author: GENOVESE, Judge. EZELL, J.,

text:
    SUCCESSION OF Tessie Maxine Spinks BROWN. Succession of Tessie Maxine Spinks Brown v. Edward D. Brown.
    No. 10-1394.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 2011.

      George F. Griffing, Pineville, LA, for Plaintiff/Appellee, Amy Spinks Huffman, Administratrix of the Succession of Tessie Maxine Spinks Brown.
    Paul A. Lemke III, Jack F. Owens, Jr., Owens & Lemke, Inc., Harrisonburg, LA, for Intervenor-Defendant/Appellant, Edward D. Brown.
    Court composed of JOHN D. SAUNDERS, BILLY H. EZELL, JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

Iiln this consolidated succession-related proceeding, Intervenor/Defendant, Edward D. Brown, husband of decedent, Tessie Maxine Spinks Brown, appeals the trial court’s judgment invalidating an inter vi-vos donation from his wife to him, appointing a succession representative without requiring the posting of security and the filing of a detailed descriptive list of succession assets, and obligating him to pay costs of his deceased wife’s succession proceeding. For the following reasons, we reverse the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Edward D. Brown and decedent, Tessie Maxine Spinks Brown, were married on July 8, 2006, and established their matrimonial domicile in Catahoula Parish, Louisiana. There were no children of this marriage. Though Mrs. Brown brought separate property into the marriage, the parties were not separate in property and were thus subject to a community property regime after their marriage. On July 10, 2009, Mrs. Brown executed a donation inter vivos in favor of Mr. Brown of a “NON-EXCLUSIVE USUFRUCT” of their family home and land upon which it was situated. It is undisputed that the property described in the donation was Mrs. Brown’s separate property, having been acquired by her prior to her marriage to Mr. Brown.

Mrs. Brown passed away, intestate, on March 24, 2010, and had been living and residing with Mr. Brown in Catahoula Parish up until her death. Mrs. Brown was previously married to Herman E. Spinks, with two children being born of that marriage, namely, Denton Ray Spinks and Amy Spinks Huffman. Mrs. Huffman petitioned the court for and was appointed the Administratrix of the Succession of Tessie Maxine Spinks Brown on April 8, 2010. The record clearly indicates that lüMrs. Huffman did not ñle a detailed descriptive list or inventory, nor did she post security prior to her appointment.

On April 12, 2010, Mr. Brown filed a petition for intervention in the succession proceeding seeking to recall the issuance of Letters Testamentary to Mrs. Huffman on the grounds that she failed to file a descriptive list and failed to post security for her appointment as Administratrix. Mr. Brown also sought to retain use of the matrimonial home and to have his rights in the usufruct recognized.

Not until April 19, 2010, eleven days after her appointment as Administratrix, did Mrs. Huffman filed a detailed descriptive list of succession assets. Mrs. Huffman, as Administratrix, also filed a separate lawsuit against Mr. Brown seeking an accounting from him relative to the succession, a surrender of any right of usufruct of succession property, and a judgment of court vacating the donation inter vivos of the usufruct. In the alternative, Mrs. Huffman sought to require Mr. Brown to provide security for the exercise of his usufruct.

Mr. Brown answered the Administra-trix’s lawsuit and moved to consolidate both actions for trial purposes. The trial court ordered the consolidation of both actions. After a trial on the merits, the trial court rendered judgment in favor of the Administratrix declaring the donation inter vivos of the usufruct in favor of Mr. Brown void and meaningless, ordering Mr. Brown to surrender the property alleged to have been subject to the usufruct, denying all of Mr. Brown’s claims, and casting him with all costs, including the succession costs. Mr. Brown filed this |sdevolutive appeal. Mrs. Huffman, as Administratrix, answered the appeal, seeking “damages including attorney[ ] fees for the frivolous appeal.”

ASSIGNMENTS OF ERROR

Mr. Brown sets forth the following for our review:

ASSIGNMENT! ] OF ERROR 1
The trial court erred in determining that the donation inter! ]vivos of a nonexclusive life usufruct of real property from the decedent prior to her death to her husband is void and meaningless and thereby ordering the usufructuary [sic] to surrender his right of possession of the property subject to the usufruct.
ASSIGNMENT! ] OF ERROR 2
The trial court erred in setting security for issuance of letters of administration at $0.00 dollars!.]
ASSIGNMENT! ] OF ERROR 3
The trial court erred in ordering issuance of letters of administration in a succession without having a detailed list of succession assets.
ASSIGNMENT! ] OF ERROR 4
The trial court erred in ordering the [D]efendanV[I]ntervener [sic] to pay all costs of court including the costs of the succession probate proceeding.
ASSIGNMENT OF ERROR 5
The trial court erred in not ruling on the issue of traversal of the detailed descriptive lists in this succession.

LAW AND DISCUSSION

Assignment of Error 1

Mr. Brown argues that the trial court erred in determining that the donation inter vivos of the non-exclusive life usufruct to him from his wife was void and meaningless. The trial court judgment ordered that the donation “be erased and 14 stricken from the conveyance records of Catahoula Parish, Louisiana[.j” In ruling from the bench, the trial court stated: “It’s the ruling of the [cjourt that this non[-]exclusive usufruct — the reason I’m declaring it void, it’s just meaningless. I don’t know of any such legal concept. The [cjourt’s not recognizing that at all.” We disagree.

The right of ownership may be burdened with a real right. La.Civ.Code art. 478. A “[ujsufruct is a real right of limited duration on the property of another.” La. Civ.Code art. 535. Louisiana Civil Code Article 541 states that a “[ujsufruct is susceptible to division, because its purpose is the enjoyment of advantages that are themselves divisible. It may be conferred on several persons in divided or undivided shares, and it may be partitioned among the usufructuaries.” A usufruct may be established by a juridical act such as an inter vivos donation, and, in that case, it is called a “conventional” usufruct. La.Civ. Code art. 544. A usufruct may be established “under a condition, and subject to any modification consistent with the nature of usufruct.” La.Civ.Code art. 545.

The July 10, 2009 donation inter vivos from Tessie Maxine Spinks Brown to her husband, Edward Brown, conveyed a “NON-EXCLUSIVE LIFE USU-FRUCT” to him of the 4.35 acre tract in Catahoula Parish (less the “LESS AND EXCEPT” portion listed therein), including “all buildings and improvements situated thereon, all rights, ways[,j and privileges thereto belonging.” Though the term “non-exclusive” is not defined under our law or readily used in connection with the establishment of a usufruct, it does not render the duly created conventional usu-fruct contra bonos mores or prohibited by law.

Louisiana Civil Code Article 11 guides us as to the “[mjeaning of words[.j” Lit states: “Words of art and technical terms must be given their technical meaning when the law involves a technical matter.” Since a “non-exclusive life usufruct” is not a common juridical phrase found or derived from our Civil Code, it must be deemed a “technical term” and must be given its “technical meaning.”

The word “exclusive” is an adjective defined in The American Heritage Dictionary of the English Language 620 (4th ed.2006), in pertinent part, as “[njot divided or shared with others ... [njot accompanied by others.... ” “Exclusive use” is defined in Black’s Law Dictionary 1577 (8th ed.2004), in pertinent part, as “[tjhe right of an adverse user to property, exercised independently of any similar rights held by others.... ” The prefix “non” is likewise defined in Black’s Law Dictionary 1076 (8th ed.2004), as “Not; no. This term negates.... ”

When read together, the term “non-exclusive” simply means capable of being divided or shared with others. Though the term is a common law term, it does not render it invalid under our civil law. If that were the case, common law property terms such as “easement,” “right of way,” “real property,” and many others would cast a shadow of invalidity on numerous property transactions. Such is not the case. Many common law terms have seeped into our civil law. The mere fact that a conveyance instrument contains a common law (or non-civil law) term or reference does not, in and of itself, render such a document “meaningless” and without legal efficacy.

