author: EDWIN A. LOMBARD, Judge. TOBIAS, J.

text:
    ENMON ENTERPRISES, L.L.C. d/b/a Jani King of New Orleans v. CITY OF NEW ORLEANS by and through the NEW ORLEANS AVIATION BOARD, Daniel F. Packer, Jr., David B. Campbell, Ti Martin, Lea Polk Montgomery, Douglas M. Evans, Nelita Manegoramey, Nolan V. Rollins, and Henry A. Smith, Jr., etc.
    No. 2011-CA-0459.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.
    Rehearing Denied Oct. 24, 2011.

      Lloyd N. Shields, Jeffrey K. Prattini, Shields Mott Lund, LLP, New Orleans, LA, Andrew M. Edwards II, Ponchatoula, LA, for Plaintiff/Appellant.
    Mark A. Balkin, Joseph C. Chautin III, Hardy Carey Chautin & Balkin, L.L.P., Mandeville, LA, for A.M.E. Services, Inc.
    Paul J. Mirabile, Michele D. Alien-Hart, Middleberg Riddle & Gianna, New Orleans, LA, for New Orleans Aviation Board.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

bEnmon Enterprises, L.L.C., d/b/a/ Jani-King of New Orleans, appeals to this court a judgment of the trial court denying a writ of mandamus to compel the New Orleans Aviation Board to award it a publicly bid contract to provide janitorial services for the Louis Armstrong New Orleans International Airport. For the following reasons, we affirm.

Factual and Procedural History

This matter concerns the bidding process for an “Airport Facilities Janitorial Services Contract” for the Louis Armstrong New Orleans International Airport, in which the successful bidder would provide services, labor, and materials for complete janitorial and maintenance of the numerous airport facilities, including but not limited to, all terminals, parking lots, and office buildings. The awarding of public bid contracts concerning improvements, betterments, maintenance, and operations of the airport are conducted by the New Orleans Aviation Board (NOAB). La.Rev. Stat. 2:351.

In November 2008, the NOAB began advertising for bids for the janitorial services contract. On January 6, 2009, the NOAB opened bidding for a five-year contract for janitorial services which included a three-year base bid and two one-tyear2 optional years. The NOAB provided prospective bidders with the advertisement for bids and multiple bidding documents. Included with the numerous bidding documents were addenda forms concerning necessary compliance with the State and Local Disadvantaged Business Enterprise (SLDBE), in which a certain percentage of the subcontract work must be performed by businesses with social or economic disadvantages.

The bid documents contained a “Notice to Bidders” page which contained the following relevant language:

BEFORE SIGNING AND SUBMITTING THIS BID PLEASE TAKE NOTE OF THE FOLLOWING. FAILURE TO PERFORM ANY ONE OF THESE ACTIONS SHALL CAUSE YOUR BID TO BE REJECTED.
... 4. MISTAKE IN BID: Bidder is responsible to review the Bid price for possible errors in calculation or Work erroneously omitted.

The NOAB received nine bids for the airport janitorial services contract, and opened the bids on January 13, 2009 after a one week extension. The NOAB retained the services of TMG Consulting, a planning and economics consulting firm, to evaluate the bids received and make suggestions as to responsiveness and quality of the bid submissions. TMG’s bid analysis report of January 28, 2009 stated that significant “responsiveness issues” by all of the bidders included failure to comply with (1) the SLDBE form requirements, and (2) calculation errors in bid amounts. TMG concluded that six of the nine bids received could be immediately determined to be “non-responsive.” One of these six was A.M.E. Services, Inc., whose bid failed to meet SLDBE form requirements.

The TMG report on the bid submitted by Enmon Enterprises (hereafter “Jani-King”) noted that their bid listed a subcontractor that was not a certified I «SLDBE registrant at the time of submission. It noted that “NOAB staff provided Jani-King notice of this situation and allowed them 12 calendar days to submit a qualified substitution.” The report further noted that Jani-King’s bid contained “a few Extension Errors and two Rounding Errors.” The report stated that “[i]f all arithmetic issues are corrected using the Unit Bid Prices, this bid is $0.29 more than the Total Bid Amount submitted.”

The two other bids considered somewhat responsive were submitted by ISS Facility Services and ABM Janitorial Services. The ISS Facility Services bid met the SLDBE percentage requirements, but contained “a few Extension Errors, one Summation Error in Item R-8, and one Rounding Error in the Bid Proposal amount ... If all arithmetic errors are corrected using the Unit Bid Prices, this bid is $4,556.70 less than the Total Bid Amount submitted.” The ABM Janitorial bid “contained some Extension Errors and one Rounding Error ... as discussed in Responsiveness Issue # 2. If all arithmetic issues are corrected using the Unit Bid Prices, this bid is $42.28 less than the Total Bid Amount submitted.” All nine of the bids submitted contained errors concerning either SLDBE form errors or calculation errors.

Of the three bids deemed conditionally responsive by the TMG report, Jani-King’s bid was the lowest. On February 26, 2009, the NOAB obtained a thirty day extension with Jani-King pursuant to La. Rev.Stat. 38:2215. At a March 18, 2009 public meeting of the NOAB, the board elected to reject all bids and re-advertise the janitorial services contract. Andree Cohen, The City of New Orleans’ Purchasing Administrator, wrote letters to all bidders, stating that “[mjany of the bidders ... struggled with two items — interpretation of the requirements for calculating the percentage of SLDBE participation and unit price extension ^calculations.” In the NOAB’s letter to Jani-King, Ms. Cohen stated that “[s]pecifically, the decision to reject Jani-King of New Orleans’ bid was based upon the following: a. a few unit price extension errors and one rounding error on the bid schedule.”

On December 10, 2009, Jani-King filed a Petition for Writ of Mandamus against the NOAB and A.M.E. Services, asking the district court to compel the award of the Janitorial Services Contract to it. Jani-King claimed in the petition that the NOAB’s decision to reject all bids was arbitrary and capricious, and that the NOAB had no just cause to reject then-bid.

A full bench trial on the merits occurred on March 23, 2010. The first testifying witness was Mr. Dwight Norton of TMG Consulting, who testified with intricate detail concerning the bidding process, the making of SLDBE forms, and the calculations done in analyzing the bids. He testified that eight of the nine bidders had extension errors or calculation errors. John O’Neil, a Jani-King executive, provided testimony concerning filling out the unit price forms and accounting for insurance and bonding. Further testimony revealed the confusing and complex nature of the bid documents concerning the SLDBE requirements, bonding, and unit price directions. Following testimony and closing arguments, the trial court ruled against Jani-King, and gave reasons for denying mandamus relief in pertinent part:

THE COURT: I wanted the record to be clear about that. The Broadmoor, Hamp’s, Roof Technology line of cases have made it I think certain things very clear: there was a time when public agencies could exercise their discretion in what was significant and what was not, and the words used by the courts were substantial or insubstantial. On each occasion previous to this line of cases where the courts, I think it was in the Sullivan decision, where the courts said that’s not substantial. The |,legislature came in and said we’re not going to let you do that, courts. We want to get a bright line rule ...
[T]he legislature consistently overturned the courts with legislation to make this area of law more strict, more strident and more dark lined. It’s not a legal word but to be more clear about what we can allow and not allow as a waiver.
I appreciate that the mover in this action, the bid was rejected primarily on this number discrepancy issue. I wonder if that were the only issue before the Court whether that would be if 16 cents, if we called it that, or one cent would really be the kind of thing either the court or legislature were talking about, and I would hope indeed it would not be.
The bigger problem this Court has with these documents is that at some point when big documents are so confusing that really smart, sophisticated companies can’t get it right, how does that really allow for public bid? ...
... The question before the Court I think fundamentally is whether or not there was just cause to reject all bids. I want to address the DBE question. It is almost impossible to figure out the 30 percent DBE requirement when you’re trying to figure out whether the DBE requirement is based on the base bid amount or the bid amount plus insurance plus bonding ...
I find that there was just cause to throw out these bids however distasteful that finding is to the amount of that they’ve put into this process by really good people and I’m denying the Writ of Mandamus.

