author: TERRI F. LOVE, Judge. BONIN, J.,

text:
    André J. ROBERT, Randall G. Mourot, and J. Storey Charbonnet v. ROBERT MANAGEMENT COMPANY, LLC, Claiborne Fresh Market, LLC, Harrison Fresh Market, LLC, Marc L. Robert, II, and Darlene P. Robert, and MarketFare, L.L.C.
    No. 2011-CA-0406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2011.

      Andrew R. Lee, Avery B. Pardee, Brett S. Venn, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Andre J. Robert, Randall G. Mourot, J. Storey Charbonnet, and MarketFare, L.L.C.
    Philip A. Franco, Ronald J. Sholes, Leslie A. Lanusse, Raymond P. Ward, Lauren L. Tafaro, Adams and Reese LLP, New Orleans, LA, for Robert Management Company, LLC, Claiborne Fresh Market, LLC, Marc L. Robert, II, Darlene P. Robert, and MarketFare, LLC.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

I,The plaintiffs filed a petition alleging that the defendants intentionally breached a fiduciary duty to the plaintiffs by utilizing a new limited liability company to lease and open a grocery store without the plaintiffs’ involvement. The defendants filed a peremptory exception of peremption asserting that the plaintiffs’ petition was filed more than three years after the alleged intentional breach of fiduciary duty. The trial court concluded that the alleged intentional breach of fiduciary duty occurred on the date the new limited liability company was formed and held that the plaintiffs’ claims were perempted. We find that the trial court legally erred in finding that the plaintiffs’ claims were per-empted because La. R.S. 12:1502 is not a peremptive statute. Therefore, we reverse and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

MarketFare, L.L.C. (“MarketFare”), was formed prior to Hurricane Katrina for the operation of a chain of grocery stores. André J. Robert, Randall G. Mourot, and J. Storey Charbonnet (collectively referred to as the “Plaintiffs”) allege that they own 32.2% of the membership interest in MarketFare. Marc and Darlene |2Robert (“Roberts”) were also members of Market-Fare. However, the Plaintiffs aver that the Roberts intentionally breached their fiduciary duty by utilizing Claiborne Fresh Market, L.L.C. (“CFM”), formed on September 13, 2006, to lease and operate a grocery store without the inclusion of Mar-ketFare and/or the Plaintiffs in the business dealings.

The Plaintiffs filed a verified petition against Robert Management Company, L.L.C. (“RMC”), CFM, Harrison Fresh Market, L.L.C. (“HFM”), the Roberts, and MarketFare (collectively, the “Defendants”) asserting that leasing and operating a grocery store without giving MarketFare an opportunity to partake demonstrated an intentional violation of a fiduciary duty. The Defendants filed a peremptory exception of peremption and/or prescription stating that the alleged usurpation occurred on September 13, 2006, the date of the formation of CFM. The Plaintiffs’ petition was not filed until April 23, 2010, which was over three years after the formation of CFM. The Defendants claimed that the Plaintiffs’ claims were perempted pursuant to La. R.S. 12:1502.

Following a hearing on the motions, the trial court granted the Defendants’ exception of peremption, denied their exception of no cause of action, and denied the Plaintiffs’ motion to disqualify counsel. The trial court found that the operative date for calculating peremption was September 13, 2006, the date of CFM’s formation. Therefore, the trial court held that the Plaintiffs’ petition was filed more than three years after the formation of CFM and was perempted pursuant to La. R.S. 12:1502.

The Plaintiffs filed a notice of intent to apply for supervisory writs with this | sCourt to address the denial of their motion to disqualify and the peremption issue. However, prior to filing an application for supervisory review, the Plaintiffs filed a motion to designate the judgment granting the peremptory exception as final, which the trial court granted. The Plaintiffs’ devolutive appeal followed.

The Plaintiffs aver that the trial court erred as a matter of law in holding that their claims were perempted and that the trial court erred “in relying solely on the date of the formation of Claiborne LLC in determining when peremption/prescription commenced” because “the injurious act giving rise to the cause of action for breach of fiduciary duty occurred months after the formation of the paper LLC and within three years of filing suit.”

STANDARD OF REVIEW

Peremption is an objection that “may be raised through a peremptory exception.” La. C.C.P. art. 927. This exception involves the interpretation of a statute, which is a legal question. Legal questions are reviewed utilizing the de novo standard of review. Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353. However, we review any factual conclusions made by the trial court with the manifestly erroneous or clearly wrong standard of review. Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co., 10-0626, p. 2 (La.App. 4 Cir. 10/20/10), 51 So.3d 129, 132.

PEREMPTION

The Plaintiffs allege that their claims are not perempted because La. R.S. 12:1502 is not a peremptive statute. The Defendants assert that the categorization |4of the statute is irrelevant and that the Plaintiffs’ claims are time-barred whether La. R.S. 12:1502 is peremptive or prescriptive. Plaintiffs’ assertion has merit.

“Peremption is a period of time fixed by law for the existence of a right” and “[u]n-less timely exercised, the right is extinguished upon the expiration of the per-emptive period.” La. C.C. art. 3458. “Peremption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461. This Court described the differences between peremption and prescription as follows:

Conceptually, there may not be much difference between prescription and per-emption since both have the effect of terminating litigation. However, it is undisputed that the two theories differ in their operation. Prescription prevents the enforcement of a right by legal action, but does not terminate the natural obligation. La. C.C. art. 3447. Therefore, as an inchoate right, it may be interrupted, suspended, and renounced. Prescription is subject to the suspensive principle of contra non va-lentem, a judicially created doctrine that is applied to prevent the running of prescription in instances where good cause results in a plaintiffs inability to exercise his cause of action at accrual. Reeder v. North, [97-0239 (La.10/21/97) ] 701 So.2d [1291] at 1298. In stark contrast, public policy dictates that peremption extinguish or destroy a right to legal action after passage of a specified period. La. C.C. art. 3458. As such, nothing may interfere with the running of a peremptive period. Therefore, it may not be interrupted, suspended, or renounced. La. C.C. art. 3461. Unlike prescription, exceptions suspending the running of time delays, such as contra non valentem, are inapplicable. Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986).