A non-exclusive life usufruct is simply a usufruct granted for life to a person which may be divided or shared with others. Neither our jurisprudence nor our Civil Code prohibit such a conveyance. Had Mrs. Brown chosen to do so, she could have granted the same or a similar type of usufruct to others, in addition to Mr. Brown, ^neither of which would have had exclusive or independent rights under the usufruct, with one and all having to share their respective legal rights under the usu-fruct.

We find the donation of the non-exclusive life usufruct from Mrs. Brown to Mr. Brown to be legally permissible, legally valid, and legally binding. We reverse the trial court judgment voiding the donation and ordering it erased and stricken from the conveyance records of Catahoula Parish, and we hereby order reinstatement of same.

Assignments of Error 2 and 3

Mr. Brown asserts that the trial court’s appointment of Mrs. Huffman as Administratrix was “in direct violation of the code of civil procedure articles on [the] appointment of an administrator in an intestate succession in that the trial court did not order Mrs. Huffman to post security or file inventory prior to her appointment and issuance of letters.” As both of these assignments of error address the propriety of the issuance of Letters Testamentary, we shall address them together.

Louisiana Code of Civil Procedure Article 3151 (emphasis added) provides as follows:

Except as otherwise provided by law, the person appointed administrator shall furnish security for the faithful performance of his duties in an amount exceeding by one-fourth the total value of all property of the succession as shown by the inventory or descriptive list.
The court may reduce the amount of this security, on proper showing, whenever it is proved that the security required is substantially in excess of that needed for the protection of the heirs and creditors.

The presence of the word “shall” in La. Code Civ.P. art. 3151 denotes clear and unambiguous language that the posting of security by an administrator is mandatory in nature.

In the instant matter, it is undisputed that prior to the' issuance of Letters 17Testamentary, the trial court did not require Mrs. Huffman to post any security. The Order Appointing Administratrix and Directing Issuance of Letters Testamentary signed by the trial court on April 8, 2010, expressly provides “that letters testamentary issue to Amy Spinks Huffman after she has furnished security in the amount of $0.00, and has taken the oath of office.” This order is clearly contrary to the mandatory provisions of La.Code Civ.P. art. 3151.

Also relevant to Mrs. Huffman’s appointment as Administratrix is the requirement of La.Code Civ.P. art. 3094 (emphasis added) which provides that “[t]he court shall order the taking of an inventory, or the filing of a descriptive list as provided in Article 3136, of the property of the deceased upon the filing of an application for appointment as administrator.” As with La.Code Civ.P. art. 3151, the word “shall” in La.Code Civ.P. art. 3094 denotes a mandate that the trial court order either the taking of inventory or the filing of a detailed descriptive list when it is presented with an application for the appointment of an administrator. Despite this statutory requirement, the trial court’s order of April 8, 2010, failed to comply with this mandate. Thus, this order is also contrary to the mandatory provisions of La.Code Civ.P. art. 3094.

For the foregoing reasons, we reverse and vacate the order of the trial court confirming Mrs. Huffman as the Adminis-tratrix of the Succession of Tessie Maxine Spinks Brown and ordering the issuance of Letters Testamentary. Further, we reverse the trial court judgment ordering “the property of the succession in the possession of REdward Duncan Brown, more fully described in the Sworn Descriptive List, be given or turned over to Amy Spinks Huffman as Administratrix of this succession!.]”

We acknowledge that in response to Mr. Brown’s petition for intervention wherein he raised these procedural deficiencies, Mrs. Huffman did file a detailed descriptive list on April 19, 2010; however, this filing was eleven days after her appointment as Administratrix. This untimely filing does not cure the legal defect surrounding her appointment as Adminis-tratrix, which was implemented in derogation of the mandatory legal requirements of La.Code Civ.P. art. 3094 and La.Code Civ.P. art. 3151. Additionally, there was still no posting of security as required by law. For the foregoing reasons, we reverse the trial court judgment accepting the detailed descriptive list as “prima facie proof of all matters shown therein, it being not amended or traversed in these proceedings!.]”

In reaching our conclusion herein, this court acknowledges that La.Code Civ.P. art. 3396.5 provides for the independent administration of a decedent’s estate when a decedent dies intestate. In that instance, there is no statutory requirement for the filing of a detailed descriptive list nor the posting of security by the Adminis-tratrix. To proceed with an independent administration of an estate, La.Code Civ.P. art. 3396.5 requires that the successors “collectively designate, in the application for administration of the decedent’s estate, or thereafter, a qualified person to serve as |flindependent administrator. Then, “[i]n such case, the court shall enter an order granting independent administration and appointing the person designated in the application as independent administrator.” In the instant case, there was no such mandatory language in the petition for administration designating an independent administrator, nor did the trial court order grant independent administration and appoint an independent administrator. Consequently, in this succession proceeding, there was no independent administration, Mrs. Huffman was not appointed an independent administrator, and, thus, she may not forego the statutory requirement of the filing of a detailed descriptive list and the posting of security.

Assignment of Error 4

Mr. Brown also contends that the trial court erred in assessing him with all costs of court. We agree.

The judgment of the trial court ordered that Mr. Brown “be cast with all costs of these consolidated proceedings.” However, “all costs” include those costs incurred by Mrs. Huffman for the institution of the succession proceedings. These costs were necessarily going to be incurred regardless of the action taken by Mr. Brown. Although a trial court has discretion in assessing costs of court, the assessment must be equitable in nature. La.Code Civ.P. art. 1920. Considering the facts of these proceedings, we find that the trial court’s assessment of “all costs” to Mr. Brown is inequitable and constitutes an abuse of discretion. Haas v. Romero, 07-974 (La.App. 3 Cir. 2/20/08), 977 So.2d 196, writ denied, 08-650 (La.6/6/08), 983 So.2d 917. Therefore, we reverse the trial court judgment casting Mr. Brown with all costs of court, and we assess all costs of all of these proceedings to the succession.

110Assignment of Error 5

In the final assignment of error, Mr. Brown asserts that the trial court erred in not ruling on the issue of his traversal of the detailed descriptive list filed by Mrs. Huffman April 19, 2010. However, given this court’s ruling reversing and vacating the order of the trial court confirming Mrs. Huffman as the Administratrix and ordering the issuance of the letters of administration, and reversing the trial court judgment accepting the detailed descriptive as prima facie proof of the property comprising the estate of the decedent, this assignment of error has been rendered moot.

Answer to Appeal

Mrs. Huffman has filed an Answer to Appeal. Therein, she asserts that she is “aggrieved by the frivolous appeal” of Mr. Brown and prays that “[t]he judgment appealed from should be modified to provide for damages and attorney[] fees[.]” We disagree.

Louisiana Code of Civil Procedure Article 2164 provides the authority for an appellate court to award damages for a frivolous appeal.
The Louisiana Supreme Court has instructed appellate courts to award damages for frivolous appeal only when an appeal is taken for purposes of delay or when appellate counsel is not sincere in the belief of the view he or she advances on appeal. Middleton v. City of Natchitoches, 06-1531 (La.App. 3 Cir. 4/4/07), 954 So.2d 356. Damages will not be awarded where the slightest justification is found for taking the appeal and even where the appellant does not prevail. Id.

