author: MAY, J.

text:
    Michael C. WEISS, D.O., Michael C. Weiss, D.O., P.A.; Louis H. Isaacson, D.O.; Louis H. Isaacson, D.O., P.A.; Sterling Healthcare Group, Inc.; Sterling Miami, Inc.; Lauderdale Orthopedic Surgeons, a Florida general partnership (consisting of the following general partners: Raul T. Aparicio, M.D., P.A.; Martin B. Silverstein, M.D., P.A.; Michael J. Ruddy, M.D., P.A.); Michael C. Weiss, D.O., P.A.; and FMC Hospital, Ltd., a Florida Limited Partnership d/b/a Florida Medical Center; FMC Medical, Inc. f/k/a FMC Center, Inc. d/b/a Florida Medical Center, Appellants, v. Ancel PRATT, Jr., individually, Appellee.
    Nos. 4D08-2179, 4D10-562.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.

      Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellants Michael C. Weiss, D.O., Michael C. Weiss, D.O., P.A., Laud-erdale Orthopedic Surgeons, Raul T. Apar-icio, M.D., P.A., Martin B. Silverstein, M.D., P.A. and Michael J. Ruddy, M.D., P.A.
    James C. Sawran, A. Candace Marcus, and Robert C. Weill of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, for appellant FMC Hospital, Ltd., a Florida Limited Partnership, d/b/a Florida Medical Center; FMC Medical, Inc., f/k/a FMC Center, Inc., d/b/a Florida Medical Center.

      David C. Appleby and Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   MAY, J.

A doctor, who volunteered his services to a high school football team, appeals a judgment against him in a medical malpractice action. On appeal, the doctor raises several issues. We have reviewed them all and find no basis for reversal. We also find no basis for reversal on the issues raised in the cross-appeal. We write however to discuss section 768.135(2), Florida Statutes (2008), in the context of requiring an expert witness to have the same specialty as the doctor against whom testimony is given, and why the legislature may want to review this statute to determine what, if any, immunity it provides in its current form. Because we affirm the underlying judgment on liability and damages, we also affirm the appeal of the cost judgment in Case No. 10-562.

The plaintiff was injured while playing in a varsity football game. After a tackle, he was unable to move for a few seconds. He was then able to kick his legs and flipped himself over. He experienced extreme pain in his neck and right shoulder.

The doctor, an orthopedic surgeon, served as the volunteer team physician. He had previously worked in an emergency room and had received some training in pediatric orthopedics and sports medicine. When the doctor saw what happened, he ran onto the field and spent approximately fifteen minutes questioning the plaintiff about certain areas of pain or altered sensation, and conducted a brief medical exam. He recalled the plaintiff telling him that he saw a flash of light, but did not recall having been told of momentary unconsciousness or paralysis. The doctor did not believe the plaintiff had suffered a spinal cord injury.

With the assistance of the athletic trainer, the doctor removed the plaintiffs helmet, assisted him in sitting up, and walked him off the field. When they reached the sidelines, the doctor removed the patient’s shoulder pads. The plaintiff then complained of nausea. The doctor decided the plaintiff should be taken to the emergency room. The paramedics strapped the plaintiff on a backboard and transported him to the emergency room. The doctor followed the ambulance to the hospital.

Upon arrival at the emergency room, the doctor ordered x-rays of the plaintiffs neck and shoulder. He interpreted the x-ray films and showed them to the emergency room physician on duty. The doctor then ordered a CT scan at the C1-C2 levels. He excluded the possibility of a spinal cord injury based on his clinical exam and the x-rays. After looking at the CT scans, the doctor found no evidence of a hematoma, swelling, or spinal cord compromise.

The doctor diagnosed a neck strain and right shoulder contusion from acute trauma and gave the plaintiff pain medication, a soft cervical collar, and an arm sling. He told the plaintiff to follow up with his office in three to four days. The doctor billed the plaintiff for services rendered at the hospital.

Three days later, the plaintiff went to the doctor’s office, but was seen by another physician. By then, the plaintiff could not elevate his arm or flex his elbow. He had also lost significant strength in his arm and had diffused tenderness to touch throughout his elbow, forearm, wrist, and hand.

The plaintiff was referred for an MRI, which revealed an epidural hematoma on the right side of the spinal cord at the Cl-C4 levels, and a non-hemorrhagic cord contusion behind the C5 level. The doctor admitted in retrospect, that he “would have put [the plaintiff] in a backboard on the field.”

The plaintiff sued the doctor, the emergency room physician, and the hospital. The verdict form separated the allegations of negligence against the doctor between his service at the field and at the emergency room. The jury found the doctor had been negligent in his treatment of the plaintiff on the football field, but not in his service at the hospital. The jury awarded the plaintiff $500,000 for past intangible losses and $250,000 for future damages. The jury found in favor of the other defendants.

The doctor appealed the judgment; the plaintiff cross-appealed the jury’s finding that the doctor did not act with reckless disregard in his care of the plaintiff at the hospital.

Among the issues raised, the doctor argues the trial court erred in allowing an emergency room physician to render expert opinion testimony concerning the doctor’s treatment of the plaintiff on the football field because he was not an orthopedic surgeon or volunteer team physician. He further argues that the immunity statute for volunteer doctors prevents an expert in another area of specialty from testifying. We disagree.

Two statutes are in play within this issue, the volunteer team physician immunity statute and the medical malpractice expert witness statute. Section 768.135, Florida Statutes, titled “Volunteer team physicians; immunity,” provides:

Any person licensed to practice medicine pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466:
(1) Who is acting in the capacity of a volunteer team physician in attendance at an athletic event sponsored by a public or private elementary or secondary school; and
(2) Who gratuitously and in good faith prior to the athletic event agrees to render emergency care or treatment to any participant in such event in connection with an emergency arising during or as the result of such event, without objection of such participant,
shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment when such care or treatment was rendered as a reasonably prudent person similarly licensed to practice medicine would have acted under the same or similar circumstances.

This statute provides a volunteer physician with immunity if the service is “rendered as a reasonably prudent person similarly licensed to practice medicine would have acted under the same or similar circumstances.” Id. It thus requires a plaintiff to prove that the volunteer physician failed to act “as a reasonably prudent person similarly licensed to practice medicine” to prevail in an action. While purporting to immunize a volunteer physician, it provides little more protection than general tort law, requiring only that the actions be compared to a “similarly licensed” person.

