author: HUGHES, J.

text:
    Lynne Marie PRESTENBACK v. Robert Keith PRESTENBACK.
    No. 2008 CA 0457.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 18, 2008.

      Scott C. Stassi, Plaquemine, LA, for Plaintifi/Apjoellant, Lynne Marie Presten-back.
    Jamie Fontenot, Port Allen, LA, for Defendant/Appellee, Robert Keith Presten-back.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   HUGHES, J.

| ¡¡This is an appeal from a judgment reducing a former husband’s spousal support obligation. For the reasons that follow, we affirm the district court judgment in part, amend in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The parties in this case were married on November 29, 1980; one child was born of the marriage on September 26, 1984. Following the breakup of the marriage, Mr. Prestenback was ordered by a July 10, 2003 judgment of the district court to pay $740.00 in child support and $1,000.00 in spousal support, monthly. When Mr. Prestenback’s child support obligation terminated, an interim award of spousal support to Ms. Prestenback was fixed at $1,740.00, monthly, by stipulated judgment dated October 29, 2003. Thereafter, the issue of final periodic spousal support was heard by the district court; judgment was rendered on July 21, 2004 setting spousal support at $1,000.00 per month.

On June 13, 2006, Mr. Prestenback filed a rule seeking to terminate and/or modify the spousal support award. A heai'ing officer for the district court heard the matter on August 26, 2006 and recommended continuance of the spousal support award as previously fixed. Mr. Prestenback objected to the recommendation of the hearing officer and the matter was set for trial before the district court judge on April 4, 2007. Following trial, judgment was signed on April 18, 2007 reducing the amount of spousal support from $1,000.00 to $540.00 per month, made retroactive to the date of the filing of the rule on June 13, 2006. The district court further found that Mr. Prestenback had overpaid spousal support since June 13, 2006 in an amount totaling $4,416.04, and ordered this amount recoverable by him “in the form [..¡of reducing his monthly spousal support payments by $60.00 each month, until the sum is paid in full.”

Ms. Prestenback appeals this judgment, urging the following assignments of error: (1) the district court misapplied the law regarding modification of final periodic spousal support by offsetting Mr. Presten-back’s spousal support obligation due to Ms. Prestenback receiving social security disability benefits; (2) the district court misapplied the law embodied in LSA-C.C. arts. Ill and 114 in that it failed to consider the income and means of Mr. Presten-back to pay final periodic spousal support in ruling that this was not a factor to be considered in a request for modification or termination of spousal support contrary to the comments of Article 114; (3) the district court misapplied the law embodied in Article 112 in that it failed to consider all relevant factors in determining the entitlement, amount, and the duration of final periodic spousal support; and (4) the district court abused its discretion in disallowing certain expenses of Ms. Presten-back in that it did not consider her entire medical condition, and the jurisprudence allowing the court to consider the standard of living of the parties dui’ing the marriage.

LAW AND ANALYSIS

In this case Ms. Prestenback was found not to be at fault in the breakup of her marriage. Further, the award of spousal support by the district court necessarily included a finding that Ms. Prestenback is in need of support. Neither of these findings of fact by the district court have been appealed. The issues raised by this appeal are limited to whether the district court’s calculation of Mr. Prestenback’s spousal support obligation to Ms. Prestenback was correct.

I^The district court judge delivered the following reasons for judgment in open court:

I am looking in the Civil Code and under Article 112, the Code states that when a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support.
This is a rule to decrease, actually to modify or to terminate the award of periodic support, which this Court initially awarded $1,000 per month payable to Ms. Prestenback. Based upon the evidence submitted, ... the Court finds that there has been a material change in circumstances, and that being the Social Security benefits that Ms. Prestenback is currently being paid. According to her affidavit, that amount is $1,035.50 minus $93.50 for Medicare insurance, which comes to a net amount of $942.
Our jurisprudence defines ... needs ... [as] being housing, food, [and] clothing.
Looking at the affidavit of income and expenses listed by Ms. Prestenback, the Court finds that some of those items listed are not needs, not in a sense of that definition as provided by our jurisprudence.
And just for the record, also, the Court is not considering the income or means of Mr. Prestenback for purposes of the decision. And that reason being that this is not for an increase in alimony, wherein that may have been relevant. But to this particular hearing, it’s not relevant, in this Court’s opinion, in determining what the needs are of Ms. Prestenback.
Support or alimony, in this Court’s opinion, was not fashioned as a punishment to the obligor spouse. It’s not a form of punishment. And I think that’s why the drafters of the Civil Code specifically put in the language “needs.” Because otherwise, ... the obligor spouse would be relegated to having to pay basically any and everything according to whatever his income is. They specifically said “needs” to limit the amount of support, if any, that would be paid to just that. And those things, the needs covering housing, clothing, [and] food. And also, we include in that the medical.
Going through the affidavit of Ms. Prestenback, the Court finds that the lawn service of $70 is not a need, and therefore, will deduct that amount. That the amount of $100.57 for cablevision is not a need, and will deduct that amount. That the amount for a cell phone, $76.87 is not a need, and will deduct that amount. That there is no requirement, that this Court is aware of, that dental care or eye care is a need to be provided, therefore, those amounts will be deducted. Also, the entertainment and gifts of $50 and $40 respectively, will be deducted. As well as the $75 for cosmetics, $40 for the haircuts, the $12.50 for AARP, also the $50 for the taxes owed to the federal government, and the $50 for attorney fees. The Court is specifically disallowing the attorney fees based upon |5the fact that prior to this rule being filed, Ms. Pres-tenback received several lump sums of money. And at that time, her attorney fees were an obligation; she could have taken care of that amount with that money, rather than some of the other expenditures that were made.
Also with regard to the food and household supplies, the Court will note that in the record of these proceedings that have been admitted into evidence, at the time that Ms. Prestenback filed, she also submitted an income and expense affidavit for pauper status. In that income and expense affidavit at that time, she listed her food and household supplies at $600. And I think that was at that time for two people, her and her son. The Court will find that the amount of $450 for herself is excessive and reduce that by $100.... So the amount for the food and household supplies will be $350.
After adding up those amounts that have been disallowed, rounding that figure off to the nearest dollar, the Court finds that that amount comes to $760 to the nearest $10.... And when you subtract that amount from the total amount listed for Ms. Prestenback’s expenses, that being $2300, then the total amount of support owed is $540. So the Court is reducing the amount of spousal support to $540 per month.... Retroactive according to the Code to the date of filing.

It is within the sound discretion of the district court to allow and fix the amount of alimony, to be exercised not arbitrarily or willfully but with regard to what is just and proper under the facts of the case. Wascom v. Wascom, 97-0547, p. 9 (La.App. 1 Cir. 6/29/98), 713 So.2d 1271, 1275-76, writ denied, 98-2028 (La.11/6/98), 728 So.2d 391. Such awards should not be disturbed absent a clear abuse of that discretion. Wascom v. Wascom, 97-0547 at p. 5, 713 So.2d at 1274; Pierce v. Pierce, 41,718, p. 3 (La.App. 2 Cir. 12/13/06), 945 So.2d 908, 910.

A claim for spousal support is governed by LSA-C.C. arts. Ill and 112, which provide as follows:

Art. 111. Spousal support; authority of court
In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate |fithe marriage in accordance with the following Articles
Art. 112. Determination of final periodic support
A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

Article 112 bases an award of spousal support on the needs of the claimant spouse and the ability of the other spouse to pay, subject to the qualifying rules in Article 112 and the following articles. See Pierce v. Pierce, 41,718 at p. 2, 945 So.2d at 910. See also Kenneth Rigby, The 1997 Spousal Support Act, 58 La. L.Rev. 887, 889 (1998). Article 112 provides that in determining the entitlement, amount, and duration of final support, the court “shall” consider all relevant factors; however the article further states that those factors “may” include the nine enumerated factors. Thus it follows from a plain reading of the Article 112 that a court need not consider all of the listed factors, as the. consideration of all of the listed factors is no longer mandatory, but discretionary. The phrasing of Article 112 also clearly indicates that a court may consider factors that are not listed, provided they are relevant to the entitlement, amount, and duration of final support. See Gremillion v. Gremillion, 39,588, p. 15 (La.App. 2 Cir. 4/6/05), 900 So.2d 262, 271; Knowles v. Knowles, 2002-331, p. 5 (La. App. 3 Cir. 10/2/02), 827 So.2d 642, 646.

In an action for spousal support, the claimant spouse has the burden of proving insufficient means of support. Until need has been demonstrated, the other spouse’s financial means are irrelevant. Wascom v. Wascom, 97-0547 at p. 4, 713 So.2d at 1273.