Jani-King timely filed a motion for new trial. Judge Madeleine Landrieu, the trial judge, recused herself from the case once her brother had been sworn in as the mayor of New Orleans. The matter was reassigned to Judge Michael Bagneris, who denied Jam-King’s motion for new trial. Jani-King then timely appealed to this Court.

Assignments of Error

Jani-King asks this Court to compel the NOAB to award the janitorial services contract to it. Jani-King argues that the trial court erred in denying its ^petition for mandamus because it was the lowest responsible bidder and submitted the lowest responsive bid. Appellant further argues that there was no just cause to reject all bids and no just cause to reject its bid.

Jani-King contends that the district court erred in refusing to award the contract to it when the NOAB entered into an agreement to extend the award date pursuant to La.Rev.Stat. 38:2215(A). Appellant argues that the time period in which the NOAB could have rejected all bids had expired, and that the contract must be award to Jani-King as the lowest responsible bidder.

The NOAB argues that, in analyzing Louisiana’s Public Bid Law as a whole, merely obtaining an extension of time to make a bid decision with Jani-King does not require it to award the contract to appellant. Secondly, the NOAB denies that Jani-King’s bid was responsive under the Public Bid Law. A.M.E. Services also submitted a brief as appellee, and argues that Jani-King was not the lowest responsive bidder, and that even if it was, Jani-King is not entitled to mandamus relief and award of the contract.

Appellate Standard of Review, Mandamus Relief

This litigation is governed by Louisiana’s Public Bid Law, La. Rev. Stats. 38:2212, et seq., a law which “was enacted with in the interest of the taxpaying citizens and has for its purpose their protection against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices.” Haughton Elevator Div. v. State, Div. of Admin., 367 So.2d 1161, 1164 (La. 1979). On review of a state agency or political subdivision’s exercise of discretion determining whether a bidder is the lowest responsible bidder, a court should not substitute its judgment for the good faith judgment of an administrative agency. Lemoine/Brasfteld & Gorrie Joint Venture, LLC v. Orleans Parish Criminal Sheriff’s Office, 2010-1220, p. 3 (La.App. 4 Cir. 3/30/11), 63 So.3d 1068, 1070-1071.

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La.Code Civ. Proc. art. 3862. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. La.Code Civ. Proc. art. 3863. An appellate court will grant a writ of mandamus only when there is a usurpation of judicial power or clear abuse of discretion. Wallace C. Drennan, Inc. v. Sewerage & Water Board of New Orleans, 2000-1146, pp. 3-4 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167,1171.

Mandamus is an extraordinary remedy that is to be used sparingly to compel the performance of a ministerial duty that is clearly required by law. Id., p. 11, 798 So.2d at 1175. A writ of mandamus may not be issued to compel a public official to exercise discretionary authority. Id., p. 11, 798 So.2d at 1175-1176. Nevertheless, Louisiana’s jurisprudence has shown that in the realm of public bid law, mandamus has been an appropriate remedy to award publicly bid contracts when the law requires. See New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2228 (La.4/10/95), 658 So.2d 538; see also Concrete Busters of Louisiana, Inc. v. Board of Commissioners of Port of New Orleans, 2010-1172 (La.App. 4 Cir. 2/2/11), 69 So.3d 484.

Law and Discussion

In the matter sub judice, because the New Orleans Aviation Board had just cause to reject all bids received for the Janitorial Services Contract, we find no error in the decision of the trial court to deny Jani-King’s petition for writ of mandamus. The trial court’s judgment is affirmed.

| sLouisiana’s Public Bid Law provides that all public work contracts “shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised.” La.Rev.Stat. 38:2212(A)(l)(a). A “responsible bidder” is defined as:

a contractor or subcontractor who has an established business and who has demonstrated the capability to provide goods and services in accordance with the terms of the contract, plan, and specifications without excessive delays, extensions, cost overruns, or changes for which the contractor or subcontractor was held to be responsible, and who does not have a documented record of past projects resulting in arbitration or litigation in which such contractor or subcontractor was found to be at fault. La.Rev.Stat. 38:2216(C)(2)(a).

Since the first passage of the Public Bid Law, the Louisiana Legislature has made numerous amendments to greatly narrow the ability of a public entity to waive aspects of the law or the bidding documents themselves as mere formalities or errors of form. The ability of the public entity to waive such failures in submitted bids was further restricted in Acts 2001, No. 1106 § 1, to provide that “[t]he provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.” La.Rev.Stat. 38:2212(A)(b)(i). The Louisiana Supreme Court has fully recognized these severe restrictions on public bidding waivers, and in Broadmoor L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 2004-0211, 2004-0212, p. 8 (La.3/18/04), 867 So.2d 651, 657, the Court held:

[I]n enacting the most recent amendments, the legislature has made it clear that the requirements contained “in the advertisement for bids and those required on the bid form” are not waivable ... when the legislature added subsection (b) to LSA-R.S. 38:2212(A)(1), we presume that the legislature intended to change the law. As it stands now, the Authority cannot waive any requirements contained in its bid requirements. The language of LSA-R.S. 38:2212(A)(l)(b) is clear and unambiguous: when a public entity elects to place certain ^requirements in it advertisements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later date.

The Supreme Court in Hamp’s Construction, L.L.C. v. City of New Orleans, 2005-0489, p. 9 (La.2/22/06), 924 So.2d 104, 110, reaffirmed its decision in Broadmoor:

There is nothing ambiguous about La. R.S. 38:2212(A)(b): the requirements of the Public Bid Law, the advertisements for bids and the bid form shall not be waived by any public entity. The legislature changed the wording of this statute several times in an attempt to change the law, and to make clear that the requirements of the advertisement for bids and the bid form, as well as the Public Bid Law, shall not be waived. The most recent amendment to the statute serves to emphasize that these requirements cannot be waived under any circumstances, regardless of whether they could be considered as informalities.

This strict prohibition of waiver or deviation from bid forms and statutory law must also be weighed with the statutory requirement that a public entity must have “just cause” to reject any bid or reject all bids. La.Rev.Stat. 38:2214(B) provides:

§ 2214.. Designation of time and place for opening bids; right to reject bids ... B. The public entity may reject any and all bids for just cause. Just cause for the purpose of the construction of public works is defined, but is not limited to the following circumstances:
(1) The public entity’s unavailability of funds sufficient for the construction of the proposed public work.
(2) The failure of any bidder to submit a bid within an established threshold of the preconstruction estimates for that public work, as part of the bid specifications.
(3) A substantial change by the public entity prior to the award in the scope or design of the proposed public work.
110(4) A determination by the public entity not to build the proposed public work within twelve months of the date for the public opening and reading of bids.
(5) The disqualification by the public entity of all bidders, (emphasis added).

In this matter, we find that the NOAB had just cause to reject all bids, including Jani-King’s proposal. Jani-King’s bid handlers did not handwrite or otherwise correct its price errors. The testimony at trial revealed that Jani-King’s personnel made errors very similar to that of other bidders’ whose bids were also rejected, i.e. annual bid price calculations and other rounding errors. The only difference between Jani-King’s errors and the other bidders’ extension and bid price errors was the size of the error, i.e. the dollar amount. However, having the least incorrect of all the incorrect bids does not entitle Jani-King to mandamus relief. The Louisiana Supreme Court, in Broadmoor and Hamp’s, supra, have made it clear that a public entity cannot deviate in any manner from the requirements it sets forth in its bid documents and the requirements set forth in any aspect of the Public Bid Law. La.Rev.Stat. 38:2212(A)(b)(i).