Relying on this statute, the doctor argues that the plaintiffs emergency room expert’s testimony was inadmissible against him because he was not a “similar health care provider” as required by section 768.135. The plaintiff responds that the statute is inapplicable because the doctor did not gratuitously render services and because section 768.135 does not limit the expert’s specialty to the same specialty as the doctor.

First, we disagree with the plaintiffs argument that the bill sent by the doctor for services rendered at the emergency room exempts him from the immunity provided by section 768.135. His service at the football field was gratuitous.

Second, we find the statute’s reference to “similarly licensed” relates to the introductory paragraph of the statute, which specifies the various chapters under which a volunteer physician may be licensed. They include chapters 458 (medical practice), 459 (osteopathic medicine), 460 (chiropractic medicine), 461 (podiatric medicine), and 466 (dentistry). Even though the expert witness had never served as a volunteer team physician, never treated an athlete on the field, never practiced orthopedic surgery, and was not board certified, he was “similarly licensed” because both the doctor and the expert were medical doctors. Section 768.135 requires no more than that.

This leads us to section 766.102, Florida Statutes (2003), which governs expert witness testimony in medical malpractice actions. Subsection (5) provides in part:

A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients; and
2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:
a. The active clinical practice of, or consulting with respect to, the same or similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients;
b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same or similar specialty; or
c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same or similar specialty.

§ 766.102(5), Fla. Stat. (2003). It is this statute, which governs the requisite qualifications of an expert witness.

Recognizing the importance of this statute, the doctor relies on Barrio v. Wilson, 779 So.2d 413, 414 (Fla. 2d DCA 2000). There, the court held that a pulmonary specialist was not qualified to testify on the standard of care for an emergency room physician. Because of the specific holding in Bardo, however, we find it unpersuasive.

In Bardo, the defendant was an emergency room physician. The expert was not. The trial court found the pulmonologist qualified as a similar health care provider. Id. The Second District held that section 766.102(6)(a), Florida Statutes (1997), which establishes the qualifications for an expert in the field of emergency-medical services, controlled over the more general requirements for an expert witness found in section 766.102(2)(c)2 (1997). Id. at 414. Unlike Barrio, here the expert is a pediatric emergency room specialist, who treated injured football players “very frequently” in the emergency department. While not an orthopedic surgeon, his qualifications satisfied the requirement that his “similar specialty” included “the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim ....”§ 766.102(5)(a)(l), Fla. Stat. (2003).

More recently, in Oken v. Williams, 23 So.3d 140 (Fla. 1st DCA 2009), the First District tackled the issue of whether an expert met the qualifications of section 766.102(5) for the purpose of filing an affidavit during the pre-suit screening process. The doctor against whom the affidavit was offered was a board certified cardiologist. The affidavit submitted was of a doctor board certified in both emergency and family medicine. The First District noted:

“Similar specialty” is not defined within the statutes. Case law also provides little useful guidance. What is clear from the statutory amendment, however, is that assertions regarding experience in a particular area, standing by themselves, are insufficient absent evidence of practice in a similar specialty. This interpretation of the statutory language is consistent with the intent of requiring a presuit affidavit and with the legislative history regarding the 2003 statutory amendment.

Id. at 146. The court concluded that the “ ‘expert’ must actively practice in the same or similar specialty.” Id. at 147. The court surmised that “[i]f emergency medicine physicians are allowed to testify to the standard of care for the specialized treatment of any type of complaint ... [then] emergency medicine physicians will be qualified to testify as to virtually every specialty.” Id. at 150. The court found the emergency room physician unqualified to render an expert opinion against the cardiologist.

The Second District recently disagreed with Oken in Holden v. Bober, 39 So.3d 396 (Fla. 2d DCA 2010). It envisioned “a scenario where an emergency department physician could be considered an expert witness specializing in a ‘similar specialty’ to that of a specialist treating a patient in an emergency department capacity.” Id. at 402. It rejected the First District’s rigid adherence to “same specialty,” and reversed the dismissal of the plaintiffs complaint. Id. at 402-03. The court remanded the case to the trial court to determine, in an evidentiary hearing, whether the emergency room physician’s affidavit was sufficient to comply with section 766.102(5). Id. at 403.

Our legislature has spent a considerable amount of time over the last few decades defining and redefining Florida’s Medical Malpractice Act. Section 766.102, which sets the standard for an expert witness’s qualifications, has also been the subject of amendments. Case law interpreting what “similar specialty” means has sometimes provided mixed signals. What is clear is that nothing is clear about “similar specialty.”

Here, while the doctor’s specialty was orthopedic surgery, the plaintiff based its claim in part on what the doctor failed to do on the football field, failing to place the plaintiff on a backboard. The emergency room expert was not an orthopedic surgeon, but he had the expertise of what to do in such a circumstance. Had the allegations concerned some aspect of orthopedic surgery requiring a specific level of specialization, the emergency room physician may not have been qualified to render an expert opinion. Our decision is based upon the specific facts of this case. We find no error in the trial court’s admission of the emergency room physician’s expert testimony.

It would certainly be easier to require the precise area of specialization, but then that requirement might devolve into sub-specialty, sub-sub-specialty until there was no one with the same sub-sub-sub-specialty. The statute as written allows for sufficient expertise to ensure fairness. It does that by requiring either the same specialty or an expert with sufficient experience to testify.

Having resolved the appeal, a question still remains begging an answer. If section 768.135 provides immunity for a volunteer physician, how does its protection differ from basic tort law? Before a physician can be held liable for medical negligence, the plaintiff must prove that the physician fell below the standard of care of a reasonable physician under similar circumstances. See Fla. Std. Jury Instr. (Civ.) 402.4a. Section 768.135 appears to provide no more protection (save the “similarly licensed” requirement) than general tort law. The statute purports to provide immunity, but its protection is illusory. If the legislature intended to provide some additional layer of protection to those physicians who volunteer their services, then perhaps the statute needs another look.

The cost judgment is also affirmed as the only issue raised was the outcome of the appeal of the underlying judgment on liability and damages.

