author: MAX N. TOBIAS, JR., Judge.

text:
    Sarah Reva KAYE, Wife of Malcolm John Rebennack v. Malcolm John REBENNACK.
    No. 2010-CA-0871.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 2011.

      W. Christopher Beary, Alex L.M. Duc-ros, Jeffrey L. Oakes, Orrill Cordell & Beary, L.L.C., New Orleans, LA, for Barbara Rivera-Fulton, Trustee, Bankruptcy Estate of Sara Reva Kaye.
    James G. Derbes, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

|, This is a post-divorce matter. The defendant, Malcolm John Rebennack (“Re-bennack”), appeals the trial court’s granting of a motion for partial new trial filed by his former wife, the plaintiff, Sarah Reva Kaye (“Kaye”), because it made the 9 July 2009 judgment awarding an increase in spousal support payments to Kaye retroactive to 7 May 2007. For the following reasons, we reverse and hold that pursuant to La. R.S. 9:321, the trial court’s judgment awarding Kaye an increase should have properly been made retroactive to 6 April 2009, the date of judicial demand.

Rebennack and Kaye were married in 1987. While the parties were legally divorced in 1996, by agreement they consented to the termination of their community of acquets and gains as of April 1994. The 1996 divorce judgment, entered into by the consent of both parties, awarded Kaye $2,200.00 per month in permanent spousal support, together with certain medical expenses to be paid |2directly by Rebennack. Pursuant to the judgment, either party was allowed to file a rule to modify the support payments after January 1998 without demonstrating a change in circumstances. In August 1998, a supplemental consent judgment was rendered whereby Rebennack agreed to continue paying for Kaye’s psychotherapy treatment, medication, and other related expenses up to an additional $6,000 per an-num. No other support judgments were rendered in this case.

The record reflects that in 2001, Reben-nack voluntarily began reimbursing Kaye for all of her medical and transportation expenses. The payments were made to Kaye through Rebennack’s CPA. In a letter dated 1 December 2006, Rebennack, through his counsel of record, wrote a letter to Kaye’s counsel advising that as of 1 January 2007, Rebennack would increase Kaye’s monthly support payment from $2,200 to $3,500, but would no longer reimburse her for any other expenses.

On 7 May 2007, Kaye filed an “Emergency Rule to Show Cause & Reinstate Medical Treatment Unilaterally Terminated by Mac Rebennack” (“Rule to Reinstate Medical Treatment”), which was originally set for hearing on 15 May 2007. The rule, which stated that there was no “current order for alimony and support,” urged the court to order Rebennack to “reinstate and reimburse payment for her medical treatment, and for her other basic necessities— as she has been and is physically disabled — which he and his representatives unilaterally discontinued as of January, 2007.” In response, on 19 June 2007, Re-bennack filed an Exception |sof No Cause and/or Right of Action to Kaye’s Rule to Reinstate Medical Treatment asserting that an order of support contained in the 1996 divorce judgment remained in effect and was continued and perpetuated in the 1998 supplemental consent judgment. Re-bennack argued that La. C.C. art. 116 provided the exclusive methods by which the obligation of “final spousal support” may be modified: either by judgment, authentic act, or act under private signature — none of which were alleged to have occurred, or had, in fact, actually occurred. The record on appeal does not indicate that Rebennack ever moved to have this exception set for hearing.

Kaye’s Rule to Reinstate Medical Treatment, after being set and re-set on three separate occasions, was finally scheduled to be heard on 27 June 2007, however, no judgment exists in the record pertaining to Kaye’s rule or disposing of Rebennack’s exception. According to the parties, the judge conducted an “in camera ” discussion of the entire matter.

No further action was taken on Kaye’s behalf relating to her 7 May 2007 request to reinstate reimbursement for medical treatment. Nearly two years later, on 6 April 2009, Kaye, through different counsel, filed a Motion to Enforce Consensual Agreement, For Retroactive Reimbursement and For Damages and, or Alternatively, Rule to Modify Post-Divorce Alimony (“Rule to Modify Spousal Support”). Kaye maintains that this pleading was a “supplement” to her original 14motion made nearly two years earlier on 7 May 2007, which motion she contends constituted a request for an increase in post-divorce spousal support.

Rebennack responded by filing a second Exception of No Cause of Action directed to Kaye’s attempt to have the court enforce the consensual agreement averring that his prior reimbursement was voluntary and that no enforceable agreement pursuant to La. C.C. art. 116 had been alleged or could be proven. Further, Re-bennack argued that Kaye’s alternative request for modification was her first request for a modification or increase of the earlier support judgment or otherwise to place a comprehensive review of Kaye’s support needs at issue before the court.

On 1 May 2009, Kaye filed a Voluntary Petition for debtor relief under Chapter 7 of the United States Bankruptcy Code. Thereafter, but prior to the hearing on Kaye’s rule, Rebennack filed a Notice of Removal to bankruptcy court. The bankruptcy court eventually remanded the matter to state court and Kaye’s rule was reset for trial accordingly.

The hearing on Kaye’s motion setting forth alternative theories of enforcement of the alleged agreement or modification of the support award and Rebennack’s exception proceeded to trial on 25 June 2009. The trial court rendered its judgment on 9 July 2009, sustaining Rebennack’s exception of no cause of action on the grounds that the record lacked evidence establishing that a judgment modifying the previous support award had been entered or that Rebennack had acknowledged or ratified any alleged oral agreement to reimburse |sKaye for continued medical and related expenses as is required by La. C.C. art. 116 to establish modification of a support obligation. Further, the trial court awarded an increase in monthly spousal support payments to $5,000 in favor of Kaye providing that “[t]his award shall be retroactive to the date of the request for increase.”

Both parties filed motions for new trial. On 24 August 2009, the trial court denied Rebennack’s motion and granted Kaye’s motion for partial new trial solely “insofar as to clarify that the retroactivity of the Court’s original judgment is to May 7, 2007,” which the court determined was the date Kaye initially requested an increase in support. It is from this judgment that Rebennack timely filed the instant appeal. Kaye neither appealed, nor answered the appeal.

We are asked to determine whether the trial court committed legal error when it decided that Kaye’s 7 May 2007 Rule to Reinstate Medical Treatment constituted judicial demand as is required by La. R.S. 9:321 for modification of the spousal support obligation in effect at the time the rule was filed. A trial court’s assessment regarding the retroactivity of a judgment modifying a prior support obligation is restricted by La. R.S. 9:321, which requires that judicial demand for a modification be specifically made in order for such an award to be made retroactive. The statute states:

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

While the general rule is that a trial court’s judgment awarding spousal support is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion, this same leeway is not afforded by La. R.S. 9:321. In fact, the language found in La. R.S. 9:321 C, “shall be retroactive,” denotes a mandatory duty. See La. R.S. 1:3. This statute mandates that in the absence of good cause shown, a judgment modifying or revoking a final spousal support judgment must be retroactive to the date of demand for same. Thus, while a court may, in its discretion, limit or bar the retroactivity of a modification of a spousal support 17order, there is no legal authority for going beyond the filing date of the rule setting forth the demand. To do so constitutes legal error.

We find that whether or not a pleading constitutes a proper demand or suit for purposes of a modification of a prior spousal support award requires a legal determination. Accordingly, we review the trial court’s determination de novo, despite Kaye’s argument that the trial court’s findings were not an abuse of its discretion or clearly wrong.

In his lone assignment of error, Rebennack argues the trial court erred as a matter of law by awarding an increase in spousal support payments retroactive to a date preceding Kaye’s judicial demand for modification of the prior spousal support obligation, which he contends she made for the first time, in the alternative, when she filed her 6 April 2009 motion to enforce the consensual agreement. To the contrary, Kaye maintains that under Louisiana’s system of fact pleading, as long as the facts constituting the claim are alleged, the party may be granted relief to which he is entitled under the pleadings and the evidence. Consequently, Kaye avers that her Rule to Reinstate Medical Treatment filed on 7 May 2007 alleged facts sufficient to constitute judicial demand for an increase in spousal support and, therefore, the trial court correctly entered judgment retroactive to that date.