In this matter, some bids were considered unresponsive to the bid documents in the NOAB’s first analysis via the TMG report. Further analysis by the NOAB revealed that all of the bids contained either errors in meeting SLDBE form and percentage requirements, errors in bid price calculation, or both. These errors may have been primarily the result of confusing bid documents, complex instructions, or other “moving targets” created by the NOAB, but a public entity may not waive (1) any requirements of Public Bid Law, (2) any requirements stated in the advertisement for bid, or (3) any requirements stated on the bid form. Hamp’s Constr., L.L.C., supra, pp. 9-11, 924 So.2d at 110-111. Therefore, we find that the InNOAB had just cause to reject the Jani-King bid and all bids. La.Rev.Stat. 38:2214(B)(5).

Jani-King next argues that because the NOAB asked it to sign a mutual agreement to extend the deadline for awarding the bid, Jani-King is entitled to mandamus relief and award of the contract. The Public Bid Law, in La.Rev.Stat. 38:2215(A), sets a time period for holding bids and obtaining an extension of this time period:

§ 2215. Time period for holding bids; issuance of work orders to commence work; exceptions
The state or any state agency upon receipt of bids for the undertaking of any public works contract shall act -within thirty calendar days of such receipt award said contract to the lowest responsible bidder or reject all bids. A political subdivision upon receipt of bids for the undertaking of any public works contract shall act within forty-five calendar days of such receipt to award said contract to the lowest responsible bidder or reject all bids. However, the public entity and the lowest responsible bidder, by mutually written consent, may agree to extend the deadline for award by one or more extensions of thirty calendar days, (emphasis added).

In New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2228 (La.4/10/95), 658 So.2d 538, 546, the Louisiana Supreme Court, in evaluating the 38:2214 “just cause” statute and the 38:2215 extension statute in whole, held that a public entity must do one of the following within the set time period: (1) award a contract to the lowest responsible bidder; (2) reject all bids; or (3) extend the deadline by mutual consent with the lowest responsible bidder. In the Rosen-bush case, the defendant city did none of these, and the Court therefore compelled mandamus relief and award of the contract. Id. In the matter sub judice, |12the NOAB did act in one of these three ways: it obtained an extension with Jani-King.

Before the initial forty-five days expired, the NOAB obtained an extension of thirty days to further analyze the bids. By this time, February 26, 2009, none of the bidders had been formally rejected. Before this thirty-day extension expired, the NOAB had timely rejected all bids for just cause. The NOAB wrote to all bidders and provided its reasons for rejecting all bids and each bid specifically.

This Court can find no support for the argument that obtaining an extension with Jani-King equates to automatic acceptance of their bid. The various statutes of the Public Bid Law must be read in conjunction: being the numerically lowest “responsible bidder” does automatically make that bidder the “lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised.” La.Rev.Stat. 38:2212(A)(l)(a) (emphasis added). The extension, as the title of the statute indicates, is merely an extension for holding bids. La.Rev.Stat. 38:2215. It is not a mechanism for the apparent lowest bidder to reserve and later demand an award of contract. Therefore, Jam-King’s argument as to the extension is without merit.

Conclusion

In this matter, the trial court found that the complex and confusing nature of the NOAB’s bid documents may have played a large role in causing the rejection of all bids, and we agree. However, none of the bids received fully complied with the specifications of the contract and bid documents. Granting mandamus relief to perhaps the least incorrect bid would contradict the legislature’s clear intention that 11sthere can be no waiver or deviation from the advertisement requirements, bid form requirements, and Louisiana Public Bid Law statutes. “The Public Bid Law could not be more clear in stating that a bidder’s failure to comply with every detail can invalidate the bid. The consequences of such defects should be on the bidder who prepares the bid.” Broadmoor, supra, p. 9, 867 So.2d at 658. In this matter, none of the bids were in accordance with the contract, plans, and specifications as advertised. La.Rev.Stat. 38:2212(A)(l)(a). Because the NOAB had just cause to reject all bids, we decline to address the arguments of A.M.E. Services as to which party was the lowest responsible bidder.

We find no error in the trial court’s denial of mandamus relief. Consequently, we find no abuse of discretion in the denial of Jani-King’s motion for new trial. Ferguson v. Sugar, 2005-0921, p. 23 (La.App. 4 Cir. 6/25/08), 988 So.2d 816, 831.

Decree

The judgment of the trial court denying mandamus relief to Enmon Enterprises, L.L.C. is affirmed.

AFFIRMED

TOBIAS, J., concurs and assigns errors.

TOBIAS, J.

concurs and assigns errors.

hLa. R.S. 38:2212 states in pertinent part:

A. (l)(a) All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.
(b)(i) The provisions and requirement of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity. [Emphasis supplied.]

La. R.S. 38:2214 C states:

Bids containing patently obvious, unintentional, and substantial mechanical, clerical, or mathematical errors, or errors of unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of the bid, may be withdrawn by the contractor if clear and convincing sworn, written evidence of such errors is furnished to the public entity within forty-eight hours of the bid opening excluding Saturdays, Sundays, and legal holidays. Such errors must be clearly shown by objective evidence drawn from inspection of the original work papers, documents, or materials used in the preparation of the bid sought to be | ¿withdrawn. If the public entity determines that the error is a patently obvious mechanical, clerical, or mathematical error, or unintentional omission of a substantial quantity of work, labor, material, or services, as opposed to a judgment error, and that the bid was submitted in good faith it shall accept the withdrawal and return the bid security to the contractor. [Emphasis supplied.]
In Hamp’s Const, LLC v. City of New Orleans, 05-0489, (La.2/22/06), 924 So.2d 104, 110, the Court stated:
According to the basic rules of statutory construction, when the written law is clear and unambiguous, and its application leads to no absurd consequences, the law shall be applied as written. [New Orleans ] Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 544. Further, the legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law. Id. Bids containing patently obvious, unintentional, and substantial mechanical, clerical, or mathematical errors, or errors of unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of the bid, may be withdrawn by the contractor if clear and convincing sworn, written evidence of such errors is furnished to the public entity within forty-eight hours of the bid opening excluding Saturdays, Sundays, and legal holidays. Such errors must be clearly shown by objective evidence drawn from inspection of the original work papers, documents, or materials used in the preparation of the bid sought to be withdrawn. If the public entity determines that the error is a patently obvious mechanical, clerical, or mathematical error, or unintentional omission of a substantial quantity of work, labor, material, or services, as opposed to a judgment error, and that the bid was submitted in good faith it shall accept the withdrawal and return the bid security to the contractor.

Hamp’s Const., p. 9, 924 So.2d at 110.

The Court concluded:

In accordance with the express and unambiguous language of La. R.S. 38:2212 A(l)(b), any requirements |sof the Public Bid Law, any requirements stated in the advertisement for bid, and any requirements required on the bid form shall not be waived by the public entity. The public entity does not have the discretion to determine, after bids have been submitted, whether a requirement is substantive or non-substantive, waivable or non-waivable. Once the public entity establishes a requirement, that requirement must be uniformly followed by all bidders. [Footnotes omitted.]

Id., p. 10-11, 924 So.2d at 110-11.

Taking the Louisiana Supreme Court at its literal word, the New Orleans Aviation Board was within its discretion to reject Enmon Enterprises, L.L.C. d/b/a Jam-King’s bid.