Affirmed.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . The plaintiff separately appealed the defense verdict for the other defendants; those defendants cross-appealed on other issues. All appeals were heard together at oral argument.

      . In 2003, section 766.102 was amended and the specific provision applicable to emergency room physicians changed from section 766.102(6)(a) to 766.102(9)(a).

      . This statute is the predecessor of section 766.102(5), Florida Statutes (2003).

      . Negligence is the failure to use reasonable care. Reasonable care on the part of a [physician] ... is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful [physicians].... Negligence on the part of a [physician] ... is doing something that a reasonably careful [physician] ... would not do under like circumstances or failing to do something that a reasonably careful [physician] ... would do under like circumstances.
      Fla. Std. Jury Instr. (Civ.) 402.4a.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    George McKELVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4719.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, George McKelvin, appeals the trial court’s order adjudicating him guilty of possession of a firearm by a convicted felon (Count I) and possession of cocaine (Count II). McKelvin pled no contest to the charges following the trial court’s denial of his motion to suppress. The court sentenced McKelvin to concurrent terms of three years in prison followed by two years probation on both counts. We hold that the trial court erred in denying McKelvin’s motion to suppress and reverse.

At the hearing on McKelvin’s motion to suppress, Detective James Gibbons and Detective Leonard Tinelli testified that on September 23, 2008, they received information from an unidentified anonymous source who approached them while they were on an unrelated stop. The source told them that a black male in a burgundy or red Dodge Charger with 23 or 24-inch chrome rims was engaged in “narcotics activity.” The person specifically described a black male who was between 50 and 55 years old, about 5'9" or 5'10", who had short cropped hair and who weighed between 180 and 195 pounds. Detective Tinelli specified that the source told the officers that the car “continuously drove into the Budget hotel/motel ... five or six times a day.” The source gave them the tag number of the vehicle. Finally, the source told the officers that s/he had witnessed “hand-to-hand transactions” in which the occupant of the Charger would take money from a person and give the person an object. The detectives were dressed in police tactical gear which contained clear markings identifying them as police officers.

The source wanted to remain anonymous. Accordingly, the officers never took the informant’s name, phone number or address.

The detectives parked their unmarked vehicle near the Super Budget Motel mentioned by the source. About an hour or an hour and a half later, a Charger, matching the description and tag number given by their source, arrived at the motel. Although they did not see any traffic infractions or other indication of illegal activity, and the car contained a female passenger, unmentioned by the anonymous source, the detectives activated their lights and stopped the vehicle after checking the tag number.

Detective Gibbons approached the driver’s side of the Charger and saw the driver remove a black object from his waistband and put it beneath his seat. Gibbons “clearly identified [the object], due to my training, knowledge, and experience, as a gun.” He immediately removed the driver from the vehicle. The driver threw a bag which had white, rock-like substances in it to the floor.

Defense counsel agreed with the judge that the motion would be determined by the legality of the initial stop because once the officers stopped and approached the vehicle, they saw, in plain view, that the driver had a gun which he threw under the seat. Therefore, the subsequent search and detainment was justified by probable cause. The court found that the fact that the informant approached the police officers, gave them information in person, provided detailed information of the activity which was suspicious, and provided a detailed description of the vehicle, the occupant, and the tag number gave the officers reasonable suspicion of criminal activity sufficient to justify the initial stop of the vehicle. Accordingly, the court denied McKelvin’s motion to suppress.

“In reviewing an order on a motion to suppress, an appellate court should defer to the trial court’s factual findings but review de novo the application of the law to the facts.” Dixon v. State, 36 So.3d 920, 923 (Fla. 4th DCA 2010). A law enforcement officer may stop and detain an individual for investigation so long as he has a reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009). Whether the officer’s suspicion was reasonable is determined by considering the totality of the circumstances and the facts known to the officer before the stop. Id.

McKelvin asserts that the present case is “on all fours” with Fuentes, in which this court recognized that information provided by an anonymous tipster provides the basis for an investigatory stop only once it is sufficiently corroborated by the police because the basis of the tipster’s knowledge and veracity are generally unknown. 24 So.3d at 1235. In Fuentes, an officer received a call from dispatch regarding an anonymous complaint that a white female and white male were punching each other inside a U-haul truck. Id. The officer drove toward the reported location, which was near a U-haul rental facility. She observed a white female driving a U-haul truck with a white male passenger. She followed and ultimately pulled over the vehicle. Id. When another officer arrived and asked Fuentes to step out of the vehicle, Fuentes opened the door and a bag of marijuana fell from her lap. Id. We reversed the trial court’s denial of the motion to suppress because the officer did not have reasonable suspicion of criminal activity at the time she conducted the investigatory stop. Id. at 1236.

The State points out that the instant case is unlike Fuentes in that, here, the police were approached by an individual in person who gave detailed information regarding the suspicious activity. Thus, the individual in the instant case was more like a “citizen informant,” as discussed by the Florida Supreme Court in Baptiste v. State, 995 So.2d 285 (Fla.2008):

State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a “citizen infoi'mant” who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale. This hierarchy has been described as based on various factors. First, a citizen informant may be motivated not by pecuniary gain, but by the desire to further justice. Second, unlike an anonymous tipster, a witness who directly approaches a police officer may be held accountable for false statements. Third, a face-to-face tip may be viewed as more reliable because the officers who receive the tip have the opportunity to observe the demeanor and evaluate the credibility of the person offering the information. Fourth, a witness who approaches the police in person may subject himself or herself to potential reprisal from the defendant, thereby rendering the tip more reliable than an anonymous tip.

Id. at 291 (citations omitted).

The State also points to several cases in which this court has noted the greater reliability of face-to-face tips. For example, in J.P.N. v. State, 931 So.2d 1066 (Fla. 4th DCA 2006), a man flagged down a patrolling officer in a Wal-Mart parking lot and told him that he had seen a gray vehicle occupied by black males stopping intermittently, exiting their vehicle, and peering in the windows of vehicles parked in the parking lot. Id. at 1067. The man pointed the officer to the vehicle which was leaving the parking lot at the time, and the officer subsequently stopped the vehicle. Id.