In her Rule to Reinstate Medical Treatment filed in May 2007, stating there was no “current order for alimony and support,” Kaye sought to have the court |9order Rebennack to reimburse her for the costs of her personal care from January 2007 forward, and to order him to continue to pay these costs in the future as she “has to her detriment relied on him to pay those costs.... ” The rule, including the prayer set forth in the incorporated memorandum, is silent as to any request for a modification or increase in monthly support payments (arguably because Kaye was of the mistaken belief that no order was in effect susceptible of being increased). Kaye, however, argues that her motion, though styled as a rale seeking reinstatement of medical treatment, constitutes a “proper demand” for modification of the previous support judgment under Louisiana’s fact pleading system because it alleges facts seeking reimbursement of unpaid medical costs and an increase of her spousal support award to include payment of future medical expenses.

Nearly two years later in April 2009, Kaye filed a second Motion to Enforce Consensual Agreement, for Retroactive Reimbursement and for Damages and, or Alternatively, Rule to Modify Post-Divorce Alimony, once again asking the court to enforce the alleged consensual agreement existing between the parties wherein Kaye avers Rebennack purportedly agreed to pay for all of her monthly expenses. |inIn the event the court deemed the alleged consensual agreement unenforceable, Kaye asked the court to alternatively “increase the current post-divorce alimony award” (essentially retracting her prior statement that there was no “current order for alimony and support” in effect), to an amount that would meet her then monthly expenses. Kaye contends this 6 April 2009 motion was merely a substitute or replacement to her previously filed motion of 7 May 2007 and, therefore, the trial court was correct in determining that 7 May 2007 was the proper date upon which she made her initial demand for modification of the prior spousal support judgment. We disagree.

While La. C.C.P. art. 1153 generally pertains to the relation back of an amended pleading to the filing date of the original pleading, La. R.S. 9:321 specifically addresses the retroactivity of a judgment concerning spousal support and provides that judicial demand for modification must be made in order for an award to be made retroactive to the filing date of same. In determining the applicability of laws, it is axiomatic that the more specific governs over the more general. Richardson v. Richardson, 07-0430, p. 13 (La.App. 4 Cir. 12/28/07), 974 So.2d 761, 771. La. R.S. 9:321 is found in a section of the revised statutes that specifically governs the substantive rights between spouses insofar as they pertain to spousal support. In contrast, La. C.C.P. arts. 1151-1156 are contained in the Louisiana Code of Civil Procedure in the section relating to amended and supplemental pleadings. Therefore, when applicable as in the instant case, the provisions set forth in La. R.S. 9:321, being more specific to spousal support, prevail over general provisions contained in La. C.C.P. art. 1153. Accordingly, we find that an amended motion (in this case, Kaye’s 6 April 2009 motion) that demands modification of a spousal support obligation does not relate back, for | n purposes of retroactivity of a judgment modifying support, to the date of the originally filed rule (in this case, Kaye’s 7 May 2007 rule to reinstate medical treatment). We further hold that La. R.S. 9:321 requires that judicial demand for modification of a support award be expressly made and that a judgment modifying that support obligation is retroactive to the date such express judicial demand is actually made.

In the instant case, we find that Kaye’s Rule to Reinstate Medical Treatment did not expressly request modification of the post-divorce spousal support agreement, but that this request was first set forth, in the alternative, in her later filed Rule to Modify Spousal Support. The trial court, therefore, committed legal error when it made the judgment modifying the support obligation retroactive to a date preceding judicial demand for such relief. The jurisprudence supports our conclusion.

In Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1981), involving a proceeding to change custody and reduce child support and alimony, the father requested that the trial court issue an order apportioning support “per child” rather than in globo because one of the two children had attained the age of majority. The father suggested that fulfilling his request would eliminate the necessity of further modification of the support. This court upheld the trial court’s refusal to do so on the basis that the father had failed to bring proper suit seeking a modification of the support obligation. Specifically, we noted:

The jurisprudence reflects the view that an award of child support may not be modified, reduced, or terminated unless proper suit is brought, operation of law occurs, or a conventional obligation suspending the award is entered into between the parties. The obligation of support does not terminate by operation of law when a child reaches the age of majority. In view of the fact that | iaproper suit has not been brought and there is no evidence of a conventional obligation suspending the award in the record, Dr. Howell’s request cannot be granted.

Id., 391 So.2d at 1307-08. Because Dr. Howell failed to make proper demand, the court was without authority to modify the support obligation.

In Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), the Court addressed the issue of whether the husband had the right to unilaterally reduce the in globo support award proportionately as each of his four children arrived at the age of majority or became emancipated. In pronouncing that the husband had no right to do this, the Court noted that, while an alimony judgment is not final in that a modification, reduction or termination of such a judgment may be sued for, in the absence of such a suit seeking modification of the support obligation, or provided for by operation of law, the judgment cannot be altered or modified. Id., 352 So.2d at 1016. The husband had failed to bring such a suit seeking modification.

Similarly, in McGovern v. Tatman, 410 So.2d 779 (La.App. 4th Cir.1982), the trial court retroactively discharged the ex-husband from payment of arrears in child support that had accumulated during the three years preceding the hearing on the ex-wife’s rule seeking child support arrear-ages. Relying in part on Halcomb, supra, this court reversed the finding that since the husband had failed to bring a proper suit seeking to have the support obligation amended, the judgment ordering support could not be altered or modified and, thus, the full amount of the support ordered was due. The trial court was without authority to retroactively discharge the ex-husband from a portion of the arrears accumulating prior to the hearing. Id. at 781.

13In Racca v. Racca, 99-2948 (La.App. 1 Cir. 12/22/00), 775 So.2d 689, the ex-wife sought an increase in child support. Specifically, the parties entered into a stipulation regarding child support, among other things, that was reduced to judgment on 8 May 1998. Approximately ten months later, the ex-wife filed a rule seeking an increase in child support and for contempt. The trial court entered judgment modifying the child support award and ordered that the increase be made retroactive to the date of the original 8 May 1998 consent judgment, rather than the date of judicial demand, which occurred nearly a year later. The appellate court reversed noting that while courts have some discretion regarding the retroactivity of a modification in a support award; it was legal error for the trial court to order a change in a support award retroactive to a date beyond the filing date of the petition for modification. Id., 99-2948, p. 8, 775 So.2d at 694.

Lastly, this court also refused retroactive payment of support when no demand therefor had been made in Barkemeyer v. Barkemeyer, 560 So.2d 837 (La.App. 4th Cir.1989)(on rehearing). In Barkemeyer, the wife sought to make a judgment granting an increase in support retroactive to the date of the filing of a rule for contempt for nonpayment of alimony pendent lite, which claim the court determined failed to state a cause of action. Specifically, the court stated:

Essentially, the August 19, 1987 rule for contempt had no effect in law since Ms. Barkemeyer had no cause of action for past due alimony at the time. Therefore, the trial court was manifestly erroneous in giving the award for permanent alimony retroactive effect to the date of the granting of the divorce decree and thus incorrectly calculated the past due alimony award.

Id., 560 So.2d at 842-843. In essence, Barkemeyer instructs that unless a cognizable claim for relief is asserted in the earlier demand, a trial court commits legal error when it makes an award retroactive to the date of such a demand.

|uIn the instant case, as noted above, Kaye’s 2007 Rule to Reinstate Medical Treatment failed to state a cause of action. Applying the principles set forth by this court in Barkemeyer to the case at bar further supports our conclusion that the trial court committed legal error when it made the judgment increasing support retroactive to the date Kaye filed the Rule to Reinstate Medical Treatment rather than to 6 April 2009, the date she made judicial demand for an increase in support.

Applying La. R.S. 9:321 and the applicable jurisprudence cited above to the facts and circumstances presented by the case at bar, we hold that unless and until judicial demand for modification of a spousal support obligation has been expressly made a trial court lacks authority to issue an award increasing spousal support. We further hold that such an award cannot be applied retroactively to a date preceding the date the express demand for modification of the spousal support obligation was actually made.

For the foregoing reasons, we find the trial court erred in making the judgment awarding an increase in spousal support retroactive to 7 May 2007, the filing date of Kaye’s Rule to Reinstate Medical Treatment, which failed to state a cause of action. Accordingly, we reverse the trial court’s 24 August 2009 judgment and rule that the 9 July 2009 judgment increasing spousal support payments for Kaye is retroactive to 6 April 2009, the date Kaye first made judicial demand for modification of the spousal support obligation.