Roy v. Alexandria Civil Serv. Comm'n, 07-1458, p. 6 (La.App. 3 Cir. 4/2/08), 980 So.2d 225, 229.

Considering this court’s reversal of the trial court judgment on appeal, we have found merit in Mr. Brown’s appeal; therefore, his appeal was not frivolous. Thus, we deny Mrs. Huffman’s request for damages and attorney fees for frivolous appeal.

| ^DECREE

For the foregoing reasons, we reverse and vacate the trial court order of April 8, 2010, confirming Amy Spinks Huffman as the Administratrix of the Succession of Tessie Maxine Spinks Brown and ordering the issuance of Letters Testamentary to her. We reverse the trial court judgment of May 8, 2010, in its entirety. We order the Clerk of Court for Catahoula Parish to fully and completely reinstate the recordation of said donation in its records. We assess all costs in these consolidated matters to the succession. Finally, we deny Mrs. Huffman’s request for damages and attorney fees for frivolous appeal.

REVERSED.

EZELL, J. dissents and assigns written reasons.

EZELL, J.,

dissents.

_JjMrs. Brown died intestate. Three years after the Browns were married and less than a year prior to Mrs. Brown’s death, Mrs. Brown donated a “non-exelu-sive life usufruct” to Mr. Brown until his death of her separate family home and the improvements, which she had renovated with her first husband, the father of Mrs. Huffman and Mr. Spinks. Mr. Brown was not granted the usufruct of any other items. At the hearing, Mr. Brown admitted that very little of the furniture and other items in the house were his.

Effective September 1, 2005, certain rules were enacted governing interspousal donations inter vivos, which were in effect in 2009 when Mrs. Brown executed the donation of a non-exclusive life usufruct. A spouse may make a donation inter vivos to his future or present spouse in contemplation or consideration of marriage. La. Civ.Code art. 1744. Such donations are subject to the rules governing donations inter vivos. Id. “The donation, which may consist of any of the donor’s present property or all or any of the property that the donor will leave at his death, may be made to the donor’s future or present spouse.” La.Civ.Code art. 1746.

| gOrdinarily, a donation inter vivos which involves immovable property must be made by notarial act, as was done in the present case. See Comment (b) to La.Civ. Code art. 1541. However, when there is an interspousal donation inter vivos, there is the additional mandatory requirement that the form “shall expressly state that the donor makes the donation ... in consideration of his present marriage.... ” La.Civ.Code art. 1747 (emphasis supplied).

A review of the form indicates that no such mandatory provision was included in the donation inter vivos of the usufruct from Mrs. Brown to Mr. Brown. “A donation inter vivos that is null for lack of proper form may be confirmed by the donor but the confirmation must be made in the form required for a donation.” La.Civ. Code art. 1845. There was no confirmation by Mrs. Brown of the inter vivos donation of the usufruct. For this reason, I agree with the trial court that the donation inter vivos of a non-exclusive life usu-fruct to Mr. Brown was invalid and null.

For the foregoing reasons, I respectfully dissent.

      . We note that the trial court, on April 8, 2010, appointed Amy Spinks Huffman Admin-istratrix of the Succession of Tessie Maxine Spinks Brown and ordered that Letters Testamentary issue to her. However, Mrs. Brown died intestate, and, in accordance with La. Code Civ.P. art. 3159, letters of administration, as opposed to Letters Testamentary, should have been issued to her. Therefore, for purposes of this opinion only, we shall deem the Letters Testamentary issued to Mrs. Huffman to be the same as letters of administration.

      . Additionally, we note that there were no proceedings implicating the second paragraph of La.Code Civ.P. art. 3151 in this case. We agree with Mr. Brown that "[t]he record is devoid of any such consideration of the [trial] court to reduce the bond[J and in fact[,] the [trial] court issued letters of administration and essentially waived the posting of security by setting the bond at zero security.”

      . Louisiana Code of Civil Procedure Article 3396.5 provides as follows:
      When a decedent dies intestate, all of the intestate successors may agree on the advisability of having an independent administration and collectively designate, in the application for administration of the decedent's estate, or thereafter, a qualified person to serve as independent administrator. In such case, the court shall enter an order granting independent administration and appointing the person designated in the application as independent administrator.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of C.D.
    No. 2011-CA-0121.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

_JjThe defendant, C.D., a juvenile, appeals a judgment of the Juvenile Court for the Parish of Orleans, adjudicating him delinquent for the charge of distribution of heroin in violation of La.Rev.Stat. 40:966(A)(1). For the reasons provided below, we reverse the judgment of the trial court.

Procedural History

On June 80, 2010, C.D. was charged by delinquency petition with violating La.Rev. Stat. 40:966, relative to the distribution of heroin. An adjudication hearing was held on September 30, 2010. At the conclusion of the hearing, C.D. was found to be delinquent for the crime of distribution of heroin. The juvenile court held a disposition hearing on November 18, 2010, and C.D. was committed to the Department of Public Safety and Corrections for a period of time not to exceed one year, with the imposition of the sentence suspended pending appeal to this Court.

At the adjudication hearing, Officer Rafael Dobard, an assigned member of the 4th District Narcotics Unit of the New Orleans Police Department, testified that on or around June 28, 2010, he received information based on a confidential informant’s tip that heroin and unidentified pills were being sold from a house located at 2033 Wagner Street in New Orleans, near the Fisher Housing ^Development. At approximately 10:30 a.m., Officer Do-bard elected to set up a surveillance unit on that location to investigate any possible drug trafficking or exchanges at this location. Additional police officers were on standby to assist Officer Dobard in this surveillance action and were to act as the “take-down team” of any individuals who may have just engaged in a transaction from the house under surveillance.

During the surveillance period, Officer Dobard testified that he observed one or two transactions taking place wherein unknown individuals would walk up to the porch on 2033 Wagner Street, engage in brief conversation with a black male with a brown-skinned complexion and wearing a black t-shirt and black shorts. Officer Do-bard could view the approaching individuals and the black male exchange currency for an item, but was unable to determine the denomination of currency or the exact product being exchanged. Officer Dobard was using binoculars during this surveillance of the 2033 Wagner house.

In the early afternoon, Officer Dobard observed a black female walking up to 2038 Wagner and meeting with the black male wearing black shorts and a black t-shirt. The two individuals walked to the side of the house, where the black male moved his hand into his “crotch” area to retrieve an item. The black female gave him currency for the item. The black female then returned to her vehicle and drove away from the residence.

Officer Dobard notified the standby officers of what he believed to be a narcotics transaction by describing the black female and her vehicle. Officer Dobard testified that he viewed her driving off with the use of binoculars, and did not see any other person in the vehicle with her. Members of the standby team stopped the black female, later determined to be Mary Charles. Two detectives | .¡observed Ms. Charles in possession of a foil pack of heroin that she attempted to throw away. After a field test concluded that the seized item was heroin, the standby team notified Officer Dobard that they seized heroin from Ms. Charles and placed her under arrest.