This court noted that, generally, anonymous informants are informants who provide information via telephone. Only two cases have determined that a face-to-face informant was the same as an anonymous informant: Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000), and State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998). Both Solino and Rewis involved a passing motorist who informed police officers that he suspected criminal activity and the officers’ failure to take the informant’s contact information or tag number. Thus, in both cases, the court concluded that for all practical purposes the tipster was an anonymous informant because his identity and his motives were unknown to the officers, and the officers had no way to contact the informant and no way to corroborate the information he provided. Rewis, 722 So.2d at 864; Solino, 763 So.2d at 1252.

This court distinguished J.P.N. from Re-wis and Solino on the grounds that, in J.P.N., the officer had a sixty to ninety second conversation with the informant during which the officer was able to judge the informant’s credibility and the officer also had knowledge of recent car burglaries in the subject parking lot. J.P.N., 931 So.2d at 1069. For these reasons, we held the tip was sufficiently reliable to warrant the stop. Id.

Here, there is no record evidence that the police officers had knowledge of or were concerned about drug dealing activity in the subject area. There is also no evidence regarding the length of the officers’ encounter with the informant. Therefore, the instant case is not controlled by J.P.N.

The indicia of reliability typically attributed to face-to-face encounters between police officers and informants do not exist in the present case where the police have no contact information for the informant and no way to locate him/her otherwise. Further, in the instant case, the officers did not know the motive of the informant. S/he could have been providing the information for his/her own pecuniary gain, may have had a falling out with McKelvin or may have even been acting on behalf of a competing drug dealer. Where the court in J.P.N. found record evidence to support its distinction of that case from Rewis and Solino, there is no evidence to materially distinguish the present case from those cases. Though the informant provided the police with extensive details regarding McKelvin and the suspicious activity, even anonymous tips “require detailed and specific information corroborated by police investigation” in order to establish the reasonable suspicion required for a stop. Pinkney v. State, 666 So.2d 590, 592 (Fla. 4th DCA 1996).

Without contact information or some other way to locate the informant if necessary, the informant in the present case is no different than an anonymous informant who provides detailed information over the phone to the police dispatch. The tipster approached the officers while they were engaged in an unrelated stop. There is no record evidence of how long the police interacted with the informant or whether they were able to discern his/her credibility during their encounter. As the police admitted they did not witness so much as a traffic infraction before initiating the stop, the officers did not have reasonable suspicion, and the trial court erred in denying the motion to suppress.

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.

      . We recognize that in many cases involving an anonymous tipster, the officers observe the subject of the tip long enough to witness what they believe is illegal activity. Had the officers here watched the vehicle and seen a hand-to-hand transaction or some other activity similar to that described by the tipster in this case, that likely would have been corroborating evidence sufficient to warrant a subsequent stop.


text:
    I.Z., the Mother, Appellant, v. B.H. and R.M., Appellees.
    No. 4D10-3372.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Rehearing Denied Feb. 25, 2011.
    Carla Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.
    Brett P. Rogers of Law Offices of Brett P. Rogers, Fort Lauderdale, for appellees.
    Hillary Kambour, Tavares, for Guardian ad Litem Program.
   POLEN, J.

Appellant, I.Z., the mother, appeals the trial court’s order granting Appellees, B.H. and R.M.’s petition to terminate I.Z.’s parental rights. We reverse.

The Department of Children and Families (DCF) reached its goal of permanency in this case in 2007 when it placed the child, S.F., in a permanent guardianship with B.H. and R.M. This court affirmed the trial court’s final order terminating DCF’s protective supervision and specifically noted that all parties agreed that the parent(s) should be able to maintain some contact with the child. I.Z. v. Dep’t of Children & Families, 967 So.2d 425, 427 (Fla. 4th DCA 2007).

In July 2009, B.H. and R.M. filed a petition to terminate the mother’s parental rights alleging that the mother abandoned the child, the mother engaged in conduct toward the child which demonstrated that her continuing involvement in the child’s life was a threat to the child’s well-being, and the mother continued to abandon or neglect the child despite a case plan having been filed. For these reasons, B.H. and R.M. asserted that termination was legally warranted under subsections 39.806(l)(b), (c), and (e). After considering extensive testimony from numerous witnesses, the trial court found that termination was appropriate on all three grounds alleged and granted the petition. Much of the evidence had to do with events which occurred before permanency was established in 2007 and other evidence was conflicting.

The mother has a long history of mental illness and anger management problems. Because of these issues, the mother’s visits with the child take place at Jewish Adoption and Foster Care Options (JAFCO) facilities on a monthly, bi-weekly or weekly basis depending on the mother’s stability. The visits are supervised.

From December 2007 through December 2008, the mother visited the child as scheduled throughout the entire year. The social worker who supervised the visits testified that the mother and the child had “a very nice relationship,” that the mother was stable during that time and came prepared with activities, and that the two played and laughed together. Out of all of the monthly visits, the social worker identified three incidences of concern. In each of the incidences, the child wanted to play a particular game, and the mother either wanted to play a different game, or wanted the child to read a book. The mother explained that she was trying to do everything she could in the limited amount of time that she had to parent her child and teach the child how to read. Still, all of the visits throughout the year ended happily with the child and mother hugging, and saying that they loved one another. Throughout the year, the mother never lost control during a visit, and the child’s safety was never in question.

In February 2009, the mother was arrested for aggravated battery on her grandmother. During an argument, the mother kicked her grandmother in the shin resulting in a laceration. Following her arrest, the mother was incarcerated at the Broward County Jail for nine months. There were no supervised visits during the mother’s incarceration. The mother testified that she attempted to communicate with her daughter during her incarceration by mailing a birthday card to JAFCO. It was during this time that B.H. and R.M. filed the petition to terminate the mother’s parental rights. Upon the mother’s release, no visitation was permitted because the social worker had determined that both the child and the mother were anxious about the pending termination proceedings.

Though it was undisputed that the mother continues to struggle with her mental health issues, the evidence showed that the mother also continues to seek treatment and mental stability by means of therapy and medication. It is also clear from the record that there are safeguards in place to ensure that any potential impact on the child from the mother’s occasional instability is minimal.

The child testified that she wants to see her mother, that she is not afraid of her mother, and that she has never been uncomfortable during a visit with her mother. The child also testified that she wants to be adopted, but believed that she would be able to see her mother even after the adoption, if her mother was well.

