author: PAUL A. BONIN, Judge.

text:
    Cleveland JOSEPH v. ARCHDIOCESE OF NEW ORLEANS, Its Insurance Company, Catholic Mutual Group, Sidney Figlia and His Unknown Insurance Company, ABC Insurance Company.
    No. 2010-CA-0659.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.

      Fred R. DeFrancesch, Tomy J. Acosta, Laplace, LA and James A. Harry, Springfield, LA, for Plaintiff/Appellant.
    Gregory G. Gremillion, William H. Voigt, Matthew P. Weaver, Gaudry Ranson Higgins & Gremillion, L.L.C. Gretna, LA, for Defendants/Appellees, Father Sidney Fig-lia, The Archdiocese of New Orleans and Catholic Mutual Group.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|! Cleveland Joseph, who was injured in a motor vehicle collision, appeals the trial court’s judgment which was based upon the jury’s verdict. Mr. Joseph complains that the general and special damages awarded to him by the jury are inadequate. Generally, he argues that the jurors’ bias in favor of the defendants and the trial court’s refusal to permit challenges for cause so interdicted the jury’s findings that we should make de novo findings of fact on the amount of damages. He also argues that the trial court erred in refusing to grant a judgment notwithstanding the verdict on the general damages and on the future medical special damages.

Because we conclude that Mr. Joseph failed to preserve the issue of juror bias for appellate review, we have no basis upon which to decide that the jury’s | ^verdict was interdicted, and, accordingly, we may not engage in de novo factual findings on the damages issues. Also, because we conclude that the jury was not clearly wrong in its assessment of special damages and that it did not abuse its discretion in its award of general damages, we further conclude that the trial court did not err in refusing to grant a JNOV. We affirm the judgment, and we explain our reasons in the parts which follow.

I

Mr. Joseph was stopped at a red light when his vehicle was struck in the rear by a car owned by the Archdiocese of New Orleans, insured by Catholic Mutual Group, and being driven by Sidney Figlia, a Roman Catholic priest. The jury found the defendants at fault for the collision. See La. R.S. 32:81; Williams v. Melancon, 08-1155, p. 3 (La.App. 4 Cir. 4/1/09), 9 So.3d 310, 312; Brandon v. Trosclair, 00-2374, p. 19 (La.App. 4 Cir. 10/17/01), 800 So.2d 49, 60. The liability finding has not been appealed. See La. C.C.P. art. 1911.

Mr. Joseph was eighty years old. Following the collision he was treated by Dr. Joseph Stagni, a chiropractor, and by Dr. Vaclav Hamsa, an orthopedist. During the course of his treatment, an MRI was performed, and a radiologist expressed his opinion about his findings.

The chiropractor found soft tissue injury superimposed on pre-existing degenerative conditions. He treated Mr. Joseph over a six-month period in 2008 and thought that Mr. Joseph would not benefit substantially from further intensive | .¡chiropractic care. He did not anticipate severe residual impairment beyond occasional bouts of pain and stiffness for some months.

The orthopedist found that Mr. Joseph had a “long, long history of back problems.” Dr. Hamsa ordered a EMG to determine the reason for Mr. Joseph’s complaints of pain emanating from his cervical spine, and treated Mr. Joseph with medication, considering surgery for a patient of Mr. Joseph’s age an unwise alternative. He assigned a ten percent of the whole man disability as a result of the accident.

Another orthopedist, Dr. David Aiken, who examined Mr. Joseph for the litigation but did not treat him, stated that the extent of Mr. Joseph’s injuries was limited to a few weeks of aggravation of a previously well-manifested degenerative muscu-loskeletal condition.

The jury also had before it some evidence that Mr. Joseph withheld information from his treating physicians about his medical care dating back to 1970 and the nature and extent of his pre-existing back and neck injuries. Also, the jury heard that Mr. Joseph had concealed his use of narcotics from his physicians.

The jury awarded Mr. Joseph $20,000 in general damages for physical pain and suffering past, present, and future; $10,000 in general damages for mental pain and suffering; $9,375 in special damages for past and present medical expenses, and $5,625 in special damages for future medical expenses, a total award of $45,000. The defendants have not appealed the award of damages or answered the appeal. See La. C.C.P. art. 2133.

JiP

In this part we explain why we cannot grant Mr. Joseph any relief on his claim that the trial judge did not grant his challenges for cause with respect to several of the jurors. Mr. Joseph has asserted in his brief that the jurors were biased in favor of the church and its priest. But we cannot review for error an allegation which was not made as a timely objection in the trial court and preserved in the record for our review on appeal. The record does not include the transcript of the voir dire of the potential jurors.

An appellant has the duty to present a full record and state clearly the basis of his attribution of error when he appeals a judgment. “When the record lacks a transcript that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant.” Gay v. C & D of Shreveport, 25,319 (La.App. 2 Cir. 10/26/94), 645 So.2d 280, 282.

Without the missing ... transcripts, this Court does not, on review, have any basis by which to determine that the trial court committed error.... Under these circumstances, the trial court judgment is presumed to | shave been based upon sufficient evidence and in accordance with the law in the absence of a showing in the record to the contrary. (citations omitted)

Werner Enterprises, Inc. v. Westend Development Co., 563 So.2d 540, 543 (La.App. 5 Cir. 6/6/90); see also State of Louisiana in the Interest of Nathaniel Solomon, 95-0638 (La.App. 4 Cir. 3/27/96), 672 So.2d 1039, 1043, and cases cited therein (noting that “the appellant bears the burden of furnishing the appellate court with a record of the proceedings below”).

Unless we find a legal error to interdict a jury’s verdict, there is no basis for us to review a jury’s findings de novo. See Burns v. CLK Investments V, L.L.C., 10-0277, p. 5 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1156, in which we stated: “Since we have not found an erroneous [jury] instruction, we are surely not authorized to review the facts of this case de novo.” See also Adams v. Rhodia, Inc., 07-2110, pp. 6-7, 10 (La.5/21/08), 983 So.2d 798, 805.

Because the appellant here has not preserved the issue of juror bias for our review, we cannot conclude that any legal error interdicted the jury’s verdict in this case and will apply the customary standard of review to the jury’s findings of fact. The manifest error standard turns on the presence of a reasonable factual basis for a particular determination. In order to find manifest error, “an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous” while taking care “not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently”. Ryan v. Zurich American Ins. Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219.

JjJH

The negligence of the defendant driver which caused injury to Mr. Joseph entitles Mr. Joseph to damages. La. Civil Code arts. 2315, 2316. “In the assessment of damages in cases of ... quasi offenses, ... much discretion must be left to the judge or jury.” La. Civil Code art. 2324.1. The central dispute in this case in evaluating the jury’s quantum assessments revolves around the length of time that Mr. Joseph will suffer from his injuries. On one side the liable parties argue that his injuries were virtually resolved by the time of trial and on the other side Mr. Joseph argues that he could suffer another twenty years until he is one hundred years old.

A

We review the jury’s award for Mr. Joseph’s future medical expenses, which is an item of special damage, under the manifest error standard of review. “Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred.”. and “some evidence to support the award must be contained in the record.” Molony v. USAA Property and Casualty Ins. Co., 97-1836, pp. 2-3 (La.App. 4 Cir. 3/4/98), 708 So.2d 1220, 1221 9 (citations omitted). The Louisiana Supreme Court in Duncan v. Kansas City Southern Railway Co., 00-0066, p. 17 (La.10/30/00), 773 So.2d 670, 685, stated: “Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost.” The plaintiff must show that future medical expenses more probably than not will be incurred, he must show that they are needed, and he must supply estimates of their probable cost. Abuan v. Smedvig Tankships, Ltd., 96-1013, p. 21 (La.App. 4 Cir. 6/24/98), 717 So.2d 1194, 1205.