Brumfield v. McElwee, 07-0548, p. 9 (La. App. 4 Cir. 1/16/08), 976 So.2d 234, 241.

The outcome depends upon whether La. R.S. 12:1502 is peremptive or prescriptive in nature. The statute in the case sub judice, La. R.S. 12:1502, provides in pertinent part:

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state | sand shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated.
B. The term “business organization” includes any entity formed under the laws of this state engaged in any trade, occupation, profession, or other commercial activity including but not limited to professions licensed by a state or other governmental agency. This Section shall apply without limitation to corporations, incorporated or unincorporated associations, partnerships, limited liability partnerships, partnerships in commen-dam, limited liability companies, or cooperative associations or other entities formed under the laws of this state.
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect.
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission.
E. The time limitations provided in this Section shall not be subject to suspension on any grounds or interruption except by timely suit filed in a court of competent jurisdiction and proper venue.

After the trial court’s ruling in the case sub judice, this Court held that La. R.S. 12:1502 is a “prescriptive statute that is subject to time limitations that have |fiperemptive attributes.” Suhren v. Gibert, 10-0767, pp. 9-10 (La.App. 4 Cir. 1/12/11), 55 So.3d 941, 947. However, this Court further espoused that “the time limitations contained within this statute do not allow for plaintiffs, such as Mr. Suhren, to levy claims under the continuous tort doctrine.” Suhren, 10-0767, p. 10, 55 So.3d at 947. Finally, this Court held that because “La. R.S. 12:1502 is a prescriptive statute with peremptive time limitations, Mr. Suh-ren would be entitled to pursue claims ... that have not prescribed.” Suhren, 10-0767, p. 11, 55 So.3d at 948. Suhren is the law of this circuit. Therefore, because La. R.S. 12:1502 is prescriptive in nature, we find that the trial court committed legal error in granting the Defendants’ exception of peremption and reverse. Based on the facts and circumstances of this case, we remand the matter to the trial court to distinguish which of the Plaintiffs’ claims are not prescribed pursuant to La. R.S. 12:1502. See Suhren, 10-0767, p. 12, 55 So.3d at 948.

DECREE

For the above mentioned reasons, we find that the trial court erred by granting the Defendants’ exception of peremption. We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

BONIN, J., concurs and assigns reasons.

BONIN, J.,

concurs and assigns reasons.

Itl respectfully concur in the reversal and l’emand.

The petition describes in detail a course of conduct among the individual plaintiffs, the individual Robert defendants, a limited liability company of which they all are the members, which is Market-Fare, MarketFare’s numerous wholly-owned subsidiary limited liability companies, each of which owns a separate grocery store location and operation, and a couple of limited liability companies of which the individual Robert defendants are the sole members and which companies provide managerial and administrative services to MarketFare and its subsidiaries. Essentially, since 1998 at least, the individual plaintiffs supplied the cash funds for the acquisition and operation of grocery stores through the New Orleans area which Marc Robert and Darlene Robert operated through the business organizations. The arrangement was apparently successful and profitable, or at least mutually beneficial, until the storm in 2005.

Because of the storm many of the store locations were destroyed and MarketFare prosecuted lawsuits for the collection of insurance proceeds. While the parties were in this lawsuit-mode, Marc began to scout out other opportunities Rfor grocery stores in New Orleans as well as in suburban areas. One of those possible opportunities was the location of South Claiborne and South Carrollton Avenues in New Orleans.

According to the petition, around August 2006, Marc developed some site plans for that location which were shared with his usual MarketFare investors, the plaintiffs. Unbeknownst to them at the time, Marc and Darlene during the following month, on September 18, 2006, organized a new limited liability company, Claiborne Fresh Market, LLC, and became its sole members. Claiborne Fresh Market was not, then, a wholly-owned subsidiary of Mar-ketFare and, of course, the individual plaintiffs had no obvious interest in this new organization.

The trial court considered the original, unamended petition to be a judicial confession that the trigger date for the defendants’ tortious conduct was September 13, 2006. I agree with the majority’s implicit view that it was error to conclude that the allegations of that original petition prior to amendment constituted a judicial confession on the part of the plaintiffs. See La. Civil Code art. 1853; see also Guidry v. Barras, 368 So.2d 1129, 1132 (La.App. 3d Cir.1979) (“We conclude that a judicial confession under Article [1853] should not stop a curative amendment under C.C.P. Article 934, absent a showing that the adversary was misled or deceived.”)

The following year, the petition states, Marc and Darlene became aware of advantageous government programs, such as GoZone bonds, which would allow their acquisition or development of grocery stores without the financial investments of the plaintiffs. Yet, all the while, Marc and Darlene both concealed the availability of these programs, reported on the progress of the insurance lawsuits and the need to re-invest the proceeds to avoid burdensome tax [(¡consequences, and implied that new acquisitions would be done through MarketFare or a wholly-owned subsidiary of MarketFare, as in the past. This course of conduct continued through at least June 24, 2008.

In July or August 2008, Claiborne Fresh Market opened a grocery store at the South Claiborne location. Financing was accomplished through GoZone bonds, and Marc and Darlene’s cash contribution of $750,000. MarketFare, its wholly-owned subsidiaries, and the individual plaintiffs were no part of the ownership of this grocery store. In my view, this is the date which the petition establishes as the “the date of the alleged act or omission” for the triggering purposes of La. R.S. 12:1502.

“On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1855, 1361 (La.1992). If, however, the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206.

The lawsuit was filed in a court of competent jurisdiction and venue on April 23, 2010. The individual plaintiffs’ sole claim, as far as I can determine, is one for the defendants’ (excluding MarketFare) intentional breach of a duty of loyalty. The liberative prescriptive period for that claim is two years “from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered”. La. R.S. 12:1502 D. Therefore, on the face of the petition, the suit is not prescribed. See La. C.C.P. art. |4931. See also Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84.

Nothing, however, in the remand this date would prevent the defendants from proving with evidence that their act or omission which constituted an intentional breach of their duty of loyalty either occurred and/or was discovered before April 23, 2008. But, in the absence of such proof, the

      . One of the Plaintiffs subsequent supplemental and amended petitions added MarketFare as an additional party plaintiff.