REVERSED; RENDERED.

      . Kaye died subsequent to the hearing that resulted in the judgment from which Reben-nack has filed the instant appeal. Prior to her death, Kaye filed a Chapter 7 Petition for debtor relief; that proceeding continues posthumously. Pursuant to La. C.C.P. arts. 801 and 821, and Rule 2-9, Uniform Rules, Cts. of App., Barbara Rivera-Fulton, the Chapter 7 Trustee for the bankruptcy estate of Sarah Reva Kaye, deceased, has been substituted as the plaintiff/appellee for Kaye for the purposes of this appeal.

      . Pursuant to the 1996 consent judgment, Re-bennack agreed to pay Kaye’s psychiatric expenses for a period of two years, and for her dental treatment not to exceed $8,500, both of which were to be considered spousal support payments.

      . The record indicates that Rebennack paid Kaye $68,753 in 2001; $61,954 in 2002; $77,993 in 2003; $77,360 in 2004; $178,353 in 2005; and $83,625 through 30 September 2006.

      . According to Kaye, the filing of this rule constituted her first request for a modification of the post-divorce spousal support award as "all facts for modification of alimony were pled.”

      . Pursuant to La. C.C.P. art. 927 B, we find as a matter of law that Kaye’s Rule to Reinstate Medical Treatment did not state a cause of action upon which relief could be granted.

      . Kaye attaches as Exhibit "1” to her appellate brief a computer printout of the Orleans Parish Civil District Court online Case Management System "Rule Docket” evidencing an entry for 27 June 2007 indicating that the hearing on the matter was "Continued without Date.” This exhibit, however, is not contained in the record on appeal. It is well-settled that "evidence not properly and officially offered and introduced cannot be considered, even if physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Dewailly v. Lexington Ins. Co., 09-0020, p. 2 (La.App. 4 Cir. 9/16/09), 23 So.3d 368, 369-370. Thus, this court may not consider Kaye’s attached Exhibit "1.”

      . La. C.C. art. 116 provides: “The obligation of final spousal support may be modified, waived, or extinguished by judgment of a court of competent jurisdiction or by authentic act or act under private signature duly acknowledged by the obligee."

      . Kaye’s 7 May 2007 emergency rule contained the following, in to to:

      Emergency Rule to Show Cause & Reinstate Medical Treatment Unilaterally Terminated by Mac Rebennack, Incorporated Memorandum, and Order
      Comes Now Sarah Rebennack, who moves the Court to order Malcolm John Rebennack [a/k/a Dr. John] to show cause why he should not reinstate and reimburse payment for her medical treatment, and for her other basic necessities-as she has been and is physically disabled which he and his representatives unilaterally discontinued as of January, 2007.
      Incorporated Memorandum
      Sarah Kaye Rebennack was granted a judgment of divorce from her former husband Malcolm John Rebennack [a/k/a Dr. John] twelve years ago, in 1995. Despite the twelve year lapse, there has been no community property settlement, and no current order for alimony and support.
      Approximately eight years ago petitioner suffered an [sic] number of medical conditions including but not only, hip replacement surgery [both hips], diabetes and conditions effecting her heart. She was no longer able to work or to adequately care for herself. As part of her support, her former husband Malcolm John Rebennack has paid for her medical care, her dental care, her medicines, her physical therapy and transportation.
      As she was in necessitous circumstances, he paid for these treatments and care until January of this year. Although she still is in necessitous circumstances, Mr. Reben-nack through counsel, announced as of January 2007, that he would no longer pay for or reimburse her for any medical treatments, doctor visits, medicines, dental treatments, therapy and exercise costs, or other necessities which, to her present detriment, she has relied upon him and his resources to obtain. Despite the fact that her doctors continue to treat her, counsel for Rebennack has decided that she no longer needs this treatment, and therefore her former husband will no longer pay for or reimburse her for this treatment.
      To her knowledge, Rebennack has not retained an independent physician or other expert who advised him that she no longer needed treatment for her diabetes, her heart condition, her dental care, her medicines, her therapy or any other related expenses. She has not been asked to see an independent physician, nor has she been asked to release her medical records to another physician-expert. Her treatment continues.
      Counsel for Rebennack simply informed former counsel for Ms. Rebennack that she no longer needed these services and that they would no longer pay for them. Sarah Kaye Rebennack cannot drive and cannot walk without assistance. Therefore, she cannot go to the doctor or to take her physical therapy unless someone drives her to those appointments. Rebennack has also cut off her reimbursements for these expenses. He has continued to pay $3,500 monthly in alimony which pays for her insurance, her rent, the basic living expenses, and food.
      She has relied for years on the payment for the medical treatment, prescriptions, dental care, a care-assistant, transportation, and therapy which will cost approximately $5,000 a month. Counsel does not need to revisit the costs of even the most elemental health care for this Court. Since January, she has paid for these items herself. She has exhausted her life savings to pay for these elemental items of personal care.
      To her detriment she has relied upon her former husband’s agreement to pay for her health care, medicines, and personal assistance. She is unable to pay for these costs of care herself, as she has been and is physically disabled.
      Wherefore, the Court should order Malcolm John Rebennack to show cause why he should not reimburse her for all costs of personal care incurred since he cut off payments of those costs in January 2007. And, it should order him to show cause why he should not continue to pay those costs, as her doctors continue to provide her care, and as she has to her detriment relied on him to pay those costs since she became disabled. [Emphasis in original.]

      . The obligation of spousal support is extinguished by operation of law upon the remarriage of the obligee or the death of either party. See La. C.C. art. 115.


source: Caselaw Access Project

author: GENOVESE, Judge. PICKETT, J.,

license: Public Domain

text:
    Doris Kay HENRY v. Marian W. ANDERSON.
    No. 10-941.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied May 18, 2011.
    Billy R. Pesnell J. Whitney Pesnell W. Alan Pesnell Shreveport, LA for Plaintiff/Appellant Doris Kay Henry.
    William R. Jones Luke D. Mitchell Coushatta, LA for Defendant/Appellee Marian W. Anderson.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this community property partition case, Plaintiff, Doris Kay Henry, ex-wife of Defendant, Marian W. Anderson, appeals the trial court judgment sustaining Defendant’s declinatory exception of improper venue. For the following reasons, we affirm the judgment of the trial court.

FACTS

After thirty-six years of marriage, Doris Kay Henry and Marian W. Anderson were divorced by judgment of the Thirty-ninth Judicial District Court, Red River Parish. Shortly after divorcing, they executed a Community Property Settlement (Settlement) in which they partitioned their community assets and obligations. Three years later, Doris filed a Petition for Specific Performance, Reformation, and/or Amendment of Agreement, Declaratory Judgment, Mistake, Error, Omission, and Fraud (Petition) in Natchitoches Parish. In her Petition, Doris asserted:

Venue [is] proper in ... Natchitoches Parish, Louisiana, pursuant to Articles 42(1)[] and 80[] of the Louisiana Code of Civil Procedure, as both Plaintiff and Defendant are domiciled in Natchitoches Parish, | ?Louisiana[,] and/or Article 76.1[] of the Louisiana Code of Civil Procedure, as this is an action on, to enforce, and to reform a contract executed by the last signatory thereto in Natchitoches Parish, Louisiana.

Doris further alleged: 1) that through error and mistake, conveyance of a one-half mineral interest in three tracts of immovable property which was to have been made to her pursuant to the terms of the Settlement was not completed; 2) that one provision of the Settlement is the result of incorrect information provided by Marian; and 3) that some of the properties partitioned in the Settlement were incorrectly valued based on information provided by Marian. She sought a judgment: 1) correcting all errors and adjusting valuations based on errors; 2) requiring Marian to account for sums he collected/received as a result of said errors; and 3) reforming the Settlement and other necessary documents to correct the errors and omissions.