[7Mr. Joseph contends that the jury erred when, after awarding him $9,370 for past medical expenses which he incurred over sixteen months, it awarded him only $5,625 for future medical expenses. He argues that the jury was clearly wrong not to award him $140,625. He calculates this sum by extrapolating from the jury’s award of past medical expenses in the amount of $9,375, which covered a sixteen-month treatment period. As a result of deft questioning by his counsel of Dr. Stagni, and his interpretation of chiropractor’s answers, Mr. Joseph hypothesizes that he might live to be 100 years old. By averaging the 16 months of past medical expenses, and multiplying the average by the 240 months of his hypothesized life expectancy, he concludes that the relatively meager award for future medical expenses is clearly wrong.

But the testimony in fact showed that Dr. Stagni only acknowledged that he did not know how long Mr. Joseph would live. Also, nowhere in Dr. Stagni’s testimony is there any opinion that Mr. Joseph needs continuing chiropractic care for any length of time, much less the 20-year period. The jury reasonably exercised its common knowledge, experience and education in evaluating Dr. Stagni’s testimony regarding Mr. Joseph’s longevity. See Balthazar v. Guillory Racing Farms, 00-00941, p. 3 (La.App. 3 Cir. 3/7/01), 802 So.2d 9, 12. Moreover, Dr. Aiken stated that the injury from the accident only induced short-term medical needs and expenses.

The jury has the latitude to choose between witnesses, including expert witnesses, and to use such expert testimony together with its own common sense and experience to arrive at its conclusions of fact. La. C.E. art. 704; Burns v. CLK Investments V, L.L.C., 10-0277, p. 10 (La.App. 4 Cir. 9/1/10), 2010 WL 3431855, 45 So.3d 1152. A jury may choose the opinion of one expert, or even reject Rthe opinion of the sole expert. See Bachemin v. Anderson, 97-2471 p. 4 (La.App. 4 Cir. 7/29/98), 717 So.2d 677, 680. “Even uncon-tradicted expert testimony is not binding on the factfinder.” J.A.G. v. Schmaltz, 95-2755 (La.App. 4 Cir.10/23/96), 682 So.2d 331, 337. The jury’s acceptance of part or all of each expert’s testimony is within its discretion in fact finding. In the instant case, the jury was presented with medical testimony and medical records from which it could assess the severity of the injury caused by the auto accident compared with Mr. Joseph’s lengthy previous medical history of musculoskeletal complaints and treatment, and his history of narcotic use.

The modest sum of $5,625 for future palliative, minor care awarded by the jury as the special-damages award is not clearly wrong and is, under these circumstances, reasonable.

B

Similar factual arguments are made by Mr. Joseph with respect to the general damages award, which he argues is inadequate because it did not consider the long-term pain future pain and suffering of Mr. Joseph. But we review an award of general damages under the abuse of discretion standard of review which is even more deferential to the jury than the manifest error standard.

As the Louisiana Supreme Court in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), stated: “[T]he discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” See also Bouquet v. Wal-Mart Stores, Inc., 08-0309, p. 5 (La.4/4/08), 979 So.2d 456, 459; Moffitt v. Sewerage & Water Board of New Orleans, 09—1596, pp. 15-16 (La.App. 4 Cir. 5/19/10), 40 So.3d 336, 345-46. The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan v. Kansas City So. Ry. Co., 00-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682; Bouquet, supra, 08-0309 at p. 5, 979 So.2d at 459. An appellate court reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan, supra, 00-0066 at p. 13, 773 So.2d at 682-83. The Louisiana Supreme Court in Wainwright v. Fontenot, 00-0492, pp. 5-6 (La.10/17/00), 774 So.2d 70, 74, stated:

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review.... There is no question that the abuse of discretion standard of review applies when an appellate court examines a factfinder’s award of general damages.

The jury’s findings of fact and its award of general damages totaling $30,000 reflect its reasonable evaluation of the length and severity of Mr. Joseph’s injury from the accident. Mr. Joseph’s impaired credibility as presented by his failure to reveal medical treatment from one facility to another, and by his denial of previous neck and back complaints and treatment, as well as by his use of prescription pain medications, supports the jury’s evaluation, which was not unreasonable or clearly wrong.

JjflIV

In this part we turn to the trial court’s denial of Mr. Joseph’s motion for JNOV. The Louisiana Supreme Court in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991), explained the purpose of a JNOV as follows:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. ... [I]n making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party, (emphasis added).

See also Finnie v. Vallee, 620 So.2d 897, 899 (La.App. 4th Cir.1993).

We review the trial court’s denial of Mr. Joseph’s motion for JNOV under the manifest error standard of review. We held in Trunk v. Medical Center of Louisiana at New Orleans, 03-0275, pp. 5-6 (La.App. 4 Cir. 12/17/03), 863 So.2d 675, 680-81 (reversed on other grounds, 2004-0181 (La.10/19/04), 885 So.2d 534):

[I]f there is substantial evidence of such quality and weight that reasonable persons might reach different conclusions, the motion must be denied, [citations omitted].... A JNOV is proper only where the trial judge concludes the verdict is one reasonable people could not have reached.

The Louisiana Supreme Court in Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 4 (La.10/30/00), 772 So.2d 94, 99, stated:

The motion [i.e., JNOV] should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different | n conclusions.... In making this determination, the trial court should not evaluate the credibility of witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.... This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” [citations omitted] ... The appellate court “us[es] the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not”.

Because we have already concluded that the jury’s awards are reasonable, we must conclude that the trial court was correct in denying the motion for JNOV.

DECREE

We affirm the judgment of the district court. We also affirm the district court’s denial of Mr. Joseph’s motion for JNOV.

AFFIRMED.

      . Mr. Joseph also argues that the trial judge improperly refused additur, but additur requires the consent of the defendant as an alternative to a new trial. See La. C.C.P. art. 1814.

      . The entire gravamen of Mr. Joseph’s argument and recitation of the trial court’s error is set forth in his original brief to this court, which we quote in its entirety:
      The jury was afraid of awarding the claim fairly against the defendants, all of whom are the Catholic Church in some form or fashion. This was clearly indicated by the foreman of the jury who commented before the verdict was read that the jury was going to hell for even the small award he was about to read. Unfortunately, the record is incomplete and does not contain the foreman's comment, (p. 9).
      Mr. Joseph argues, on pp. 11-12 of his brief,
      During the voir dire process, the plaintiff/appellant Cleveland Joseph, made many objections for cause that were incorrectly overruled by the Trial Court to the best recollection of the plaintiff/appellant. If the Trial Court had sustained objections made by die plaintiff/appellant or been more global in limiting the venire, the results of the jury selection process would have eliminated unfairness to the plaintiff/appellant. However, the record does not contain the recorded transcript of the voir dire and, as such the record is as incomplete as this argument.
      Plaintiff/appellant will, independently of this brief, seek to have the record completed and to supplement this argument as the transcript becomes available.
      Mr. Joseph has made no motion to supplement the record in this case.

      . Duncan, supra, 00-0066 at p. 13, 773 So.2d at 682, defines general damages as "those which may not be fixed with pecuniary exactitude”; instead, they "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” [citations omitted].


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Jocobby Joseph LEE.
    No. 2010 KA 1592.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 2010.

      Joseph Waitz, District Attorney, Ellen Doskey, Assistant District Attorney, Hou-ma, La., for Appellant, State of Louisiana.
    David Price, Bruce Dodd, Bruce Un-angst, Baton Rouge, La., for Defendant/Appellee, Jocobby Joseph Lee.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

|2The defendant, Jocobby Joseph Lee, was charged by grand jury indictment with two counts of first degree murder in violation of La. R.S. 14:30. After entering a plea of not guilty, the defendant filed a motion to quash the indictment. The trial court granted the motion to quash, and the State appeals. For the following reasons, we reverse the trial court’s judgment and remand for further proceedings.