This court has summarized the standard of review in a case involving the termination of parental rights:

A termination of parental rights proceeding involves a two-step process. First, the court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2002), has been proven. Second, the court must determine what outcome is in the manifest best interest of the children.

C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779-80 (Fla. 4th DCA 2003). Furthermore, the petitioning party must establish that termination of parental rights is the least restrictive means of protecting the child from harm. In re D.A., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003).

The trial court first determined that termination of parental rights was appropriate under section 39.806(l)(b), Florida Statutes, which provides for the termination of parental rights when a parent has abandoned his or her child. Abandonment is defined as:

[A] situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.

§ 39.01(1), Fla. Stat. (2010).

The trial court found that the mother was incarcerated from February 2009 until November 2009, and that during that period, there were no visits and “no testimony that the mother even thought to send a card or letter to [the child]” and that “the mother made no effort to maintain a bond with [the child] during this period of time.” Contrary to the court’s finding, the mother testified that she sent a birthday card to the child while she was incarcerated. The court also found that, upon the mother’s November 2009 release, there was a visit in December 2009, and that the therapist recommended visits stop at that time until therapeutically recommended again because of the mother’s inappropriate behavior during the visit. However, the record indicates that no visitation was permitted upon the mother’s release from jail because the termination proceedings were pending.

Appellees cite T.G. v. Department of Children & Families, 8 So.3d 1198 (Fla. 4th DCA 2009), in which this court affirmed the trial court’s termination of parental rights based on the mother’s abandonment of her children. Id. at 1198. In T.G., the mother sporadically visited her three children during their ten years under protective supervision and did not see them at all in the year immediately preceding the final hearings on termination. Id. at 1199.

The present case is materially distinguishable from T.G. Here, since the child’s initial removal from her home in 2002, the mother has made a dedicated effort to maintain contact with the child. The mother’s failure to visit with the child for a year preceding the final hearings was explained: the mother was incarcerated from February 2009 until November 2009 and when she was released, she was not permitted visitation due to the pending termination proceedings. Moreover, the mother testified to having sent a birthday card during her incarceration in order to maintain contact with the child.

The trial court also determined that termination of parental rights was proper under section 39.806(l)(c), which provides for such termination when the court determines that the parent’s conduct toward the child threatens the child’s well-being. Specifically, subsection (c) states that the following may be grounds for termination:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

§ 39.806(l)(c).

B.H. and R.M. argue that the trial court’s determination here was supported by clear and convincing evidence because the record shows that the mother’s mental health needs are “enormous and continuing.” However, the statute clearly provides that termination of one’s parental rights is warranted where the parent’s conduct toward the child or toward other children demonstrates a threat to the child’s well-being. Evidence of a parent’s mental health issues, without evidence that those issues have manifested themselves in behavior that poses a risk to the child’s well-being, is insufficient to justify termination of parental rights under this subsection.

The only evidence which might have supported a finding that the mother’s conduct toward the child threatened the child’s well-being involved a visit which occurred in December 2006, before permanency was established. At that visit, the mother brought the child a gift. When the mother realized that the child was not pleased with the gift and wanted to pick something out of the JAFCO “treasure chest,” the mother began to raise her voice and told the child she was “spoiled.” JAFCO workers told the mother she was scaring the child and removed the child to safety. The mother found the child in the executive director’s office eating chocolate and, again, had a reaction that frightened the child. The visit was terminated, and the mother did not regain visitation rights until she achieved stability six months later. The trial court should have given this evidence minimal weight, if any, in considering the petition to terminate the mother’s parental rights. The incident occurred before the trial court initially determined that a permanent guardianship and continued visitation with the mother was in the best interests of the child. Moreover, the incident occurred nearly three years prior to the trial court’s decision to terminate the mother’s parental rights.

Finally, the trial court terminated the mother’s parental rights under section 39.806(l)(e), which provides, in relevant part, that parental rights may be terminated:

(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child. The 9-month period begins to run only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the court’s approval of a case plan having the goal of reunification with the parent, whichever occurs first.

§ 39.806(l)(e)l., Fla. Stat. (2010).

Here, the trial court simply referred back to its findings under the other two grounds and determined that those findings also supported termination under this section. The court also noted that the mother had done nothing to work on her issues since the case closed in 2007. This finding is not supported by the record which indicates that the mother had engaged in extensive group therapy and had been trying to find a medication that would help her achieve mental stability. Moreover, failure to comply with a case plan cannot, standing alone, provide the basis for termination of parental rights. Colluci v. State Dep’t of Health & Rehab. Servs., 664 So.2d 1142, 1144 (Fla. 4th DCA 1995) (citing In the Interest of R.W., 495 So.2d 133 (Fla.1986)). Instead, abandonment, abuse, or neglect must be shown by clear and convincing evidence. R.W., 495 So.2d at 135. In the present case, B.H. and R.M. did not show abandonment, much less abuse or neglect by the mother. Therefore, the trial court’s termination of parental rights on this ground was also error.

Reversed and Remanded.

CIKLIN and LEVINE, JJ., concur.

      . The father has voluntarily surrendered his parental rights.

      . The potential adoptive father, R.M., testified that he had no intentions of allowing the child to visit with the mother after the termination of parental rights and adoption were complete. R.M. also stated that no one had explained this to the child. The child's preference to be adopted must be considered in light of the fact that she does not understand that she may not be able to be adopted and continue to visit with her mother.


author: LEVINE, J.

text:
    Corey MITLEIDER, Appellant, v. BRIER GRIEVES AGENCY, INC., f/k/a Steve Nash Agency, and Paul Steven Nash, Appellees.
    No. 4D09-3362.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.

      Roy D. Wasson and Annabel C. Majew-ski of Wasson & Associates, Chartered, Miami, and Howard J. Weitzner of Green-berg & Stone, P.A., Miami, for appellant.
    John S. Penton, Jr. of Cole Scott & Kissane, P.A., West Palm Beach, for appel-lees.
   LEVINE, J.

The issue presented is whether the execution of a form, which rejects uninsured motorist coverage, absolves the insurance agency and its agent of liability for negligently failing to procure uninsured motorist coverage. We find that it does, since section 627.727(9), Florida Statutes (2007), creates a conclusive presumption that an informed and knowing rejection of uninsured motorist coverage was made.