I respectfully concur. I write separately, pondering whether an arithmetic error that is twenty-nine cents more than the total of a multi-million dollar bid is sufficient to allow a public body to invalidate an entire bid, such being different that an error that is twenty-nine cents less than a total multi-million dollar bid. That is, does a bidder have to be correct to the penny?

      . At the time of the New Orleans Rosenbush decision, La.Rev.Stat. 38:2215 required a "political entity” to act within 30 days to award the contract to the lowest responsible bidder or reject all bids. The current version of the statute allows for 45 days if the bidding entity is a political subdivision such as the NOAB, and mutually agreed to extensions of 30 days. La.Rev.Stat. 38:2215.

      . Compare and contrast to, ISS Facility Services' bid that was $4,556.70 less than the total bid amount submitted and ABM Janitorial Services' bid that was $42.28 less than the total bid amount submitted.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Erin BLANCH and Juan S. Blanch, Jr.
    No. 2010-CA-1686.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      Leslie A. Bonin, Leslie A. Bonin, LLC, New Orleans, LA, for Appellant, Juan S. Blanch, Jr.
    Bennett Wolff, Law Offices of Wolff & Wolff, Metairie, LA, for Appellee, Erin Smith.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|2This Court has been asked to consider whether the deliberate and continuous violation of an April 18, 2006 consent judgment over a period of approximately three years should operate to disrupt a minor child’s education. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand.

FACTS AND PROCEDURAL HISTORY

Dr. Juan Blanch, the father, and Erin Smith, the mother, were married in 1999 and had one child during the marriage, M.B., in June of 2002. They divorced and entered into a Consent Judgment on April 18, 2006, allowing Ms. Smith to relocate to Picayune, Mississippi, with M.B. The judgment further provided that they would share joint legal custody of M.B., with Ms. Smith designated as the domiciliary parent. The judgment also designated a visitation schedule, including holidays, providing that Dr. Blanch would have visitation with M.B. overnight every Thursday, increasing over a period of two years until he had custody for ten out of every 28 days and overnight visitation of six nights per month; the judgment further provided that M.B. would spend Mardi Gras, Martin Luther King Day and Valentine’s Day with Dr. Blanch. The tax deduction for M.B. was assigned to Dr. |sBlanch.

The Consent Judgment also provided that M.B. “shall attend pre-school and school in Slidell, Louisiana or Louisiana.” Pursuant to this judgment, Dr. Blanch enrolled M.B. in Our Lady of Lourdes School in Slidell, Louisiana for the 2007-2008 school year. It is not disputed that in July 2007, Ms. Smith unilaterally enrolled M.B. in Pearl River Lower Central Elementary School in Carriere, Mississippi for the 2007-2008 school year, in direct violation of the April 18, 2006 Consent Judgment.

In October 2007, Dr. Blanch filed a Petition for Judicial Dissolution, in the alternative for Nullity, Objection to Relocation and for Return of Minor Child, to Modify Custody and Child Support. In December 2007, Ms. Smith filed Exceptions of Unauthorized Use of Summary Proceeding, Prematurity, and No Cause of Action.

On April 29, 2008, Dr. Blanch filed a Memorandum in Opposition to Ms. Smith’s Exceptions, as well as a Motion for Expedited Hearing on/and Motion for Judicial Dissolution, in the Alternative, for Nullity of Consent Judgment; Objection to Relocation and for Return of Minor Child; and Motion to Set/Modify Custody and Child Support, and a Motion for Contempt. Dr. Blanch sought to dissolve the April 18, 2006 Consent Judgment allowing Ms. Smith to relocate to Picayune, Mississippi with M.B., or alternatively, nullify that portion of the Consent Judgment, maintaining that the sole reason for his agreement for Ms. 14Smith to relocate to Mississippi was Ms. Smith’s agreement that M.B. would attend school in Slidell, Louisiana or Louisiana. Dr. Blanch asserted that the court should order M.B.’s return to Louisiana and designate him as the domiciliary parent; that the court should recalculate child support to include Ms. Smith’s income; and that the court should order Ms. Smith to pay attorney’s fees and costs incurred in the filing of the motions. In the Motion for Contempt, Dr. Blanch sought to have Ms. Smith found in contempt of court pursuant to La.Code Civ. Proc. art. 224 for violating the April 18, 2006 Consent Judgment.

In response, on May 6, 2008, Ms. Smith filed Exceptions of No Cause of Action, Res Judicata, and Prematurity. Ms. Smith asserted that relocation was granted by the Consent Judgment as well as the consent of the parties prior to the filing of divorce; that the Petition for Divorce indicated that Ms. Blanch was domiciled in Picayune, Mississippi; and that she and M.B. were living in Mississippi with Dr. Blanch’s knowledge and consent prior to any court action. Dr. Blanch filed an opposition to the each of the exceptions. On May 13, 2008, the matters were heard.

On May 20, 2008, Ms. Smith filed a Motion to Modify School in Which Child Attends, asserting that since the April 18, 2006 Consent Judgment, a material change in circumstances had occurred. Ms. Smith further asserted that the current judgment created a hardship on M.B. to attend a school forty-five minutes from her home, and that Dr. Blanch had obtained new employment which was located ten to fifteen minutes from M.B.’s residence and school in Mississippi. With regard to 15visitation, Ms. Smith maintained that the change in school would not adversely impact Dr. Blanch’s visitation with M.B. In June 2008, Ms. Smith filed a Motion to Continue the June 25, 2008 hearing date on her Motion to Modify School in Which Child Attends.

On July 1, 2008, the trial court issued a written judgment with regard to the May 13, 2008 hearing, denying Ms. Smith’s exceptions of unauthorized use of summary proceeding, prematurity, res judicata, vagueness, and no cause of action; the trial court deferred ruling on Ms. Smith’s exception of no cause of action with respect to Dr. Blanch’s motion to modify custody and support pending a ruling regarding dissolution or nullity of the April 18, 2006 Consent Judgment.

On July 14, 2008, Ms. Smith filed a Motion to Recuse Judge Paulette R. Irons. The recusal was ultimately granted, and the matter was re-allotted to Judge Tiffany Gautier Chase.

In July 2009, Dr. Blanch filed a Rule for Contempt, alleging that Ms. Smith violated the April 18, 2006 Consent Judgment by willfully refusing to allow M.B. to attend pre-school and school in Slidell, Louisiana or in Louisiana. Dr. Blanch further argued that Ms. Smith willfully failed to increase his visitation with M.B. pursuant to the Consent Judgment to a total of six nights per month, and also denied his visitation on Mardi Gras, Martin Luther King Day, and Valentine’s Day |fiwith M.B. Dr. Blanch requested reasonable attorney’s fees and costs in connection with the filing.

The matter came for hearing on August 5, 2009, and on August 6, 2009, the trial court granted Dr. Blanch’s Rule for Contempt and issued written reasons for judgment. The court acknowledged that the commute from Picayune, Mississippi to Sli-dell, Louisiana was burdensome; however, the court noted that the proper recourse would have been to file a motion to amend the consent judgment. The court found Ms. Smith in contempt for failing to adhere to the consent judgment by unilaterally placing M.B. in school in Mississippi. In the judgment, the court explicitly ordered Ms. Smith to adhere to the April 18, 2006 Consent Judgment until there was a modification by the court. Ms. Smith was also assessed $500.00 in court costs and attorneys’ fees.

The trial court did not rule on Ms. Smith’s Motion to Modify School in Which Child Attends that had been filed on May 20, 2008. Ms. Smith continued to keep M.B. enrolled in the Mississippi school.