PROCEDURAL HISTORY

On September 18, 2009, the grand jury returned an indictment in the case sub judice. The grand jury foreman indorsed the indictment “a true bill,” and the in-dorsement indicated an indictment for:

CT. 1: FIRST DEGREE MURDER

CT. 2: FIRST DEGREE MURDER

The indictment further provides that on or about July 28, 2009, “with force and arms in the Parish of Terrebonne,” the defendant “did then and there unlawfully kill one, Michael D. Hebert, in violation of La. R.S. 14:30.” Count Two similarly provides that on the same date and in the same parish, the defendant “did then and there unlawfully kill one, Michael G. Herbert, in violation of La. R.S. 14:30.”

The defendant, accompanied by counsel, was arraigned on September 18, 2009; the entire indictment was read in open court. The court asked, “In No. 556,154, Mr. Lee, you’re charged in Count 1 with first degree murder. How do you plead?” The defendant responded, “Not guilty.” The court then asked, “Count 2, first degree murder. How do you plead?” Again, the defendant responded, “Not guilty.”

^Numerous pre-trial defense motions, including the motion to quash, clearly state the defendant is charged with “two counts of First Degree Murder” and “subject to the death penalty.” Following a contradictory hearing, the trial court granted the defendant’s motion to quash the indictment. The trial court explained that it could not tell by the indictment “whether all of the elements of first degree murder have been considered by the grand jury.” The State appeals.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

In the first assignment of error, the State argues that the trial court overstepped its authority in granting the defendant’s motion to quash on grounds not listed in the motion to quash. The State notes that in pretrial motions, the defendant objected to the use of short-form indictment in a capital case, arguing that the indictment failed to state the aggravating factors being used as elements of first degree murder. The State further notes that the defense conceded at the hearing that the Louisiana Supreme Court has rejected the argument that jurisprudence precludes the use of short-form indictments in capital cases. The State contends that there are no federal or state cases which hold that the short-form indictment is unconstitutional.

In the second assignment of error, the State argues that the basis for the trial court’s ruling on the motion to quash was improper. The State contends that a mere glance at the indictment reveals the intended charges, and that there is no support for the trial court’s conclusion that the grand jury may have intended to indict the defendant for two counts of manslaughter. The State specifically notes that the front page of the indictment states two Rcounts of “First Degree Murder.” The State contends that while the short-form indictment must clearly inform the accused of the crime charged, it need not list all the elements of a particular crime or follow precise language.

In the third assignment of error, the State alternatively argues that the trial court erred in refusing to allow the State to amend the indictment. The State argues that an amendment would have been lawful because the trial date had not yet been set. The State further argues that an amendment would not have prejudiced the defendant because the indictment clearly reveals that the charges were first degree murder.

DISCUSSION

The motion to quash filed by the defendant herein complains that the indictment provides no information about which aggravating factor under La. R.S. 14:80 supports the charges or which aggravating circumstances under La.Code Crim. P. art. 905.4 make the charges capital crimes. The motion further notes that the constitutional validity of Louisiana’s short-form indictments in capital cases has been called into question. The motion contends that the Due Process Clause of the Fourteenth Amendment to the United States Constitution and La. Const, art. 1, § 15 secure the defendant the fundamental right to have a grand jury consider and return a finding concerning each and every element of the capital crime with which he is charged. While conceding that the Louisiana Supreme Court has approved the use of short-form indictments even in capital prosecutions, the motion argues that the practice is dubious and trivializes the historic right to grand Injury indictment because the short-form indictment does not list essential elements of the charged crime.

At the hearing on the motion to quash, the trial court noted that the jurisprudence is straightforward in holding that the use of short-form indictments is valid and that the defendant can obtain aggravating factors through the bill of particulars. The trial court, however, concluded that pursuant to La.Code Crim. P. art. 465 A(31), the short-form indictment used herein is problematic since it does not include the language provided for first degree murder (“A.B. committed first degree murder of C.D.”) and instead incorporates the language provided for manslaughter (“A.B. unlawfully killed C.D.”) in subsection S3. In finding the State’s request to amend the indictment improper, the trial court contended that to return a valid indictment the grand jury must pass upon each element of the offense, and the court could not determine whether that was done in this case based on the indictment. The State argued that the particular language in the instant short-form indictment was not raised in the motion to quash, only the issue of whether the use of a short-form indictment to charge a capital offense was proper. The defense conceded that its argument as to whether the State could use a short-form indictment was unsuccessful, but disagreed with the State’s limited view of the issue raised in the motion to quash. The defense argued that from the indictment it was uncertain whether the grand jury considered manslaughter or first degree murder charges. The defense and trial court agreed that the only remedy was to go back to the grand jury to secure a new indictment.

|6When a trial court rules on a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 02-2698 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 03-2142 (La.10/17/03), 855 So.2d 766. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-2094, 99-2015, 99-2019, 99-0606 (La.7/6/00), 766 So.2d 501, 504. In this case the trial court’s ruling on the motion to quash is based on a legal finding and is, therefore, subject to de novo review.

An accused shall be informed of the nature and cause of the accusation against him. La. Const, art. I, § 13. That requirement is implemented by La.Code Crim. P. art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Louisiana Code of Criminal Procedure article 465 authorizes the use of specific short-form indictments in charging certain offenses, including first degree murder. The constitutionality of short-form indictments has been consistently upheld in capital cases. State v. Liner, 373 So.2d 121, 122-23 (La.1979) (per curiam). See State v. Baylis, 388 So.2d 713, 718-19 (La.1980). When those forms are used, it is intended that a defendant may procure details as to the statutory method by which he committed the offense through a bill of particulars. Baylis, 388 So.2d at 719; State v. Johnson, 365 So.2d 1267, 1270-71 (La.1978); La.Code Crim. P. art. 465, Official Revision Comment (b).

In accordance with the law provided above and as conceded by the parties herein, it is well settled that the use of the short-form indictment provided by law complies with the constitutional requirement of La. Const, art. I, § 13. In addition, the specific language of the short-form indictment used herein is squarely at issue. Thus, the State’s first assignment of error is without merit as we disagree with the contention that the specific language in the short-form indictment was not raised by the motion to quash. Although the supreme court has held that it is essential for the prosecution, when using the short form, to adhere strictly thereto, this rule does not require a literal tracking of the language of the short form. State v. Durbin, 235 La. 989, 991-92, 106 So.2d 443, 444 (1958). It suffices that the words used by the pleader unmistakably convey the same meaning as those contained in the short form. Durbin, 235 La. at 992, 106 So.2d at 444.

Herein, the indictment includes the language “unlawfully kill ... in violation of La. R.S. 14:30.” Said language, which broadly encompasses first degree murder, and the inclusion of the statutory citation for first degree murder, unmistakably conveys the charges returned in this case. The indorsement of the foreman of the grand jury setting out the charges of first degree murder for which a true bill was found is as much a part of the indictment as the remainder of the document. An indictment is a written accusation of crime by a grand jury. It must be concurred in by not less than nine of the grand jurors, indorsed a true bill, and the indorsement must be signed by the foreman. La.Code Crim. P. art. 383. Clearly, by this |sauthority, the indorsement is an essential part of any indictment. The indorsement alone is insufficient to ascertain the crime with which a defendant is charged; it is not a substantive part of the charge. See State v. Birabent, 305 So.2d 448, 451 (La.1974), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). It is reasonable to conclude, therefore, that to ascertain the true meaning of an indictment, the whole of the document, including the indorsement, must be considered. It is upon this rationale that the Louisiana Supreme Court decided State v. Cooper, 249 La. 654, 658-59, 190 So.2d 86, 88 (1966) (overruled on other grounds in State v. Lee, 331 So.2d 455, 460 (La.1975)), and permitted reference to the indorsement to clarify the meaning of the indictment. There the Supreme Court said that a fair reading of the whole document, including the indorsement, properly informed the accused of the crime he was charged with violating. Cooper, 249 La. at 659, 190 So.2d at 88; cf. State v. Stoma, 199 La. 529, 535-36, 6 So.2d 650, 652-53 (1941) (citing State v. Morrison, 30 La.Ann. 817 (1878)).