“Means” include both income and property. In deciding entitlement and amount of alimony, the court should consider, among other things: the income, means and assets of the spouses; the financial obligations of the spouses, including their earning capacities; the time necessary for the recipient to acquire appropriate education, training or employment; and the health and age of the parties. Wascom v. Wascom, 97-0547 at pp. 4-5, 713 So.2d at 1274. Although “means” include both income and property, courts usually determine initially the monthly income to be attributed to the Isdaimant spouse and compare this sum to the spouse’s monthly expenses. If the income equals, or is greater than the expenses, then no further inquiry should be necessary. However, if the expenses exceed the income, the court will need to decide to what extent the spouse should be made to deplete the property before being entitled to alimony. Wascom v. Wascom, 97-0547 at p. 8, 713 So.2d at 1275. '

“Support” means a sum sufficient for the claimant spouse’s maintenance, which includes the allowable expenses for food, shelter, clothing, transportation expenses, medical and drug expenses, utilities, household maintenance, and the income tax liability generated by alimony payments. This includes mortgage payments, utilities, and other related expenses. Expenditures for newspapers, gifts, recreation, vacation, and church tithes are not to be considered in awarding permanent alimony. Similarly, expenses attributable to entertainment, including cable television service, are not necessary for a spouse’s maintenance and should not be considered in fixing permanent alimony. Mayes v. Mayes, 98-2228, pp. 6-7 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1262. See also Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973); McCarty v. McCarty, 2000-2212, p. 5 (La.App. 4 Cir. 9/19/01), 798 So.2d 195, 198, writ denied, 2001-3255 (La.2/6/02), 808 So.2d 346; Dabney v. Dabney, 603 So.2d 786, 790 (La.App. 1 Cir.), writ denied, 607 So.2d 563 (La. 1992); Shenk v. Shenk, 563 So.2d 1000, 1004 (La.App. 4 Cir.1990); Fusilier v. Fusilier, 464 So.2d 1068, 1070 (La.App. 1 Cir.1985); Arabie v. Arabie, 447 So.2d 22, 24 (La.App. 1 Cir.1984); Tracy v. Tracy, 388 So.2d 66, 67 (La. App. 1 Cir.1980).

Social Security Disability Benefits

In her first assignment of error, Ms. Prestenback contends the district court erred in considering as “income” the social security disability benefits that she receives, citing January v. January, 2003-1578 (La.App. 3 Cir. 4/7/04), 876 So.2d 98, and Davis v. Davis, 2002-0088 (La.App. 3 Cir. 5/8/02), 816 So.2d 985. In these cases, the Third Circuit held that “there is no statutory authority for an offset [on account of social security disability benefits] in favor of a former spouse who has been ordered to pay permanent alimony” (Davis v. Davis, 2002-0088 at p. 2, 816 So.2d at 986), and “social security benefits are not income susceptible of offsetting a spouse’s final support obligation” (January v. January, 2003-1578 at p. 6, 876 So.2d at 102). In support of this ruling, the Third Circuit stated:

[T]he Social Security Act sets forth a method for calculating disability benefits, which includes consideration of certain factors, such as the recipient’s earned and unearned income, as defined in the Act. The [Darns v. Davis ] panel observed that, according to 42 U.S.C. § 1382a(a)(2)(E), alimony payments are considered unearned income; as such, when the Social Security Administration determines the amount of benefits to be disbursed in disability cases, it ascertains whether the disabled person is receiving spousal support and, if so, this “unearned income” is factored into the amount of benefits awarded. The panel further observed that spousal support payments do not fall within the ambit of excluded income or an excluded resource pursuant to 42 U.S.C. §§ 1382a(b) or 1382(b)....

January v. January, 2003-1578 at p. 5, 876 So.2d at 101-2 (citing Davis v. Davis, 2002-0088 at pp. 1-2, 816 So.2d at 986).

However, social security benefits have previously been recognized as income for purposes of spousal support by this court. See Griffin v. Griffin, 457 So.2d 790, 790 (LaApp. 1 Cir.1984) (citing Robinson v. Robinson, 412 So.2d 633 (La.App. 2 Cir. 1982)). In finding that social security benefits were properly classified as income, the Robinson court noted: “We construe Congressional policy, however, to allow the social security benefit received by each spouse to be considered in determining the amount of permanent alimony, whatever the legal categorization of the benefit. [The] ... Social Security Act ... expressly provides that the benefit shall be subject to legal process brought to enforce the recipient’s obligation to make alimony payments.” Robinson v. Robinson, 412 So.2d at 635.

The question in this action is whether social security disability benefits should also be considered as income for purposes of spousal support under LSA-C.C. art. 112.

The starting point in interpreting any statute is the language of the statute itself. Sullivan v. Pitre, 2005-2361, p. 4 (La.App. 1 Cir. 9/27/06), 944 So.2d 632, 634, unit denied, 2006-2685 (La.9/14/07), 963 So.2d 388 (citing Theriot v. Midland Risk Insurance Company, 95-2895 (La.1997), 694 So.2d 184, and Touchard v. Williams, 617 So.2d 885 (La.1993)).

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no |1Tfurther interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10. The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter. LSA-C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. Laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art. 13.

When interpreting a law, the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question that harmonizes and reconciles it with other provisions. A construction of a law that creates an inconsistency should be avoided when a reasonable | ^interpretation can be adopted that will not do violence to the plain words of the law and will cany out the intention of the lawmaker. Bunch v. Town of St. Francis-ville, 446 So.2d 1357, 1360 (La.App. 1 Cir. 1984).

Article 112 directs that a court fixing spousal support consider the “income and means of the parties, including the liquidity of such means.” The terms “income” and “means” are not defined in the codal articles pertaining to spousal support. See LSA-C.C. art. Ill et seq.; LSA-R.S. 9:321 et seq.

However, we note that pursuant to LSA-R.S. 9:315.2, child support is based on the combined adjusted gross income of the parties. “Adjusted gross income” is defined by LSA-R.S. 9:315(0(1) as “gross income, minus amounts for preexisting child support or spousal support obligations paid to another who is not a party to the proceedings, or on behalf of a child who is not the subject of the action of the court.” As provided in LSA-R.S. 9:315(C)(3)(a) “gross income” includes “income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers’ compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation.” (Emphasis added.)

Black’s Law Dictionary defines “income” as “money or other form of payment that one receives, usu. periodically, from employment, business, investments, royalties, gifts, and the like,” and “means” is defined as 113“[a]vailable resources, esp. for the payment of debt; income.” Black’s Law Dictionary 766 and 995 (7th ed.1999).

Clearly social security benefits (denominated “old-age insurance benefits” in 42 U.S.C. § 402) and social security disability benefits (denominated “disability insurance benefits” in 42 U.S.C. § 423) are funds a recipient may use to defray living expenses and other debts, and thus fall within the generally accepted legal meaning of “income and means.” No Louisiana legislative enactment suggests an intent to restrict or curtail the generally accepted meaning of “income and means.” Contrarily, the statutes cited herein above, applicable to child support, specifically define income as encompassing both of these forms of social security. Therefore, we conclude that the correct legal interpretation of LSA-C.C. arts. Ill and 112 is such that the terms “income and means” encompass a spouse’s social security benefits, whether received as old-age insurance benefits or disability insurance benefits.

After careful consideration of this issue, we reaffirm this court’s prior recognition in Griffin (citing with approval Robinson) that social security benefits are income for purposes of computing spousal support. We further interpret herein “income and means” as encompassing social security disability benefits as well, and respectfully reject the Third Circuit rationale expressed in Davis and January.

Accordingly, we find no merit in Ms. Prestenback’s first assignment of error contending the district court erred in considering her social security disability benefits as income.

Itemized, Expenses

Ms. Prestenback also assigns as error the exclusion by the district court of certain expenses that she claimed could be considered for purposes | uof spousal support, which the district court found did not fall within his definition of “needs” (stated as being restricted to housing, food, medical, and clothing expenses). We agree with Ms. Prestenback that the district court’s definition of “needs” was impermis-sibly restrictive. As referenced herein above, the jurisprudence of this state directs that allowable “needs” expenses are determined on a common-sense basis and may include: food, shelter (this includes mortgage payments, utilities, and other related expenses), clothing, transportation or automobile expenses, medical and drug expenses, utilities, household maintenance, and the income tax liability generated by alimony payments.

Regarding Ms. Prestenback’s claimed expenses of $70.00 per month for lawn maintenance and $76.87 per month for a cellular phone, we find the district court erred in excluding these expenses. Uncontradicted evidence was presented by Ms. Prestenback that her medical condition (lupus) rendered her unable to care for her lawn and made her having a cellular phone prudent because of her frequent medical appointments and intermittent medical emergencies. Further, Ms. Pres-tenback’s expenses of $50.00 per month for dental care and $50.00 per month for eye care should be classified as medically-related expenses and therefore “needs.” Additionally, Ms. Prestenback’s inclusion of a $50.00 monthly payment toward her federal income tax liability is an allowable expense that is well-established. We also find error in the district court’s reduction of Ms. |1sPrestenback’s monthly food and household supply expense from $450.00 to $350.00, since Ms. Prestenback’s testimony was uncontradicted that she spends $15.00 per day on- food and household supplies; no evidence was presented showing this sum to be unreasonable. Other than these items, we find no abuse of discretion in the district court’s evaluation of Ms. Presten-back’s expenses.

After adding the improperly excluded expenses to the other allowable expenses, Ms. Prestenback’s monthly expenses total $1,934.98. She receives $942.00 in social security disability benefits. Thus Ms. Prestenback needs an additional $992.98 per month to meet her needs.