The three tracts of immovable property at issue in Doris’s Petition had been conveyed by Doris and Marian during their marriage to a Trust established for their children. The Settlement contemplated that the Trust would be revoked and that the corpus of the Trust would be returned to Doris and Marian. In the Settlement, Marian conveyed one tract of immovable property to Doris, and Doris conveyed twelve tracts of immovable property, which included the three tracts at issue, to Marian; she reserved one-half of “all of the oil, gas and other liquid or gaseous hydrocarbon minerals ... on the immovable property hereinafter transferred to Marian.” In her Petition, Doris contends that the Trust was revoked, but the mineral reservation on those three tracts was not executed; she seeks to have the mineral interests conveyed to her as contemplated by the Settlement.

laMarlan filed a declinatory exception of improper venue in which he asserted that Doris’s claims are governed by La.Code Civ.P. art. 82 because they are “a dispute between the parties ‘arising from either a matrimonial regime or from co-ownership of former community property.’ ” Doris opposed the exception, arguing that her claims are governed by the general rules of venue provided in La. Code Civ.P. art. 76.1 or 80 and that her suit is properly filed in Natchitoches Parish, where Marian is domiciled.

After a hearing, the trial court granted Marian’s exception. Doris appealed.

ASSIGNMENT OF ERROR

Doris’s appeal presents one issue for our consideration: Does La. Code Civ.P. art. 82 apply to her claims?

DISCUSSION

Venue is a question of law; therefore, we must conduct a de novo review of the record on appeal. Arc Indus., L.L.C. v. Nungesser, 06-1353 (La.App. 3 Cir. 11/21/07), 970 So.2d 690, writ denied, 07-2438 (La.2/15/08), 976 So.2d 182. Venue is defined as “the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” La.Code Civ.P. art. 41. Under La.Code Civ.P. art. 42(1), a suit against an individual domiciled in Louisiana must be brought in the parish of his domicile. However, according to La.Code Civ.P. art. 43, “[t]he general rules of venue provided in Article 42 are subject to the exceptions provided in Articles 71 through 85 and otherwise provided by law.”

Marian contends that Doris’s action is governed by La.Code Civ.P. art. 82 because her claims “arise either from the matrimonial regime or co-ownership of former community property or both[,]” and she seeks to partition immovable property |4of their former matrimonial regime. He asserts that venue is proper in Red River Parish “where judgment was rendered terminating the community property regime[ ]” and where the property is situated. Marian argues that Natchi-toches Parish is an improper venue because: (1) the proceeding to terminate the marriage and the community of acquets and gains was filed in Red River Parish; (2) the proceeding to partition their community property was filed in Red River Parish; (3) the Settlement was mediated and perfected in Red River Parish; (4) Doris’s action seeks to partition immovable property, i.e., a mineral interest, in former community property; (5) the immovable property is situated in Red River Parish; and (6) Doris’s Petition states that she is seeking “to adjust the community property settlement.”

Doris contends, in brief, that her “Petition is a suit to enforce a community property settlement agreement by specific performance and reformation[ ]” — not a suit to annul a community property settlement agreement or to partition community property. Doris argues that her action asserts an interest in immovable property which makes La.Code Civ.P. art. 80(A)(1) applicable and venue proper in either Red River Parish or Natchitoches Parish. Doris also argues that her Petition “clearly is an action on a contract, venue for which lies where the contract was executed. La. Code Civ.P. art. 76.1[.]” Therefore, she asserts that the trial court erred in holding that venue was improper in Natchitoches Parish.

Citing Campbell v. Scroggins, 191 So.2d 154 (La.App. 3 Cir.1966), Doris claims that La.Code Civ.P. art. 82 does not apply herein. According to Doris:

Under Campbell, [La.Code Civ.P. art.] 82 did not and does not apply to actions to annul community property partition agreements. Moreover, under Campbell, once community property already has been voluntarily partitioned, an action for partition of former community property cannot be maintained unless and until the settlement has been annulled or set |r,aside. [My] Petition in this case seeks to enforce the Agreement rather than annul the Agreement.

The plaintiff in Campbell filed suit in Lafayette Parish against her ex-husband, a resident of Calcasieu Parish. The parties were divorced in Lafayette Parish; therefore, the plaintiff asserted venue for her suit was proper in Lafayette Parish pursuant to La.Code Civ.P. art. 82. The plaintiff entered into two agreements relative to the separation of their community property; however, she alleged she did so after relying upon mis-information from her ex-husband. The trial court regarded plaintiffs suit as an action to annul the two previously-executed partition agreements, and it ruled that venue was governed by La.Code Civ.P. art. 42, not La.Code Civ.P. art. 82.

The plaintiff in Campbell appealed arguing that her action was both an action to annul the two previously-executed partition agreements and an action to partition community property. According to the plaintiff, under La.Code Civ.P. art. 82, she was entitled to maintain her action to partition community property in Lafayette Parish, and therefore, her demand to annul the two previously-executed partition agreements should be determined in the same venue because the matters were related. The appellate court determined that “one of the major demands which plaintiff asserts in this case is for judgment annulling and setting aside the earlier partition agreements, ... however, ... she is also demanding a partition of the assets of the community which formerly existed between them.” Id. at 157. The appellate court agreed with the trial court’s determination that the plaintiffs action to annul the partition agreements venue was governed by La.Code Civ.P. art. 42 and not La.Code Civ.P. art. 82. The appellate court, however, went further and declared:

|fiThe remaining action to partition community property was properly instituted in Lafayette Parish, that being the parish where the judgment dissolving the community was rendered. LSA-C.C.P. art. 82. As we have already observed, however, the petition shows that the community property has already been partitioned by conventional agreement. There are no community assets to be judicially partitioned, therefore, and there will be none unless and until the earlier partition agreements are annulled. Since these partition agreements have not been annulled, the petition for a partition of the community property fails to state a cause of action.

Id. at 157-58. Though Doris argues that her action is not an action to annul the Settlement, she contends Campbell controls.

We find that not only are the facts in Campbell distinguishable, but the law differs as well. When Campbell was decided, La.Code Civ.P. art. 82 provided:

Except as otherwise provided in the second paragraph of this article, an action to partition community property shall be brought either as an incident of the action which would result in a dissolution of the community, or as a separate action in the parish where the judgment dissolving the community was rendered.
If the community owns immovable property, the action to partition the community property, movable and immovable, may be brought in the parish where any of the immovable property is situated.

The Louisiana State Legislature passed 1997 La. Acts No. 1055, § 1, which, among other things, amended La.Code Civ.P. art. 82. The present version of La.Code Civ.P. art. 82 provides, in pertinent part:

A. Except as otherwise provided in this Article, an action to partition community property and to settle the claims between the parties arising from either a matrimonial regime or from co-ownership of former community property shall be brought either as an incident of the action which would result in the termination of the community property regime or as a separate action in the parish where the judgment terminating the community property regime was rendered.
B. If the spouses own community immovable property, the action to partition the community property, movable and immovable, and to settle the claims between the parties arising either from a matrimonial regime or from co-ownership of former community property may bejjbrought in the parish in which any of the community immovable property is situated.

The 1997 legislative amendment to La. Code Civ.P. art. 82(A) added language mandating that issues pertaining to the “co-ownership of former community property shall be brought ... in the parish where the judgment terminating the community property regime was rendered.”

We are cognizant of our supreme court’s decision in Spinosa v. Spinosa, 05-1935 (La.7/6/06), 934 So.2d 35, which was decided after the 1997 amendment to La.Code Civ.P. art. 82. Spinosa involved an ex-wife who sought to annul a separation of property agreement that she entered into with her ex-husband ten years prior to their divorce. Mrs. Spinosa filed a petition to partition community property naming as a defendant, in addition to her ex-husband, a trust settled by her and her ex-husband, wherein she alleged that her ex-husband had fraudulently diverted community property into the trust. The trust raised the declinatory exception of improper venue arguing that Mrs. Spinosa’s claims against it could not be pursued along with her claims against Mr. Spinosa in East Baton Rouge Parish because, pursuant to La.R.S. 9:1725(5), the only proper venue for a claim against it was in the parish of the domicile of its sole trustee. The sole trustee was domiciled in St. Tammany Parish. Citing Hawthorne Oil and Gas Corp. v. Continental Oil Co., 377 So.2d 285 (La.1979), the supreme court found no merit in the trust’s argument because the trust did not carry its burden of proving that there was an exception to the general venue provisions that specify St. Tammany Parish as the proper venue. Finding that Mrs. Spinosa’s claim constituted an action to partition community' property, the supreme court concluded that venue was proper in East Baton Rouge Parish pursuant to La.Code Civ.P. art. 82(A). Spinosa, because of the trust claims |sinvolved, is clearly distinguishable and not factually analogous to the instant case; however, it did apply La.Code Civ.P. art. 82(A), finding the parish of proper venue to be the “parish where the judgment terminating the community property regime was rendered.” Id. at 50. In the instant case, that would be Red River Parish as opposed to Natchitoches Parish, which is what the trial court held.