Reading the indictment as a whole in the instant case, we find that the indictment complies with the constitutional requirement that the defendant be informed of the nature and cause of the accusation against him. La. Const, art. I, § 13. Based on the foregoing, we find merit in the second assignment of error as the trial court erred in granting the motion to quash herein and said ruling must be reversed.

Moreover, in accordance with Louisiana Code of Criminal Procedure article 487, the district attorney has complete authority to amend indictments, both as to form and substance, at any time before trial. As the defendant was properly informed of the charges, pretrial amendment of the | ¡¡indictment would not be prejudicial to him. Thus, the third assignment of error also has merit as it is clear that the State had authority to amend the indictment.

For the above reasons, we reverse the trial court’s ruling quashing the indictment and remand this matter for further proceedings.

JUDGMENT GRANTING MOTION TO QUASH REVERSED; REMANDED FOR FURTHER PROCEEDINGS.


author: AMY, Judge. SAUNDERS, J.,

text:
    Jamie CASS v. Kevin Charlie CASS.
    No. 10-327.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 2010.
    Rehearing Denied Dec. 22, 2010.

      J. Ogden Middleton, II, Alexandria, LA, for Defendant/Appellant, Kevin Charlie Cass.
    David C. Hesser, Alexandria, LA, for Plaintiff/Appellee, Jamie Cass.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|,The defendant appeals a judgment of the trial court disallowing him to relocate to Texas with his minor son and naming the plaintiff as domiciliary parent. For the following reasons, we reverse and remand.

Factual and Procedural Background

Ms. Jamie Cass, the plaintiff and appel-lee, and Mr. Kevin Cass, the defendant and appellant, obtained a judgment of divorce on July 31, 2009. Pursuant to a consent judgment, the parties shared joint custody of one minor child born of the marriage. The consent judgment, entered on May 28, 2009, detailed a shared physical custody schedule and designated Mr. Cass as the domiciliary parent.

The record reveals that Mr. Cass, a Sergeant First Class in the Army, received orders in early 2009 informing him that he was being transferred from Fort Polk in Louisiana to Fort Hood in Texas. Mr. Cass asserts that at some time in either April or May 2009, he informed Ms. Cass, a Lieutenant in the Army, of the transfer order. On May 29, 2009, Ms. Cass filed an “Objection to Relocation, Rule For Relocation Evaluation, and Rule For Custody” seeking to prevent Mr. Cass from moving out of Louisiana with the child until a hearing could be held in addition to requesting that she be named the domiciliary parent. Mr. Cass answered Ms. Cass’s objection and filed a rule for a temporary order to relocate. On July 29, 2009, the trial court denied Mr. Cass’s request to temporarily relocate the child to Fort Hood, and a hearing was set to determine the permanent relocation issue.

Following a three-day hearing, the trial court issued oral reasons for judgment denying Mr. Cass’s request to relocate, changing domiciliary custody to Ms. Cass, and denying Mr. Cass’s request to remain in Louisiana as a domiciliary custodian. |2A “Judgment on the Rule” was subsequently signed; however, the written judgment did not contain reference to the trial court’s denial of Mr. Cass’s request to remain in Louisiana as a domiciliary custodian. Mr. Cass filed a Motion for Entry of Supplemental Judgment, and on September 10, 2009, the trial court issued a supplemental judgment reflecting that denial.

Mr. Cass appeals, asserting the trial court erred in: (1) misapplying the relocation statute and denying his request to relocate; (2) failing to follow the required analysis in relocation cases; (3) finding that his move to Texas constituted a change in circumstance warranting a modification of the initial consent judgment; (4) naming the defendant as the domiciliary parent and refusing to recognize him as a Louisiana domiciliary; (5) failing to have the child’s in camera interview transcribed; (6) ignoring the mental health evaluator’s findings; and (7) refusing to let the mental health evaluator see the minor child to further evaluate emotional issues.

Discussion

Standard of Review

Mr. Cass first asserts that this court should conduct a de novo review of the present matter, contending that the trial court: failed to consider the relocation factors enumerated in La.R.S. 9:355.12; ignored the applicable burden of proof under La.R.S. 9:355.13, and; in making its decision, the trial court relied upon what the child related to it in an in camera conversation that was not transcribed. He argues that these alleged failures constitute legal error; therefore, this court is not bound by the manifest error standard.

is A parent seeking relocation must prove two things: (1) that the proposed relocation is in good faith and (2) that the proposed relocation is in the best interest of the child. La.R.S. 9:355.13. Louisiana Revised Statutes 9:355.12 enumerates factors the trial court shall consider in deciding a contested relocation, as follows:

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

This statute mandates that the trial court consider the enumerated factors; however, it does not require the court to give preferential consideration to any certain factor. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094. A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. Id. Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson, 09-609 (La.App. 3 Cir. 11/18/09), 25 So.3d 203, citing Mart v. Hill, 505 So.2d 1120 (La.1987). On review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.

In its oral reasons for judgment, the trial court stated, in pertinent part:

In my decision in this case, is based not only on the evidence that has been presented in this proceeding, but also the interest that [the child] has conveyed to me. Sergeant Cass, you bear the burden of proving that this relocation would be in [the child’s] best interest. In my opinion, you are placed in a very difficult situation, because of your career. Whether you orchestrated a move, or whether you were ordered to move, and had little or no say so in where you were moving to, as you were presented, or as you testified in this Court, on the 31st of July, on Monday, the 17th, and, an on the 17th, you have very sketchy | information about your work schedule, your duties, who would care for [the child] while you are at work. There’s very limited information on the school, other than what some website, how some website ranked it, which I place no significant credence in. I am left with a lot of questions about [the child’s] environment in Fort Hood.
[W]e have Ms. Cass, who has lived in the same home for a period of approximately two-years. Her work schedule is very defined, and it is scheduled in such a manner to where there is no reliance on day care.
Sergeant Cass, I find that you have not met your burden of proving that the relocation would be in [the child’s] best interest.

While a trial court is not required to specifically list each of the enumerated factors, the record must support that it considered the factors in light of the particular evidence presented. Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955. Here, in its oral reasons for judgment, the trial court found Mr. Cass failed to carry his burden of proof, characterizing the information about his work schedule, the child’s school, and child care services as “sketchy.” It stated that there was limited information provided about the child’s school absent a website ranking, which it opined was unpersuasive.

However, at the hearing Mr. Cass testified that he enrolled the child in Meadows Elementary School and met with the school’s principal. He explained that Meadows Elementary was the elementary school which corresponded with his assigned military housing on the base. Mr. Cass related that when he met with the principal of the school, she provided him with a packet of information about the school and base, including: a “Welcome” letter from Fort Hood explaining its size and function; a calendar of family activities available in Mr. Cass’s assigned neighborhood and school; a school calendar including vacation days, testing dates, and parent conference dates; a school supply list and information about school meals, | (¡and a memo from the school district superintendent detailing information about the bus routes, classroom and extra-curricular educational opportunities, and contact information for the schools. Mr. Cass also testified that he had scheduled an appointment with the gifted and talented teacher at the school in order to have the child tested for gifted classes. This informational packet and brochure detailing the gifted and talented program were submitted into evidence at the hearing.