      . The Plaintiffs named MarketFare as a nominal party defendant.

      . The Plaintiffs filed several supplemental and amending petitions that added Cecilia Poché Bono and Josephine L. Poché as additional parties defendants.

      . The denial of the Defendants' no cause of action is not before this Court in the appeal.

      . The Plaintiffs filed an application for supervisory review with this Court on January 3, 2011. This Court's writ disposition addressed the Plaintiffs' issues regarding their motion to disqualify. However, this Court declined to exercise its discretionary jurisdiction as to the exception of peremption due to cognizance that the trial court designated that portion of its judgment final and appealable. Robert v. Robert Mgmt. Co., LLC, 11-0003 (La.App. 4 Cir. 4/25/11), unpub., writ denied, 11-1108 (La.9/16/11), 69 So.3d 1148.

      . I subsume the original petition and its three pre-hearing amendments under the term "petition.”

      . The substance of Article 1853 was previously contained in former Article 2291, which was referenced in the original quote, and Article 1893 does not change the law from former Article 2291. See Revision Comments (a)— 1984.

      . The individual plaintiffs also assert a similar claim regarding another grocery store location on Harrison Avenue in the Lakeview neighborhood of New Orleans. But there is no dispute regarding the timeliness of the lawsuit with respect to acquisition and development of that store.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of R.V.
    No. 11-KA-138.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Joseph R. McMahon, Jr., Jody J. Fortunato, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appel-lee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

|2The defendant/appellant, R.V., appeals his conviction and sentence for vehicular homicide in violation of La. R.S. 14:32.1. He argues that the State did not prove beyond a reasonable doubt that his intoxication caused the accident that led to the victim’s death. After a thorough review of the record, we find that R.V. was impaired when the accident occurred and that such impairment was a contributing factor that led to the victim’s death. Therefore, the conviction and sentence are affirmed.

Factual and Procedural Background

On Friday, April 30, 2010, J.P. spent the night at the home of his best friend — 14-year-old C.O. The young boys woke up between 11:30 A.M. and 12:00 P.M. the following day, Saturday, May 1, 2010, and rode their bikes to J.P.’s house.

Meanwhile, 16-year-old R.V. picked up his friend L.P. between 12:30 and 1:00 P.M. in his mother’s 2007 black Jeep Cherokee. M.F., another one of their friends, was already seated in the front passenger seat when L.P. got inside the Jeep. The boys then drove to KO.’s house to pick him up. Both K.O. and L.P. sat in the rear. The boys rode around in the Jeep for the remainder of the day. R.V., L.P., and M.F. began smoking marijuana from L.P.’s bong around 1 P.M. The | ¡¡three boys shared two bowls of marijuana, each taking approximately three to four hits from each bowl. The last time the boys smoked was between 4 and 5 P.M. At approximately 6:30 P.M., a member of the Jefferson Parish Sheriffs Office pulled the boys over because the Jeep was swerving. The officer removed the boys from the Jeep, separated and searched them, and then searched the Jeep. Although the officer located the bong and a marijuana grinder, the boys were allowed to leave. R.V. dropped L.P. off at home around 7:30 P.M.

Later that evening, C.O. decided to spend the night at J.P.’s house but remembered he left his' charger at home. The boys cycled back to C.O.’s house to get the charger and then headed back to J.P.’s house. On the return trip, the boys came upon R.V. around 10:30 P.M. C.O. and J.P. were afraid they would not make their 11 o’clock curfews riding their bikes. So R.V., a close friend of C.O.’s older brother, offered to give them a ride home. C.O. and J.P. left their bikes at a friend’s house and got into the Jeep — KO. was now in the front passenger seat. C.O. sat behind K.O. in the rear, and J.P. sat behind R.V. C.O. and J.P. were unaware that R.V. had smoked marijuana earlier in the day. R.V. and K.O. shared a Mad Dog 20/20 while the two boys were passengers in the back seat. Although R.V. had been drinking and smoking marijuana, he seemed to be driving normally. However, things took a drastic change for the worst when the boys arrived on West Metairie Road.

While R.V. was in the left lane on West Metairie Road, a Mustang pulled up next to him in the right lane and revved its engine. The Mustang sped off and R.V. accepted its invitation. R.V. immediately took off in the left lane next to the Mustang. R.V. was traveling between 50 and 60 mph. The two vehicles were swiftly driving next to each other when R.V. swerved the Jeep into the middle of the right lane where the Mustang was driving. The Mustang, while still in the right plane, passed R.V. and then cut in front of him in the left lane. R.V. swerved to the left, and his wheel hit the curb. He attempted to overcorrect but lost control of the Jeep. The Jeep flipped several times and landed in the canal. The accident occurred at approximately 11:11 P.M. R.V. was ejected from the Jeep, and J.P. landed in the canal. K.O. left the scene on foot, telling J.P. that he had “to get out of there.” J.P. looked for his best friend, C.O. He was nowhere to be found.

Someone reported the accident to 9-1-1, but the caller was unable to identify the exact location. Deputy Robert Mitchell, of the Jefferson Parish Sheriffs Office, was in the area and was one of the first responders on the scene. He observed the Jeep in the canal in the 6700 block of West Metairie Road and radioed the other officers to give them the location. Dep. Mitchell saw R.V. sitting on the median holding his head. He asked R.V. whether there were any other passengers. Though erratic, R.V. gave the deputy J.P.’s name. Dep. Mitchell then approached J.P. and asked him the same thing. J.P. told the deputy that K.O. had walked away. At that time, another officer yelled, “there’s one in the water.” Dep. Mitchell ran over to the canal, removed his safety belt, and went into the water with Dep. Keith Young to retrieve C.O. C.O. was face down in the two-foot deep water. When the deputies retrieved C.O. from the water, his body was pale, cold, and lifeless. C.O. was transported to East Jefferson General Hospital where he was pronounced dead at 2:12 A.M. on Sunday, May 2, 2010.