On August 11, 2009, Ms. Smith filed a Motion for New trial or Alternatively Motion for Clarification regarding the August 6, 2009 judgment, maintaining that to be found in contempt of court, a party must have purposefully and without justification violated a court order; while acknowledging that she failed to comply with the provision of the consent judgment regarding M.B.’s school, Ms. Smith argued that justification existed for her noncompliance, because the trip to Slidell, Louisiana was burdensome, and Dr. Blanch had new employment which was approximately ten minutes from the Mississippi public school. Furthermore, she argued that M.B.’s attendance at the Mississippi school did not adversely affect Dr. Blanch’s visitation and actually lessened his child support obligations. Ms. Smith 17also noted that she was currently employed as the school nurse at M.B.’s school.

Ms. Smith further argued that the trial court incorrectly awarded attorney’s fees to Dr. Blanch when granting his Rule for Contempt, as there was no statutory authorization to do so. Additionally, Ms. Smith maintained that based upon an indication from the trial court that the school and custody issues were being deferred until October 14, 2009, she re-set her Motion to Modify School for that date, and allowed M.B. to begin first grade at the Mississippi school.

The trial court denied Ms. Smith’s motion for new trial on August 19, 2009, reiterating that Ms. Smith was to adhere to the April 18, 2006 Consent Judgment until modified by a court order and specifically emphasized that the Consent Judgment provided that M.B. was to attend school in Slidell, Louisiana or Louisiana.

On August 20, 2009, Dr. Blanch filed another Rule for Contempt pursuant to Ms. Smith’s re-enrollment of M.B. in school in Mississippi. On July 7, 8, and 15, 2010, the trial court heard Dr. Blanch’s Rule for Contempt and Motion to Modify Custody, as well as Ms. Smith’s pending Motion to Modify School. On July 15, 2010, Dr. Blanch made an oral motion for involuntary dismissal of Ms. Smith’s Motion to Modify School, which the trial court denied in open court.

On August 13, 2010, the trial court issued a judgment and reasons for judgment; however, the judgment erroneously referred to Ms. Smith’s Motion to Modify School in Which Child Attends as a “Rule to Relocate.” As a result, the trial court incorrectly applied the facts to La. R.S. 9:355.12, a statute governing factors for courts to consider in a contested relocation. In a detailed analysis, the |scourt listed the statute’s twelve factors and carefully considered how each applied to the parties and M.B., concluding that Ms. Smith met the statute s burden of establishing “good reason” for relocating M.B. The trial court specifically noted, however, that it could not “ignore [the fact] that Ms. Smith has violated certain provisions of the Court’s April 18, 2006 consent judgment and the August 6, 2009 Judgment on the Rule for Contempt.”

The trial court further decreed that M.B. be permitted to attend school and extra-curricular activities in Picayune and/or Carriere, Mississippi; that in addition to the current visitation schedule of two weekends each month, Dr. Blanch was awarded one additional weekend every other month, totaling three weekends per m0nth, every other month; and that in addition to the current summer vacation , schedule, Dr. Blanch was awarded one additional week of ⅛⅛ M.B. each summer.

Additionally, the court denied Dr. Blanch’s request to be designated as domiciliary parent, ordered that all other provisions of the April 18, 2006 Consent Judgment would remain unchanged unless the parties agreed otherwise, and reiterated that a failure to adhere to the August 13, 2010 judgment would result in the offending party being held in contempt of court. The court did not issue a ruling in connection with Dr. Blanch’s pending Rule for Contempt. It is from this judgment that Dr. Blanch appeals.

STANDARD OF REVIEW

[1,2] A reviewing court may not set aside a trial court’s finding of fact unless it is clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). However, if one or more legal errors interdict the fact-finding process, the appellate court should conduct a de novo review of the record. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735 (citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95); 650 So.2d 742, 747, rev’d in part, on other grounds, 96-3028 (La.7/1/97); 696 So.2d 569, reh’g denied, 96-3028 (La.9/19/97); 698 So.2d 1388). “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Evans v. Lungrin, 708 So.2d at 735 (citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993)).

DISCUSSION

In the first two assignments of error, Dr. Blanch asserts that the trial court | inerred as a matter of law in issuing its ruling pursuant to La. R.S. 9:355.12 when no such request was before the court; thus, our review should be de novo. Dr. Blanch also asserts that the trial court erred in failing to rule on his pending Rule for Contempt and in failing to find Ms. Smith in constructive contempt of court for violating the April 18, 2006 Consent Judgment and the August 6, 2009 judgment. We agree that the trial court erred as a matter of law in applying La. R.S. 9:355.12, and accordingly review the matter de novo. See Evans v. Lungrin, 708 So.2d at 735.

With regard to Dr. Blanch’s pending Rule for Contempt, we find that the trial court erred in failing to find Ms. Smith in contempt of court for the violation of the August 6, 2009 judgment. The wording of that judgment, as well as the April 18, 2006 judgment, is explicitly clear, and it is undisputed that Ms. Smith directly violated both judgments. Ms. Smith plainly manipulated the court system, enrolling M.B. in school in Mississippi in the interim, even after the trial court’s admonishment and clear directive to adhere to the April 2006 Consent Judgment. Accordingly, we find that the trial court should have granted Dr. Blanch’s pending Rule for Contempt and assessed fines and attorney’s fees against Ms. Smith.

“A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La.Code Civ. Proc. art. 221. Contempt of court may either be direct or constructive. Id. A willful violation of a court order, such as the violation that occurred in this case, constitutes constructive contempt of court:

A constructive contempt of court is any contempt other than a direct | none.
Any of the following acts constitutes a constructive contempt of court:
* * ⅜
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.

La.Code Civ. Proc. art. 224(2).

Furthermore, this Court has recognized that a person who violates an order of the court intentionally, knowingly, and purposely may be found guilty of constructive contempt of court. HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1693, 96-1753, p. 19 (La.App. 4 Cir. 4/23/97), 693 So.2d 835, 845, writ denied, 97-1353 (La.9/5/97), 700 So.2d 513; Reeves v. Thompson, 95-0321, p. 8 (La.App. 4 Cir. 12/11/96), 685 So.2d 575, 579. Likewise, “[w]illful disobedience of any lawful judgment, order, mandate, writ, or process of the court constitutes ‘constructive contempt.’ ” McCorvey v. McCorvey, 2005-1173, p. 3 (La.App. 3 Cir. 4/5/06), 926 So.2d 114, 117.

“The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in [La.] R.S. 13:4611.” La.Code Civ. Proc. art. 227. That statute, entitled “Punishment for Contempt of Court,” provides, in pertinent part:

Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows: $ ⅜ ⅜ ⅜
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

112La. R.S. 13:4611(l)(d) (emphasis added). Additionally, a fíne for contempt must be made payable not to a party, but to the court. In re Succession of Harrell, 2007-1533, p. 14 (La.App. 4 Cir. 10/1/08), 993 So.2d 354, 366 (citing City of Kenner v. Jumonville, 97-125, 97-210, 97-602 (La. App. 5 Cir. 8/27/97), 701 So.2d 223, 231). Fines for contempt must be payable to the court because such fines are “designed for vindication of the dignity of the court rather than for the benefit of a litigant.” Horrell, pp. 14-15, 993 So.2d at 366 (quoting Joseph v. Entergy, 05-0263, p. 8 (La.App. 4 Cir. 8/3/05), 918 So.2d 47, 52). Accordingly, pursuant to the limitations of La. R.S. 13:4611, we hereby order the trial court to impose a fine of $500.00 for Ms. Smith’s constructive contempt of court. See La.Code Civ. Proc. art. 2164 (providing that an appellate court “shall render any judgment which is just, legal, and proper upon the record on appeal”).