The hearing’s transcript reveals that the trial court asked Mr. Cass what his normal work schedule would be during the week, and Mr. Cass confirmed that it would be 9:00 a.m. to 4:30 p.m., Monday through Wednesday. He indicated that on Thursdays, he would be released at 1:00 p.m. for “Family Day.”

As to child care, Mr. Cass testified that he enrolled his son in child care services offered on the military base. He explained that the child care services were available before and after the child’s school hours for any time in which Mr. Cass was required to work during school hours. In response to questioning from the trial court, Mr. Cass explained that he had the child care services available in addition to a private child care provider and his mother if an emergency arose. He testified that he made arrangements with military housing personnel to allow his mother to live at the house, not to exceed thirty days in a one month window, to provide child care if he was called away from the home to field assignments.

Here, in its oral reasons for judgment, the trial court found Mr. Cass failed to carry his burden of proof, characterizing the information about his work schedule, the child’s school, and child care services as “sketchy.” It stated that there was limited information provided about the child’s school absent a website ranking, which it opined was unpersuasive. Although the trial court provides reasons for its ruling, it’s |7original judgment, supplemental judgment, and oral reasons for judgment do not cite or make reference to any of La.R.S. 9:355.12’s factors. While a trial court is not | ¡¡required to specifically list each of the enumerated factors, the record must support that it considered the factors in light of the particular evidence presented. Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955. While there is no doubt that the trial court expressed concern for the parties, especially the minor child, it is difficult for this court, on review, to determine what factors, if any, the trial court considered, and how it evaluated and weighed the evidence under each factor. Further, the record does not support that the findings the trial court did make were reasonably based upon the evidence in the record. Here, Mr. Cass submitted several exhibits explaining Fort Hood’s environment and Meadows Elementary. He further testified as to the hours he would be working, how child care was to be provided, and what activities he either planned to enroll the child in or had already enrolled the child in. Also, he testified extensively regarding the opportunities available at Fort Hood. Mr. Cass also submitted documentary evidence to support his testimony. The school rankings referenced in the trial court’s oral reasons for judgment were submitted by Ms. Cass.

|flBased upon a lack of indication that the trial court considered all of the factors in La.R.S. 9:355.12 in addition to our determination of manifest error in some of the underlying factual determinations, we find that a de novo review is required. The finding of error does not mandate a reversal on that ground alone; rather, this court may remedy the deficiency via a de novo review based on the evidence in the record. Leger, 854 So.2d 955.

De Novo Review

Under a de novo review, we must analyze the evidence presented regarding the relocation and determine whether Mr. Cass met his burden of proving: (1) that the proposed relocation is in good faith; and (2) that the proposed relocation is in the best interest of the child. La.R.S. 9:355.13.

Good Faith

There is no dispute in the record that Mr. Cass was ordered by the United States Army to report to Fort Hood in Texas. However, Ms. Cass contends that Mr. Cass “made plans to relocate out of Louisiana in order to deprive [her] of her relationship with the minor child.” She further contends that Mr. Cass “likely requested that he be transferred to Fort Hood given the parties’ history of the military allowing them to choose where they wanted to be assigned.”

Mr. Cass testified, at length, about the military’s process of transferring soldiers. He explained that he was asked to fill out a form in 2006 for his personnel file listing his preferences for relocation if his transfer became necessary. Mr. Cass testified that he listed Fort Hood in Texas and Fort Carson in Colorado, explaining that he did not have the choice to list Fort Polk as an option. Mr. Cass related that on January 7, 2009, he received his first orders to report on May 10, 2009. He stated that 11flhis counsel, whom he had retained for the divorce proceedings, recommended he wait until sixty days before the move to inform Ms. Cass. At the hearing, Mr. Cass explained as follows:

And, Your Honor, the first orders were dated January the 7th. I had those amended to say that I agreed to go to Fort Hood. Then they were dated 21st January, to reflect the July 10th relocation to Fort Hood. I then went a step further and utilized my total 90 day extension of these current orders to be relocated. Once that had been initiated, now the Department of the Army is saying, “Sergeant Cass, you agreed pri- or to the 7th of January. We allowed you to extend the 60 now to 90 days. Now you must relocate to Fort Hood.” If, in hindsight, Your Honor, if I knew that Jamie was — had ability to relocate that far out where she was able to, I’m sure I would’ve informed her, from Counsel’s recommendation, to do that. But to stay at Fort Polk now is impossible!.]

The record contains the orders requiring him to report to Fort Hood, which corroborate his testimony. While Ms. Cass argues that Mr. Cass’s relocation is in bad faith, she offers no evidence other than the assertion, in brief, that Mr. Cass “likely requested that he be transferred to Ft. Hood” to “deprive her” of a relationship with her child. She has offered no contradictory evidence demonstrating that Mr. Cass or the military conspired to have him transferred or any other action on the part of Mr. Cass indicating bad faith. See Richardson, 25 So.3d 203. In light of the evidence ^presented, the record supports a finding that Mr. Cass met his burden of proving that the relocation was in good faith.

Relocation Factors

In addition to proving that relocation was made in good faith, Mr. Cass must prove that relocation is in the child’s best interest. La.R.S. 9:355.13. “In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.” The court must also consider the enumerated factors in La.R.S. 9:355.12. We turn to consideration of the record in light of these factors. (1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life

Dr. James Logan, a medical psychologist, was appointed by the parties to make a determination as to whether relocation was in the best interest of the child. When asked specifically about this factor, Dr. Logan replied “I would still give an advantage to [Mr. Cass] on that factor. Clearly not based on the duration of primary care-taker, but just an overall global impression of the current relationship.” In his “relocation evaluation” report submitted into evidence, Dr. Logan opined that the child “appealed] to be most comfortable and enthusiastic when in the company of his father.”

_JjjAt the hearing, Ellis R. Spikes, principal of G.W. Carver Elementary, testified that Mr. Cass was heavily involved in the child’s school, volunteering in the classroom and on the playground in addition to attending and coordinating parent-child activities. The record also reveals that Mr. Cass was involved in Cub Scouts with the child. Dr. Logan also noted that Mr. Cass’s involvement and effort to be involved in the child’s life was “impressive.”

Testimony indicates that the child also has a close relationship with his mother and with his half-sister, Ms. Cass’s daughter from a previous relationship. The record reveals that Ms. Cass and the child enjoy activities such as fishing, baseball, movies, canoeing, and roller skating.

The record reveals that both parties have a close relationship with their son and have, at different times in the child’s life, been the primary caregiver. However, the weight of evidence, including the testimony of the parties, the child’s school principal, and Dr. Logan, under this factor, favors relocation.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child

This factor also favors relocation. As explained above, Mr. Cass was heavily involved in the child’s schooling. Both parties testified that the child was struggling academically during the 2006/2007 school year, and the parties feared that he would fail the first grade. During this period of time, Ms. Cass was the child’s primary caregiver. However, in May of 2007, Ms. Cass moved from DeRidder to Pollock, and Mr. Cass became the child’s primary caregiver. The record reveals that the child’s grades began to steadily improve over the next two years, and in May 2009, the child received a 4.0 grade point average. Ms. Cass contends that the improvement |13of grades was a result of diagnosing the child with a speech problem that was affecting his test taking ability. Dr. Logan opined “that Sergeant Cass apparently places a higher value in academic involvement, academic achievement. The young man is profiting from it. At one point, years ago, he was at risk of repeating the first grade. Now he’s on the cusp of being tested for gifted and talented.”