When a spouse has proven insufficient means of support, inquiry into the other spouse’s financial means becomes relevant. Wascom v. Wascom, 97-0547 at p. 4, 713 So.2d at 1273-4. Mr. Prestenback introduced evidence at the trial of this matter showing that his monthly gross income from his employment at Georgia Gulf is $6,855.80, from which $2,130.72 in itemized payroll deductions are taken, leaving a net monthly income of $4,725.08. Mr. Prestenback itemized his monthly living expenses of $3,629.12 as follows: mortgage note— $432.36; homeowner’s insurance — $380.00; yard care — $30.00; pest control — $15.00; food — $500.00; car note — $100.76; car maintenance — $335.00; gas — $300.00; clothing — $30.00; medications — $30.00; household supplies — -$50.00; personal grooming — $25.00; water — $30.00; electric — $200.00; cable — $90.00; natural gas — $80.00; household phone — $80.00; cellular phone — $130.00; Sam’s credit card payment — $75.00; Republic Finance payment — $96.00; Andre’s Hardware payment — $25.00; personal loan payment to Pam and Johnny Bourke — $100.00; | ¶ fientertainment/holiday/birthday/extr a curricular activities — $310.00; attorney fees — $100.00; and pet food and grooming — $85.00. Deducting Mr. Prestenback’s itemized monthly living expenses of $3,629.12 (excluding the prior alimony award of $1,000.00) from his net income of $4,725.08 leaves $1,095.96 in disposable income. However, we note that several items of Mr. Prestenback’s monthly living expenses are not properly included as “needs;” these include: entertainment/holiday/birthday/extra curricular activities, attorney fees, pet food and grooming. After deducting these amounts, Mr. Prestenback is left with monthly disposable income of $1,590.96. Therefore, we conclude that Mr. Prestenback has sufficient income and means to pay to Ms. Prestenback spousal support, in the amount of $992.98 per month, to enable her to meet her monthly needs; the district court judgment will be amended accordingly.

Since the district court decreed that Mr. Prestenback was entitled to recoup $4,416.04 in “overpayments” from Ms. Prestenback upon entry of its April 18, 2007 judgment reducing Ms. Prestenback’s spousal support from $1,000.00 to $540.00 per month (recoverable by him “in the form of reducing his monthly spousal support payments by $60.00 each month, until the sum is paid in full”), and the district court judgment was not suspended by this appeal, a spousal support arrearage may have resulted. We remand this matter to the district court for a determination on this issue, and for implementation of a payment plan to eliminate any arrearage owed by Mr. Prestenback to Ms. Presten-back.

CONCLUSION

For the reasons assigned herein, we affirm the judgment of the district court in part, and amend the judgment in part to order Mr. Prestenback to pay final periodic spousal support to Ms. Prestenback in the amount of [17$992.98 per month, retroactive to June 13, 2006; the matter is remanded to the district court for a determination of whether any arrearage is owed by Mr. Prestenback. All costs of this proceeding are to be borne by Mr. Presten-back.

AFFIRMED IN PART; AMENDED; AFFIRMED AS AMENDED; REMANDED.

      1. Article 111 was amended by 2006 La. Acts, No. 749, § 1 to insert "who is in need of support and who is” preceding "free from fault” and to delete", based on the needs of that party and the ability of the other party to pay,” following "terminate the marriage”. Act 749 became effective on June 30, 2006, and Section 2 of the Act provided, "The provisions of this Act are interpretative and shall apply to pending claims for final periodic support in which trial has not yet commenced as of the effective date of this Act.” In the instant case, while the motion before the trial court was filed on June 13, 2006, a hearing on the matter did not take place until August 26, 2006 before the district court hearing officer, with a final trial in the matter conducted before the trial judge on April 4, 2007. Therefore, Act 749 is applicable to this case.

      2. Article 112 was amended by 2006 La. Acts, No. 749, § 1, and is applicable to the case before the court as stated hereinabove. Article 112 previously provided:
      A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include:
      (1) The needs of the parties.
      (2) The income and means of the parties, including the liquidity of such means.
      (3) The financial obligations of the parties.
      (4) The earning capacity of the parties.
      (5) The effect of custody of children upon a party’s earning capacity.
      (6) The time necessary for the claimant to acquire appropriate education, training, or employment.
      (7) The health and age of the parties.
      (8) The duration of the marriage. (9)The tax consequences to either or both parties.
      B. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

      . Prior to its revision and reenactment as Article 112 by 1997 La. Acts, No. 1078, § 1, eff. Jan. 1, 1998 (as amended by 2006 La. Acts, No. 749, § 1, eff. June 30, 2006), former LSA-C.C. art. 160 (redesignated as Article 112 by 1990 La. Acts, Nos. 1008 and 1009) provided that “the court shall consider” the enumerated factors. (Emphasis added.) See also 58 La.L.Rev. at 902-3.

      . “Common sense dictates that the term 'maintenance', while meaning [p]rimarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife.” Bernhardt v. Bernhardt, 283 So.2d at 229.

      . This court in Griffin v. Griffin cited Robinson v. Robinson with approval and went on to hold that unemployment compensation should also be treated as income for purposes of calculating spousal support.

      . The Robinson court cited 42 U.S.C 659, which appears in Chapter 7, “Social Security,” of Title 42, “Public Health and Welfare,” and provides in part:
      Notwithstanding any other provision of law (including section 407 of this title and section 5301 of Title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.

      . See also Mayes v. Mayes, 98-2228 at p. 8, 743 So.2d at 1262 (wherein this court ruled that mobile telephone and lawn maintenance expenses were appropriately included in the trial court's calculation of spousal support for a single mother of two pre-school aged children, and who worked every other weekend).

      . The tax consequences of spousal support to either or both parties may be considered by the trial court in the determination of a support award. LSA-C.C. art. 112(B)(8) and Comment (e); Bernhardt v, Bernhardt, 283 So.2d at 229; Mayes v. Mayes, 98-2228 at p. 7, 743 So.2d at 1262; Fusilier v. Fusilier, 464 So.2d at 1070; Arable v. Arable, 447 So.2d at 24. See also McCarty v. McCarty, 2000-2212 at p. 5, 798 So.2d at 198.

      . We exclude the prior $1,000.00 per month spousal support obligation from this listing of Mr. Prestenback's monthly living expenses for purposes of determining how much disposable income he has available for the payment of his spousal support obligation.


source: Caselaw Access Project

author: McCLENDON, J.

license: Public Domain

text:
    David C. AGUILLARD v. Darlene Pierce AGUILLARD.
    No. 2008 CA 1131.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.
    Rehearing Denied May 21, 2009.

      Pamela Baker, Denise Nelson Akers, Baton Rouge, LA, for Plaintiff/Appellee, David C. Aguillard.
    Bennett Wolff, Metairie, LA, for Defendant/Appellant, Darlene Pierce Aguillard.
    Before PARRO, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

|2The original defendant in this case, Darlene Pierce Aguillard, appeals and assigns error to the trial court’s (1) finding that the original plaintiff, David C. Aguil-lard, was not voluntarily underemployed, (2) invalid use of a “shared custody” schedule B to calculate child support obligations, (3) failure to hold Mr. Aguillard in contempt, and (4) failure to render an execu-tory judgment for arrearages, with attorney’s fees and costs. We affirm.

PROCEDURAL BACKGROUND

The Aguillards were married in 1989 and three children were born of the marriage. A judgment of divorce was rendered in September of 2004. A stipulated judgment covering, among others, the issue of child custody and physical sharing of the children, was rendered on November 16, 2004, and signed on January 31, 2005. The stipulated judgment awarded joint custody, but did not provide for a domiciliary parent. The judgment did provide for equal sharing of the children during various holidays from year to year. In the summer, Mr. Aguillard had two weeks more with the children than Mrs. Aguillard. For the rest of the year, Mr. Aguillard had custody every other week from Thursday after school until the following Monday morning when the children returned to school, which equates to almost four full days during that week; and on the alternate weeks, when he had no weekend custody, he was to have the children from “Thursday afternoon” until “Friday morning,” or about one day, for a total of approximately 5 days for every 14 days.

The next pertinent pleading for this appeal, a motion to decrease child support and change the custody plan, was filed by Mr. Aguillard on September 7, 2005. In his motion, Mr. Aguillard asserted that he was previously ordered to pay $1400.00 a month in child support, plus other expenses of the children. However, his salary had since decreased. In addition, he wanted custody exchanged on a weekly basis.

|;;On November 2, 2005, Mrs. Aguillard filed a rule to show cause seeking arrear-ages, a finding of contempt, and an award of attorney fees and court costs. She asserted that Mr. Aguillard owed her $700.00 in past due child support and overdue medical and dental reimbursements. On June 14, 2006, she filed an “EMERGENCY RULE FOR CONTEMPT.” She asked that Mr. Aguillard be held in contempt and that an executory judgment be issued for $10,448.36 in past due child support and reimbursements, as well as costs and fees.

Although the motion and rules were set for various hearing dates, the matters were continued and, ultimately, were not heard until September 8, 2006. The trial court issued written reasons for its decision and signed a judgment on October 3, 2007, which contained the following rulings:

1.Mr. Aguillard’s child support was decreased to $750.96 a month, for the months of October 2005 through March 2006, and his percentage of the children’s medical, dental, and other expenses was also reduced;
2. Beginning in April of 2006, Mr. Aguillard’s child support was further reduced to $448.00 a month, and his percentage of the children’s expenses and costs was further reduced;
3. The contempt rule was dismissed with prejudice; and,
4. Because of the change in the child support obligation, the calculation of the past due amounts was pretermit-ted.

By a consent judgment signed on October 26, 2006, the time the children physically spent with their parents was changed. The summer was divided equally between the parents, and Mr. Aguillard was given the children from Tuesday afternoon until Monday morning. Although the consent judgment was not signed until October 26th, Mr. Aguillard testified at the hearing on September 8th that the parties were already operating under a plan of custody that extended his time with the children to every other Tuesday until Monday, when the children returned to school, in place of the prior physical sharing plan provided for in the judgment rendered in 2004.

| .[Mrs. Aguillard appealed. She argues that the trial court erred in finding that Mr. Aguillard was not voluntarily underemployed, that the trial court incorrectly used the Schedule B worksheet required by LSA-R.S. 9:315.9 and 315.20 for parents -with shared custody, when the custody was not equal; in dismissing the motion for contempt with prejudice; and in not rendering an executory judgment for ar-rearages, attorney fees, and costs.