With regard to attorney’s fees, such fees “are generally not recoverable unless provided by statute or contract.” Reeves v. Thompson, 95-0321, p. 10 (La. App. 4 Cir. 12/11/96), 685 So.2d 575, 580. This Court has also recognized that “[n]o statutory provision provides for the allowance of attorney’s fees in a contempt action.” Id. Furthermore, La. R.S. 13:4611 does not specifically provide for the allowance of attorney’s fees. See id., see also Morris v. Morris, 04-676, p. 9 (La.App. 5 Cir. 11/30/04), 889 So.2d 1048, 1053, unit denied, 2004-3185 (La.3/11/05), 896 So.2d 68(holding that “[a]s a general rule, the power of a court to punish for contempt is limited to the imposition of incarceration and fines to be paid to the court”)(citing Sporl v. Sporl, 03-0364, p. 5 (La.App. 5th Cir.10/28/03) 860 So.2d 258, 261).

However, attorney’s fees are recoverable pursuant to La. R.S. 9:375, which 11sprovides as follows:

A. When the court renders judgment in an action to make executory past-due payments under a spousal or child support award, or to make executory past-due installments under an award for contributions made by a spouse to the other spouse’s education or training, it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.
B. When the court renders judgment in an action to enforce child visitation rights it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.

La. R.S. 9:375. Dr. Blanch also asserts that the trial court should have found Ms. Smith in contempt pursuant to La. R.S. 9:346, which also provides for an award of attorney’s fees in certain circumstances. Both statutes provide that attorney’s 114fees are available to the prevailing party. Notably, in Dr. Blanch’s August 20, 2009 Rule for Contempt, he argued that, inter alia, Ms. Smith willfully failed to increase his overnight visitation with M.B. pursuant to the consent judgment and requested reasonable attorney’s fees and costs in connection with the filing.

Although we do not find that it is in the child’s best interest to alter custody or change M.B.’s school environment due to the length of time that has passed and other factors, Ms. Smith’s decision to deliberately defy the carefully agreed-upon terms of the Consent Judgment has caused Dr. Blanch to incur years of court costs and attorney’s fees seeking review of Ms. Smith’s contempt. The record reveals that there were numerous court filings and hearings that failed to adequately address the contempt issue. Ultimately, although the trial court found Ms. Smith in contempt and ordered her to adhere to the original consent judgment, she yet again refused to do so. More time passed, and Dr. Blanch continued to incur additional costs and attorney’s fees associated with Ms. Smith’s contempt. Furthermore, the longer Ms. Smith remained in contempt, the stronger her argument for modification of school location for the best interest of the child became. Thus, even though Dr. Blanch does not prevail on appeal, this Court finds that it is fair and just to award costs and attorney’s fees accrued in connection with filing the Rule for Contempt. See La. C.C.P. art. 2164; La. R.S. 9:346.

The record before us, however, does not contain any evidence with regard to Dr. Blanch’s legal fees and expenses incurred in connection with filing the Rule for Contempt; therefore, the matter is remanded and the trial court is instructed to conduct a hearing within thirty (30) days of the date of this judgment to consider 1^evidence of attorney’s fees incurred by Dr. Blanch specifically with regard to the filing of the Rule for Contempt and to award same. See Fuge v. Uiterwyk, 97-1252 (La.App. 4 Cir. 3/25/98), 709 So.2d 357; see also La.Code Civ. Proc. art. 2164.

Dr. Blanch also argues that the trial court erred in denying his Motion to Modify Custody and his request to be designated as the domiciliary parent. In making a determination with regard to whether custody should be modified, a court’s primary consideration is the best interest of the child. Id. In cases such as this one, “where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child.” Id. (citing Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, 52, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478)(emphasis added). A court may consider the following factors in determining whether a change in custody in the best interest of the child:

(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.
11B(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.

La. Civ.Code art. 134.

The court-appointed evaluator, Karen Houghtaling, in a written recommendation dated October 5, 2009, considered each of the above-cited twelve factors and made the following observations:

The love, affection, and other emotional ties between each party and the child

Ms. Houghtaling found that M.B. appeared securely attached to both parents; that both parents exhibited genuine affection and love for M.B.; and that the collaterals interviewed confirmed that M.B. enjoyed a strong and loving relationship with both parents.

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

With regard to spiritual guidance, Ms. Houghtaling concluded that both parents encouraged M.B.’s attendance in church. While Dr. Blanch expressed a desire for M.B. to attend a school that addressed her intellectual capabilities, Ms. Smith stated that she wished for M.B. to be in an academic environment that not only meets her academic needs, but also develops her developmental and emotional needs.

117The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs

Both parents were found to have the capacity to provide M.B. with food, clothing, shelter, health insurance, and material needs.

The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment

Both parents were found to provide a stable environment in a family home for M.B.

The permanence, as a family unit, of the existing or proposed custodial home or homes

Both parents had remarried and had homes with their current spouses. Ms. Houghtaling observed that Ms. Smith returned to her hometown in Mississippi in 2005 and had plans to maintain that home. M.B.’s maternal grandmother, Roberta McDuffie, lived nearby and had a close relationship with M.B. Dr. Blanch had a home in New Orleans, Louisiana, with plans to maintain that home as well.

The moral fitness of each party, insofar as it affects the welfare of the child

Both Dr. Blanch and Ms. Smith were found to have the appropriate moral fitness with regard to parenting.

The mental and physical health of each party

According to Ms. Houghtaling, neither parent reported any mental or physical health issues.

The home, school, and community history of the child

Ms. Houghtaling acknowledged that M.B.’s school transcript evidenced that M.B. was an excellent student. She further found that Dr. Blanch provided M.B. with academic encouragement, as well as creative, challenging and open ended 11sacademic learning opportunities with M.B. Ms. Smith, however, expressed concern that Dr. Blanch emphasized academics to the detriment of M.B.’s other developmental and emotional needs. After interviewing M.B.’s teachers from pre-K through her current grade at that time, Ms. Houghtaling found that Ms. Smith was actively involved in M.B.’s school performance and other school activities, while Dr. Blanch was not observed to have much interaction with M.B.’s academics or school activities.

The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference

M.B. reportedly did not express a preference to Ms. Houghtaling and appeared comfortable and secure in both homes.

The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party

Ms. Houghtaling concluded that both parents recognized good and poor parenting in each other.

The distance between the respective residences of the parties

Ms. Houghtaling determined that the distance between Dr. Blanch and Ms. Smith’s homes was significant enough to make split-week parenting during the school year a burden on M.B.

The responsibility for the care and rearing of the child previously exercised by each party

Significantly, Ms. Houghtaling acknowledged that with respect to this factor, Ms. Smith has been the major caregiver for M.B. since M.B.’s birth. Ms. Houghtaling also testified at length on July 7, 2010, with regard to the observations made in her written October 5, 2009 report and the interviews she conducted in |, connection with same. She reiterated that throughout M.B.’s life, and particularly during the first three years of her life, from 2002 through 2005, Ms. Smith was the primary caregiver for M.B. Ms. Houghtaling further testified that after taking many factors into consideration, she “felt it would be extremely disruptive for [M.B.] to be taken from the parent that had done the major care giving for seven and a half years and taken out of that environment.” With regard to being attuned to M.B.’s developmental needs, Ms. Hough-taling testified that she found Dr. Blanch focused primarily on education, while Ms. Smith had a more balanced approach, supporting M.B.’s educational needs as well as M.B.’s social and emotional needs. A review of the record and testimony evidences that both parents love M.B. and enjoy a strong emotional bond with M.B. However, to remove M.B. from her domiciliary parent, who has been her primary caregiver since birth, Lncould greatly disrupt M.B. emotionally, developmentally, and academically, which would absolutely not be in M.B.’s best interest at this time. Therefore, considering the record in its entirety, we find that it is in M.B.’s best interest for Ms. Smith to remain the domiciliary parent and for the custody arrangement to remain unchanged.