Also, in the instant suit, we take note of the fact that Doris asserts a claim over the co-ownership of mineral rights. Louisiana Code of Civil Procedure Article 82(A) specifically addresses claims “arising from ... co-ownership of former community property.” Therefore, the trial court correctly found that venue is proper in Red River Parish under the provisions of La.Code Civ.P. art. 82(A) as that is the “parish where the judgment terminating the community regime was rendered.”

DECREE

For the foregoing reasons, the judgment of the trial court sustaining Defendant’s declinatory exception of venue is affirmed. Costs are assessed to Plaintiff/Appellant, Doris Kay Henry.

AFFIRMED.

PICKETT, J., dissents with reasons.

PICKETT, J.,

dissenting.

hi respectfully disagree with the majority’s opinion. Doris seeks to enforce certain provisions of the Community Property Settlement in which she transferred immovable property “which formed a part of the former community of acquets and gains” to Marian and reserved one-half of the minerals under the immovable property for herself. Marian acknowledged that Doris’s conveyance of immovable property to him was “subject to the reservation of minerals as previously stated.” Doris’s other claims address inaccurate valuations assigned by Marian to former community assets that were partitioned in the Community Property Settlement.

Louisiana Code of Civil Procedure Article 82(A) governs venue for “an action to partition ... and to settle” parties’ community property regime claims, and sub-part B governs venue for the “action to partition ... and to settle.” (Emphasis added.) Doris does not seek to partition community property and to settle claims arising from the former matrimonial regime that existed between her and Marian or from the co-ownership of former community property, nor does she seek to settle such claims. She and Marian partitioned their community property and settled the claims |2pertaining to their former community property regime in the Community Property Settlement. Furthermore, no former community property is co-owned by Doris and Marian, as she conveyed ownership of the surface of the property at issue to Marian but reserved the minerals thereunder to herself. La. Min.Code art. 31:15; see also, Calhoun v. Ardis, 144 La. 311, 80 So. 548 (1918). For these reasons, venue is proper in Natchitoches Parish.

      . Louisiana Code of Civil Procedure Article 42 provides, in pertinent part: "The general rules of venue are that an action against: (1) An individual who is domiciled in this state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence.”

      . Louisiana Code of Civil Procedure Article 80 provides, in pertinent part:
      A. The following actions may be brought in the parish where the immovable property is situated or in the parish where the defendant in the action is domiciled:
      (1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Article 72;
      (2) An action to partition immovable property, except as otherwise provided in Articles 81, 82, and 83; and
      (3)An action arising from the breach of a lease of immovable property, including the enforcing of a lessor’s privilege or seeking the payment of rent. The venue authorized by this Subparagraph shall be in addition to any other venue provided by law for such action.

      . "An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.” La.Code Civ.P. art. 76.1.


author: SAUNDERS, Judge. PETERS, J.,

text:
    Carla BROUSSARD-SCHER v. Brian Christopher LEGENDRE, et al.
    No. 10-1164.
    Court of Appeal of Louisiana, Third Circuit.
    March 23, 2011.
    Rehearing Denied May 11, 2011.

      Ronald D. Cox, Judge, Daniel M. Landry III, Lafayette, LA, for Plaintiff/Appel-lee: Carla Broussard-Scher.

      Elizabeth Anne Long, Attorney at Law, Lafayette, LA, for Defendants/Appellants: Brian Christopher Legendre Tiffany R. Thomas.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

_|jThis is a visitation case where the maternal grandmother seeks visitation with the child over the objection of the child’s parents. The child’s parents were never married though they lived together when the child was born, but currently live separate and apart.

The trial court awarded the maternal grandmother visitation based on La.Civ. Code art. 136(B) and appointed a parenting coordinator. The child’s parents appeal alleging that the trial court cannot award the maternal grandmother visitation over the objections of fit parents who provide for the child and that the trial court cannot appoint a parenting coordinator under La.R.S. 9:358.1(A) without a judgment of custody. We affirm the trial court’s judgment regarding visitation and reverse the segment of the judgment appointing a parenting coordinator.

FACTS AND PROCEDURAL HISTORY:

L.L. was born on January 25, 2005 to Brain Legendre and Tiffany Thomas (collectively “the Parents”). The Parents were college students at the time living in concubinage. Tiffany Thomas’ mother, Carla Broussard-Scher (“Scher”), was present along with the Parents when L.L. was born. When the Parents were released from the hospital, they, along with L.L. lived at Scher’s house for a week. Thereafter, the Parents went back to their apartment that they shared with other roommates, and Scher became the primary caregiver to L.L. Scher then purchased a mobile home trailer for the Parents and L.L. The Parents moved into the mobile home with Scher still remaining a prominent figure in L.L.’s life.

In early 2007, the romantic relationship between the Parents terminated, but the Parent’s relationship, as it related to L.L., remained intact. Scher’s role in L.L.’s life remained materially unchanged until approximately November of 2008 when conflict |9arose between Scher and Tiffany Thomas. On February 3, 2009, Scher filed a rule to establish visitation pursuant to La.Civ.Code art. 136(B). The Parents responded with an exception of no cause of action. On April 2, 2009, the trial court denied the Parents’ exception and, by stipulation, the trial court appointed Dr. Kenneth Bouillon, a mental health professional, to determine and make recommendations concerning the best interests of L.L. On May 12, 2009, an order of interim visitation was stipulated to by the parties. On June 22, 2009, and July 7, 2009, Scher filed a rule for contempt alleging that the Parents were not adhering to the interim visitation and stipulations.

In the interim, Dr. Bouillon presented his findings to the court that extraordinary circumstances existed as to the relationship between the parties and that it was in the best interest of L.L. to have visitation with Scher. The parties then entered into a second consent judgment and joint stipulation on September 9, 2009. On September 24, 2009, Scher filed another rule for contempt, followed by the Parents filing their own rule for contempt on October 20, 2009. Finally, Scher filed her fourth rule for contempt on November 4, 2009.

On November 19, 2009, the Parents filed a motion and order to terminate visitation and to fix for trial on the merits Schers’ original rule to establish visitation. A hearing on all of the rules for contempt filed by the parties took place on Decern-ber 3 and 17, 2009. The trial court ruled that only the Parents were in contempt.

On January 29, 2010, Scher filed an exception of no cause or right of action and prematurity against the Parents’ motion and order to terminate visitation and fix the visitation issue for trial. On April 15, 2010, Seher’s exceptions were denied. On April 27, 2010, and May 24, 2010, a two-day trial was held on Scher’s original rule to establish visitation pursuant to La.Civ. Code art. 136. On July 1, 2010, the trial | ¡¡court signed a judgment finding, inter alia, that extraordinary circumstances existed, that visitation with Scher was in L.L.’s best interest, that Scher be granted visitation with L.L., that appointed a parenting coordinator. The Parents have appealed.

DISCUSSION OF THE MERITS:

The Parents fail to assign any specific errors in brief. Rather, they list four contentions under the main heading of “ARGUMENT.” We will address these contentions in this discussion of the merits.

No Cause of Action:

The Parents first contend that the trial court erred in denying their peremptory exception of no cause of action that they filed against Scher’s rule to establish visitation pursuant to La.Civ.Code art. 136(B). We do not agree.

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff’s right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.
Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.
The burden of demonstrating that the petition states no cause of action is upon the mover. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.

Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 118-19.

As such, the Parents must show that Scher’s petition or pleading, if the allegations are taken as true, does not state a cause of action to which the court can grant a remedy. Scher’s pleading requests visitation with L.L. based on La. Civ.Code art. 136, which states:

A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds ■ that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents. .
(5) The mental and physical health of the child and the relative.
C. In accordance with Paragraph B of this Article, extraordinary circumstances may include when a parent is addicted to a controlled dangerous substance.
D. In the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supersede those of this Article.

