, too, has failed to prove his actual innocence. The record is clear that Sneed testified under oath at his plea colloquy that he did, indeed, commit the crimes charged. We have no evidence before us to prove otherwise. Accordingly, this claim is also procedurally barred.

¶ 13. We find no error in the circuit court’s judgment denying Sneed’s motion for post-conviction collateral relief.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.

      . Sneed also entered guilty pleas to other crimes that are not involved in this appeal.