At this point, Officer Dobard said that he left the surveillance location to secure a search warrant for the 2033 Wagner Street house, and that another officer maintained surveillance during his 30-45 minute absence. At approximately 4:06 p.m., the officers returned to the residence to execute the search warrant. Officer Dobard was part of this police team returning to the house, and while there were individuals in the house at 2033 Wagner, he did not see the black male wearing black shorts and a black t-shirt who was engaging in the transactions he had viewed earlier during surveillance. Officer Do-bard testified that he came out of the house and saw the black male now across the street from 2033 Wagner, and that the person was now wearing a yellow, black, and white plaid shirt and blue jeans. The person identified by Officer Dobard was C.D. C.D. was placed under arrest, and one hundred and thirty-eight dollars were seized from his person as evidence. No drugs or drug contraband was seized from his person. Other individuals, such as the confidential informant or Ms. Charles, were not provided the opportunity by Officer Dobard or any other police officers to identify C.D.

Following the state’s additional police witnesses, who testified as to the arrest of Ms. Charles, defendant moved for acquittal, arguing that only Officer Dobard had identified C.D. as the black male making alleged drug transactions at 2033 Wagner Street, and that the state had presented no evidence tying Ms. Charles’ arrest and possession of heroin to C.D. The trial court denied defendant’s motion, and the defense called C.D.’s mother, K.D., as their first witness.

_JjThe defendant’s mother testified that C.D. was helping her move during the day, and that he had only left her to go to a house known as “the candy lady’s house” on Hendee Street, a house which was across the street from where she was moving from. K.D. testified that she did not see her son go to 2033 Wagner Street. She further testified that C.D. was taken from the “candy lady’s” house and brought to Wagner Street by the police, where they then arrested him.

The defense then called Annaise Esteen, who lives at 2033 Wagner Street and was arrested on June 28, 2010. Ms. Esteen testified that she had pled guilty to possession of a stolen firearm and possession of “pills” stemming from this search. Ms. Esteen testified that she knows C.D. from the neighborhood, but that C.D. has never been to her house or porch, and that she had never invited C.D. to her house. Ms. Esteen further testified that a different individual, who looks similar to C.D., was selling on her porch. She did not say anything to this individual standing on her porch. She described this man as having a “red” skin complexion and a chipped tooth.

James Baker testified that he was also at the “candy lady’s” house and was arrested at the same time as C.D. Mr. Baker said that he never saw C.D. go to Wagner Street.

C.D. then took the witness stand and said that he was arrested because “they thought I looked like somebody.” When he was arrested, he told police they had the wrong person. He denied being on Wagner Street at any time on June 28, 2010. He testified that he was arrested at the “candy lady’s house” and taken to Wagner Street. C.D.’s mother once again took the stand, and testified that a man named “Earnest” was probably the individual that the police and others around the ^neighborhood confuse her son with. She described “Earnest” to be “red” in skin tone.

Following closing arguments, the trial court found C.D. to be delinquent for the charged offense of distribution of heroin. The trial court sentenced C.D. to one year in the Department of Public Safety and Corrections, but suspended imposition of the sentence pending this appeal. C.D. then brought forth this timely appeal.

Assignments of Error

C.D.’s sole assignment of error on appeal is that the State failed to meet its burden of proof at trial. C.D. argues that the evidence offered by the prosecution was insufficient to establish beyond a reasonable doubt either the elements of distribution of heroin or his identity as the offender.

Law and Analysis

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.Code. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous than the standard of proof required in a criminal proceeding against an adult.” State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93). When a conviction is based on circumstantial evidence, La.Rev.Stat. § 15:438 provides that such evidence “must exclude every reasonable hypothesis of innocence.” State v. Thomas, 2002-1523, p. 4 (La.App. 4 Cir. 2/5/03), 840 So.2d 25, 28; State v. Langford, 483 So.2d 979, 983 (La.1986). As a court of review, we grant great deference to the juvenile court’s credibility determination and assessment of witness testimony. State in the Interest of W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

|fiIn evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, 18. This standard of review is applicable in juvenile delinquency cases. State in the Interest of C.B., 2009-1114, p. 5 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 527.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State in the Interest of T.C., 2009-1669, p. 2 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260.

Heroin is a Schedule I opiate derivative. La.Rev.Stat. 40:964(B)(11). To support a conviction under La.Rev.Stat. 40:966(A)(1), the State must prove that the defendant distributed a controlled dangerous substance classified in Schedule I. State v. Johnson, 09-611, p. 5 (La.App. 5 Cir. 1/26/10), 32 So.3d 250, 253.

In the matter sub judice, we find tíj*t the prosecution clearly failed to pres-envVvidence beyond a reasonable doubt that C.D. was the individual who distributed |7heroin to Mary Charles. Therefore, we reverse the judgment of the juvenile court and vacate the sentence imposed. Defendant argues that the state failed to present evidence beyond a reasonable doubt identifying C.D. as the offender, and we agree. The state has presented no evidence beyond the testimony of Officer Dobard that identifies C.D. as the individual selling heroin from 2033 Wagner Street.

“When a key issue at trial is whether the defendant was the perpetrator of the crime, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt.” State v. Bright, 1998-0398, p. 22 (La.4/11/00), 776 So.2d 1134, 1147; see also State v. Brady, 414 So.2d 364, 365 (La.1982). The state presented no evidence of any relationship that C.D. had with anyone living on Wagner Street, such that C.D. could find a location to change clothes from a black t-shirt and black shorts into blue jeans and a yellow-white plaid shirt. The state has presented no evidence that C.D. knew anyone across the street from 2033 Wagner, provided no explanation as to how C.D. could have left a house under surveillance unnoticed, and appear in completely different clothing across the street.

The lone identification by Officer Do-bard of C.D. as the seller of heroin does not negate every reasonable probability of misidentification, especially given C.D.’s different clothing, the lack of drugs on his person, and his lack of connection to this part of the neighborhood and the 2033 Wagner residence. Although eye witness testimony alone can be sufficient evidence to satisfy the State’s burden, Louisiana jurisprudence has recognized that there are instances in which “numerous eccentricities, unusual coincidences and lack of corroboration” make such testimony so unreliable that even a reasonably pro-prosecution rational |sfact finder must have a reasonable doubt about the identification. State v. Woodfork, 1999-0859, p. 5 (La.App 4 Cir. 5/17/00), 764 So.2d 132, 135; quoting State v. Mussall, 523 So.2d 1305, 1311 (La.1988). In this matter, any rational trier of fact, after viewing all of the evidence favorably to the prosecution, must have a reasonable doubt as to the defendant’s guilt.

The state argues that while the front of the 2033 Wagner house was under surveillance, the other entrances were not, and the state thus hypothesizes that C.D. could have left the back of the house and changed clothes in an unknown location. The state provided no evidence at trial in support of this theory, and we find it to be without merit. The state provided no evidence concerning the various entrances and exits of the house, such as surveillance video, maps, or the like. Furthermore, if C.D. was found across the street, this would undoubtedly require him, at some point during the surveillance, to walk past the front of 2033 Wagner, where surveillance was set up, to even arrive across the street.

The Jackson v. Virginia standard of review specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). When a conviction is based on circumstantial evidence, La.Rev.Stat. 15:438 provides that such evidence “must exclude every reasonable hypothesis of innocence.” State v. Thomas, 2002-1523, p. 4 (La.App. 4 Cir. 2/5/03), 840 So.2d 25, 28; State v. Langford, 483 So.2d 979, 983 (La.1986).

In this matter, no individuals other than Officer Dobard had at any point identified C.D. as the offender distributing heroin from 2033 Wagner Street, and he | anever even viewed C.D. at this address. Without even having to consider the testimony of James Baker and Annaise Esteen, who deny that C.D. was the individual selling heroin at 2033 Wagner, we conclude that the state has not excluded every reasonable hypothesis of innocence. Langford, supra.