The Parents assert that Scher’s pleading did not state a valid cause of action because she cannot seek visitation rights to L.L. under La.Civ.Code art. 136(B). Rather, they argue that Scher can only seek visitation rights to L.L. under La. R.S. |c9:344. They base their argument on the language of La.Civ.Code art. 136(D) that states, “[i]n the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supersede those of this Article.” The language of La.Civ.Code art. 136(D) is clear. If the language of La.R.S. 9:344 and La.Civ.Code art. 136 are in conflict, then the language in La.R.S. 9:344 applies. Thus, the Parents’ argument has merit if La.R.S. 9:344 has language mandating its application to the situation before us.

Louisiana Revised Statutes 9:344 states:

A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
C. If one of the parties to' a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.

Louisiana Revised Statutes 9:344 is clear and merely delineates what siblings and grandparents have to prove, if their situations fit certain criteria, in order to | ¡¡receive visitation rights under that statute. It contains no prohibition of grandparents seeking visitation rights under La. Civ.Code art. 136 should the situation at hand not meet those criteria. In order to meet the criteria of part La.R.S. 9:344(A), the child’s parents must be married, and one of those parents must have died. Here, neither is true. In order for La.R.S. 9:344(B) to apply, the child’s parents must have lived in concubinage and, while living in concubinage, one of them must have died. Here, while L.L’s parents lived in concubinage at L.L.’s birth, they now live separate and apart and neither has died. Grandparents are not addressed in La.R.S. 9:344(C). It applies to siblings of a child. Finally, under La.R.S. 9:344(D), grandparents are potentially afforded visitation rights if the child’s parents were married and are legally separated or living apart for a period of six months. Here, L.L.’s parents were never married.

Accordingly, in the situation before us, there is no conflict between La.R.S. 9:344 and La.Civ.Code art. 136, as the status of the parties does not fit under any scenario delineated in La.R.S. 9:344. Thus, the Parents’ contention that Scher could only seek visitation with L.L. under La.R.S. 9:344 is incorrect, as Scher can potentially state a cause of action under La.Civ.Code art. 136(B).

Next, we must look to Scher’s pleading to determine if she stated a cause of action under La.Civ.Code art. 136(B). We find that her pleading meets the requirements necessary to defeat the Parents’ exception.

Louisiana Civil Code Article 136(B), in pertinent part, states, “[u]nder extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or step-grandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child.” This | language is not ambiguous. Under La.Civ.Code art. 136(B) the party seeking visitation with a child must show that extraordinary circumstances exist, that the party is a relative of the child in some fashion, that the party does not have custody of the child, and that it is in the child’s best interest for the party to be granted reasonable visitation rights. Here, Scher alleges in her pleading that extraordinary circumstances exist in Paragraph number six, that she is L.L.’s maternal grandmother in Paragraph two, that she is not granted custody of L.L. in Paragraph three, and that it is in L.L.’s best interest that she be granted visitation in numerous paragraphs in the pleading. Scher concludes her pleading requesting visitation with L.L. and requesting the appointment of a mental health professional to ascertain if visitation with her is in the best interest of L.L. Accordingly, we find no error by the trial court in denying the Parents’ exception.

Failure to Make a Determination Regarding Extraordinary Circumstances:

The Parents next contend that the trial court failed to determine whether extraordinary circumstances existed under La. Civ.Code art. 136(B). This contention is without merit.

This issue raised by the Parents poses a question of law, as, under La.Civ. Code art. 136(B), a court must find that extraordinary circumstances exist prior to awarding a party visitation with a child. In reviewing such questions of law, an appellate court conducts a de novo review to determine whether the lower court was legally correct. Guillory v. Allied Waste Indus., Inc., 10-159 (La.App. 3 Cir. 10/6/10), 47 So.3d 23.

The trial court’s judgment states the following:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Court find that Extraordinary Circumstances, pursuant to [La.Civ.Code art.] 136(B), exist and hereby orders and award visitation to the Maternal Grandparent, CARLA BROUSSARD-SCHER, with the |sminor child, [L.L.j, the minor child of defendants, BRIAN CHRISTOPHER LEGENDRE and TIFFANY RENE THOMAS.

The trial court clearly expressed that it found extraordinary circumstances in its judgment cited above. Accordingly, the Parents’ contention that the trial court failed to make a finding regarding extraordinary circumstances is ungrounded, and we find no error by the trial court in this regard.

Is the Determination of Extraordinary Circumstances Warranted:

In their third issue raised, the Parents argue that the trial court’s determination that extraordinary circumstances existed in this ease was in error. We disagree.

A trial court has vast discretion in determining matters of child visitation. Dearmon v. Dearmon, 96-222 (La.App. 3 Cir. 11/13/96), 682 So.2d 1006. An.appellate court should not disturb the lower court’s determination regarding child visitation unless the lower court has abused its vast discretion. Id. Further, it is well-settled that an appellate court shall not set aside a lower court’s finding of fact in the absence of manifest error or unless those factual findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The Parents contend that the trial court’s determination that extraordinary circumstances existed in this case was in error. Justice Weimer concurring in Huber v. Midkiff, 02-664, p. 8 (La.2/7/03), 838 So.2d 771, 778 cited Black’s Law Dictionary 236 (7th ed.1999) to define extraordinary circumstances as “[a] highly unusual set of facts that are not commonly associated with a particular thing or event.” This definition was cited positively by our first circuit in Shaw v. Dupuy, 06-546 (La.App. 1 Cir. 2/9/07), 961 So.2d 5. Therefore, we must determine whether a reasonable basis exists in the record for the trial court’s factual finding that the situation between the Parents, L.L., and Scher presents a set of unusual facts not |flassociated commonly with raising a child.

The record is such that the trial court could reasonably find that Scher was present in the delivery room when L.L. was born, that the Parents and L.L. lived in Scher’s home after leaving the hospital, and, thereafter, the Parents returned to the apartment where they lived in concubinage and had other roommates, but L.L. stayed with Scher. Further, there is a reasonable basis to find that Scher purchased a mobile home for the Parents so as to remove them from the apartment they shared with roommates, and that, after the purchase of this mobile home, Scher remained the primary caregiver of L.L. Finally, there is a reasonable basis to find that the Parents, at various times, chose to “party” rather than spend time with L.L.

Moreover, the record contains expert testimony by Dr. Kenneth Bouillion, the court-appointed mental health professional. Dr. Bouillion testified that extraordinary circumstances existed in this case and that it was in the best interest of L.L. to award Scher visitation. Dr. Anne Wingate Spell, an expert hired by the Parents, also testified that it would be reasonable for Scher to have visitation with L.L.

Given the testimony of Scher, Dr. Bouillion, and Dr. Spell, we find ample support for the trial court’s finding that extraordinary circumstances exist in the case. Further, we note that the Parents did not make an argument that the amount of visitation that the trial court granted to Scher was abusively high. Rather, the Parents argue that awarding Scher any visitation over their objections runs afoul of the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) because both parents are fit and in accord.

This court, in State ex rel. Satchfield v. Guillot, 02-0150, p. 9 (La.App. 3 Cir. 6/26/02), 820 So.2d 1255, 1262, addressed Troxel when it stated:

hoAil issues concerning non-parental visitation requests must now be considered in light of the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In that case, the Supreme Court found that a Washington state statute allowing visitation rights to paternal grandparents "violated the mother’s due process right to make decisions concerning the care, custody, and control of her children.
The Supreme Court granted certiorari in the case to consider “whether § 26.10.160(3) [of the Revised Code of Washington], as applied to Tommie Granville and her family, violates the Federal Constitution.” Troxel, 530 U.S. at 65, 120 S.Ct at 2059 (emphasis added).

Given the argument raised by the Parents and the above cited language from Satchfield, we must look to determine whether La.Civ.Code art. 136(B), as applied to the Parents, Scher, and L.L. under the circumstances of this case violates the Federal Constitution. The Troxel court addressed the source of the right potentially violated when it stated:

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 [138 L.Ed.2d 772] (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720, 117 S.Ct. 2258; see also Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.