R.V. arrived at Ochsner Hospital at 11:51 P.M. on May 1, 2010. The attending physician ordered an ADX — alcohol and drug test. R.V.’s blood alcohol level was 0.045. Marijuana was also detected in his system. After C.O.’s death, the Jefferson Parish Sheriff’s Office went to Ochsner Hospital and arrested R.V.

On August 2, 2010, the Jefferson Parish District Attorney’s office filed a petition charging R.V. with vehicular homicide in violation of La. R.S. 14:32.1(A)(3). |sThe petition alleged that while R.V. was engaged in the operation of a motor vehicle, he killed a minor child while under the influence of a controlled dangerous substance. The State then moved to revoke his probation and bond on August 12, 2010. R.V.’s bond was revoked on August 18, 2010. The court deferred ruling on the motion to revoke probation until after the trial. The State subsequently amended its petition on September 2, 2010, to additionally state that R.V. was under the influence of alcohol. The trial commenced on September 15, 2010.

Ms. Andrea Gardner, the attending emergency room nurse at Ochsner Hospital, testified that R.V. arrived in the emergency room at 11:51 P.M. on May 1, 2010. Ms. Gardner drew R.V.’s blood and urine at 12:18 A.M. on Sunday, May 2, 2010. Prior to the draw, Ms. Gardner testified that she prepped R.V.’s arm with chlora-prep, which is comprised of 70% isopropyl alcohol. She then waited for the area to dry in order to prevent the possibility of cross-contamination. Once the area dried, Ms. Gardner inserted the IV into R.V.’s arm and withdrew the blood which went into several separate vials. She then labeled the vials, placed them in the pneumatic tube, and sent them to the lab along with the urine sample she drew from the catheter.

Ms. Karen Bullock, the core laboratory manager at Ochsner Clinic Foundation, also testified. She testified that specimen obtained in the emergency room primarily comes to the lab through the pneumatic tube system. She testified that the laboratory performed a comprehensive blood screen on R.V.’s blood and a comprehensive drug panel on his urine. Ms. Bullock testified that R.V.’s specimen arrived in the lab at 12:28 A.M. on May 2, 2010. Based on their procedures, an employee removes the specimen from the pneumatic tube when it arrives in the |filab. The urine specimen is then placed in a smaller tube, spun, and then given to the chemistry department which is located in the same room 15 to 20 feet away. The same procedure is repeated for the blood specimen with the exception of spinning.

Mr. Alton Smith, the CSR tech in the laboratory, testified that he is responsible for verifying specimen received in the lab. He testified that he retrieved R.V.’s specimen from the pneumatic tube at 12:28 A.M. on May 2, 2010. After completing his verification, he then delivered the specimen to the chemistry department at 12:41 A.M. Mr. Smith testified that he had no reason to believe the specimen was contaminated.

Mr. William Toups, an employee at Ochsner Core Laboratory, testified that he received the urine specimen from Alton Smith. He performed a urinary toxicology screen — a screen that detects drugs of abuse. At 12:43 A.M., the urine specimen tested positive for benzos and THC, which is commonly referred to as marijuana. Mr. Toups testified that he had no reason to believe the specimen was contaminated.

Ms. Jawanna Savoie worked as a medical technologist for Ochsner on May 2, 2010. She testified that when she received the specimen from William Toups, she verified the paperwork and checked the blood specimen for clots. She then placed the blood on the analyzer. Ms. Savoie testified that the blood ETRH was positive .045 milligrams per deciliter. She completed the blood test at 1:13 A.M. on May 2, 2010. She also testified that she had no reason to believe that the blood specimen was contaminated.

Ms. Marketia Jackson, an emergency room staff nurse at Ochsner Hospital, testified that at 3:25 A.M. on May 2, 2010, she withdrew R.V.’s blood and urine at the direction of the Jefferson Parish Sheriffs Office. She testified that the officers |7came into the room, gave her a kit, and explained to her that she had to use everything in the kit to draw the blood. She placed a tourniquet on R.V.’s left arm and prepped the area with the betadine inside the kit. Once the area dried, she then used a venipuncture needle to draw the blood. She then obtained urine from the Foley catheter that was already in place. Ms. Jackson testified that she labeled the samples with the police and that the police remained in the room the entire time. She also testified that she had no reason to believe the specimen was contaminated.

Deputy Brian Sharp, a crime scene technician for the Jefferson Parish Sheriffs Office, picked up the blood kit from Ochs-ner Hospital at 3:40 A.M. on May 2, 2010. He took the kit to the crime scene office and stored it in the refrigerator used for biological evidence. He testified that nothing transpired while en route from the hospital that would have contaminated the kit. Ms. Helena Major testified that she removed the blood kit from the refrigerator at 9:00 A.M. on May 7, 2010, packed it in an ice pack, and drove the kit from Jefferson Parish to Baton Rouge, Louisiana to the Louisiana State Police Crime Lab (the “state crime lab”). Ms. Major testified that the seal was not broken on the kit so she had no reason to believe the specimen was contaminated. Once she arrived at the state crime lab, Ms. Major gave the kit to Ms. Lynsey Martrain, the evidence custodian. Ms. Martrain testified that she received the kit from Helena Major on May 7, 2010, at 10:30 A.M. and placed it in the transfer cabinet 23 (TC 23) — the locked refrigerator for toxicology. Mr. Derrick Morgan testified that he removed the kit from TC 23 on May 11, 2010, at 1:30 P.M. He then took the kit to the blood alcohol room to inventory it. Thereafter, he retrieved two samples from the blood tube and tested it using a gas chromatograph machine. He testified that there was no ethanol alcohol detected. Mr. Morgan returned the sealed blood alcohol kit to Tox Shelf 11 for toxicology analysis. Ms. Carla Cobert testified that she removed |sthe specimen from Tox Shelf 11 on June 16, 2010. She then placed the kit in a box and shipped it, via UPS next day air, to AIT Labs in Indianapolis, IN. Ms. Cobert testified that the kit was sealed when she received it and when it was returned, so she had no reason to believe the specimen was contaminated.