In addition to failing to account for C.D.’s location and change of clothes, the state failed to identify C.D. as the seller of heroin at the scene of his arrest. Only a few hours before C.D.’s arrest, Officer Do-bard and his team had arrested Mary Charles, who according to the testimony of her arresting officers at the adjudication hearing, was in possession of heroin. Officer Dobard and his narcotics team, having arrested Ms. Charles, could have easily had her conduct an identification as to who sold her the heroin, but elected not to do so. The fact that the police did not even attempt to have Ms. Charles identify C.D. or anyone else as her seller speaks volumes. The trial court committed manifest error in finding that the state presented evidence beyond a reasonable doubt identifying C.D. as the seller of heroin at 2033 Wagner.

Conclusion

The state clearly failed to present sufficient evidence beyond a reasonable doubt identifying C.D. as the person who distributed heroin to Mary Charles or anyone else from 2033 Wagner Street on June 28, 2010. The state failed to prove beyond a reasonable doubt that C.D. was properly identified as the offender. Officer Do-bard’s conclusion that C.D. was the perpetrator is not supported by any evidence provided by the State.

1 inOur review of the facts as a whole reveal that the trial court was clearly wrong in determining that the state had proven the identification of C.D. beyond a reasonable doubt. No other persons identified C.D. as the seller of heroin. The police inexplicably failed to have the arrested female in possession of heroin identify her seller. C.D. had no drugs or drug contraband in his possession. The state provided no evidence or explanation regarding C.D.’s appearance in completely different clothing than the person viewed by the police under surveillance as allegedly selling narcotics. The adjudication of delinquency for C.D. for the charged offense of distribution of heroin is reversed, and the sentenced imposed is vacated.

REVERSED

      . The Supreme Court of the United States has stated that "[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (in particular, authorities cited by the in footnote 6 of the opinion).


author: GUIDRY, J. HUGHES, J,

text:
    Amanda Ellzey BONNECARRERE v. John P. BONNECARRERE, III.
    No. 2011 CU 0061.
    Court of Appeal of Louisiana, First Circuit.
    July 1, 2011.

      Marlise 0. Harrell, Hammond, LA, for Plaintiff/Appellant Amanda Ellzey Bonne-carrere.
    Ernest S. Anderson, Slidell, LA, for Defendant/Appellee John P. Bonnecarrere, III.
    Before PARRO, GUIDRY, and HUGHES, JJ.

      . Because the evidence presented at the hearing establishes that John met the lesser burden of proving a change in circumstances materially affecting the welfare of the child since the original custody decree, any error of law did not affect the outcome or deprive a party of substantial rights. See Cedotal v. Cedotal, 05-1524, p. 7 (La.App. 1st Cir. 11/4/05), 927 So.2d 433, 437.

   GUIDRY, J.

LAmanda Ellzey Bonnecarrere appeals from a portion of a judgment of the trial court, awarding John P. Bonnecarrere, III custody of the minor children each year from September 1 until one week after the completion of the school year, and awarding Amanda custody of the minor children from one week after the completion of the school year until August 31 of each year and for the first seven days of the Christmas school holiday period. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Amanda and John were married on February 3, 2002, in Vernon Parish, Louisiana and later established a matrimonial domicile in Tangipahoa Parish, Louisiana. During the course of the marriage, the couple had two children.

On January 25, 2008, Amanda filed for divorce under La. C.C. art. 102 and requested that the court order joint custody of the two minor children, with Amanda being designated as the domiciliary parent and with John being granted liberal visitation at his parents’ home in Pearl River, Louisiana. On July 9, 2008, John filed a motion and order for visitation, requesting an order from the court ensuring that he would have visitation with the children while he was back in the country on military leave, and requesting that a hearing be set for the purpose of setting a permanent visitation schedule with the children.

A hearing on the issue of visitation was held on July 28, 2008. At the hearing, the parties entered into a stipulation, and in a September 12, 2008 judgment memorializing the parties’ stipulation, the trial court granted the parties joint custody of the two children, with Amanda being designated as the domiciliary parent, subject to visitation in favor of John. The judgment outlined specific holiday visitation on behalf of John for 2008 and also provided for John to have additional ^reasonable visitation to be agreed upon by the parties. Additionally, John was to have the children for two weeks in the summer. However, John was ordered not to remove the children from the jurisdiction of the court or the State of Louisiana. The judgment also detailed amounts to be paid by John monthly in child support.

On October 17, 2008, John filed a motion and order for reduction in child support and to set a visitation schedule. John asserted that he had moved to Pipestone, Minnesota, that his income had been altered considerably by the circumstances of his present employment, and that the child care expenses for his children had decreased. Because of these changes in circumstances, John requested a reduction in child support and also a modification of the visitation schedule to ensure that he had frequent and continuing contact with his minor children.

Thereafter, Amanda filed a rule to-show cause for a temporary restraining order and injunction and rule to show cause for restricted and supervised visitation.

Following a hearing on these issues, the trial court rendered and signed a judgment on March 30, 2009, maintaining joint custody of the children, with Amanda continuing to be designated as the domiciliary parent, subject to visitation in favor of John. The court maintained the visitation schedule as provided in the September 12, 2008 judgment, including the restriction that John could not remove the children from the jurisdiction of the court or the State of Louisiana. However, beginning in 2011, the judgment removed the geographic restriction and granted John additional summertime visitation for either the entire month of June or July at John’s election. After July 2011, the judgment granted John six weeks of summertime visitation at his election between June 1 and August 1. The trial court also reduced John’s child support obligation.

Amanda filed a motion for new trial, which was denied. John appealed from the trial court’s judgment, and Amanda answered the appeal. In Bonnecarrere v. 4Bonnecarrere, 09-1647 (La.App. 1st Cir.4/14/10), 37 So.3d 1038, writ denied, 10-1639 (La.8/11/10), 42 So.3d 381, this court reversed the portion of the trial court’s judgment modifying John’s physical custody, reversed the portion of the trial court’s judgment reducing John’s child support obligation, and remanded the matter to the trial court for a recalculation of John’s child support obligation.

Thereafter, on June 9, 2010, John filed a motion and order requesting that the court award him sole custody of the minor children, or alternatively, if the court finds that he is not entitled to sole custody, that he be granted joint custody and be designated as the domiciliary parent with whom the children will principally live and reside. As a final alternative, John requested that if the court did not award him sole or domiciliary custody, that the existing custody judgment be modified to provide for expanded custody of the father during the summer school holiday period and for a one week period during each of the three major school holiday periods, and to remove the restriction limiting his exercise of custody to the State of Louisiana. In his motion, John asserted that changes in circumstances had occurred since the original custody judgment, including: (1) his recent marriage to his long-term girlfriend; (2) Amanda’s marriage and pending divorce to her second husband, Chad Hickey; (3) alleged incidents of domestic violence between Amanda and Chad; (4) Amanda’s interference with John’s exercise of physical custody and limitation of John’s contact with his children by telephone; (5) Amanda’s continued attempts to sabotage the relationship between John and the minor children; (6) Amanda’s denial of contact between John’s parents and the minor children; and (7) Amanda’s demonstrated erratic and unstable behavior.

On August 2, 2010, the trial court held a hearing on John’s motion to modify custody. In a judgment signed on September 1, 2010, the trial court modified the prior custody award with respect to the minor children, awarding John custody of [Rthe minor children each year from September 1 until one week after the completion of the school year, and awarding Amanda custody of the minor children from one week after the completion of the school year until August 31 of each year and for the first seven days of the Christmas school holiday period. The trial court also ordered John to pay all transportation costs of the minor children and ordered the parties to facilitate communication between themselves and the minor children by webcam. Amanda now appeals from a portion of this judgment.