It is clear that both parents are committed to their child’s education; however, in reviewing this factor, we must ask what “impact” the relocation would have on the child’s educational development. In reviewing the child’s academic history in the present matter, there is evidence that Mr. Cass’s heavy involvement positively impacts the child’s academics. As such, continuance of that involvement would be in the child’s best interest, and this factor favors relocation.

(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties

This factor does not favor either party insofar as the parties appear to be willing to incur travel expenses to share regular periods of physical custody throughout the year. In its judgment, the trial court provided a physical custody arrangement wherein Mr. Cass would exercise physical custody on the 2nd and 4th weekend of every month. The child would be flown from Alexandria ’to Dallas/Fort Worth, and the parties would equally share the cost of transportation. Mr. Cass would have'physical custody for the entire summer absent two weeks. The record reveals that both parties are financially able to maintain this type of visitation arrangement. In brief, neither party argues that the logistics of the trial court’s visitation arrangement make it unfeasible, thus the visitation schedule could be modified, in the event of 114relocation, to allow Ms. Cass physical custody on alternating weekends and in the summer.

(A) The child’s preference, taking into consideration the age and maturity of the child

This factor does not favor either parent in light of an absence of evidence on the subject. Dr. Logan’s report opines that the child “expressed no reservations about the location.” The trial court met with the child in chambers, but that meeting was not transcribed. In oral reasons for judgment the trial court stated:

[The child] is a, based on my brief conversation with him, he is a personal [sic] young man, who loves both his parents. [He] wants to spend time with both parents. He does not want to decide, and nor should he have to decide, which parent he will spend the majority of his time with.... I did not want to ask him that question, because I knew he did not want to answer that question. I did explore interest with [the child].

Since this conversation was not transcribed, there is no evidence in the record to determine whether the child has a preference and, thus, this factor favors neither parent.

(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelo-cating party

Both Mr. and Ms. Cass contend that the other has established a pattern of conduct to thwart the other’s relationship with the child. The record reveals that both parties have acted contentiously towards each other at different times throughout this proceeding with neither party clearly acting more egregiously than the other. The |1Brecord also indicates that both parties have a desire to support the child’s relationship with the other parent. Accordingly, this factor favors neither.

(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity, and (8) The cumnt employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child

There is sufficient evidence in the record to support a finding that relocation would enhance Mr. Cass’s and the child’s quality of life. Mr. Cass’s testimony indicates that Fort Hood offers a myriad of activities wherein the child would spend time with other families who share the commonality of being in the military. Additionally, as discussed earlier, relocation would benefit the child’s educational development as Mr. Cass has shown to provide an effective support system to allow the child to succeed academically.

Ms. Cass testified that she is currently employed as a military dental hygienist, and is obligated to remain at this position in Louisiana for two years. Ms. Cass testified that she earns $4,600.00 a month for her job and can adequately provide for the child’s needs under this salary. In brief, Ms. Cass contends that she earns a higher salary than Mr. Cass because she outranks him. Mr. Cass testified that he earns an annual gross income, which included a bonus, of $73,740.00 dollars. He asserts that relocation is necessary per his obligation to the military and to improve his salary and maintain him on the track of retiring in fewer than four years.

Based on the evidence in the record and in light of the transfer facilitating Mr. Cass’s retirement and increase in salary, we find that this factor favors relocation.

| k(7) The reasons of each parent for seeking or opposing the relocation

Here, Mr. Cass is seeking relocation in order to fulfill his military obligations. In brief, Ms. Cass asserts that she is opposing relocation “because it would substantially damage the child’s relationship with her.” However, Ms. Cass does not specify how her relationship with the child would be substantially damaged in light of the evidence which indicates the parties have previously operated under a shared physical custody plan. This factor favors relocation.

(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal suppoH, and community property obligations

This factor is not applicable to the present case. Mr. Cass does not assert that Ms. Cass, the objecting parent, has failed to fulfill any financial obligations.

(10) The feasibility of a relocation by the objecting parent

Ms. Cass’s military obligation requires her to remain in Louisiana, thus her relocation is not feasible. This factor does not favor relocation.

(11) Any history of substance abuse or violence by either parent, including a consideration of the seventy of such conduct and the failure or success of any attempts at rehabilitation

Ms. Cass contends that Mr. Cass has an anger management problem which has resulted in abuse to her teenage daughter. Mr. Cass admitted to violence against his ex-wife from a previous marriage, for which he received counseling; however, he denied any abuse against Ms. Cass’s teenage daughter. The trial court limited submission of evidence regarding the alleged abuse of Ms. Cass’s daughter, and thus the facts of the alleged abuse are unclear from the record. Dr. Logan commented in his relocation evaluation that Mr. Cass demonstrated some heightened levels of anger possibly from the custody dispute or his military background. However, nothing in 117the evaluation indicated that Mr. Cass was a threat to the child or that it was not in the child’s best interest to be with Mr. Cass; in fact, Dr. Logan opined the opposite.

(12) Any other factors affecting the best interest of the child

In its oral reasons for judgment, the trial court reasoned that relocation was not in the best interest of the child because Mr. Cass would have to rely, in part, on outside child care whereas Ms. Cass would not. Mr. Cass testified that he would have to rely on child care three days a week for the window of time from when the child got out of school and he was working. The record indicates that before the relocation dispute, Mr. Cass, per the consent judgment, was the child’s domiciliary parent and that the child lived with him during the school week. At that time, Mr. Cass had to rely on child care much like he would have to do at Fort Hood. Ms. Cass has not articulated why, at this point, it would not be in the best interest of the child to be exposed to minimal outside child care.

Based on our above de novo analysis of the factors set out in La.R.S. 9:355.12, we find no factors that would prevent relocation. After weighing the factors as a whole, we find that they preponderate in favor of allowing relocation. Accordingly, we find that Mr. Cass has carried his burden of proving that relocation is in the child’s best interest.

DECREE

For the foregoing reasons, we reverse the trial court’s August 19, 2009 judgment and September 10, 2009 supplemental judgment. On appeal, we reinstate Mr. Cass as the domiciliary parent. The parties will continue to share joint custody. As we recognize that the parties scheduling needs may have changed since the judgment was rendered, we remand for the entry of a physical custody schedule in | flight of the minor child’s relocation with his father. All costs of this proceeding shall be assessed against Ms. Cass, the plaintiff and appellee.

REVERSED AND REMANDED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

|Jn this relocation and custody matter, the majority has concluded firstly that the trial court committed legal error in its analysis of the case and that the matter should be reviewed on a de novo basis, and secondly, on de novo review, that it is in the best interest of the child that Mr. Cass be allowed to relocate David and to be reinstated as domiciliary parent. I respectfully disagree.

In finding that the trial court committed legal error, the majority opinion references the case of Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955, to stand for the principle that although the trial court is not required to specifically list each of the enumerated factors of La. R.S. 9:355.12, there must be support in the record suggesting that each of the factors were considered. This court, in Leger, addressed a relocation case where the trial court stood firmly against relocation of the children — stating that, “[t]his court is unwilling to put the children in ANY RISK associated with a move....” Leger, 854 So.2d at 956-957. This court found that the trial court was imposing too high a burden on the mother seeking relocation and stated that no relocation would be acceptable under such an elevated standard.

I find the present matter to be distinguishable from Leger. There is nothing to indicate that the trial court in this matter was so firmly entrenched in its stance 12against relocation as to be applying a heavier burden on Mr. Cass than is required by law. Although the trial court did not list each of the factors to be considered, it did provide numerous reasons justifying its decision — in particular, its finding that Ms. Cass would provide a more stable environment for David because of her structured work schedule and the fact that she would not need to rely on daycare.