Troxel, 530 U.S. at 65, 120 S.Ct. at 2060.

With this directive in mind, we find that the trial court’s application of La.Civ.Code art. 136(B) does not violate Troxel or the Federal Constitution. In 11Troxel, 530 U.S. at 70, 120 S.Ct. at 2062 (emphasis added), the Supreme Court addressed what was necessary for a statute as applied to pass constitutional muster when it stated:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

In the case before us, we find no evidence that the trial court failed to give special weight to the Parents’ own determination regarding visitation or that the trial court decision “constitutes a substitution of its judgment for the judgment of [the Parents].” Satchfield, 820 So.2d at 1265. It is true that there are no findings by any court that either of the Parents are unfit. However, the Supreme Court stated in Troxel, at 68-69, 120 S.Ct. at 2061 (emphasis added) the following:

so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

This language clearly envisions a situation that is not normal, i.e. extraordinary; and in such a ease a court can step in and make its own determination of what is in the best interest of the child. Here, the trial court did just that. It made a finding of extraordinary circumstances based on solid, uncontroverted expert testimony, and stepped in to make a determination of what is in L.L.’s best interest.

Moreover, it is clear that the trial court did not step in -without a basis. While we recognize that parents are presumed to act in the best interest of a child, there is no mandate that this presumption is not able to be overcome. Here, the record | ^dictates that this presumption is overcome in the form of unanimous expert testimony that completely disallowing Scher to have visitation with L.L. was not in the child’s best interest. Thus, we find that application of La.Civ.Code art. 136(B) to the case before us does not infringe upon the Parents’ constitutional right to make decisions regarding the custody, care and control of their children, nor does it fun afoul of Troxel. Accordingly, we find that the Parents’ argument is without merit.

Improper Appointment of Parenting Coordinator:

Finally, the Parents contend that the trial court erred in appointing a parenting coordinator due to a lack of legal authority. We find that this contention has merit.

This issue raised by the Parents presents an issue of law. As such, we will conduct a de novo review to determine whether the lower court was legally correct. Guillory v. Allied Waste Indus., Inc., 10-159 (La.App. 3 Cir. 10/6/10), 47 So.3d 23.

Louisiana Revised Statutes 9:358.1(A) (emphasis added) states the following:

On motion of a party or on its own motion, the court may appoint a parenting coordinator in a child custody case for good cause shown if the court has previously entered a judgment establishing child custody, other than an ex parte order. The court shall make the appointment on joint motion of the parties.

The trial court did not enter a judgment establishing child custody, as custody was not an issue in this case, nor had it ever been an issue as L.L.’s parents are amicable in allocating the time they share between each other with L.L. Therefore, the appointment of a parenting coordinator was legally incorrect, and the judgment is reversed in this regard.

DECREE:

Brian Christopher Legendre and Tiffany Rene Thomas present this court with four contentions of error by the trial court. We find no error with respect to the trial | ^court’s judgment wherein Carla Brous-sard-Scher was awarded visitation with L.L. However, we did find that the trial court committed legal error in appointing a parenting coordinator and reverse the part of the judgment related to that issue. All costs of this appeal are taxed to Brian Christopher Legendre and Tiffany Rene Thomas.

AFFIRMED IN PART, REVERSED IN PART.

PETERS, J., dissents with written reasons.

PETERS, J.,

dissents.

Iil agree with the majority’s conclusion that La.R.S. 9:358.1(A) prohibits the appointment of a parenting coordinator absent a prior judgment establishing custody. I also agree with the majority’s reliance on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and State ex rel. Satchfield v. Guillot, 02-150 (La.App. 3 Cir. 6/26/02), 820 So.2d 1255, to conclude that La. Civ. Code art. 136 does provide a remedy to a grandparent under circumstances similar to those before us. Where I disagree with the majority is the application of Troxel and Satchfield to the case now before us.

As pointed out by the majority, the United States Supreme Court in Troxel made it clear that it is initially the parent’s decision to set the parameters for the involvement of grandparents in the lives of their children, and absent any showing of unfitness on the part of the parent, that decision must be given “special weight” by the court considering a grandparent’s request for visitation. Troxel, 530 U.S. at 70, 120 S.Ct. at 2062. Additionally, as also pointed out by the majority, Troxel establishes that as long as parents adequately care for their children, the normal situation is that a state should not inject itself into the family’s private matters or further question the parents’ decisions concerning the manner in which they raise their children.

With regard to the parents in the matter now before us, the majority specifically | filotes that there “there are no findings by any court that either of the Parents are unfit.” Majority at 1297. Notwithstanding this conclusion, the majority attempts to make the matter now before one of extraordinary circumstances as required by La.Civ.Code art. 136(B). The trial court and the majority rely on the opinion of Dr. Bouillion that extraordinary circumstances exist in this case. However, stating that an extraordinary circumstance exists does not make it so, and Dr. Bouillion seems to rely primarily on the prior history of the grandmother’s assistance to the parents. In my opinion, Dr. Bouillion’s comments fall short of identifying an extraordinary circumstance and are more in the line of recommendations similar to those expressed by Dr. Spell.

While La.Civ.Code art. 136 does not contain a list of extraordinary circumstances that would trigger its application, it does give us guidance by suggesting that “extraordinary circumstances may include when a parent is addicted to a controlled dangerous substanee.” La.Civ.Code art. 136(C). Additionally, La.R.S. 9:344 points to other extraordinary circumstances that would suggest a legal right of a grandparent to have visitation over the opposition of the parent or parents. These include situations where one of the parents has died or has been interdicted or incarcerated.

In the matter before us, I find nothing rising to a level comparable to the statutorily suggested extraordinary circumstances to justify the trial court’s judgment. Here the grandparent was a primary caregiver for only a short time after the birth of the minor child. After that time, she did nothing more than that which would have been expected of any grandparent

I would reverse the trial court judgment.


author: JUDE G. GRAVOIS, Judge.

text:
    Naykea BELL v. Samuel W. PARRY, A Look to Remember Plastic Surgery and Louisiana Medical Mutual Insurance Company.
    No. 10-CA-369.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.
    Rehearing Denied April 27, 2011.
    Jermaine D. Williams, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant.
    Normand F. Pizza, Attorney at Law, Covington, LA, Michael J. Monistere, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

1 ?The plaintiff, Naykea Bell, has appealed the trial court’s grant of summary judgment in favor of the defendant, Louisiana Medical Mutual Insurance Company. For the reasons that follow, we affirm.

FACTS

Dr. Samuel Parry performed breast augmentation surgery on the plaintiff on September 27, 2003 and January 13, 2005. On January 11, 2007, plaintiff filed a petition for damages alleging that in June 2005 she discovered that Dr. Parry made errors in these surgeries, requiring her to undergo corrective surgery by another physician. Plaintiff alleged that she had filed a complaint with the Patient’s Compensation Fund and a panel of doctors rendered a decision that Dr. Parry failed to properly care for plaintiff and was negligent in his acts. Plaintiff alleged that the defendant Louisiana Medical Mutual Insurance Company (“LAMMICO”) provided liability insurance to Dr. Parry and was liable in solido with Dr. Parry.

LOn April 3, 2008, LAMMICO filed a Motion for Summary Judgment arguing that there was no coverage to Dr. Parry at the time plaintiffs claim was made. LAM-MICO based this argument on the fact that when the policy was renewed for the January 1, 2005 — January 1, 2006 policy period, LAMMICO specifically excluded coverage for Dr. Parry for breast augmentation surgery. In a judgment dated February 12, 2009, the trial court granted partial summary judgment finding that LAMMICO provided no coverage to Dr. Parry for the January 13, 2005 surgery and dismissed all claims against LAMMI-CO related to the 2005 surgery. The trial court further found that LAMMICO did provide coverage to Dr. Pairy for the 2003 surgery.

LAMMICO sought supervisory review by this Court of the trial court’s February 12, 2009 judgment. Noting that LAMMI-CO did not submit the 2003 policy to the trial court in support of its motion for summary judgment, this Court found no error in the trial court’s denial of LAMMICO’s motion for summary judgment regarding the 2003 surgery. Bell v. Parry, 09-207, 3/13/09 (unpublished writ disposition).