Dr. Scott Kriger, an expert in toxicology and forensic toxicology, also testified at trial. Dr. Kriger worked for AIT Labs— the laboratory that performed the toxicology analysis on R.V.’s blood. Dr. Kriger first testified regarding the procedures set forth at AIT Labs. He testified that the laboratory ensures all specimen it receives are sealed. If the specimen is not sealed, their laboratory will not test it. If sealed, the kit is opened and all the demographic information related to the specimen donor is inputted into a computer system which generates a unique identification bar code. The bar code then identifies the specimen throughout testing. Dr. Kriger testified that once the bar code is generated, a presumptive testing analysis is performed to determine what classes of drugs may be present in the specimen. If anything tests positive, they then perform a confirmation analysis that unequivocally identifies each specific drug that is present in the specimen. Once all testing is complete, the specimen is sealed and returned to the client. He testified that he reviews all the data before a report is sent to the client.

In this particular case, Dr. Kriger testified that AIT began a whole blood analysis on R.V.’s specimen on July 20, 2010, and completed the analysis on July 22, 2010. Dr. Kriger testified that R.V.’s specimen tested positive for THC (marijuana) and carboxy THC. R.V.’s THC concentration was measured to be 2.5 nanograms per millimeter; while the carboxy THC was measured to be 34.2 nanograms per millimeter. Dr. Kriger opined that THC in the blood reaches its maximum within 20 to 30 minutes after it has been smoked. He testified that Rthough users “consider themselves to be stoned” for up to four to six hours after use, the effects of marijuana use can last up to 24 hours — noting that a user’s behaviors and mannerisms reveal impairment. Dr. Kriger testified that some of the impairing effects associated with marijuana use include slurred speech; delayed thought processes and physical motions; prolonged response time; and inability to recognize distance. Dr. Kriger opined' that R.V. had smoked marijuana within 7.92 hours of the accident, which is well within the 24-hour period within which users reveal signs of impairment. Dr. Kriger further opined that R.V. was impaired at the.time of the accident and that the impairment was a contributing factor in causing the accident.

Dr. William George, an expert in pharmacology and toxicology, also testified. He noted that R.V.’s blood alcohol level was 0.045 but pointed out that the specimen tested was not a whole blood alcohol level but was a serum or plasma level. Dr. George stressed the importance of this difference stating that the serum or plasma level is higher than whole blood by approximately 15 percent. Dr. George applied a mathematical formula which indicated that R.V.’s whole blood alcohol level was actually 57 milligrams percent, which he noted as significant. Dr. George further added that at 50 milligrams percent, reaction time is prolonged by 25 percent. He opined that based on R.V.’s blood alcohol level and age, the chances of this accident increased by 17 percent. He further opined that based upon the combination of the. use of marijuana and alcohol, along with the recency of marijuana use, R.V. was impaired when the accident occurred. He further opined that such impairment was a contributing factor in increasing the risk of the accident in this case.

At the conclusion of the trial, the judge found R.V. guilty of vehicular homicide. The trial judge noted that R.V.’s impairment was a contributing factor |inwhich caused him to engage in the drag race with the Mustang that resulted in C.O.’s death. The judge revoked R.V.’s probation and sentenced him to secure care until his 21st birthday. The sentence was to ran concurrently with the other sentences imposed after his probation was revoked.

Assignment of Error

In his sole assignment of error, R.V. contends that the facts do not establish beyond a reasonable doubt that his marijuana and alcohol consumption caused the accident which led to C.O.’s death.

Standard of Review

Though delinquency proceedings may in many ways implicate criminal proceedings, they are nonetheless civil in nature. State ex rel. D.R., 01-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930 citing In re C.B., 97-2783, p. 17 (La.3/4/98), 708 So.2d 391, 400. As the Louisiana Supreme Court stated in State ex. rel Batiste, 367 So.2d 784, 788 (La. 1979):

[jjuvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const. 19 71, art. 5, ss 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this court in juvenile delinquency proceedings extends to both the law and the facts, (ellipsis indicates citations omitted; emphasis added). Id.

Because juvenile proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts. Id. This “clearly wrong” or “manifestly erroneous” standard of review is the same as is applied in other civil cases. Id. at 931. In this case, we apply this civil standard of review of facts and law to determine whether there was sufficient evidence of proof beyond a reasonable doubt to adjudicate R.V. a delinquent for vehicular homicide. In determining the sufficiency of the evidence, the court must determine whether the Inevidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Discussion

In order for the court to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. In this case, the State bears the burden of proving beyond a reasonable doubt,

[t]he killing of a human being caused proximately or caused directly by an offender engaged in the operation of ... any motor vehicle ... whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists and such condition was a contributing factor to the killing:
(3) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.
(4) The operator is under the influence of alcoholic beverages. La. R.S. 14:32.1.

In this case, R.V. does not dispute that he smoked marijuana or drank alcohol prior to the accident. Rather, he contends that the State did not prove beyond a reasonable doubt that his marijuana and alcohol consumption was a contributing factor to the accident that caused C.O.’s death.

The purpose of the vehicular homicide statute is to “curb traffic fatalities caused by the consumption of alcohol.” State v. Taylor, 463 So.2d 1274, 1275 (La.1985). The statute, however, is not aimed at persons involved in vehicular fatalities whose alcohol consumption merely coincides with an accident. Id. Rather, the State must show a causal connection between the impaired driving and 112the victim’s death. State v. Bellow, 08-259, p. 11 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, 313 writ denied, 08-2109 (La.4/13/09), 5 So.3d 162. (citation omitted). Causation is a question of fact that must be considered in light of the totality of the circumstances surrounding the ultimate harm and its relation to the actor’s conduct. Id. at 314.

In this case, the State presented evidence that C.O. died as a result of injuries sustained during the accident. The State, however, must additionally prove that R.V.’s alcohol and marijuana use was a contributing factor that caused the accident which led to C.O.’s death. A review of the record reveals that the State met its burden in this case.