VOLUNTARY UNDEREMPLOYMENT

Only Mr. Aguillard testified at trial. He stated that, in early 2004, he believed that his employment was unstable and that a decrease in his yearly salary, of approximately $150,000.00, had been or would be instituted. For these reasons, Mr. Aguillard accepted a second position with a different employer in March of 2005. Although the second job paid a slightly lower salary of $125,000.00 per year, he intended to remain with his first employer on a contract basis. The first employer, however, did not see the plan in the same light as Mr. Aguillard, and he was asked to resign from the first position as of May 15, 2005, with severance pay over the next two months. Unfortunately, Mr. Aguillard was not able to complete some of the required accounting and financial duties assigned to him by the second employer. At trial, Mr. Aguillard testified that the second position had a “lot more” accounting work than he had initially realized. Subsequently, the employee, who held the position before Mr. Aguillard, advised that he was able to return to work and Mr. Aguillard was asked by the second employer to resign. The second position ended on September 31, 2005, with a severance package at half salary for six months. Mr. Aguillard testified that he then spent considerable time looking for another position, and accepted odd jobs and short term employment in the interim. In July of 2006, Mr. Aguillard found another job, but at the significantly lower salary of $45,000.00 per year.

Appellant argues that Mr. Aguillard was arrogant and greedy in his attempts to maintain both jobs and in his declarations to his second employer that he was capable of completing the accounting required for the job. Further, | sappellant also states in her brief that Mr. Aguillard gambled on having two jobs and lost when he had to leave his position with the first employer. Simultaneously, appellant argues that Mr. Aguillard was voluntarily underemployed through his own fault or neglect.

In written reasons for judgment, the trial court specifically found that:

Mr. Aguillard’s substantial decrease in income since the last setting of child support is a substantial change in circumstances justifying the modification of the child support award. The Court finds that Mr. Aguillard is not voluntarily underemployed and acted in good faith when he left his employment.... He justifiably believed that he should pursue other employment, as his job and current salary were not guaranteed at [the first employer].
In addition, the Court does not believe that Mr. Aguillard lost his job at [the second employer] through his own fault or neglect. Mr. Aguillard indicated that the person who had previously had his job returned to claim his employment. The Court believes that Mr. Aguillard has diligently searched for employment with better wages but has so far been unsuccessful.

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is caring for a child of the parties under the age of five years. LSA-R.S. 9:315.11; Romanowski v. Romanowski, 2003-0124, p. 5 (La.App. 1 Cir. 2/23/04), 873 So.2d 656, 660. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. LSA-R.S. 9:315(C)(6)(b); Martello v. Martello, 2006-0594, p. 13 n. 14 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 197 n. 14. Voluntary unemployment or underemployment for purposes of calculating child support is a question of good faith on the obligor-spouse. In virtually every case where a parent’s voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent’s control which influenced or necessitated the voluntary change in employment. Romano'wski, 2003-0124 at p. 6, 873 So.2d at 660.

| (¡Voluntary unemployment or underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses, and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Whether a spouse is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed absent manifest error. Romanowski, 2003-0124 at p. 8, 873 So.2d at 662. We cannot substitute our findings for the reasonable factual findings of the trial court. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993).

Mrs. Aguillard did not testify at trial, and no testimonial or documentary evidence in the record rebutted the testimony of Mr. Aguillard on the circumstances surrounding his change of employment, his resignations, or his inability to find a higher paying job in 2006. Thus, based on our review of this particular record, we cannot find that the trial court manifestly erred or abused its discretion in finding that Mr. Aguillard was not voluntarily underemployed through his own fault or neglect.

USE OF SCHEDULE B

In its written reasons for judgment, the trial court found that Mr. Aguil-lard was entitled to a reduction in his child support obligation and included in its reasons the two Schedule or Worksheet B forms that the court used to determine child support. A Schedule or Worksheet B form is used for shared custodial arrangements. LSA-R.S. 9:315.9 & 315.20. The first worksheet, which covered the period from October of 2005 to March of 2006, indicated the percentage of time spent with the parents as 45% with the father and 55% with the mother, and reduced the child support obligation to $750.96. The second worksheet noted the same percentages of time spent with the children and reduced the obligation to $448.80, beginning in April of 2006.

Mrs. Aguillard divides her assignment of error to the use of Schedule or Worksheet B into two time periods: pre-trial and post-trial. For the pre-trial time period, Mrs. Aguillard argues that the trial court incorrectly used the post-trial 17October 26, 2006, consent judgment to determine the percentages of time spent with the children. She asserts that the trial court should have used the judgment rendered on November 16, 2004, which controlled the physical custody of the children prior to the changes implemented in the consent judgment signed after the trial. In Mrs. Aguillard’s argument on the use of Worksheet B for the posttrial time period, she argues that the calculation by the trial court of a 45%/55% split was wrong and that a calculation using the dates in the 2006 consent judgment reveals a split closer to 43% for the father and 57% for the mother. Although Mrs. Aguillard admits that this court, in Janney v. Janney, 2005-0507 (La.App. 1 Cir. 7/26/06), 943 So.2d 396, writ denied, 2006-2144 (La.11/17/06), 942 So.2d 536, recognized a 45.3% time period for one parent as a “shared” custody arrangement, she argues that 43% is too low and is not in the best interest of the children.

“Shared custody” is defined as “a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.” LSA-R.S. 9:315.9 A(l). The formula used to determine child support for parents with shared custody adjusts for the duplication of costs that inevitably occur in such shared arrangements. Janney, 2005-0507 at p. 4, 948 So.2d at 399. In determining whether a shared custody arrangement exists, the trial court is not bound to a threshold percentage based on the number of days each parent has the child. Janney, 2005-0507 at p. 5, 943 So.2d at 399. Rather, LSA-R.S. 9:315.9 is triggered by a finding of an “approximately equal amount of time.” LSA-R.S. 9:315.9 A(l).

Unfortunately, the record before us does not include a calculation or summation of the number of days attributed to each parent as holidays and in the summer. The 2006 consent judgment maintained by reference the same holiday schedule ordered in 2004, but the exact number of days available for |sholiday custody is not susceptible to a calculation on the face of the judgment. For example, Easter custody begins for one parent on the “the day the minor children get out of school for the holidays through the midpoint of the holiday week,” and changes to the other parent “from the midpoint of the holidays through the day the minor children return to school after the holidays.” Thus, the number of days is dependent on the dates chosen by the school. The 2006 consent judgment did change the summer schedule from two extra weeks for the father to an equal sharing of the summer vacation period. The 2006 consent judgment also changed the father’s regular custody from approximately 5 days for every 14 to approximately 6 days for every 14 days.

Initially, we note that, although the weekly custody increased in the 2006 plan, the 2004 plan gave the father 14 extra days in the summer; and the overall goal of the trial court for holidays appeared to be an equal sharing of the children between the parents. The percentages offered by the parties in argument to this court range from approximately 43% to 45.3%. However, based on the only evidence that is in the record, we cannot determine the exact percentages of time spent with each parent for either period. Thus, we do not have a sufficient basis to find that the trial court abused its discretion in finding that the custody order provided for a shared custody arrangement. Although the dissent in Janney, 2005-0507, 943 So.2d at 403 (Hughes, J. dissenting), makes a strong argument that a 10% difference, i.e., a 45/55 split, is not approximately equal, we cannot distinguish Jan-ney in this case, and we are bound by its holding.

I «CONTEMPT

Mrs. Aguillard argues that the trial court erred in failing to hold Mr. Aguillard in contempt for not paying the court-ordered child support and all of the medical reimbursements that he owed to her, and in dismissing the contempt claim with prejudice. In response, Mr. Aguillard points out that he had a significant reduction in salary, but continued to pay for the private school tuition, medical and dental insurance, school lunches, piano lessons, and some of the monthly child support obligation from October, 2005 to the end of 2006. In January 2006, he stopped paying the monthly child support and, in May or June of 2006, he felt that he could not continue to pay for the piano lessons. Mr. Aguillard also argues that he was owed some medical reimbursements from Mrs. Aguillard, and he was uncertain as to how the set-offs would be calculated. Finally, Mr. Aguillard asserts that Mrs. Aguillard was responsible for many of the continuances that delayed a hearing on the motion to reduce the child support and the rules for contempt.

Unless the action would qualify as direct contempt, a “[wjilful disobedience of any lawful judgment, order, mandate, writ, or process of court” constitutes a constructive contempt of court. LSA-C.C.P. art. 224(2). A constructive contempt for wilful disobedience must be based on a finding that the accused violated a judgment or other mandate of the court “intentionally, knowingly, and purposefully, without justifiable excuse.” Lang v. Asten, Inc., 2005-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (per cu-riam). A trial court has great discretion in its determination of whether a constructive contempt occurred. Fink v. Bryant, 2001-0987, p. 7 (La.11/28/01), 801 So.2d 346, 350.