Dr. Blanch also maintains that the trial court erred in denying his oral Motion for Involuntary Dismissal, as there was no material change in circumstances.

Dr. Blanch made an oral Motion for Involuntary Dismissal pursuant to La. Code Civ. Proc. art. 1672(B), at the close of Ms. Smith’s evidence presented in support of her Motion to Modify School. This Court has recognized that the determination of what is in the best interest of the child is within the trial court’s vast discretion. Smith v. Smith, 2007-0260 (La.App. 4 Cir. 2/13/08), 977 So.2d 1114, 1117. In this case, however, our review of whether a modification of M.B.’s school is in her best interest is de novo. See Evans, 708 So.2d at 735. Although |2,we find Ms. Smith in contempt for willfully violating the August 2009 judgment, a review of the record evidences that it would not be in M.B.’s best interest to change schools at this particular point in time.

As the court-appointed evaluator, Karen Houghtaling, acknowledged, Ms. Smith has been M.B.’s caretaker since birth, and M.B. is currently nine years of age. Ms. Houghtaling also interviewed Dr. Susan Neimann, a Collateral Divorce Child Specialist, who indicated that although the divorce was satisfied on M.B. attending school in Louisiana for pre-K and subsequent schooling, she did not feel that attending school in Louisiana would be in M.B.’s best interest in the long term because M.B. would experience difficulty with regard to her school activities and friendships with her peers. Additionally, Ms. Houghtaling testified that her impression of M.B. was that she was extremely happy and involved in her current school and expressed enthusiasm when describing her friends at school.

Ms. Houghtaling documented in her October 5, 2009 report and testified on July 7, 2010 regarding her interviews with M.B.’s teachers as well as an Intervention Specialist at M.B.’s schools. Ms. Jennifer Teal, an Intervention Specialist at Pearl River Central Lower Elementary School, reported that M.B.’s lowest average test score as of September 2009 was 93%; M.B.’s average test scores in other subjects were 96% and 97%. Similarly, Ms. Shannon Lenoir, M.B.’s second grade teacher at Pearl River Elementary, reported that M.B. was an “A” student who attended the gifted program at the school. At trial, Ms. Smith testified that M.B. was a straight “A” student and that M.B. participated in extracurricular activities such as gymnastics, dance classes, and swimming.

| ¡^Considering the foregoing, the evidence that M.B. is happy and thriving in her current Mississippi school, although a result of a violation of the consent judgment, is nevertheless a material change of circumstances. We find that to disrupt M.B.’s reportedly excellent academic performance in school, as well as her connections to friends and involvement with extracurricular activities at the school, would simply not be in M.B.’s best interest, notwithstanding the fact that the change in circumstances that occurred with respect to M.B.’s schooling was the direct result of Ms. Smith’s contempt of court. See Ev ans, 708 So.2d at 738. We find that the record demonstrates that Ms. Smith established that her Motion to Modify School in Which Child Attends was in M.B.’s best interest by a preponderance of the evidence, and that the trial court properly denied Dr. Blanch’s Motion for Involuntary Dismissal. See Franicevich v. Caillou Island Towing Co., Inc., 97-1887 (La. App. 4 Cir. 3/17/99), 732 So.2d 93, 95.

CONCLUSION

For the foregoing reasons, Ms. Smith’s Motion to Modify School is granted, and the judgment granting a “Rule to Relocate” is vacated. The trial court’s denial of Dr. Blanch’s Motion to Modify Custody is affirmed. To the extent that the trial court denied Dr. Blanch’s pending Rule for Contempt, that denial is reversed. The Rule for Contempt is hereby granted and the trial court is ordered to impose a $500.00 fine against Ms. Smith. The trial court is further instructed to conduct an evidentiary hearing within thirty (30) days of the date of this judgment and to | j^award Dr. Blanch reasonable attorney’s fees accrued in connection with filing the Rule for Contempt.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS

      . Erin Blanch is currently married to Kenneth Smith, and now goes by the name Erin Smith.

      . The judgment provided that in the event of a natural disaster or hurricane, M.B. would remain in the custody of Ms. Smith until shared custody could be restored.

      . Dr. Blanch was ordered to pay $1,500.00 per month in child support, $1,000.00 in direct payments for tuition and extracurricular activities and classes. Dr. Blanch was further ordered to advance $10,000.00 to Ms. Blanch when M.B. goes to college, with the provision that the parties may agree to additional funds if M.B. decides to attend a major university outside of Louisiana. The judgment also ordered Dr. Blanch to make a one-time spousal support payment to Ms. Smith in the amount of $10,000.00. The judgment further provided that Erin’s mother would have custody of M.B. in the event of the deaths of Dr. Blanch and Ms. Smith.

      . For the 2005-2006 and 2006-2007 school years, M.B. attended First United Methodist Preschool in Slidell, Louisiana.

      . Ms. Smith also filed a Rule for Contempt, Attorney’s Fees and Costs that same date, regarding Dr. Blanch’s alleged violation of a Consent Judgment of Community Property that was executed by the parties on April 25, 2006, asserting that Dr. Blanch still owed Ms. Smith $46,000.00 in monies and securities pursuant to the judgment, as well as ten percent of monies obtained from a Small Business Administration loan (Dr. Blanch testified at the hearing that he was denied an SBA loan).

      . Ms. Smith sought writs with this Court regarding the July 1, 2008 judgment. This Court determined that the trial court correctly denied the vagueness exception, but reversed the trial court’s denial of Ms. Smith’s exception of no cause of action with regard to Dr. Blanch’s attempt to dissolve or nullify the April 18, 2006 Consent Judgment for Ms. Smith's failure to perform pursuant to the terms of the agreement; the trial court's denial of Ms. Smith's exception of no cause of action with regard to Dr. Blanch's pleading for a nullity action was also denied. Additionally, this Court also denied the writ application with regard to the trial court’s denial of Ms. Smith's exceptions of prematurity, res judicata, and vagueness. In re: The Marriage of Erin Blanch and Juan S. Blanch, Jr., 2008-0978 (La.App. 4 Cir. 12/2/08)(unpub.).

      . After a recusal hearing before Judge Nadine Ramsey, the Motion for Recusal was denied on January 23, 2009. Ms. Smith sought writs in this Court, which were granted. On April 27, 2009, the ruling was reversed by this Court and the matter remanded to the trial court for random re-allotment. Erin Blanch v. Juan Blanch, Jr., 2009-0187 (La.App. 4 Cir. 4/27/09)(unpub.).

      . Ms. Smith sought writs in this Court; her request for relief was denied. In re: The Marriage of Erin Blanch and Juan S. Blanch, Jr., 2009-1282 (La.App. 4 Cir. 9/29/09)(un-pub.).

      . No Rule to Relocate had been filed.

      . La. R.S. 9:355.12 provides as follows:
      A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
      (1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
      (3) The feasibility of preserving a good relationship between the nonrelocating 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 non-relocating party.
      (6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
      (7) The reasons of each parent for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
      (9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
      (10) The feasibility of a relocation by the objecting parent.
      (11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.
      B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.

      .The court further ordered that Ms. Smith was responsible for transporting M.B. to and from New Orleans, Louisiana for her visitation with Dr. Blanch.

      . If the trial court intended to deny relief, we find that this was also error.