L.P. testified that on the day of the accident, he, R.V. and M.F. smoked marijuana from 1 P.M. until 5 P.M. The toxicology reports from both Ochsner and AIT Labs confirmed the presence of marijuana in R.V.’s system. The Ochsner test revealed that R.V.’s urine specimen tested positive for marijuana at 12:43 A.M. on Sunday, May 2, 2010. In addition, the toxicology analysis performed by AIT Labs in July of 2010 revealed that R.V.’s THC level was measured to be 2.5 nano-grams per milligram and his earboxy THC was measured to be 34.2 nanograms per milligram.

Dr. Kriger testified, however, that the level or quantity of marijuana is not dis-positive in determining impairment. Rather, he opined that recency of use is more indicative of whether a person is impaired. Dr. Kriger opined that because marijuana is stored in the brain, it can still yield impairing effects on behaviors and mannerisms even though it may not be detectable in the blood. He further testified that the impairing effects of marijuana can last up to 24 hours after last use. In this case, Dr. Kriger determined that R.V. had smoked marijuana within 7.92 hours of the accident which was well within the 24-hour time period within which users |1sshow signs of impairment. Based on the time of the blood draw and a calculated recency of use of 7.92 hours, Dr. Kriger opined, within a reasonable degree of scientific certainty, that R.V. was impaired when the accident occurred and that such impairment was a contributing factor in causing the accident.

Dr. George testified regarding R.V.’s blood alcohol level. The first blood draw, which occurred approximately one hour after the accident, indicated that R.V.’s blood alcohol level was .045. Dr. George pointed out, however, that the specimen tested was not a whole blood alcohol level but rather a serum or plasma level. He determined that R.V.’s whole blood alcohol level was actually 57 milligrams percent, which he found to be significant. Dr. George opined that based on R.V.’s whole blood alcohol level and marijuana use, coupled with the recency of use of marijuana, R.V. was impaired when the accident occurred and that such impairment was a contributing factor in causing the accident.

R.V. contends that the first blood draw performed at Ochsner cannot be considered to determine whether he was under the influence of alcohol, because it was done in contravention to the procedures set forth for criminal prosecution. He specifically points to the fact that Ochsner used chloraprep, which is comprised of 70% isopropyl alcohol, as a prepping agent. He argues that the isopropyl alcohol could have contaminated the specimen, which explains why the state crime lab test did not detect ethanol alcohol. R.V. contends that the police draw is more accurate because the nurse used betadine, which contains no alcohol, as a prepping agent. We find this argument unconvincing for several reasons.

First we note that R.V.’s first blood draw was performed approximately one hour after the accident at 12:18 A.M., and the results were ascertained shortly thereafter at 1:18 A.M. The police blood draw, on the other hand, occurred over four hours after the accident at 3:25 A.M., which lends some explanation to the | u variance of the results. Furthermore, that specimen was not tested until nine days after it was drawn. Secondly, Ms. Gardner, the attending emergency room nurse at Ochsner, testified that she ensured R.V.’s arm was dry before inserting the IV in order to prevent the possibility of any contamination. She further testified that any chance of contamination due to the chloraprep were minute. In addition, each person who handled R.V.’s specimen after it was drawn testified that they had no reason to believe the specimen was contaminated. Finally, Dr. Kriger testified that isopropyl and ethanol alcohol were different chemicals which would be differentiated in laboratory testing. We, therefore, find that the record does not support R.V.’s theory that the blood specimen may have been contaminated.

R.V. also argues that the Mustang, as opposed to his intoxication, caused the accident when it cut in front of him. La. R.S. 14:32.1 imposes criminal liability when alcohol or marijuana use is a “contributing factor to the killing.” Therefore, R.V.’s intoxication does not have to be determined to be the sole cause of the accident. Rather, his intoxication need only be a contributing factor that led to the killing.

In State v. Martin, 539 So.2d 1235 (La.1989), the Louisiana Supreme Court determined that proof that the defendant’s conduct was a proximate cause of the victims’ death was sufficient to satisfy the causality requirements. In that case, Martin and Jenkins were participating in a “drag race” near Avondale, Louisiana. Two witnesses testified that Martin was driving between 80-100 mph. Jenkins, the other driver, rear-ended a Chevrolet Blazer. The Blazer flipped over and landed into a canal, killing both of its occupants. Thereafter, Martin’s car hit Jenkins’ car — long after the Blazer was ejected from the road. Martin was convicted as a principal to negligent homicide. The Louisiana Supreme Court affirmed his conviction, noting that the “defendant’s conduct need not be the sole proximate |15cause of the victim’s death.” Id. at 1239. Rather, the Supreme Court determined that the proper inquiry is “[w]as the defendant’s conduct a substantial factor in bring about the forbidden result?” Id. (citation omitted).

In State v. Thomas, 05-2210, (La.App. 1 Cir. 6/9/06), 938 So.2d 168, the court held that the defendant’s intoxication while operating a motor vehicle caused the victim’s death. Like the present case, the defendant in Thomas challenged causation. Thomas argued that ill road conditions, as opposed to his intoxication, caused the accident. In Thomas, however, the court noted that there was sufficient evidence of a causal relationship between Thomas’ blood alcohol level and the victim’s death to support the conviction for vehicular homicide.

In this case, we find that the State proved beyond a reasonable doubt that R.V.’s impairment was a contributing factor that led to the accident which caused C.O.’s death. One witness testified that R.V. had smoked marijuana earlier during the day; while another witness testified that R.V. was drinking alcohol approximately 30 minutes before the accident occurred. In addition, R.V.’s alcohol and marijuana consumption were confirmed in laboratory testing. Finally, we note that both experts testified that R.V.’s impairment was a contributing factor that caused the accident in this case.

In determining the sufficiency of the evidence, the court must determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational fact finder that all of the elements of the crime have been proven beyond a reasonable doubt, in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. D.W., 09-855, p. 6 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048, 1053. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier 11Rof fact, it would have weighed the evidence differently. State ex reí. D.R., supra. Taking into account the totality of the circumstances, we find that there was sufficient evidence for the trial court to adjudicate R.V. delinquent for vehicular homicide. The conviction and sentence are affirmed.

Error Patent Discussion

We have reviewed the record for errors patent in conformity with La.C.Cr.P. art. 920. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

We note that R.V. was not advised of the time delay within which to file an application for post-conviction relief.