Appellant filed a complaint for negligence, negligent misrepresentation, and vicarious liability against the appellee insurance agency and its employee. Appellant alleged that, when he was obtaining insurance, appellee failed to offer or inform him of uninsured motorist coverage and advised him that uninsured motorist coverage was unnecessary to be fully protected. Appellee responded to the complaint with a motion to dismiss, pointing out that appellant’s father, who executed the insurance policy that covered appellant, had signed a form rejecting uninsured motorist coverage.

Initially, the trial court denied the motion to dismiss, relying on Adams v. Aetna Casualty & Surety Co., 574 So.2d 1142, 1155 (Fla. 1st DCA 1991), which stated that the signing of an uninsured motorist rejection form did not necessarily give rise to a conclusive presumption that the insured had a full understanding of uninsured motorist coverage. At a rehearing, the trial court reversed its ruling after determining that the Adams case was based on an earlier version of section 627.727 and that the current law stated that execution of the form waiving uninsured motorist coverage created a conclusive presumption that the rejection of coverage was informed and knowing. The trial court granted the motion to dismiss, and this appeal ensues.

We review the trial court’s granting of the motion to dismiss for failure to state a cause of action under a de novo standard of review. Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008). “In reviewing an order granting a motion to dismiss, this court’s gaze is limited to the four corners of the complaint. The facts alleged in the complaint must be accepted as true and all reasonable inferences are drawn in favor of the pleader.” Id. (citation and internal quotation marks omitted).

Section 627.727(1) requires that uninsured motorist coverage be applicable to all, unless “an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.” § 627.727(1), Fla. Stat. (2007). The statute was amended in 1984 to include the following: “If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations.” § 627.727(9), Fla. Stat. (2007); see also Auger v. State Farm Mut. Auto. Ins. Co., 516 So.2d 1024, 1024 (Fla. 2d DCA 1987) (discussing the 1984 amendment to section 627.727).

The conclusive presumption of the statute forestalls appellant’s claim that he was not offered or informed of uninsured motorist coverage. “The presumption created by § 627.727 cannot be rebutted by testimony that the person signing the rejection form did not read it. The consequences of signing any document or contract cannot be avoided by merely testifying that the document or contract was not read.... ” White v. Allstate Ins. Co., 530 So.2d 967, 969 (Fla. 1st DCA 1988).

Appellant concedes that the statute would prevent him from challenging the waiver of uninsured motorist coverage against the insurance company, but appellant argues that, based on Adams, a claim against the insurance agent could still be valid. We believe that Adams is inapplicable, since the First District relied on the 1982 version of section 627.727, which did not contain the current clear declaration that, if the uninsured motorist rejection form is signed, it “shall be conclusively presumed that there was an informed, knowing acceptance of such limitations.” § 627.727(9), Fla. Stat. (2007). This conclusive presumption applies whether in a case against the insurance company for coverage or against the insurance agency and its agent. It would not make sense to enforce this conclusive presumption against an insurance company on a coverage issue, recognizing that the written rejection was informed and knowing, and not equally recognize the same action of written rejection of insurance as informed and knowing, where the claim is against an insurance agent instead.

Therefore, we find the trial court was correct, and we affirm the trial court’s dismissal and enforce the text of the statute.

Affirmed.

POLEN and CIKLIN, JJ., concur.

      . See Adams, 574 So.2d at 1144.


author: PER CURIAM.

text:
    Paul POMFRET and PDP Capital, LLC, Appellants, v. John ATKINSON and PDP Management L.P., Appellees.
    No. 4D09-1708.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.
    Rehearing Denied Feb. 23, 2011.
    Alan B. Rose, L. Louis Mrachek, Roy E. Fitzgerald and Stefanie R. Shelley of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellants.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, Bernard A. Lebedeker of Burman, Critton, Luttier & Coleman, West Palm Beach, and Robert S. McIntosh of Adorno & Yoss, LLP, Fort Lauderdale, for appellees.
   ON MOTION FOR REHEARING AND MOTION FOR ISSUANCE OF WRITTEN OPINION

PER CURIAM.

Appellant timely filed a motion for rehearing and request for issuance of a written opinion. We deny the motion for rehearing but grant appellant’s motion for issuance of a written opinion. Accordingly, we withdraw our previous opinion and substitute the following.

Affirmed. See DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010).

TAYLOR and CIKLIN, JJ. and TOWBIN SINGER, MICHELE, Associate Judge, concur.


author: CLARK, Justice.

text:
    The SUCCESSION OF William Edward FAGET, Pier Marie Faget Jenkins, as Independent Administratrix of the Succession of William Edward Faget v. Audrey Menard Faget.
    No. 2010-C-0188.
    Supreme Court of Louisiana.
    Nov. 30, 2010.
    Rehearing Denied Jan. 14, 2011.

      Harry P. Pastuszek, Jr. & Associates LLC, Harry Platton Pastuszek, Jr., David S. Pittman; Rabalais, Unland & Lorio, Linnette Conerly Goodly; for Applicant.
    Patrick Miller LLC, Pierre V. Miller, II; The Derbes Law Firm, LLC, Albert Joseph Derbes, III, for Respondent.
   CLARK, Justice.

hWe granted this writ application to determine whether the court of appeal erred in reversing a trial court judgment which declared the decedent’s wife a one-half owner of the family home and its furnishings. Because we find the agreement at issue was enforceable without judicial approval for purposes of La.Civ.Code art. 2329, and the existence of a community property regime is not a prerequisite to the applicability of La.Civ.Code art. 2343.1, we reverse the judgment of the court of appeal and reinstate the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Dr. William E. Faget (“William”) married Audrey Menard (“Audrey”) on December 22, 1977. This union was each party’s second marriage, and both had children from their previous marriages. On December 15, 1977, prior to William and Audrey’s marriage, they entered into a matrimonial agreement establishing a ^contractual matrimonial regime.

In November 1992, William suffered a stroke and was admitted into the intensive care unit at St. Tammany Parish Hospital. On November 30, 1992, while in the hospital, William and Audrey executed a contract, the “Residence Agreement.” The document, made by authentic act, purported to make the family home and its furnishings community property. The Residence Agreement provided, in pertinent part:

It has been the intention and wish of each appearer that though separate in property per [mjarriage [e]ontract dated December 15, 1977, the residence be treated as community, and that in the event of the death of either party, that individual 50% interest in the residence and all furnishings is to be inherited by that individual’s children.