DISCUSSION

The burden of proof on a party seeking to modify a prior permanent custody award is dependant on the nature of the underlying custody award. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control over a child. Shaffer v. Shaffer, 00-1251, p. 3 (La.App. 1st Cir.9/13/00), 808 So.2d 354, 356, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

When an original custody decree is a stipulated judgment, a party seeking modification of custody must prove that a change materially affecting the welfare of the child has occurred since the original decree and that the proposed modification is in the best interest of the child. Richard v. Richard, 09-0299, pp. 7 (La.App. 1st Cir.6/12/09), 20 So.3d 1061, 1066. However, when the trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy | ñburden of proving that the continuation of the present custody is “so deleterious to the child as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

On appeal, Amanda asserts that the trial court erred in finding that John met his burden of proof in seeking modification of the judgment rendered on March 30, 2009. However, we note that the Mai’ch 30, 2009 judgment was reversed by this court in Bonnecarrere, 09-1647 at p. 9, 37 So.3d at 1045. Accordingly, the only judgment as to custody in effect at the time John filed his motion to modify custody was the September 12, 2008 stipulated judgment. Therefore, as the party seeking modification, John had to prove that a change materially affecting the welfare of the children had occurred since the original decree, and that the proposed modification is in the best interest of the children. See Richard, 09-0299 at p. 7, 20 So.3d at 1066.

However, in its reasons for judgment, the trial court stated:

For reasons this Court considers obvious from a transcript of the proceedings and from the testimony adduced, this Court is of the opinion that the current child custody arrangement is so “deleterious to the child as to justify a modification of the custody decree[.]” This Court believes that John Bonnecarrere has “by clear and convincing evidence” proven that “the harm likely to be caused by the change of environment is substantially outweighed by [its] advantages to the child[.]”

The trial court’s application of the heightened burden of proof under Bergeron to John’s motion to modify a stipulated judgment of custody is erroneous. However, we do not find that this error is prejudicial, because from our review of the record, 17John established that a change of circumstances materially affecting the welfare of the child had occurred since the original decree.

Since the September 12, 2008 judgment, John has remarried and moved to Virginia, where he and his wife are employed with the military and live in a four-bedroom home in Stafford, Virginia. Also, Amanda began dating and eventually married Chad Hickey, whom she was in the process of divorcing at the time of the August 2, 2010 hearing. Amanda and Chad had an unstable relationship, with several domestic disturbances and verbal altercations, resulting in several separations and reconciliations. Further, Amanda admitted that Chad had “hit” her oldest child in an effort to discipline the child. Additionally, the record demonstrates that on multiple occasions, Amanda interfered with John’s scheduled exercise of physical custody and with his weekly telephone visitation with the minor children, despite her agreement to the pre-arranged visits. Finally, Amanda often spoke ill of John in front of the minor children, such that one child repeated to her paternal grandmother that her mommy calls her daddy an “asshole.”

^Accordingly, from our review of the record in its entirety, we find substantial evidence to support the conclusion that John met his burden of proving that a change of circumstances materially affecting the welfare of the children had occurred since the original decree.

Having determined that John proved a change of circumstances, we now examine whether John established that a change in custody and move of his children to Virginia is in their best interest. The primary consideration in any child custody determination is the best interest of the child. La. C.C. art. 131. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. Every child custody case must be viewed in light of its own particular set of facts and circumstances. Elliott v. Elliott, 05-0181, p. 7 (La.App. 1st Cir.5/11/05), 916 So.2d 221, 226, writ denied, 05-1547 (La.7/12/05), 905 So.2d 293. As provided by La. C.C. art. 134, the factors considered may include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
In(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

However, the factors listed in Article 134 are not exclusive. Harang v. Ponder, 09-2182, p. 11 (La.App. 1st Cir.3/26/10), 36 So.3d 954, 963, writ denied, 10-0926 (La.5/19/10), 36 So.3d 219.

Louisiana’s relocation statutes, which are based on the American Academy of Matrimonial Lawyers Model Relocation Act, also retain the best interest of the child standard as the fundamental principle governing decisions made pursuant to its provisions. Curole v. Curole, 02-1891, p. 4 (La.10/15/02), 828 So.2d 1094, 1096. These statutes, found in La. R.S. 9:355.1 through 9:355.17, govern relocation of a child’s legal or principal residence, regardless of the geographic location of the parties. See La. R.S. 9:355.1(4) and Bullock v. Bullock, 98-0206, p. 2 (La.App. 4th Cir.1/29/98), 706 So.2d 671, 672; see also Nelson v. Land, 01-1073, p. 4 (La.App. 1st Cir.11/9/01), 818 So.2d 91, 93 (following Bullock and emphasizing the clear and express language of the statute defining relocation). Louisiana Revised Statute 9:355.12(A) contains a list of factors to be used in reaching a decision regarding a proposed relocation:

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

This list parallels the listing of multiple factors found in La. C.C. art. 134, with special emphasis on the logistical and economic circumstances associated with a relocation, particularly an out-of-state relocation. Gray v. Gray, 45,826, p. 8 (La.App. 2nd Cir.11/17/10), 55 So.3d 826, 834 (on rehearing).

John, who is now a resident of Virginia, seeks a modification of custody, requesting sole custody or designation as the domiciliary parent, the practical effect of which would be the relocation of the children’s principal residence to Virginia. Therefore, under the facts and circumstances of this case, the factors articulated in La. R.S. 9:355.12 are particularly relevant in determining the best interest of the child, and the trial court legally erred in failing to consider those factors, in addition | „to the Article 134 factors, in determining the best interest of the child. Cf. Gathen v. Gathen, 10-2312 (La.5/10/11), 66 So.3d 1. Accordingly, with these principles in mind, we review this matter de novo to determine whether John has established that the proposed modification of custody is in the best interest of the two minor children.

Our review of the record demonstrates that the children, who were five and three at the time of the custody hearing, have lived their whole lives in Louisiana with Amanda. Since 2008, the minor children have resided with Amanda in her childhood home, have lived next door to their maternal grandmother, and have lived close to their paternal grandparents. The children see their maternal grandmother on a daily basis and occasionally visit with their paternal grandparents. Additionally, the children visit every summer with Amanda’s sister in Mississippi. Because Amanda only works part time, managing a mini-storage facility and cleaning an elderly man’s home once a week, she is able to be home more with the children. Additionally, Amanda stated that she does various arts and crafts projects with the children and has memberships to the Audubon Zoo and Aquarium of the Americas, where she frequently takes the children. She also takes them to dance and soccer, which, according to Amanda, John does not approve. They also attend church and Sunday school at the Methodist church.

John, however, was deployed with the military in Iraq, particularly after the youngest child’s birth. After John returned to Louisiana, he moved to Minnesota, admittedly partly to get away from Amanda, and now lives in Virginia, where he works for the military. According to the previous judgment, he had limited periods of physical custody of the children, which were confined to Louisiana. However, John stated that if he had three or four days of vacation, he tried to go to Louisiana to see the children, which was approximately every three months.