It is my opinion that this case more closely mirrors this court’s decision in Miller v. Miller, 01-356, (La.App. 3 Cir. 10/31/01), 799 So.2d 753, where the court found that the trial court had not committed legal error in choosing to only emphasize three of the listed factors in its reasons for judgment. In the present case, the trial court, in its reasons for judgment, addressed at least five of the La.R.S. 9:355.12 factors — particularly factors one (The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life) and six (Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity).

Regarding factor one, the trial court noted that David loves both parents and wants to spend time with both parents. It also noted that Mr. Cass has been active in the David’s life and his education, and it expressed concern that Ms. Cass was occasionally more of a “buddy” than a parent.

Regarding factor six, the trial court expressed great concern with the amount of time David would have to spend in childcare if Mr. Cass was allowed to relocate, and it noted that Ms. Cass would not need to rely on daycare. |8 Furthermore, the trial court expressed its dissatisfaction with the amount of information provided by Mr. Cass on what his work schedule would be and on the school David would attend. The trial court also took into consideration the fact that Ms. Cass has been living in the same home for the past two years.

Outside of these two factors, the trial court also commented that David did not want to choose which parent he wanted to live with (Factor 4). It also addressed the problem of both parents attempting to depict the other as a bad parent (Factor 5). Finally, the trial court, in great detail, discussed visitation arrangements and how each party would bear the costs of David’s travel back and forth (Factor 3).

For these reasons, I disagree with the majority opinion that the trial court committed legal error in failing to consider the factors set out in La.R.S. 9:355.12.

However, even if legal error had occurred on the part of the trial court, I find that a de novo review of the record would still support a denial of Mr. Cass’s request for relocation. In addition to the studied reasons laid out by the trial court, I find great significance in David’s close relationship with his half-sister and also with the pattern of violent behavior exhibited by Mr. Cass in the past.

A strong sibling relationship is an incredibly important bond, the impact of which is impossible to measure. The potential for severing that relationship should not be taken lightly. The record indicates that David and Jessie have the type of sibling bond that should not be disturbed without compelling reasons.

Furthermore, as important as the relationship between David and his sister seems to be, perhaps an even more compelling consideration for denying the relocation request is Mr. Cass’s history with anger/violence, most notably his |4extreme method of disciplining Jessie, his elevated MMPI results, and his history with domestic assault. I fail to see how being brought up in such an environment can be interpreted as being in David’s best interests.

For these reasons, I respectfully dissent from the majority opinion.

      . Included with the rule for a temporary order to relocate were other motions which are not at issue in this appeal, and therefore, will not be discussed herein.

      . The trial court's oral reasons for judgment state, in pertinent part:
      In trying to decide this case, there are, there have been many issues presented by the parties. It’s my view that, with respect to Sergeant Cass' request to relocate, that I am to determine what is in [the child’s] best interest. The parties, both sides, has [sic] spent a significant amount of time trying to point out to me how the other is a bad parent. I see very positive aspects for both parents, and I see some weaknesses on both sides.
      I think that as a couple, that the two of you probably complimented each other. I think some of the strengths of one would compliment the weaknesses of the other. I think that both sides have a tendency in this proceeding to, fail to take responsibility for their own actions in bringing us to this place. I’m not here to decide whose the best parent, or who is a better parent. I’m here to decide what is going to be [the child’s] best, what is going to serve his interests for the best, for the immediate future.
      [The child] is a, based on my brief conversation with him, he is a personal [sic] young man, who loves both his parents. [He] wants to spend time with both parents. He does not want to decide, and nor should he have to decide, which parent he will spend the majority of his time with. He did not want to fill, fulfill that role, which was his reluctance to speak with Dr. Logan. Because that was going to be the ultimate question asked of him. I did not want to ask him that question, because I knew he did not want to answer that question. I did explore interest with [the child].
      In my decision in this case, is not based not only on the evidence that has been presented in this proceeding, but also the interest that [the child] has conveyed to me. Sergeant Cass, you bear the burden of proving that this relocation would be in [the child's] best interest. In my opinion, you are placed in a very difficult situation, because of your career. Whether you orchestrated a move, or whether you were ordered to move, and had little or no say so in where you were moving to, as you were presented, or as you testified in this Court, on the 31st of July, on Monday, the 17th, and, and on the 17th, you have very sketchy information about your work schedule, your duties, who would care for [the child] while you are at work. There’s very limited information on the school, other than what some website, how some website ranked it, which I place no significant credence in. I am left with a lot of questions about [the child's] environment in Fort Hood.
      It has nothing to do with whether or not you love your son, and whether or not you have been involved in his upbringing, or his education. I believe that, that is clear. That you have been. What concerns me is based on the testimony there would be significant times where [the child] would be in the child care provided by the military, or left with a private sitter, whom by your own testimony you could not recall that persons name. I’m not saying that's all entirely your fault, but that is the situation we find ourselves in.
      On the converse, we have Ms. Cass, who has lived in the same home for a period of approximately two-years. Her work schedule is very defined, and it is scheduled in such a manner to where there is no reliance on day care. Are there some areas that Ms. Cass should improve on as a parent? I believe that there are. Ms. Cass, based on the testimony that has been presented, I believe that is [sic] somewhat of a confusion, in your mind, as whether you are [the child's] mother, or whether you’re his buddy. There have been several examples presented to this Court, where [the child] decided what he was going to do: meeting with Dr. Logan, going to the Pine Ridge Derby, continuing to attend college camp. Those are, in my opinion, those are decisions that you should have made. I understand that you and Sergeant Cass may have differences of opinion regarding discipline. Appropriate discipline is very important for a child.
      The bottom line comes down to, there’s been testimony that both of you, you have both testified that the other loves [the child], and is a good parent. You both did that. So, in my mind, where is [the child] going to be cared by a parent the most? For that reason, Sergeant Cass, I find that you have not met your burden of proving that relocation would be in [the child’s] best interest.

      . In Richardson, 25 So.3d at 207, a case factually similar to the present matter, a panel of this court discussed good faith relocation and military orders, stating:
      The court further indicated that just because Steven might have told Chanda years earlier that he wanted to be transferred to Fort Carson one day, this fact did not mean, and there was no evidence in support, that Steven and the military colluded or conspired to get the transfer through shortly after Steven won primary custody of the children. The trial court further stated that Chanda had only opinions regarding the relocation, while the military order dated April 3, 2008, was credible evidence that the military had taken charge of Steven’s life, as always, and transferred him to another location. The trial judge indicated that it was more surprising that the military had allowed Steven to stay in Louisiana for eleven years.
      Steven testified that he had always wanted to go to Fort Carson, and that he had spoken about it, saying that he would probably be sent somewhere, and that if he had a choice, it would be Fort Carson. He stated that when he received the April 2008 notice, his choices were, Hawaii, New Jersey, and New York. He further stated that the Army considers you "stagnant” if you stay in one place too long. He stated that when he saw the choices, he held out for a short time to see if Fort Carson, Colorado became available, and it did. The record contained the official transfer orders to Fort Carson, Colorado, a letter from Steven’s commander stating the reason for the PSC [permanent station change], and a letter from his branch manager indicating the available locations. The trial court did not abuse its discretion in finding that Steven’s relocation of himself and the minor children to Colorado was done in good faith.

      . Mr. Cass questions the failure to transcribe the interview in support of his argument that a de novo review is required. Specifically, he argues the trial court committed legal error in relying in part upon what the child told him in rendering a decision and that conversation not being made part of the record. We note that while the trial court referenced the conversation in its oral reasons for judgment, the trial court has filed a per curiam with this court stating that it did not rely on the conversation with the child in rendering its opinion.


author: ROLAND L. BELSOME, Judge.

text:
    Gregory PETERS v. GREYHOUND LINES, INC.
    No. 2010-CA-0969.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.