William and Audrey remained married and resided together until his death on May 12, 2003. The Residence Agreement was filed into the public records after his death on September 5, 2003.

In July 2003, William’s three children from his first marriage filed a petition to open the succession and appointed Pier Marie Faget Jenkins (“Pier”) as independent administratrix. Pier, as the independent administratrix, filed a petition for a revendicatory action against Audrey, seeking to have the succession declared full owner of the residence and furnishings. Additionally, the succession sought an order to compel Audrey to account for and deliver the property. On April 22, 2005, the revendicatory action and the succession proceeding were consolidated.

Thereafter, Audrey filed a partial motion for summary judgment asking that the | ^Residence Agreement be declared enforceable and that a judgment recognize her as a one-half owner of the property at issue. The Faget children filed a cross-motion for summary judgment, asserting the Residence Agreement was invalid on three grounds: (1) William lacked capacity to enter into the agreement; (2) there was no court approval to modify the regime; and (3) the language of the agreement was precatory. On April 5, 2006, the cross-motions for summary judgment were argued to the trial court.

First, the trial court found William was lucid at the time the Residence Agreement was signed in light of William’s attorney’s testimony that the attorney spoke to William before the document was executed and was satisfied William did not lack capacity. Moreover, no one could testify William was not lucid at the time the Residence Agreement was signed. The hospital nurse’s notes for the relevant time show William requested his lawyer in order to sign papers. The two witnesses to the Residence Agreement also testified that, though they did not recall signing the document, the signatures were indeed their own and they would not have signed without first seeing William sign.

Next, the trial court found the Residence Agreement did not require judicial approval, reasoning that under La.Civ. Code art. 2329 a single separate asset can be made community just as an entire separate estate can be made community without the requirement of judicial approval.

| ¿Lastly, the trial court found no merit to the argument that the language expressed an intent to do something at a later date. Accordingly, the trial court granted Audrey’s motion for partial summary judgment, denied the Faget children’s motion for summary judgment, and declared Audrey to be a one-half owner of the family residence and its furnishings. Additionally, the judgment recognized that Audrey was entitled to a life-time usufruct over the remaining one-half of the relevant property and declared the Faget children the naked owners thereof, subject to Audrey’s usufruct. The Faget children appealed.

The court of appeal reversed the trial court and remanded. The court of appeal found the Residence Agreement constituted a matrimonial agreement that modified a matrimonial regime (making a contractual regime partly legal and partly contractual) and, thus, required court approval prior to its execution pursuant to La.Civ. Code art. 2329. The court of appeal found, without court approval, the Residence Agreement was unenforceable. Additionally, it reasoned the Residence Agreement could not act as a donation under La. Civ. Code art. 2343.1 because there was no existing legal regime. The court of appeal reached this conclusion by finding the legislature chose to use “the community” as opposed to “a community.” Audrey filed a writ application with this court.

, We granted certiorari to determine whether a single asset modifies a regime so as to trigger the need for court approval under La.Civ.Code art. 2329 and, • | r,alternatively, to determine whether a community regime must exist in order for a separate asset to be transformed into community property pursuant to La.Civ. Code art. 2343.1.

APPLICABLE LAW

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 2009-0023, p. 5 (La.6/26/09), 17 So.3d 350, 353. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B); Costello v. Hardy, 2003-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137.

DISCUSSION

From the outset we note two issues are before us: (1) the validity of the Residence Agreement, which attempts to transfer a separate asset into community property without court approval; and (2) William’s capacity to enter into the Residence Agreement. Audrey’s counsel argues the latter is not before this court insofar as the Faget children did not file a writ application or specifically assign this issue as error in them opposition brief. However, under La.Code Civ.P. art. 2133, the argument is properly before us because the Faget children asserted an argument in support of the court of appeal judgment without seeking to attack or modify the judgment.

IfiThe Faget children argue William was not lucid when the Residence Agreement was executed. They allege he was in the intensive care unit after suffering a stroke, was heavily medicated, spoke incoherently, and exhibited atypical behavior. Additionally, several of the children claim that after the document’s execution, William told them he did not agree with the Residence Agreement but every time he attempted to revoke it, Audrey threatened to leave him. The court of appeal did not rule on the capacity issue; nonetheless, we find for the following reason, the argument lacks merit. The Residence Agreement was executed on November 30, 1992, and William did not challenge its validity in the next ten and one-half years that he lived. The affidavits of the Faget relatives assert William was not satisfied with the effects of the document and, but for the threat of Audrey leaving, William would have rescinded it. Ultimately, though, William chose to leave the agreement intact, and he died in May 2003. La.Civ.Code art. 1477 defines capacity as follows: “To have capacity to make a donation inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making.” This court finds the heirs of a party are estopped from challenging a donation when that party lived for ten years with the consequences of the disposition he made, had a decade to challenge the agreement himself, and chose, instead, to allow its continued existence.

Next, we address the validity of the Residence Agreement in the absence of court approval. La.Civ.Code art. 2325 defines a matrimonial regime as “a system of principals and rules governing the ownership and management of the property of married persons as between themselves and toward third persons.” There are three types of matrimonial regimes: (1) legal; (2) contractual; and (3) partly legal and 17partly contractual. La.Civ.Code art. 2326. The legal regime is the community of acquets and gains. La.Civ.Code art. 2327. The contractual regime is contemplated in La.Civ.Code art. 2328, which provides, in pertinent part: “[a] matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime.” Logically, the partly legal and partly contractual regime is one regime that governs both community and separate assets. As cited earlier, La.Civ.Code art. 2329 allows spouses to “enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules.”

The Faget children aver the Residence Agreement was a matrimonial agreement that modified the existing contractual regime, making part of the estate separate and part of the estate community. As such, the original regime was modified from a contractual regime to a partly contractual and partly legal regime, which required court approval.

Audrey, on the other hand, contends the agreement is not a matrimonial agreement that modified a matrimonial regime. She asserts there is a distinction between matrimonial agreements and interspousal contracts. The former concerns the classification and management of future acquisitions while the latter involves existing assets. The Residence Agreement relates only to one existing asset (the house/furnishings) and does not affect the contractual regime of separate property in any other respect. As such, judicial approval was not required.