On September 22, 2009, LAMMICO filed a second Motion for Summary Judgment asserting that there was no coverage for the 2003 surgery because all of the policies were “claims-made” policies. LAMMICO explained that when plaintiffs claim was filed with the Patient’s Compensation Fund in December 2005, LAMMICO had excluded coverage for breast augmentation surgery. LAMMICO attached the 2003, 2004 and 2005 policies to its motion. Plaintiff opposed the motion asserting that the exclusion on breast augmentation was for surgeries performed from January 1, 2005 forward and that prior surgeries were not excluded.

LThe trial court granted LAMMICO’s second motion for summary judgment, finding that all policies were claims-made policies and there was no coverage for the 2003 surgery because the 2005 policy excluded breast augmentation. On November 24, 2009, the trial court rendered judgment granting LAMMICO’s Motion for Summary Judgment and dismissing all claims against LAMMICO with prejudice. Plaintiff has appealed this ruling.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 04-0229 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof is on the mover to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2).

In its Motion for Summary Judgment, LAMMICO argued that because plaintiff did not make a claim for damages resulting from Dr. Parry’s alleged negligent performance of breast surgery during the 2003 or 2004 policy periods, any damages resulting from the 2003 surgery were not covered by those policies. LAMMICO further argued that there was no coverage for the 2003 surgery under the 2005 policy because claims for breast surgery were excluded from the 2005 policy. LAMMI-CO explained that it issued claims-made medical malpractice | .^policies to Dr. Parry under policy number 1-80848. Item 2 on the Declarations Insert of each policy sets forth the covered policy periods, specifically:

Policy Period 1/1/03 — 1/1/04, the 2003 policy,
Policy Period 1/1/04 — 1/1/05, the 2004 policy, and
Policy Period 1/1/05 — 1/1/06, the 2005 policy.

According to the language of each policy, no claim arises against LAMMICO until it receives notice of the claim. Section 1(A), page 1, of the Policy Provisions of each policy specifically states:

NOTICE — This is a “claims made ” policy. Except to the extent as may be provided herein, this coverage is limited to claims first made and reported to the Company while the policy is in force and arising from the performance of professional services subsequent to the retroactive date stated in the declarations ....
I. Coverage Agreements
The company will pay on behalf of the insured:
A — Individual Professional Liability
All sums which the insured shall become legally obligated to pay as damages because of injury ... which occurs subsequent to the retroactive date, and for which claim is first made against the insured and reported to the Company during the policy period.
(emphasis in original)

LAMMICO argues that the plain language of each policy requires that (1) the medical incident must occur subsequent to the policy’s retroactive date; and (2) the claim must be made and reported during the policy period. Noting that the retroactive date for each policy is October 6,1997, LAMMICO argues that each policy provides coverage only if the medical incident occurs subsequent to October 6, 1997 and the claim is made and reported during each policy’s policy period.

Plaintiffs memorandum in opposition to LAMMICO’s motion for summary judgment is not included in the appellate record. However, a reading of the record makes it clear that plaintiff did file an opposition because the record contains a reply memo to plaintiffs opposition filed by LAMMICO. The omission of | fiplaintiffs opposition memorandum from the appellate record does not prohibit this court from conducting a de novo review of the trial court’s ruling in this instance because this matter involves only the interpretation of insurance policies which were properly admitted into the record in the trial court. In determining whether summary judgment is appropriate, appellate court reviews evidence de novo. Under this standard, appellate court looks at pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, in making independent determination that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. Marigny v. Allstate Ins. Co., 95-0952 (La.App. 4 Cir. 1/31/96), 667 So.2d 1229, writ denied,, 96-0693 (La.4/26/96), 672 So.2d 910.

At the hearing on the motion, plaintiff argued that the 2005 policy did not cover breast augmentation surgery performed from January 1, 2005 forward. Plaintiff reasoned that because the policies issued to Dr. Parry never terminated, they simply renewed, there was coverage under the 2005 policy for the 2003 surgery. Plaintiff suggests that because prior surgeries were not excluded when the 2005 policy was renewed they were covered under the policy-

Although we are sympathetic to plaintiffs plight, we are constrained by our Supreme Court’s analysis of claims-made policies to reject plaintiffs argument. In Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302, our Supreme Court explained:

With the development of a more complex society, it became more reasonable, particularly with respect to the activities of professionals, to insure against the making of claims, rather than the happening of occurrences, and “claims made” insurance developed to meet a need for professionals to insure against the making of a claim as the insured event, rather than having to struggle with traditional concepts and difficulties inherent in determining whether the “event” insured against was the commission of an act, error or omission or the date of discovery thereof or the date of injury caused thereby. The [7major distinction between the “occurrence” policy and the “claims made” policy constitutes the difference between the peril insured. In the “occurrence” policy, the peril insured is the “occurrence” itself. Once the “occurrence” takes place, coverage attaches even though the claim may not be made for some time thereafter. While in the “claims made” policy, it is the making of the claim which is the event and peril being insured and, subject to policy language, regardless of when the occurrence took place.
Id. at pp. 5-6, 760 So.2d at 305 (quoting Sol Kroll, The Professional Liability Policy “Claims Made”, 13 Forum 842, 843 (1978)).

Using this language, the Supreme Court recently made it clear in Hood v. Cotter, 08-0215, (La.12/2/08), 5 So.3d 819, that there is no coverage for any claim not made and reported before the expiration of a claims-made policy, even if the claim arose before the policy expired. In Hood, the Court explained that the provision in the claims-made policy limiting coverage to those claims made and reported during the policy period provides the scope of coverage bargained for by defendant and does not limit plaintiffs right to bring suit against the insurer. The Court held that while the claims-made policy denies coverage to defendant for plaintiffs claim, it does not itself limit plaintiffs right of action. Id. The Court clarified this reasoning stating: “To hold otherwise would effectively convert a claims-made policy into an occurrence policy and change the bargained-for exchange between the insurer and the insured.” Id. at 830.

Using the rational set forth in Anderson and Hood, we find that the 2003 policy does not cover the 2003 surgery because the claim was not made and reported in 2003. The 2003 policy contains a retroactive date of October 6, 1997 and a policy period of January 1, 2003 — January 1, 2004. Plaintiff alleges that her damages were caused by Dr. Parry’s negligence in the 2003 surgery. While this incident occurred during the 2003 policy period, pursuant to the policy language, the 2003 policy provides coverage only if the claim is made and reported within its policy period. The plaintiff filed her complaint with the Patient’s Compensation pfund on August 26, 2005. Thus because plaintiffs claim was not made during the policy period of the 2003 policy, there is no coverage under that policy for the 2003 surgery. Likewise, there is no coverage for the 2003 surgery under the 2004 policy because the claim was not made during the policy period of that policy, i.e., January 1, 2004— January 1, 2005.

The 2005 policy contains a retroactive date of October 6, 1997 and a policy period of January 1, 2005 — January 1, 2006. However, the 2005 policy by endorsement specifically excluded coverage for breast augmentation surgery with the following language:

This endorsement forms a part of Policy No. 1-8084-8 issued by the Louisiana Medical Mutual Insurance Company and take effect as of the effective date of said policy unless another effective date is stated herein.
This endorsement applies to: Samuel W. Parry, M.D.
It is understood and agreed that coverage for the following procedures is specifically excluded hereunder:
Breast Augmentation Surgery
Breast Reduction Surgery
Cosmetic Surgery
Nothing herein contained shall be held to vary, waive, alter, or extend any of the terms, conditions, agreements or declarations of this policy, other than as herein stated.

Thus, although plaintiffs claim was made during the policy period of the 2005 policy, there is no coverage under this policy because the surgery which plaintiff alleges caused her damages, i.e., the 2003 breast augmentation surgery, is specifically excluded from coverage under this policy. Because the 2005 policy is a claims-made policy, LAMMICO did not have to include language to specifically exclude breast surgeries performed prior to January 1, 2005 from coverage. |flClaims related to breast augmentation surgeries performed prior to January 1, 2005 are excluded by the very nature of the policy.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting LAMMICO’s motion for summary judgment and dismissing plaintiffs claims against LAMMI-CO is affirmed.

AFFIRMED

      . Plaintiff’s first name is sometimes also spelled Nakeya in various places in the record.