      . Because the trial court found Ms. Smith in contempt for violating the April 18, 2006 Consent Judgment and assessed attorney's fees and costs of $500.00 for same, we find that for purposes of our review, Ms. Smith's contempt ran anew after the first contempt finding by the trial court.

      . La. R.S. 9:346 provides as follows:
      A. An action for the failure to exercise or to allow child visitation, custody or time rights pursuant to the terms of a court-ordered schedule may be instituted against a parent. The action shall be in the form of a rule to show cause why such parent should not be held in contempt for the failure and why the court should not further render judgment as provided in this Section.
      B. If the action is for the failure to exercise child visitation, custody or time rights pursuant to the terms of a court-ordered schedule, and the petitioner is the prevailing party, the defendant shall be held in contempt of court and the court shall award to the petitioner:
      (1) All costs for counseling for the child which may be necessitated by the defendant’s failure to exercise visitation, custody or time rights with the child.
      (2) A reasonable sum for any actual expenses incurred by the petitioner by reason of the failure of the defendant to exercise rights pursuant to a court-ordered visitation, custody or time schedule.
      (3) A reasonable sum for a caretaker of the child, based upon the hourly rate for caretakers in the community.
      (4) All attorney fees and costs of the proceeding.
      C. If the action is for the failure to allow child custody, visitation, or time rights pursuant to a court-ordered schedule, and the petitioner is the prevailing party, the defendant shall be held in contempt of court and the court shall award to the petitioner:
      (1) A reasonable sum for any actual expenses incurred by the petitioner by the loss of his visitation, custody or time rights.
      (2) Additional visitation, custody or time rights with the child equal to the time lost.
      (3) All attorney fees and costs of the proceeding.
      (4) All costs for counseling for the child which may be necessitated by the defendant’s failure to allow visitation, custody, or time rights with the child.
      D. The court may award a reasonable penalty to the petitioner against the defendant upon a finding that the failure to allow or exercise visitation, time or custody rights pursuant to the terms of a court-ordered visitation schedule was intended to harass the petitioner.
      E. The court may award attorney fees and costs to the defendant if he is the prevailing party, based upon actual expenses incurred.
      F. The court may require the prevailing party to submit proof showing the amounts to be awarded pursuant to this Section.
      G. It shall be a defense that the failure to allow or exercise child visitation rights pursuant to a court-ordered schedule was by mutual consent, beyond the control of the defendant, or for other good cause shown.
      H. A pattern of willful and intentional violation of this Section, without good cause, may be grounds for a modification of a custody or visitation decree.
      I. This Section applies to judicial orders involving sole or joint custody.
      J. The action authorized by this Section shall be in addition to any other action authorized by law.

      . See discussion regarding Ms. Smith's Motion to Modify School and Dr. Blanch’s Motion to Modify Custody infra.

      . Dr. Blanch expressed to Ms. Houghtaling that he wanted M.B. to live with him in New Orleans, Louisiana and to attend public school (Lusher) in New Orleans. It was undisputed that M.B. would be unable to attend public school in Slidell, Louisiana, as neither parent resided in Slidell; however, Dr. Blanch reportedly indicated to Ms. Houghtal-ing that he would be willing to pay 50% of the tuition of a private school in Slidell with a 14/14 day split in parenting time. At trial, Dr. Blanch testified that, given the choice, he would enroll M.B. in school in Slidell.

      . Ms. Houghtaling testified that the first three years are particularly critical with regard to bonding and attachment:
      Q. Erin reported to you, it’s on Page 5 in your report, that from 2002 to 2005, that Dr. Blanch worked away from home two to three days a week in connection with his duties as an emergency room physician, correct?
      A. Yes.
      Q. And she indicated to you that, when he was home, oftentimes, he was not particularly attentive to the care of [M.B.], correct?
      A. Correct.
      * * * *
      Q. It is your understanding, based on child development, that the first three years of a child’s life are crucial, that individual in developing [sic], bonding and attachment, correct?
      A. It is.
      Q. And there is no doubt in your mind that, during this crucial stage, that Miss Smith was the parent who was primarily responsible for the day-to-day care of [M.B.], correct?

        A. Correct.
      Q. In fact, throughout [M.BJ’s life she has been the parent who has been primarily responsible for her day-to-day care, correct?
      A. Correct.

      . Ms. Houghtaling further testified that it would be extremely disruptive to remove M.B. from her current environment:
      Q. Now, regarding the other aspect of joint custody, the amount of time that [M.B.] should spend with each parent, you concluded that Erin should be the primary domiciliary parent, for physical custodial purposes, correct/
      A. For physical custodial, yes.
      Q. Can you tell the Court the reasoning or rationale for that decision?
      A. Because it was the decision of the parents, from the time the child was born, that Erin would be the major caregiver for the child, and [M.BJ's father agreed, through the child care questions, that he was not part of that caregiving when she was an infant, and to change that — the tender years are zero to seven. The child gets bonded, and parents and child become bonded and attached, and this is what [M.B.] has — {M.BJ’s parents chose for her, and this is what she is used to, and I thought it would be extremely disruptive to take that away from her.

      . Dr. Blanch asserts that Ms. Smith’s repeated failure to abide by the court’s orders constitutes a change in circumstances pursuant to Cook v. Cook, 2007-2091 (La. 12/14/07), 970 So.2d 960, and thereby justifies a modification of custody. However, the violation at issue in Cook was the fact that the mother, Christi, moved in with and attended her children’s special events with Shannon Maloney, with whom she was romantically involved. A joint custody implementation plan ("JCIP”) between the parents explicitly stated that "Neither parent shall allow Shannon Maloney to be associated with the minor children and thereby allowing her to live or visit in the home....” The Court found Christi in contempt for violating the JCIP, and held that this violation constituted a material change in circumstances justifying a modification of custody. The Court acknowledged the district court’s finding of "a pattern of misconduct which demonstrated Christi’s disregard for the best interests of the children” as well as Christi’s "encourage[ment to] the children to deceive their father” and her "attempts] to deceive the court about where Shannon lived.” A court-appointed mental health counselor also indicated that "Shannon did not represent an appropriate parental figure for the children” and that "Christi's relationship with Shannon was not in the children's best interests.” We find that the contempt at issue Cook is not analogous to Ms. Smith’s enrollment of M.B. in a Mississippi school and that Dr. Blanch’s reliance upon same to attempt to modify custody is misplaced.

      . Article 1672(B) provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in
      favor of the moving party or may decline to render any judgment until the close of all the evidence.
      La.Code Civ. Proc. art. 1672(B).

      . At trial, Dr. Blanch testified that he and Ms. Smith brought M.B. to Dr. Neimann to determine M.B.’s psychological status, and that they met with Dr. Neimann both separately and together.

      . Dr. Blanch relies upon Shaw v. Shaw, 30,-613 (La.App. 2 Cir. 6/24/98), 714 So.2d 906, arguing that the court in that case found that a child’s commencement of kindergarten and longer school hours was not a material change justifying a change in the custody agreement. Dr. Blanch also relies upon Haik v. Haik, 94-563 (La.App. 5 Cir. 12/14/94), 648 So.2d 1015, noting that the court in that case held that simply because parents changed their minds with regard to custody provisions, the consent judgment, which awarded joint custody and provided details for shared custody, was insufficient to justify modifying the consent judgment. The modification Dr. Blanch opposes, however, is not a modification of custody, but another provision of the consent judgment, regarding a modification of M.B.’s school. We find that Dr. Blanch’s reliance upon these cases is misplaced.

      . The trial court's August 13, 2010 judgment does not expressly deny Dr. Blanch's Motion to Modify Custody, but rather orders that "all other provisions of the April 18, 2006 Consent Judgment shall not change.”