[^Because of the young ages of the children, they are clearly too young for their preferences to be considered. Additionally, the evidence indicates that the younger child has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD), which require daily medication. The child’s treating physician has also recommended treatment with a psychiatrist. Though no expert was called upon to render an opinion as to the effect any potential move may have on the child, the record does demonstrate that the child is extremely close to Amanda, so much so that she does not let Amanda out of her sight. Also, the child is not as excited as the older child about her visits with John. However, John indicates that he did not observe any issues with the child’s behavior and generally disputes the diagnoses of the treating physicians and their prescribed treatment. Further, though there is no indication in the record that the child has been adversely affected by John’s exercise of physical custody, we note that all physical custody was limited to Louisiana and did not involve the child being relocated out of state.

With regard to preserving or promoting a good relationship between the other parent and the child, John testified that if he was awarded sole custody or domiciliary custody of the children, he would do anything within reason to foster Amanda’s visitation with the children. Though the history of the parties reveals that they have been unwilling to cooperate with one another and have exhibited demeaning and controlling behavior toward each other, there is no evidence in the record that John has exhibited any such behavior in front of the children, or that he has expressed any negative opinions of Amanda in front of the children. Additionally, the record demonstrates that John and his current wife, Annie, have facilitated the children’s contact with Amanda while in John’s custody by allowing 11sthe children to call Amanda and by assisting the older child in sending emails to Amanda.

Conversely, the record is replete with evidence of Amanda’s repeated efforts to thwart the children’s relationship with John. Amanda not only spoke ill of John in front of the children, but she also referred to Chad as the children’s “daddy,” and encouraged the children to call him “daddy.” Additionally, Amanda denied John frequent telephone visitation, allowing him to talk to the children only once a week, and often did not adhere to the prearranged schedule. There were several occasions, particularly during the week of the children’s dance recital and on the older child’s birthday, when John was not able to speak to his children at all. Amanda also denied John physical custody of the children on several occasions when she unilaterally altered the time for John’s exercise of physical custody after previously agreeing to the scheduled time. Particularly, in January 2010, Amanda took the children to Baton Rouge on the day John’s scheduled physical custody was to commence, and upon their return home, John was waiting in her driveway with Detective Bill Athman of the Tangipahoa Parish Sheriffs Office to enforce the custody agreement. Despite the officer’s presence and the fact that the children were excited to see their father, Amanda would not allow the children to go with John until the next day. Detective Athman testified at the hearing that Amanda did not give him any reason why she was not allowing the children to leave with John. Amanda also would not allow the children to go with John on a subsequent occasion when the children allegedly were recovering from flu-like symptoms. Amanda asserted that she delayed the physical custody because John was going to take the children camping in below-freezing weather. However, John stated that he offered to take the children to his parents’ home instead, and Amanda still denied his exercise of physical custody.

114With regard to John’s employment and economic circumstances and the enhancement of John and the children’s quality of life, the evidence establishes that John and his current wife work for the military earning approximately $100,000 each. John admitted that their current positions are temporary, but that they have numerous job opportunities in the Washington D.C. area that would provide commensurate income, as opposed to the lower income jobs available to them in Louisiana. Further, though John acknowledged that his employment with the military once required him to travel extensively out of the country, he stated that he is no longer deployable, so he would no longer have to leave the country for extended periods of time. However, because John and his current wife both work full time, the youngest child would be in daycare, rather than attending preschool as she was scheduled to do in Louisiana.

In addition to John’s employment circumstances, the evidence establishes that John and his current wife enjoy a loving relationship, live in a large home in a good neighborhood and school district, and are close to Washington D.C., which provides unique cultural and educational opportunities for the children.

Amanda, however, only works part time, and relies on her part-time income, child support payments from John, and assistance from her mother to support her and the children’s financial needs. Though the evidence indicates that Amanda lives in a large home owned and formerly occupied by her parents, as of the date of the hearing, she was having substantial difficulty paying her bills and had a negative checking account balance. Additionally, she had been unable to complete her college education and was having difficulty obtaining full-time employment.

Further, we find that the record demonstrates a pattern of marital discord in Amanda’s home. Not only did Amanda and her husband, Chad, yell at one another 11fiin front of the children, but the older child told John that Amanda was allowed to hit Chad because “he deserved it.” Additionally, Amanda admitted that she and Chad “got into it” because she did not approve when Chad “hit” the oldest child in an effort to discipline the child. Further, there were at least two other incidents of domestic violence. In December 2009, Chad returned home in the middle of the night from a Christmas party with a friend, and Chad and Amanda got into a verbal and physical altercation, resulting in Amanda throwing Chad out of the house. The two subsequently reconciled, but in January 2010, they separated again. While in the process of moving his things out of Amanda’s house, Amanda and Chad got into another verbal and physical altercation, whereupon Chad sprayed Amanda with pepper spray and an ambulance was called to the home. Amanda subsequently had charges filed against Chad as a result of this incident, but the charges were dropped after the two reconciled for a second time. Though the children were asleep during the first incident, they were present for the arguing during the second incident and witnessed their mother being treated by the paramedics after she had been sprayed with the pepper spray. At the time of the hearing, Amanda stated that she and Chad were getting divorced, and that he is no longer in the home. However, Amanda admitted that she is still close to Chad’s son.

Finally, in considering other factors affecting the best interest of the children, we note that Amanda suffers from depression, for which she takes Zoloft and Xa-nax “as needed.” Additionally, Amanda admitted that she married Chad to offer stability for her children. However, the evidence establishes that the two had a tumultuous relationship, that she dated other men while temporarily separated from Chad, and that she was also listed on several online dating websites. Further, 11flthough Amanda did obtain prompt medical care for the minor children, we note that she was not always as prompt or thorough in communicating the children’s medical conditions and care to John. Amanda also gave misleading information regarding John’s family medical history to the younger child’s neurologist, which ultimately contributed to the child’s diagnoses of ADHD and ODD, for which the child was prescribed strong, controlled medication. Amanda subsequently altered the doses of the medication, giving John verbal instructions to reduce the dosage. However, Amanda did not provide John with the prescription bottle or any instructions from the child’s physician, but rather, gave John the medication in an unlabeled bottle. Finally, despite the recommendation of the child’s treating neurologist that the child see a psychiatrist, Amanda did not take the child, even though John had agreed to pay for the psychiatric care.

With regard to John, the record demonstrates that he recently had a melanoma reftioved, but that there are no continuing complications, and he is otherwise in good health. The record does demonstrate, however, that John has exhibited a pattern of harassing and temperamental behavior. John harassed the youngest child’s neurologist, questioning her treatment and care of the child and threatening to sue her, to the point that the neurologist withdrew as the child’s physician. Additionally, Amanda filed a rule seeking to enjoin John from sending her harassing text messages and emails and from making harassing telephone calls to her and her family members. According to the rule, not only had John sent her threatening text messages and emails, but he also had called the sheriffs office to conduct a “safety check” of his children when Amanda did not answer the telephone when he called. At the previous hearing of this matter in July 2008, the trial court noted that John was “wound tight,” and in denying Amanda’s claim for harassment and abuse, the court cautioned John to conduct himself in a manner worthy of the uniform he wore |17and in a manner that he would not object to having his children observe. The court further cautioned John that it would not be so lenient in the future.

After reviewing the entire record in this matter, we find that maintaining joint custody of the children, but with John having custody from September 1 each year until one week after the completion of the school year and Amanda having custody of the children from one week after the completion of the school year until August 31 of each year and for the first seven days of the Christmas holiday period, is in the best interest of the children. Amanda has repeatedly demonstrated that she does not value and is unwilling to facilitate the children’s relationship with John. Further, though Amanda does go through periods where she is accommodating to John and his family, these periods are few in comparison to the amount of time that these parties have been sharing joint custody. Additionally, because of poor choices Amanda has made in her personal life, she has been unable to provide a stable home environment for her children and has exposed them to violence, unrest, and economic hardship.