Based on our review of the record on appeal, we cannot say that the trial court abused its great discretion in finding that Mr. Aguillard did not disobey the order of the court without a justifiable excuse. As to Mrs. Aguillard’s argument on the dismissal with prejudice, the facts testified to at trial will not be changed simply because the arrearages are recalculated based on the change in the obligations of the parties. Thus, the trial court had the facts before it when it | indismissed Mrs. Aguil-lard’s claim with prejudice. Without a basis for finding an abuse of discretion, we will not overturn the trial court’s judgment dismissing the claim for contempt, with prejudice.

EXECUTORY JUDGMENT

Finally, Mrs. Aguillard complains of the trial court’s failure to render a judgment on the arrearages. However, Mr. Aguil-lard cites to a stipulation contained in the record that reads, as follows:

Ms. Baker [counsel for Mr. Aguillard]: That’s correct. What’s not stipulated to is the arrearage amount. And, your Honor, also included in this prior support order was an order that Mr. Aguil-lard pay 89% and Mrs. Aguillard pay 11% of the medical expenses. Both parties have receipts and have paid medical expenses since September of 2005, and what we will do is have the court when we — the new percentages, assuming there’s any changes, new percentages are awarded then the court will allow us to go back and calculate, you know settle up who owes who what on the medical expenses.
Mr. Wolff [counsel for Mrs. Aguil-lard]: We so stipulate, your Honor.
Ms. Baker: And that also would include other, anything else that is included in the prior support order that’s changed, for example, payment of school fees, tuition and such because the other order was fairly extensive about what should be paid by who.

Based on the stipulation in the record and the change in the child support obligation, the trial court had a sufficient basis for deferring the issuance of a judgment ordering payment of the child support ar-rearages, and any award of fees and costs pursuant to LSA-R.S. 9:375. The trial court could have reasonably found that the arrearages had to be recalculated based on the changes in the child support obligation, and thus, a later judgment on the child support arrearages was necessitated.

For these reasons, we affirm the judgment of the trial court. The costs of the appeal are assessed to appellant, Darlene Pierce Aguillard.

AFFIRMED.

WELCH J., concurs without reasons.

      . We also deny as moot Mrs. Aguillard's motion to supplement the record with tire judgment appealed. A copy of die judgment appears of record.

      . The argument has been made that the comments to LSA-R.S. 9:315.9, which are not a part of the statutory language, provide for a bright line test requiring a percentage sharing of no less than 49%/51% for a finding of shared custody. Even if one assumed a comment could control or trump the language of a statute itself, the comment states only that the amount of time should be expressed in percentages, “such as forty-nine percent/fifty-one percent.”

      . The October, 2006, consent judgment, when read on its face, appears to give Mr. Aguillard even more time with the children than the 6 days out of every 14 that he was admittedly receiving by the time of trial. However, based on the briefs, it appears that both patties agree that the Tuesday through Monday physical custody was an alternating week arrangement.

      . We also note that the facts in an earlier case, Westcott v. Westcott, 2004-2298 (La.App. 1 Cir. 11/04/05), 927 So.2d 377, involved a stipulation of shared custody, and were unusual and peculiar to that case. Thus, we find the case to be distinguishable.

      . Without an En Banc reversal, we are bound by a previous decision of this court based on the rules of the First Circuit, Court of Appeal.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. LARRY R. FALKINS.
    No. 08-KA-745.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

|2The defendant, Larry R. Falkins, was convicted of attempted first degree murder of a police officer in violation of LSA-R.S. 14:27(30), and was sentenced to hard labor for a term of forty years, to be served without the benefit of parole, probation, or suspension of sentence. Thereafter, defendant filed a motion to reconsider sentence, which was denied by the trial court. Defendant now appeals. We affirm defendant’s conviction and sentence.

The following was adduced at trial. On September 1, 2005, in the immediate aftermath of Hurricane Katrina, members of the Jefferson Parish Sheriffs Office responded to reports of looting. Deputy Stanley Brown, assisted by Deputy Andi-no, arrived at the Dollar Store on Airline Highway, Metairie, Louisiana, where they found large numbers of people inside the store. A female on the scene informed officers that guns were being stolen from the Cash America Pawn Shop next door.

In responding to this tip, the police found guns inside the doorway but no suspects inside. The police inventoried the guns and began to load them in police cars. Officers received a tip that the people who had broken into Cash America and stolen guns had left in a maroon Chevy, which was parked on Simon Street with a flat tire. The tipster also stated that one of the subjects, wearing jeans, a white shirt, and a black cap, was changing the tire. Deputy Brown drove to Simon |3Street where he saw the car and the suspect, whom he identified in court as the defendant.

As the deputy pulled up behind, the defendant began to run toward the railroad tracks. Deputy Brown grabbed his shotgun for his safety and pursued the defendant down the tracks. Deputy Brown testified that, “Mr. Falkins turned with his head and his right hand and had a black in color pistol and pointed it in my direction.” Brown saw the muzzle flash from the defendant’s weapon and returned fire. Brown fired his shotgun at the defendant three times. On the third shot, the defendant fell. He popped up again, however, and ducked into the woods near the tracks.

Deputy Abraham Andino also made a positive identification of the defendant as the shooter in court. He described the scene at the shopping center and the discovery of the cache of stolen guns. He was in pursuit when the defendant fired at police. After the second shot, he realized that the defendant was shooting at the officers. The defendant ran out of sight. When the defendant turned back and fired his pistol, he was 35 to 50 yards away from Officer Brown.

Lieutenant Karl Walsdorf also described chasing the defendant on the railroad tracks. When the police got to the top of the tracks, the defendant turned and fired on the officers. When Walsdorf heard the first shot, he crouched down and heard the bullet whiz over his head. The defendant fired the first shots. There was no place to take cover and Walsdorf was afraid for his life. Walsdorf had no doubt that the man sitting in the courtroom was the same man who had shot at the officers.

The officers who testified agreed that the defendant was not captured in the chase. After the defendant eluded police, a “perimeter” was set up with many |4units, including K-9s and helicopters, involved in searching for the defendant. The handgun was never recovered.

Shortly after the exchange of gunfire and the chase down the tracks, the police received information that a black male had presented himself at the Kenner Regional Hospital with a gunshot wound. Roughly an hour after the shooting, Deputy Andino made a positive identification of the defendant as the shooter.

Major Victor Amstutz testified that he learned that a subject had presented himself at Kenner Regional with a gunshot wound. Amstutz intexviewed the subject who stated that he had been walking on West Metairie near North Sibley when he was shot from a car. Amstutz also spoke with the two men who brought the subject to the hospital. These men contradicted the defendant’s story. The three officers who had been shot at, took a look at the subject and made positive identifications of him as the shooter. At Amstutz’ request, a Kenner policeman conducted a gunshot residue test.

An Instant Shooter Identification Kit was performed on both of the defendant’s hands. His right hand tested positive for the presence of gunpowder residue, while his left hand did not. The test revealed a strong presumptive positive that the defendant’s right hand was “at or near a gunfire or gunpowder source.”

The defendant exercised his right to testify at trial. He denied participating in the robbeiy of the pawn shop. He also denied driving a car, changing a tire, or shooting a gun. He testified that he began to run on the train ti’aeks but was not concerned until he heard an officer say that he had a gun. He denied having a gun, however, and denied firing at the police officers. He acknowledged that he was struck in the arm by shots from a police officer. The defendant stated that he ran into a person he knew whom he asked to take him to the hospital. He denied | ¿having told Major Amstutz that he was the victim of a drive-by shooting. He concluded that the police were making up the account of his statement.

In his first allegation of error, defendant alleges that it was error for the trial court to deny the Motion to Reconsider Sentence as the sentence imposed was constitutionally excessive.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La. 1992).

Three factors that are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Knightshed, 00-1410 (La.App. 5 Cir. 3/28/01), 783 So.2d 501, 504-05.

On appeal, the issue is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 879-80.

In this case, the crime charged is serious and the legislature has established a correspondingly serious penalty. Attempted first degree murder of a peace officer is punishable by imprisonment at hard labor for not less than twenty nor more than fifty years without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:27:30.

| (iThe trial judge imposed a sentence of forty years at hard labor for the attempted murder of Deputy Brown. The sentence imposed is within statutory limits and, in fact, is ten years less than the maximum possible sentence provided by the legislature. The sentencing judge was aware of the facts of the crime, as she had presided over the trial. In order to become familiar with the defendant’s background, the trial judge ordered a pre-sentence investigation which she reviewed prior to imposing sentence. She further stated that she took the statutory guidelines of LSA-C.Cr.P. art. 894.1 into account.

Defendant argues that he was only twenty-two years old, with a relatively minor prior criminal record, at the time of sentencing. A defendant’s youth, by itself, is an insufficient basis to depart from the sentencing scheme set by the legislature. State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 868.

In light of the gravity of the offense, we find that this sentence is neither illegal nor unconstitutionally excessive. Accordingly, we find no merit to this allegation of error.

The defendant also requests that we review the record for errors patent. The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). The review reveals no errors patent in this case.

For the above discussed reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . This Court has specifically taken judicial notice that Hurricane Katrina hit south Louisiana on August 29, 2005. In re Intra Family Adoption of A.G.T., 06-805 (La.App. 5 Cir. 3/13/07), 956 So.2d 641.

      . Compare State v. Williams, 96-652 (La.App. 3 Cir. 2/5/97), 688 So.2d 1277, 1284 and State v. Allen, 478 So.2d 589 (La.App. 2 Cir. 1985), sentence affirmed as amended to delete firearm enhancement, 496 So.2d 301 (La. 1986).