In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that defendant received the notice. However, in State v. Morris, 40,322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363, the Second Circuit corrected this error patent by way of its opinion rather than a remand. State v. Davenport, 08-463, p. 11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 457.

We, therefore, advise R.V. that pursuant to La.C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922.

AFFIRMED

      . At the time of the accident, R.V. was on probation for two separate offenses for simple burglary. Pursuant to the first simple burglary offense, he was on active probation until his 18th birthday. In regards to the second, he was on active probation for 18 months.

      . Carboxy THC is what the body breaks down the active ingredient in THC to before excretion into the urine or feces.


author: JUDE G. GRAVOIS, Judge.

text:
    Nicole Ann MENDOZA v. Kevin MENDOZA.
    No. 11-CA-113.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Nicole Mendoza Kumar, In Proper Person, Paulina, LA, PlaintiffiAppellant.
    Robert D. Levenstein, Attorney at Law, LaPlace, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|2This is an appeal by Nicole Ann Mendoza, plaintiff-appellant, from a judgment of the trial court awarding sole custody of the two minor children of her marriage to the children’s father, her ex-husband, Kevin Mendoza, defendant-appellee. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

The marriage of Nicole and Kevin was dissolved in 1998, at which time they had two minor daughters. By consent of the parties, joint custody was ordered, with Nicole being named the custodial parent. That arrangement persisted until 2006, when Nicole became involved in a contentious divorce from her second husband. It further appears that prior to that proceeding, Nicole had been diagnosed with a bipolar condition which the Social Security Administration determined was of sufficient severity to qualify her for disability benefits. Kevin filed a rule to change the custodial arrangement, and on May 11, 2006, a second lsconsent judgment was entered into continuing the joint custody regime, but making Kevin the custodial parent.

Beginning in 2009, various legal skirmishes were instituted by the parties which culminated in an April 21, 2010 consent order that Nicole be evaluated by a mental health professional to determine if joint custody should be continued. This evaluation was done by a clinical psychologist, Rafael Salcedo, Ph.D. A hearing on the rule to determine the custody regime was held on September 7, 2010, with Nicole appearing in proper person. After hearing testimony from the parties, the trial court granted Nicole thirty days to provide the deposition of Dr. Anwar Ismail, her treating physician for her bipolar disorder. Upon request, she was subsequently given additional time, until October 21, 2010, to submit the deposition. When the deposition was not produced by November 22, 2010, the trial court issued its judgment. On December 1, 2010, Nicole sought leave to submit the deposition. The trial judge denied her request. Three weeks after rendition of the judgment, and some two weeks after she had filed her notice of appeal, Nicole urged a motion for written reasons for judgment, which was also denied by the trial court as untimely.

The judgment of November 22, 2010 granted Kevin sole custody of the two children, with specific visitation privileges being permitted to Nicole. Nicole now appeals.

Five assignments of error are urged. Three of these assignments challenge the award of sole custody to Kevin. The fourth assignment asserts that it was error for the trial judge to exclude the deposition testimony of Dr. Ismail, and the final assignment contends that it was error for the trial judge to deny Nicole’s request for written reasons for judgment.

ASSIGNMENT OF ERROR NO. ONE— Failure to apply the Bergeron standard

Nicole first argues that the trial court erred in not applying the rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). In that case, the Supreme Court held that where a considered decree of custody has been made, the party seeking a change bears a heavy burden of showing by clear and convincing evidence that the arrangement is so deleterious to the child as to justify changing the decree. In the present matter, there was never a considered decree issued by the court. Rather, the original 1998 decree and the subsequent 2006 decree were both done by way of consent of the parties. Thus, the Ber-geron standard of proof is not applicable here. Penn v. Penn, 09-213 (La.App. 5 Cir. 10/27/09), 28 So.3d 304. We thus reject this assignment of error.

ASSIGNMENT OF ERROR NO. TWO— Exclusion of plaintiff’s doctor’s deposition

Nicole’s next assignment of error asserts that the trial court erred in excluding the introduction of the deposition of Dr. Anwar Ismail, her treating physician for her bipolar disorder. This problem arose because Nicole had not requested a subpoena for Dr. Ismail’s appearance at trial in sufficient time for him to be served. As noted above, the trial judge granted Nicole thirty days to take Dr. Ismail’s deposition and to file it into the record. On Nicole’s motion, she was granted additional time, until October 21, 2010, to file the deposition, but failed to do so. Having not received the deposition or a motion for a further extension of time by November 22, 2010, the trial judge issued his judgment. A December 1, 2011 motion by Nicole to allow introduction of the deposition was denied by the trial court as untimely.

|sA motion to hold a case open for submission of additional evidence is in the nature of a request for a continuance. Juneau v. Richard, 96-215 (La.App. 3 Cir. 11/13/96), 682 So.2d 1010, writ denied, 96-2988 (La.1/31/97), 687 So.2d 413. Continuances are governed by La. C.C.P. arts. 1601, et seq. Article 1602 provides peremptory grounds for which a continuance shall be granted and includes the situation where a party has been unable, “with the exercise of due diligence, to obtain evidence material to his case.” In the present case, Nicole failed to request a subpoena for Dr. Ismail’s appearance at trial in sufficient time for him to be served. Nonetheless, the trial judge granted her thirty days to obtain the deposition, and then further extended that time at her request. When the deposition was not filed by the extended date, the trial judge waited an additional thirty days during which time the deposition was still not put into evidence. At that point, the trial judge issued his judgment. A decision on whether to hold a case open for submission of additional evidence lies within the sound discretion of the trial judge, and will not be disturbed on appeal absent clear error. Juneau v. Richard, supra. We find no such error here. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. THREE — Awarding of sole custody to the father

In her next assignment of error, Nicole argues that the trial court erred in not awarding joint custody of the children to her and Kevin, as per La. C.C. art. 132.