John, however, has married his long-term girlfriend, with whom he has a loving relationship. John and his wife have established a home in Virginia and have substantially increased their income. Further, though John has exhibited some problems with his behavior in the past, his testimony from the most recent hearing demonstrates a more mature, calmer disposition. Therefore, considering John’s current circumstances, he can offer stability to the children, which they desperately need, particularly considering the medical conditions suffered by the younger child.

In reaching this decision, we are cognizant that the children will have to leave them primaiy caretaker and their home in Louisiana for the majority of the year and move to an unfamiliar place. However, given the totality of the circumstances, we find that awarding primary custody to John is the children’s best interest at this time.

118Finally, Amanda asserts on appeal that her communications with Chad during their marriage were subject to spousal privilege, and therefore, the trial court erred in admitting Chad’s testimony at the custody hearing. Louisiana Code of Evidence article 504 provides:

A. Definition. A communication is “confidential” if it is made privately and is not intended for further disclosure unless such disclosure is itself privileged.
B. Confidential communications privilege. Each spouse has a privilege during and after the marriage to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse while they were husband and wife.
C. Confidential communications; exceptions. This privilege does not apply:
(1) In a criminal case in which one spouse is charged with a crime against the person or property of the other spouse or of a child of either.
(2) In a civil case brought by or on behalf of one spouse against the other spouse.
(3) In commitment or interdiction proceedings as to either spouse.
(4) When the communication is offered to protect or vindicate the rights of a minor child of either spouse.
(5) In cases otherwise provided by legislation.

The majority of Chad’s testimony dealt with his observations as a member of Amanda’s household and therefore fall outside of Article 504. See State v. Nash, 36,038, p. 9 (La.App. 2nd Cir.6/14/02), 821 So.2d 678, 684, writ denied, 02-2527 (La.6/27/03), 847 So.2d 1254. Further, the evidence indicates that the children were present or within earshot of most of the communications between Amanda and Chad, and therefore, those communications are not confidential and not subject to the spousal privilege. Finally, with regard to the two incidents of domestic abuse occurring in December 2009 and January 2010, we note that to the extent Chad’s testimony as to these events was offered to protect the rights of the minor children, who were in the home or witnessed portions of these events, they are excepted from | iabeing a confidential communication. See La. C.E. art. 504(C)(4). Accordingly, the trial court was correct to allow Chad’s testimony.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, awarding John custody of the minor children each year from September 1 until one week after the completion of the school year, awarding Amanda custody of the minor children from one week after the completion of the school year until August 31 of each year and for the first seven days of the Christmas school holiday period, ordering John to pay all transportation costs of the minor children, and ordering that the parties facilitate communication between themselves and the minor children by webcam. All costs of this appeal are to be assessed to Amanda Bonnecarrere.

AFFIRMED.

PARRO, J., concurs.

HUGHES, J., dissents with reasons.

HUGHES, J,

dissenting.

|TI respectfully disagree with the majority opinion for the following reasons.

I would conclude that the trial court manifestly erred in finding that the father sustained his burden to show that a change of custody of his three and five-year-old daughters, from their life-long caregiver-mother in Louisiana (where they have numerous family and social connections) to his domiciliary custody in Virginia (where they have no other family members or connections) was in these children’s best interests. Admittedly, there were issues related to the mother’s unwillingness to ensure timely physical and telephone visitations with the father; however, no court order was in place that dictated specific time periods for these visitations, and there are numerous other means available to rectify these types of behaviors short of changing domiciliary custody.

12Furthermore, upon changing domiciliary custody to the father, the trial court failed to comply with LSA-R.S. 9:335(A)(2)(a), in that physical custody was not granted so that the children would be “assured of frequent and continuing contact” with the mother. Although the mother was granted physical custody of the children during the summer break from school, she was only given seven days during Christmas break for the entire nine-month school year. I do not believe the intent of LSA-R.S. 9:335(A)(2)(a) was thus achieved. A single opportunity for physical contact during the entire school year is woefully inadequate. The trial court’s judgment did not provide the mother with physical custody privileges on a frequent and continuing basis. See Nichols v. Nichols, 32,219 (La.App. 2 Cir. 9/2/99), 747 So.2d 120; O’Brien v. O’Brien, 30,001 (La.App. 2 Cir. 12/10/97), 704 So.2d 933.

The statute provides that each parent shall have “physical custody” that assures the child of frequent and continuing contact. While non-physical contact, such as telephone and internet contact, is certainly desirable, they do not suffice to satisfy the mandate of the statute.

For these reasons, I respectfully dissent.

      . At the time of the hearing in this matter, Amanda had remarried and her new last name was Hickey.

      . The trial court also addressed the recalculation of John’s child support obligation pursuant to this court’s remand in Bonnecatrere, 09-1647 at pp. 10-15, 37 So.3d at 1046-1049 and ordered that the amount of $390 per month, less the federal credit for dependent care expenses provided by Internal Revenue Form #2441, be added to the child support obligation of John for the period of time from October 17, 2008, to May 31, 2009, and that the private school tuition for the older child, in the sum of $242 per month, be added to the child support obligation of John for the period of time from October 17, 2008, until the date of the judgment. However, neither party appeals this portion of the trial court’s judgment.

      . Amanda asserts that the trial court erred in failing to apply La. R.S. 9:346 to John’s allegation that Amanda interfered with his exercise of physical custody and telephone visitation. Louisiana Revised Statute 9:346 provides, in pertinent part:
      A. An action for the failure to exercise or to allow child visitation, custody or time rights pursuant to the terms of a court-ordered schedule may be instituted against a parent. The action shall be in the form of a rule to show cause why such parent should not be held in contempt for the failure and why the court should not further render judgment as provided in this Section.

      H. A pattern of willful and intentional violation of this Section, without good cause, may be grounds for a modification of a custody or visitation decree.

      J. The action authorized by this Section shall be in addition to any other action authorized by law.
      Without addressing whether there was a court-ordered custody and visitation schedule in the instant matter, we find that Subsection J clearly provides that any action under La. R.S. 9:346 is in addition to any other action authorized by law. Accordingly, while John had the option to file an action for contempt in addition to his motion to modify custody, he was not required to file a contempt action. Accordingly, Amanda’s assignment of error is without merit.

      . Considering Amanda’s financial condition, her relocation to Virginia is clearly not feasible.

      . The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation is not relevant to the instant case since John, and not Amanda, was responsible for the payment of child support.

      . If the court had complied with LSA-R.S. 9:335(A), by issuing a joint custody implementation order, which had specifically set forth the time periods during which the father could have exercised his physical custody and phone visitations, then contempt of court would have been available as a remedy for any failure of the mother to facilitate his custody/visitation. In addition, the following remedies are available to a court to investigate/address an inability to co-parent: requiring attendance at parenting seminars (authorized by LSA-R.S. 9:306); appointment of a mental health professional to evaluate the parties and/or give an opinion as to the best interests of the children (pursuant to LSA-R.S. 9:331); requiring mediation of disputes (per LSA-R.S. 9:332-34); and appointment of a "parenting coordinator,” which is "a child-focused alternate dispute resolution process” (as provided in LSA-R.S. 9:358.1-358.9).

      . LSA-R.S. 9:335(A)(2)(a) provides:
      The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.