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

text:
    James H. STONE, Jr. v. ENTERGY SERVICES, INC.
    No. 2008-CA-0651.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2009.
    Writ Denied April 17, 2009.

      Roger D. Phipps, Evanthea P. Phipps, Phipps & Phipps New Orleans, LA for Plaintiff/Appellant.
    Thomas M. Flanagan, Vicki A. Elmer, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, and Renee Williams Masin-ter, Entergy Services, Inc., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

LThe plaintiff, James H. Stone, Jr., appeals the trial court’s dismissal of his claim against defendants, Entergy Services, Inc. and Entergy Corporation, for retaliatory discharge at the conclusion of his presentation of his case-in-chief. For the following reasons, we affirm.

Relevant Facts and Procedural History In 1986, James H. Stone, Jr. (“Stone”) began working as an environmental analyst in the Environmental and R & D Services department of MSU System Services, Inc. (“System Services”). The environmental side of this department was comprised of Stone and five other environmental analysts, all of whom provided various environmental services to the Middle South Utilities, Inc. (“Middle South”) operating companies. At all times the System Services’ Environmental and R & D Services department served at the whim of the operating 12companies, which were free to either contract with System Services or provide these services in-house through their own environmental staffs.

In 1989, Middle South changed its name to Entergy Corporation, and System Services became Entergy Services, Inc. (“En-tergy”). Following the name change, management began a series of organizational changes in the structure of the En-tergy system that ultimately led to Stone’s termination in February 1993. In 1990, management decided that each operating company would maintain its own environmental group, thus making the department that employed Stone at Entergy unnecessary. At the time his department dissolved, Stone was the only environmental analyst remaining within Entergy. Despite there no longer being a true environmental group within Entergy, Stone was not discharged, but rather, was transferred to Entergy’s Performance and Design section. Stone continued to perform environmental services, although this was not a major function of his department.

In 1991, as a part of the reorganization efforts, the Performance and Design section was also terminated. Consequently, because Stone’s department no longer existed, he was placed in the environmental incumbent/talent pool, along with all other persons who previously held environmental positions throughout the Entergy system. While in the talent pool, Stone continued to perform his prior job duties until management announced the new system-wide environmental organizational structure. In October 1991, Stone interviewed for a position in this newly created group within Entergy, but was not selected for a position and remained in the talent pool. In February 1992, Stone secured one of two newly created environmental ^positions in the Entergy Services Transmission department, where he remained for approximately one year.

In 1992, management again ordered a reorganization and consolidated the Enter-gy, Louisiana Power & Light (“LP & L”), New Orleans Public Service, Inc., Arkansas Power & Light, and Mississippi Power & Light (“MP & L”) Transmission, Customer Distribution, and Service organizations into a single system-wide strategic business unit known as “TDCS.” Chris Longinotti (“Longinotti”) was charged with consolidating the environmental groups servicing the old Transmission, Distribution, and Customer Service organizations into one group supporting the new TDCS organization. The consolidation resulted in the elimination of two environmental positions previously servicing the old TDCS organization.

In the fall of 1992, Longinotti was given a list of employees who were then employed in any environmental position in the Transmission, Distribution, and Customer Service organizations throughout the system, which included Stone, and met with their direct supervisors to discuss each individual’s performance. Longinotti then interviewed each of these employees for the available positions within his newly formed group. Longinotti did not offer a position to Stone and, in or about December 1992, informed him that there were no other environmental positions available in the system. Stone was terminated from his position as environmental analyst on 11 January 1993, and, once again, placed in the talent pool. He was then terminated from Entergy on 10 February 1993.

|4Following his termination, Stone filed a claim with the Equal Employment Opportunity Commission (“EEOC”) asserting age and disability discrimination. While this claim was pending, on 25 January 1994, Stone filed the instant action in state court alleging retaliatory discharge in violation of La. R.S. 30:2027, the Louisiana Environmental Whistleblower Statute.

A jury trial commenced on 23 October 2007. Following opening arguments, Stone called three witnesses to testify in support of his claims against Entergy. In addition to himself, Stone called Longinot-ti, the Entergy employee that bypassed employing Stone in favor of another in-house applicant for a position in his department, and an economist. Following the testimony of these three witnesses, Stone rested his case.

At the close of Stone’s case-in-chief, pursuant to La. C.C.P. art. 1810, Entergy orally moved for a directed verdict on the basis that Stone failed to establish a pvwiCL facie case of retaliatory discharge as is required by La. R.S. 30:2027. Following argument on the motion, the trial judge took the matter under advisement. Then, outside the presence of the jury, the trial judge granted an involuntary dismissal of Stone’s claim pursuant to La. C.C.P. art. 1672, assigning oral reasons. Specifically, while the trial judge questioned the applicability of the [-¿Louisiana Environmental Whistleblower Statute on the basis that it was part and parcel of Stone’s job as an Entergy environmental analyst to report to his supervisor any concerns of environmental violations occurring on the jobs to which he was assigned, and noted that there was no outside agency to whom Stone reported these violations, the trial judge nevertheless determined that Stone failed to establish a causal connection between the environmental reports and his subsequent discharge from Entergy as is required by the statute. In short, the trial judge determined that the evidence adduced by Stone during his case-in-chief established nothing more than that his position as an environmental analyst was eliminated as a result of Entergy’s reorganization process due to the economy of scales.

Following the judge’s ruling on Enter-gy’s motion, the jury was released in order that Stone could seek appellate review. Stone filed an emergency writ [ 6application in this court seeking review of the trial judge’s grant of Entergy’s oral motion, which writ was denied. The instant appeal followed.

Discussion

It is a well-established principle of Louisiana law that legal sufficiency of the evidence challenges, such as presented by a motion for directed verdict, are subject to the de novo standard of review that is used for all legal issues. See Hall v. Folger Coffee Co., 03-1734, p. 10 (La.4/14/04), 874 So.2d 90, 98. A party may move for directed verdict at the close of evidence offered by an opponent. La. C.C.P. art. 1810.

As stated in Price v. Law Finn of Alex O Lewis, III and Associates, 04-0806, (La.App. 4 Cir. 3/2/05), 898 So.2d 608:

A directed verdict is properly granted when, considering all of the evidence in the light most favorable to the non-mover, it is clear that the facts and inferences point so strongly and overwhelmingly in favor of the mover that reasonable jurors could not reach a contrary verdict. Davis v. Board of Sup’rs Louisiana State University and Agricultural and Mechanical College, 03-2319, p. 7 (La.App. 4 Cir. 11/17/04), 887 So.2d 722.... If substantial evidence opposed to the motion exists, i.e., evidence of such quality and weight that reasonable jurors in the exercise of impartial judgment might reach a different conclusion, the motion should bé denied and the case submitted to the jury.
A trial judge has much discretion in determining whether to grant a directed verdict and the standard of review on appeal is whether reasonable persons could not reach a contrary verdict under the evidence. The question to be asked by the reviewing court is not whether the plaintiff proved his case by a preponderance of the evidence, but rather, upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of plaintiffs. Id. (citing, Hebert v. BellSouth Telecommunications, Inc., 01-00223, p. 5 (La.App. 3 Cir. 6/6/01), 787 So.2d 614, 617). Further, the appellate court must determine if the record supports the granting of a directed verdict, based not on a credibility 17determination (a factual issue), but on a sufficiency of evidence determination (a question of law). Id.; Roberson v. August, 01-1055, pp. 4-5 (La.App. 4 Cir. 5/29/02), 820 So.2d 620, 624.
A directed verdict must be evaluated in the light of the substantive law underpinning the plaintiffs claim.

Price, 04-0806 at pp. 2-3, 898 So.2d at 610.

Pursuant to La. R.S. 30:2027, Louisiana’s environmental whistleblower statute, retaliation against employees who report or disclose environmental violations under certain conditions is prohibited. In order for a plaintiff to establish a prima facie case of retaliation under the statute, he must show: (1) that he engaged in activity protected by the statute; (2) he suffered an adverse employment action; and (3) a causal connection existed between the protected activity in which he engaged and the adverse action. See Guillot v. Walgreen Louisiana, Inc., 2008 WL 1744717, *3 (W.D.La. April 16, 2008); Imbornone v. Treasure Chest Casino, 2006 WL 1235979, *3 (E.D.La. May 3, 2006). The trial court, in its oral reasons, conclud ed that Stone failed to produce the necessary factual support for one of the essential elements required to establish a claim under the statute; i.e., a causal connection between Stone’s reports of environmental violations and his subsequent termination from Entergy. We, however, pretermit discussion regarding whether Stone established the requisite causal connection as we conclude that, based upon our de novo review of the record, Stone failed to produce sufficient evidence to establish the statute’s threshold requirement: the | ^environmental violations he allegedly reported constituted “protected activity” as contemplated by the statute. Accordingly, we affirm the trial court’s grant of Enter-gy’s motion to dismiss at the close of the evidence of Stone’s case-in-chief.

La. R.S. 30:2027 provides, in pertinent part:

A. No firm, business, private or public corporation, partnership, individual employer, or federal, state, or local governmental agency shall act in a retaliatory manner against an employee, acting in good faith, who does any of the following:
(1) Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, practice of the employer, or another employer with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation.

The purpose of the Louisiana Environmental Whistleblower Statute is to protect employees from retaliatory action or other adverse employment action by employers for reporting possible environmental violations under certain circumstances. Bear v. Pellerin Construction, Inc., 01-0984, p. 5 (La.App. 4 Cir. 1/30/02), 806 So.2d 984, 989. Stone suggests that the mere fact that he made reports of environmental violations were sufficient to constitute “protected activity” invoking protection of the whistleblower statute. We disagree.