      Gregory L. Peters, Laurel, MD, In Proper Person, Plaintiff/Appellant.
    Jennifer M. Sullivan, Jeffrey C. Napoli-tano, Juge Napolitano Guilbeau Ruli Frie-man & Whiteley, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, Plaintiff-Appellant Gregory Peters appeals the judgment of the Office of Workers’ Compensation (“OWC”) denying his Motion to Amend Judgment Calculation Errors. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Peters was hired as a driver for Greyhound Bus Lines, Inc. (“Greyhound”) in 1996. On February 1, 2007, while operating a Greyhound bus, Mr. Peters suffered a panic attack subsequent to an altercation with a passenger. As a result, Mr. Peters sought treatment for his anxiety disorder and filed a Disputed Claim for Compensation with the OWC. Greyhound denied the claim.

The matter was brought for trial on December 5, 2008. The OWC determined that Mr. Peters had suffered a compensa-ble work-related injury and rendered judgment in his favor on January 13, 2009. Pursuant to a joint stipulation between counsel regarding Mr. Peters’ average weekly wage (“AWW”), Greyhound was ordered to pay temporary total disability (“TTD”) benefits in the amount of $333.00 per week from February 1, 2007 through September 21, 2007, plus certain medical expenses. Greyhound appealed the judgment, which this |2Court affirmed. Peters v. Greyhound Bus Lines, Inc., 2007-6092 (La.App. 4 Cir. 9/23/09), 22 So.3d 1092. Mr. Peters did not appeal this Court’s judgment.

On December 1, 2009, Mr. Peters filed a Motion to Amend Judgment Calculation Errors, asserting that sometime after receiving his disability benefits, he realized that his AWW was $806.30, not the $500.00 stipulated to at trial, and that the corresponding weekly TTD benefits should have been $478.00, not $333.00. Mr. Peters argues that because the TTD benefits were based on an incorrect AWW, he seeks to correct a calculation error, which is permitted under La. C.C.P. art. 1951. Greyhound filed an opposition, arguing that the motion attempted to make an impermissible substantive change to the judgment.

The matter was brought before the OWC on January 15, 2010. Following oral argument of counsel, Mr. Peters’ motion to amend was denied. Mr. Peters timely filed his pro se appeal.

STANDARD OF REVIEW

In workers’ compensation cases, the appropriate standard of review is the “manifest error-clearly wrong” standard. Dean v. Southmark Construction, 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Id. Under this standard, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Buxton v. Iowa Police Dept., 2009-0520, p. 18 (La.10/20/09), 23 So.3d 275, 287.

When legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo, rather than the manifest error, standard of preview applies. MacFarlane v. Schneider Nat. Bulk Carriers, Inc., 2007-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188.

DISCUSSION

Mr. Peters asserts three assignments of error: (1) the OWC made an error in applying La. C.C.P. art. 1951 in denying his motion to correct calculation; (2) The OWC erred in not applying the correct AWW pursuant to La. R.S. 23:1021(12)(a)(ii); and (3) the OWC erred in not calculating his AWW at $478.00.

It is well-settled that a judgment that has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. Bourgeois v. Kost, 2002-2785, p. 7 (La.5/20/03), 846 So.2d 692, 696. Likewise, the trial judge cannot, on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error. Id.

La. C.C.P. article 1951 provides:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

This Court has recognized that an amendment which “adds to, subtracts from, or in any way affects the substance of the judgment” is considered to be a 14substantive amendment to a judgment. Palmer v. Leclercq, 2007-0604, p. 6 (La.App. 4 Cir. 9/24/08), 996 So.2d 21, 24; Nichols v. Nichols, 2008-0207, p. 4 (La.App. 4 Cir. 1/14/09), 4 So.3d 134, 136. Accordingly, a substantive amendment, such as the one sought by Mr. Peters, is not authorized by the plain language of Article 1951. Denton v. State Farm, 2008-0483, p. 6 (La.12/12/08), 998 So.2d 48, 52 (recognizing that “[i]t is well established that Article 1951 contemplates the correction of a ‘clerical error’ in a final judgment, but does not authorize substantive amendments”).

To alter the substance of a judgment, the proper recourse is a timely application for new trial, an action for nullity, or a timely appeal. Palmer, 996 So.2d at 24. Mr. Peters did not file a new trial motion or an action for nullity, nor did Mr. Peters appeal the January 13, 2009 judgment. Additionally, although Greyhound appealed the January 13, 2009 judgment, Mr. Peters did not assert any calculation errors by the OWC in that appeal. See Peters v. Greyhound Bus Lines, Inc., supra.

Furthermore, a review of the record evidences that Mr. Peters’ workers’ compensation benefits were correctly calculated based on the joint stipulation as to his average weekly wage earnings. The AWW award of $333.33 was correctly calculated at two-thirds of the stipulated $500.00. Mr. Peters does not assert that he objected to or challenged the average weekly wage stipulation, either at trial or lfion appeal. Accordingly, Mr. Peters’ argument that the judgment was erroneously calculated, and may therefore be altered, must fail.

With regard to the stipulation itself, the Louisiana Supreme Court has acknowledged that “[i]t is well established that a stipulation has the effect of a judicial admission or confession, which binds all parties and the court.” Becht v. Morgan Bldg. & Spas, Inc., 2002-2047, p. 5 (La.4/23/03), 843 So.2d 1109, 1112; See also La. C.C. art. 1853. Stipulations between parties are thus binding on the trial court when not in derogation of law, and the stipulations become the law of the case. Id. Accordingly, a judicial admission or stipulation “cannot later be denied when the party, which the admission bene-fitted, relied upon it to his or her detriment.” Cain v. Aquarius Builders, Inc., 96-66, p. 12 (La.App. 5 Cir. 7/30/96), 680 So.2d 69, 75 (citing Crawford v. Deshotels, 359 So.2d 118 (La.1978); Dolsen v. City of New Orleans, 559 So.2d 50 (La.App. 4 Cir.1990)).

1 .CONCLUSION

Upon a review of the record in its entirety, we find no error on the part of the OWC in denying Mr. Peters’ motion to substantively alter the January 13, 2009 judgment. The trial court’s denial of the Motion to Amend Judgment Calculation Errors is hereby affirmed.

AFFIRMED.

      . La. R.S. 23:1021(12)(a)(iii) provides:
      (12) "Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
      (a) Hourly wages.

      (iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

        . In an exhibit attached to Greyhound’s Memorandum in Opposition to Plaintiff's Motion to Amend Judgment Calculation Errors, the trial transcript evidences the following exchange between the court and counsel for Mr. Peters:
      The Court: Let [personnel records for Mr. Peters and bus maintenance records] come into evidence. Any other stipulations before we call our first witness?
      [Counsel for Mr. Peters]: Yes, Your Honor, my colleague and I have agreed to stipulate as to earnings, weekly earnings.

      . The only evidence of Mr. Peters’ earnings contained in the appellate record is a one-page document with the heading “Earnings Statement.” The document was attached to Mr. Peters' Motion to Amend Judgment Calculation Errors. The document evidences that Mr. Peters’ "gross pay" for the pay period of February 7, 2007 through February 16, 2007 was $880.90; his gross pay for the pay period of January 24, 2007 through February 2, 2007 was $1,732.25; and his gross pay for the pay period of January 10, 2007 through January 19, 2007 was $1,416.33. Although these are nine-day pay periods, the vast discrepancy between Mr. Peters’ gross pay and his stipulated AWW is a fact that was presumably well known by both Greyhound and counsel for Mr. Peters at the time of trial.

      .The Louisiana Supreme Court has articulated policy reasons behind the law of the case doctrine:
      This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.

        Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (La.1971) (footnotes omitted).