We agree with Audrey. We find the legal effect of the Residence Agreement pertained only to a single asset and amounted to a single transaction. The agreement does not purport to and will not govern future acquisitions. Thus, the Residence Agreement is not a matrimonial agreement that modified William and Audrey’s ^contractual regime. Importantly, the first sentence of La.Civ.Code art. 2329 permits spouses to enter into matrimonial agreements before or during marriage as to all matters that are not prohibited by public policy. The second sentence of the second paragraph of La.Civ.Code art. 2329 additionally allows spouses to “subject themselves to the legal regime by a matrimonial agreement at any time without court approval.” These two sentences, read together, indicate the legislative favoring of legal regimes. To hold that spouses can subject the entirety of their estate to the legal regime without court approval but they must obtain court approval to subject a specific asset to the legal regime is nonsensical. The larger category subsumes the smaller category; accordingly, we find there existed no legal need to obtain judicial approval. Thus, the Residence Agreement is enforceable pursuant to La.Civ.Code art. 2329.

Alternatively, we find, as also argued by Audrey, that La.Civ.Code art. 2343.1 applies. La.Civ.Code art. 2343.1 provides, “the transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property.” When determining the meaning and application of a statute, we must observe the rules of statutory interpretation.

“[T]he paramount consideration in statutory construction is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 13 (La.7/1/08), 998 So.2d 16, 27, citing State v. Johnson, 2003-2993, p. 12 (La.10/19/04), 884 So.2d 568, 575. It is well established that “[t]he starting point for the interpretation of any statute is the language of the statute itself.” Dejoie v. Medley, 2008-2223 (La.5/5/09), 9 So.3d 826, 829. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further | ¡Interpretation made in search of the legislature’s intent. Id.; La. Civ.Code art. 9; La. R.S. 1:4. In the event the language of a statute is susceptible of different meanings, the interpretation must best conform to the purpose of the law. La. Civ.Code art. 10. When analyzing legislative history, it is presumed the legislature’s actions in crafting a law were knowing and intentional. M.J. Farms, Ltd., 2007-2371 at pp. 13-14, 998 So.2d at 27. More particularly, this court must assume the legislature was aware of existing laws on the same subject, as well as established principles of statutory construction and the effect of their legislative acts. Id.

The court of appeal inserted into La.Civ. Code art. 2343.1 a requirement that the community regime must pre-exist the agreement to transfer separate property to the community. We find a plain reading of the statute does not contain such a requirement. The Residence Agreement, executed by authentic act, fully satisfies the elements of La.Civ.Code art. 2343.1 and makes the property at issue community inasmuch as William transferred to Audrey the residence/furnishings, which formed part of his separate property, with the stipulation that it be considered community property. This application does not lead to absurd results; rather, a wife who was still married to her husband at the time of their death is allowed to continue her life in their family home and enjoy a one-half interest in it. The fact that all their other assets were separate in nature does not render the article inapplicable.

While we find the statute to be clear and unambiguous and acknowledge the inquiry-ceases there, consideration of the legislative history further supports our holding. La.Civ.Code art. 2343.1 was enacted by 1981 La.Acts, No. 921, § 2, which also added the second paragraph to La.Civ. Code art. 2336. This added paragraph of La.Civ.Code art. 2336 provides:

During the existence of the community property regime, the spouses may, without court approval, voluntarily partition the community property in whole or in part. In such a case, the things that each spouse | inacquires are separate property. The partition is effective toward third persons when filed for registry in the manner provided by Article 2332.

The legislature’s act of allowing spouses to contractually transform their community property into separate property via La. Civ.Code art. 2336, and their separate property into community property via La. Civ.Code art. 2343.1, evidences an intent to allow spouses to voluntarily classify individual assets as they so desire. La.Civ. Code art. 2336 specifically contemplates a situation where all property is community in nature (such that a contractual regime was not in existence) and allows spouses to partition that community property, transforming it to separate property. This statutory provision does not require the contractual regime to pre-exist an agreement to transfer. Similarly, La.Civ.Code art. 2343.1, enacted by the same legislative act, does not require the legal regime to preexist an agreement to transfer.

Also, notably, the partition described in La.Civ.Code art. 2336 permits spouses to transform community property into separate property, either “in whole or in part” and does not require judicial approval for doing so. This article further supports our holding stated above regarding La.Civ. Code art. 2829 that an agreement as to specific assets does not change the matrimonial regime, necessitating court approval. The legal regime is the default regime and is favored by the legislature. Thus, it is illogical to interpret La.Civ.Code art. 2329 as requiring judicial approval for a non-favored regime to incorporate assets subject to the rules of the favored regime, when La.Civ.Code art. 2336 allows a favored regime to incorporate assets subject to the rules of the non-favored regime, without the requirement of court approval.

Accordingly, we conclude the Residence Agreement is enforceable inasmuch as we find it did not operate as a matrimonial agreement that modified or terminated a matrimonial regime, requiring judicial approval. Additionally, we conclude La.Civ. Code art. 2343.1 is applicable and does not require the existence of a |,[Community regime in order for a valid transfer of separate property to the community to have legal effect.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the trial court judgment is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . While the 1977 matrimonial agreement was not made part of the record, there is no dispute William and Audrey contracted to remain separate in property. All testimony and financial records support the existence of this contractual regime. The house in question was built on immovable property acquired by William before they were married, and the house was titled separately in his name.

      . For the purposes of this opinion, we classify the home and the furnishings as one asset and the Residence Agreement as a single transaction.

      . Pier Marie Faget Jenkins is William's daughter from a prior marriage.

      . La.Civ.Code art. 2329 provides:
      Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
      Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.
      During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.

      . See Succession of Faget, 2008-2423 (La.App. 1 Cir. 12/23/09), 30 So.2d 796.

      . La.Civ.Code art. 2343.1 provides:
      The transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property. As to both movables and immovables, a transfer by onerous title must be made in writing and a transfer by gratuitous title must be made by authentic act.

      . See Succession of William Edward Faget, 10-0188 (La.3/12/10), 29 So.3d 1243.

      . La.Code Civ.P. art. 2133(B) provides:
      A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.