According to his trial testimony, Stone reported five separate environmental violations during his tenure with Entergy, which he contends include the following:

1. In or about 1990-1991, Stone reported a potential environmental violation involving one of its customers, MP & L, arising out of a partial tank collapse occurring in Mississippi. Stone prepared a memo regarding the violation and sent it directly to MP & L, a subsidiary of liiEntergy Corporation, warning of potential civil and criminal penalties. Stone’s Entergy supervisor at the time, Gary Barnes, later learned of the memo and allegedly reprimanded Stone for preparing it and for sending it directly to MP & L.
2. Stone reported an environmental violation directly to LP & L engineers working at the Entergy Bayou Ver-ret substation at the foot of the Sunshine Bridge regarding the failure to cover trucks carrying sand or soil on public streets. Stone’s supervisor, Ronnie Beam (“Beam”), later learned of Stone’s complaint pursuant to a call directly from LP & L, prompting Beam to counsel Stone.
3. Stone reported the existence of an uninterruptible power supply containing PCBs in a structure that also housed a food-preparation area located at an emergency operations facility in violation of federal regulations directly to an LP & L engineer located at the facility.
4. Stone contends that his signing a “QAT” report regarding Entergy’s secondary containment plan for-large oil storage tanks with reservations, because he believed that the transformers at substations located throughout the Entergy system were in violation of environmental regulations, constitutes “complaining” under La. R.S. 30:2027(A)(1), or refusing to participate in work he believed was in violation of federal environmental regulations regarding oil storage containment/runoff.'
5. Stone was told by his supervisor, Beam, to procure a renewal of a permit for the disposal of wood waste located in an area known as the Gypsy Corridor. When he went to inspect the area, Stone observed trash, utility poles and debris, which he opined was an environmental violation. Stone reported his findings to Beam, who advised him not to worry about the situation and that he would “take care of’ the problem.

Considering these five reports, the first three listed above were not made directly to a supervisor or a public body as required to invoke protection under the whistleblower statute. Instead, they were made directly to Entergy’s customers — the Entergy operating companies themselves (e.g., LP & L and MP & L)- — and were only later brought to the attention of Stone’s supervisor. As to the remaining two 110alleged reports of environmental violations, there is no trial testimony to support Stone’s contention that he was reprimanded or counseled for those incidents. Accordingly, based on Stone’s trial testimony, we find that the environmental reports he allegedly made do not constitute “protected activity,” which would trigger protection under La. R.S. 80:2027.

Additionally, according to Stone’s own trial testimony, as well as the testimony of Longinotti, it was part of Stone’s job responsibilities, as an environmental analyst for Entergy, to report potential environmental violations or concerns to his supervisor. While we find no Louisiana case directly on point, we further hold that the Louisiana Environmental Whistleblower Statute does not afford protection to an employee who generates reports regarding environmental issues when reporting environmental issues, concerns, and potential violations is a part of one’s normal job responsibilities, and part and parcel of what one is hired and/or required to do. Accordingly, because we find that reasonable jurors could not conclude from the trial testimony that the whistleblower statute applies to the retaliatory discharge claims asserted by Stone, the trial court, as a matter of law, properly granted En-tergy’s motion for directed verdict.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment dismissing Stone’s claims.

AFFIRMED.

ARMSTRONG, C.J., concurs.

      . System Services was the predecessor company of Entergy Services, Inc. ("Entergy”). It was a wholly owned subsidiary of Middle South Utilities, Inc., and it provided a variety of services on a contract basis to the various operating companies that comprised the Middle South Utilities Inc. system. These operating companies included Louisiana Power & Light, New Orleans Public Service, Inc., Arkansas Power & Light, Mississippi Power & Light, and System Energy Resources, Inc.
      Prior to joining Entergy Services, Inc. in 1986, Stone worked as an environmental regulator for the Louisiana Department of Environmental Quality ("DEQ") and the federal Environmental Protection Agency ("EPA”).

      . Everyone else had either retired, resigned, or transferred into another department.

      . According to the trial testimony, Longinotti had three positions to fill on his team and five employees, including Stone, were vying for the three slots.

      . Upon receipt of a right-to-sue letter form the EEOC, Stone filed an action in the United States District Court for the Eastern District of Louisiana alleging discrimination on the basis of age and qualified disability. Stone later amended his federal complaint to add the identical state law environmental whistle-blower claim asserted in the instant litigation. The district court dismissed the age and disability discrimination claims on Entergy’s motion for summary judgment. Stone’s state law environmental whistleblower claim was dismissed without prejudice. Entergy later moved for summary judgment in the instant action on grounds of res judicata (collateral estoppel), which the trial court granted. This court reversed and the Supreme Court denied Entergy’s application for supervisory writs.

      . Stone argues on appeal that the trial judge erred in granting an involuntary dismissal in this case. We agree that the motion for involuntary dismissal was not the proper procedural vehicle because this matter was not tried by a judge, but by a jury. La. C.C.P. art. 1672, pertaining to motions for involuntary dismissal, provides, in pertinent part:
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. [Emphasis supplied.]
      In a jury trial, an involuntary dismissal is only allowed when either the plaintiff, or when both parties fail to appear on the day set for trial. Hoffman v. Paracelsus Elmwood Medical Center, Inc., 03-0659 (La.App. 4 Cir. 9/1/04), 881 So.2d 796, 805. Therefore, procedurally, in the instant case, an involuntary dismissal was not available at this stage of a jury trial. The proper procedural mechanism would have been for the trial court to have granted a “directed verdict” pursuant to La. C.C.P. art. 1810, discussed infra.

      Thus, while Stone is correct that the trial judge erred in granting an "involuntary dismissal” of his case against Entergy, because an involuntary dismissal is not available in a jury trial, we find that the practical difference between an involuntary dismissal and a directed verdict is a distinction without a difference bearing the same effect; i.e., dismissal of the case. Judges, lawyers, and ordinary people confuse the terminology regularly when speaking and writing. The motion for either is understood to mean that a party has not carried his/her/its burden of proof as a matter of law. Thus, even though the trial court erred in granting an involuntary dismissal rather than a directed verdict, the trial court’s misspoken terminology was purely harmless, for it is clear that the trial court meant that Stone had failed to carry his burden of establishing a prima facie case of retaliation as matter of law.

      . The trial court, however, in its oral reasons, did question whether Stone had engaged in “protected activity” as contemplated by the statute since the evidence adduced at trial through the testimony of Stone and Longinot-ti established that it was incumbent upon Stone, as an environmental analyst for Enter-gy, to identify and report any concerns of possible environmental violations to his supervisors at Entergy. The trial court further questioned whether Stone’s reports constituted “protected activity” since they were only made internally to Entergy rather than to an outside agency such as the DEQ or the EPA, both of which previously employed Stone.

      . This is the version of the statute that was in effect on 10 February 1993, the date Stone was terminated from Entergy.

      . There is no trial testimony indicating that Stone ever actually brought the purported violations to Entergy’s attention, or that his supervisor, Beam, counseled or reprimanded him when he signed the report with reservations.

      . Stone's testimony is devoid of any "repri- ■ mand” that he allegedly received from Beam regarding his reporting of his environmental concerns involving the Gypsy Corridor permit.


author: GAIDRY, J.

text:
    Author R. JOINER, II, Julius R. Coates, and Emelee King, Appearing Through Her Natural Tutor, Emmett King, Individually, and on behalf of their Deceased Mother, Joe Ann Coates Joiner v. Jonathan Paul TAYLOR, M.D. and ABC Insurance Company.
    No. 2008 CA 1269.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Rehearing Denied April 21, 2009.
    David A. Wooldridge, Jr., Carlton Jones, III, Baton Rouge, Louisiana, for Interve-nor/Appellant, Louisiana - Patient’s Compensation Oversight Board.
    Vance A. Gibbs, Jason R. Cashio, Baton Rouge, Louisiana, for Defendant/Appellee, Jonathan Paul Taylor, M.D.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

[Jn this medical malpractice suit, the Louisiana Patient’s Compensation Fund Oversight Board (“PCF”) appeals a trial court judgment granting the defendant, Dr. Jonathan Taylor’s, exception of prematurity and dismissing the plaintiffs’ suit without prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from acts of alleged medical malpractice committed by Dr. Jonathan Taylor and others in June of 2005 in the care of patient Joe Ann Coates Joiner. From October 13, 2004 through October 13, 2005, Dr. Taylor was insured under a claims-made insurance policy issued by Louisiana Medical Mutual Insurance Company (“LAMMICO”). Dr. Taylor also paid the applicable surcharge to the PCF for that coverage period. Another claims-made policy was issued by LAMMICO to Dr. Taylor for the period of October 13, 2005 through October 13, 2006. However, for the 2005-2006 coverage period, Dr. Taylor financed the LAMMICO premium and the PCF surcharge through Canan-will, Inc., pursuant to an Insurance Premium Agreement, which purportedly authorized Cananwill to cancel the LAMMICO policy if Dr. Taylor failed to make a monthly payment to Cananwill. The LAMMICO claims-made policies contained a provision stating that coverage is provided for claims which are first made against the insured and reported to LAMMICO within the policy period.

Cananwill later issued a “Notice of Cancellation,” stating that Dr. Taylor’s premium finance agreement was in default and that Cananwill was requesting cancellation of the LAMMICO policy and the PCF coverage and a return of the unearned premiums. The notice stated that “a notice of cancellation ... was mailed to the insured ... on 12/12/2005” and “cancellation is to be effective on [12/12/2005], or as soon thereafter as |sstatutory, regulatory, or contractual requirements permit.” The notice also contained the following statement:

To the Insured:

You are in default under your insurance premium finance agreement with Canan-will, Inc. and, in accordance with your contract, we hereby notify you that we have directed cancellation of the policy listed above and have demanded payment of the return premium due. Cancellation is to be effective as indicated above under the terms of the premium finance agreement entered into by you, you are responsible for the full outstanding balance and we hereby demand payment of the entire balance due.

Although the Notice of Cancellation states that a copy of the notice was sent to the insured on December 12, 2005, it is unclear when the notice was actually sent to Dr. Taylor because the notice also has the dates January 7, 2006 and April 18, 2006 at the top. Although Dr. Taylor apparently later made a payment in the amount of $17,561.00 to Cananwill, an April 14, 2006 letter from Cananwill advised that his policy had been cancelled on December 12, 2005 for nonpayment and that any overpayment would be refunded.

On June 23, 2006, the plaintiffs, Author R. Joiner, II, Julius R. Coates, and Emelee King (collectively, “the Joiners”), filed a request for a medical review pan el as a result of acts of malpractice allegedly committed by Dr. Taylor and others in June 2005. The PCF initially informed the Joiners in a July 5, 2006 letter that Dr. Taylor was a qualified healthcare provider; however, the PCF later changed its response in a February 14, 2007 letter stating that Dr. Taylor was not in fact a qualified healthcare provider for purposes of the Joiners’ claim.

On March 15, 2007, after receiving notice from the PCF that Dr. Taylor was not a qualified healthcare provider, the Joiners filed a petition for damages against Dr. Taylor. Dr. Taylor filed an exception of prematurity, |4claiming that he was a qualified healthcare provider for purposes of the Joiners’ claim, and as such, their claim must first he submitted to a medical review pan el before filing suit. The PCF filed a petition of intervention to oppose Dr. Taylor’s exception of prematurity. The Joiners did not oppose the exception.

After a hearing, the trial court found that coverage under the LAMMICO policy and the attendant PCF coverage remained in effect through the time that the Joiners instituted them claim in this matter, and as such, Dr. Taylor was a qualified health care provider under the Act. Due to this finding, the trial court granted Dr. Taylor’s exception of prematurity and dismissed the Joiners’ petition without prejudice, at their costs. This appeal by the PCF followed, with the following assignments of error raised by the PCF:

1. The trial court erred in finding that Dr. Taylor was a qualified healthcare provider under the Act when the pan el request was filed after PCF coverage was cancelled for failure to pay.
2. The trial court erred in ordering the PCF to provide coverage for a panel request where Dr. Taylor failed to pay for such coverage.

DISCUSSION

Louisiana Code of Civil Procedure article 926 provides for the dilatory exception of prematurity. Prematurity is determined by the facts existing at the time suit is filed. Evidence may be introduced to support or controvert the exception, when the grounds do not appear from the petition. La. C.C.P. art. 930. The exception raising the objection of prematurity may be utilized in cases where the applicable law or contract has provided a procedure for a claimant to seek administrative relief before resorting to | .Judicial action. Dunn v. Bryant, 96-1765, p. 4 (La.App. 1 Cir. 9/19/97), 701 So.2d 696, 699, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752. The Medical Malpractice Act provides such a mechanism in that it requires all medical malpractice claims against qualified health care providers to be submitted to a medical review panel prior to suit being filed in any court. Louisiana Revised Statutes 40:1299.47(B); Dunn, 96-1765 at p. 5, 701 So.2d at 699. If an action against a health care provider covered by the Act has been commenced in a court of law and the complaint was not first presented to a medical review pan el, an exception of prematurity must be maintained, and the suit must be dismissed. See La. C.C.P. art. 933; La. R.S. 40:1299.47(B)(£ )(a)(i); Dunn, 96-1765 at p. 5, 701 So.2d at 699. Thus, to decide whether the exception of prematurity was properly granted, this court must determine whether Dr. Taylor was covered by the Medical Malpractice Act as a qualified health care provider at the time the Joiners instituted their claim.

La. R.S. 40:1299.47(A) provides that, in order to be qualified under the Medical Malpractice Act, a healthcare provider must file proof of financial responsibility with the PCF and pay the PCF surcharge assessed on all healthcare providers. Prior to the cancellation of his policy, Dr. Taylor met both of these requirements.

When the trial court rendered its judgment on Dr. Taylor’s exception of prematurity, the jurisprudence in this circuit held that the coverage provision in a claims-made medical malpractice liability insurance policy that denies coverage for medical malpractice that occurred during the policy period but was first made and reported after the policy period violates La. R.S. 22:629, which prohibits any condition, stipulation or agreement in an insurance contract from limiting a right of action against the insurer to a|(iperiod of less than one year from the time when the cause of action accrues. Hood v. Cotter, 06-1390 (La.App. 1 Cir. 12/28/07), 978 So.2d 988. Thus, under this jurisprudence, the provision in Dr. Taylor’s LAM-MICO policy that would deny coverage for the Joiners’ claim for malpractice that allegedly occurred during the policy period but was first made and reported after the policy was cancelled, would be invalid as a violation of La. R.S. 22:629. However, the supreme court recently reversed this line of jurisprudence in Hood v. Cotter, 5 So.2d 819 (La.12/2/08), and held that although a claims-made policy may deny coverage for a plaintiffs claim, it does not limit the plaintiffs right of action in violation of La. R.S. 22:629. The supreme court in Hood also found that because the doctor’s qualification under the Medical Malpractice Act takes effect and follows the same form as the underlying medical malpractice insurance, the doctor was not a qualified health care provider for the purposes of the plaintiffs claim. Thus, under the supreme court’s recent holding in Hood v. Cotter, the provision in Dr. Taylor’s claims-made policy which would deny coverage for the Joiners’ claim made after the policy was cancelled is not considered a limitation on the Joiners’ right of action against LAM-MICO in violation of La. R.S. 22:629.

Despite the supreme court’s holding in Hood v. Cotter, we find that the cancellation of the LAMMICO policy is invalid in that it violates the provisions of La. R.S. 40:1299.45 to the extent that it affects the Joiners’ claim. Louisiana Revised Statutes 40:1299.45, entitled “Malpractice Coverage,” provides in pertinent part:

D. Every policy issued under this Part is deemed to include the following provisions, and any change which may be occasioned by legislation adopted by the legislature of the state of Louisiana as fully as if it were written therein: ...
|7(2) Any termination of this policy by cancellation is not effective as to patients claiming against the insured covered hereby, unless at least thirty days before the taking effect of the cancellation, a written notice giving the date upon which termination becomes effective has been received by the insured and the board at their offices. In no event shall said cancellation affect in any manner any claim which arose against the insurer or its insured during the life of the policy.

The cancellation of the LAMMICO policy effective December 12, 2005 affects the Joiners’ claim, which was “a claim which arose against the insurer or its insured during the life of the policy.” Although the courts have distinguished “cancellation” from “expiration” with regards to this statute, and held that expiration of a policy according to its terms was not a cancellation that would violate La. R.S. 40:1299.45(D)(2), the instant case clearly involved a cancellation. Thus, the cancellation was invalid, and Dr. Taylor’s LAM-MICO policy remained in effect for purposes of the Joiners’ claim.

Additionally, it is unclear from a review of the record whether the notice provision of La. R.S. 40:1299.45(2) was complied with in this case. The notice contains several dates; it appears the notice was originally dated December 12, 2005, but the top of the form contains the dates January 7, 2006 and April 18, 2006, and the attorney for the PCF mentioned at the hearing on the exception that the notice was not sent out until April. Absent compliance with the notice provision, the attempted cancellation of the policy was ineffective.

Finally, because Dr. Taylor’s qualification under the Medical Malpractice Act takes effect and follows the same form as the underlying medical malpractice insurance, Dr. Taylor would be a qualified healthcare provider for purposes of the Joiners’ claim, and the exception of prematurity was properly granted.

| ^Regarding the PCF’s argument that it should not have to provide coverage for a panel request when Dr. Taylor failed to pay for that coverage, the PCF alleges that it cancelled Dr. Taylor’s PCF qualification retroactive to December 12, 2005 after being notified in April 2006 that LAMMICO had cancelled Dr. Taylor’s policy effective December 12, 2005 as a result of nonpayment. At the same time it notified the PCF of the policy cancellation, LAMMICO also requested a credit for the unearned portion of the PCF surcharge it paid on Dr. Taylor’s behalf.

In order to be qualified under the Act, a health care provider must provide proof of financial responsibility to the PCF and pay the applicable PCF surcharge. Although the PCF was not in possession of a surcharge from Dr. Taylor at the time the Joiners’ claim was filed, this was due to the erroneous cancellation of Dr. Taylor’s LAMMICO policy. Since we have held that this cancellation was invalid, we likewise find that the PCF cancellation was invalid and Dr. Taylor should have PCF coverage for the Joiners’ claim.

DECREE

The judgment of the district court granting Dr. Taylor’s exception of prematurity and dismissing the Joiners’ suit without prejudice is affirmed. Costs of this appeal are assessed to the PCF.

AFFIRMED.

GUIDRY, J., concurred in the result.