In Penn v. Penn, supra, this Court explained the procedures to be used when a change in a consent custody decree is sought. It first noted that the primary consideration in custody disputes is always the best interest of the child. La. C.C. art. 131. Where the parents agree to a custody arrangement, that arrangement should be followed, unless the best interest of the child requires a different result. |fiWhere the parents cannot agree, the court shall award joint custody unless it is shown by clear and convincing evidence that sole custody is in the best interest of the child. La. C.C. art. 132. In determining the child’s best interest, the court is to consider the non-exclusive list of factors set forth in La. C.G. art. 134, but is not bound to make a mechanical evaluation of each. Rather, a custody decision must be made in light of the peculiar set of facts and relationships involved in order to reach a decision as to what is in the best interest of the child. This Court further noted that a trial court’s custody determination is entitled to great weight and will not be disturbed on appeal absent a clear showing of abuse of discretion. Finally, it ruled that where the parties have consented to a custody decree, the party seeking modification must show that there has been a material change in circumstances since the original decree, and that the proposed modification is in the best interest of the child.

Because the parties agreed to the 2006 joint custody decree, with Kevin being the custodial parent, our first inquiry is whether there has been a material change in circumstances. At the time of the 1998 custody decree, the record established that because of their work schedules, Nicole and Kevin relied on the babysitting services of Nicole’s sister-in-law, Paula Gau-det. The maternal grandmother of the children, Faye Gaudet, lived next door to Paula. This arrangement continued after the 2006 decree was entered into, with Paula caring for the children from time to time. After the present rule to change custody was filed, an interim order was issued on March 9, 2010 which set forth in detail Nicole’s visitation rights. Visitation was to be every other weekend. Nicole was to pick up the children at her mother’s house at 6:00 p.m. on Friday, and return them to Paula’s house at 6:00 p.m. on Sunday. Paula was to continue to have supervision of the children on weekday afternoons after school until Kevin came 17home from work. If Nicole wished to visit the children while in Paula’s care, she could do so only if she called and received Paula’s consent, and there was to be no “humbug (stuff).” These visits were to take place at the grandmother’s house. Other provisions of the judgment related to telephone calls, travel, and child support matters.

On April 21, 2010, a consent judgment was issued ordering Nicole to submit to a mental health evaluation by Rafael Salce-do, Ph.D., a clinical psychologist. On May 4, 2010, Dr. Salcedo interviewed Nicole, the children, Kevin, and Paula, and reviewed e-mails, legal documents, and other collateral data. He also administered the Minnesota Multiphasic Personality Inventory (MMPI) — Adolescent Version tests to the girls. Nicole was also given the adult MMPI, but somehow it got lost and had to be re-given to her on June 25. While the psychologist suspected that Nicole had taken the first test out of his office, he was unable to say this with certainty.

In his report, the psychologist recited Nicole’s diagnosis of bipolar disorder. His conclusion from the first series of interviews was that she suffered from “Bipolar Disorder, In Partial Remission.” He noted that as the evaluation progressed, she would go from charming and engaging to defensive and hostile, all within minutes. He thought that she showed very little self-control “in spite of the fact that this was an evaluation obviously designed to see her ‘best behavior.’ ” His ultimate recommendation was that “her visits with the children not be increased, and that they continue to be supervised.”

After he administered the test a second time to Nicole, Dr. Salcedo noted that there were elevations in the scale for paranoia as well as that for mania. He went on to state that “this Scale 6 [paranoia] is perhaps understandable given the fact that the [mother] does actively believe that other individuals, from her | ^perspective, are attempting to deal with her unfairly and/or harm her either psychologically or in other ways. The Scale 9 [mania] elevation is consistent with manic tendencies typically associated with Bipolar Disorder, and is consistent with my original observations of her behavior as being actively manic.”

The psychologist also examined the girls, and found that they were “relatively well adjusted, particularly under the circumstances.” He also noted that there were signs that the older fourteen-year-old girl had become “parentified,” a situation which he described as the child’s attempt to discern and take care of her psychologically disturbed parent’s needs rather than vice versa.

Paula Gaudet testified at the trial of the rule on September 7, 2010. Her pertinent testimony was that since the March 9, 2010 interim order, she had continued to watch the children after school. She stated that she had recently informed Kevin that at the end of the school year, she would no longer do so. Her reasons were that Nicole had continued to harass her in various ways via e-mails and text messages, and that the situation was intolerable. Kevin’s new wife testified that she had witnessed an incident where Nicole had been denied entry into her and Kevin’s home, and Nicole had “keyed” Kevin’s truck as she was leaving. She said that this incident was observed by one of the children. She also testified to numerous e-mails sent to her by Nicole that contained outrageous language and accusations. Kevin testified that he had been approached the year before by the principal of the children’s school in regard to the school board’s lawyer doing something about Nicole’s harassment of the girls’ teachers. These erratic behaviors on Nicole’s part substantiate Dr. Salcedo’s conclusions that Nicole suffers from paranoia and manic tendencies associated with bipolar disorder. Nicole introduced a brief letter from Dr. Ismail, her treating physician, to |athe effect that she was free of mania and depression and therefore competent to take care of her business and the children.

On all of this evidence, the trial judge implicitly found that there had been a change in Nicole’s behavior since the 2006 consent decree, and that a change of custody was in the best interest of the children. He awarded sole custody to Kevin, but continued weekend visitation with Nicole every other weekend. He reiterated that when the children were with Paula after school, Nicole could not go to the house without Paula’s express permission.

Our review of the evidence shows that although Nicole had shown some erratic behaviors in the 2006 to 2008 time-frame, the incidence of these behaviors, especially the inappropriate e-mails and text messages, increased dramatically when Kevin began seeing his present wife in mid-2009 (he eventually married her on July 19, 2010). Also beginning at about this time, Nicole had increasing problems with Paula over visitation with the children. It is evident that Kevin’s relationship with his present wife caused changes for the worse in Nicole’s behavior, and that these changes affected the children. This evidence is sufficient to support the trial judge’s implicit finding that there had been a material change in circumstances since the 2006 decree and that a change of custody was in the best interest of the children. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. FOUR — Failure to consider all relevant factors in determining the best interest of the children

Nicole’s next asserts that the trial court further erred by not properly considering the factors enumerated in La. C.C. art. 134. The question before us is Imwhether the trial judge properly applied the analysis set forth in La. C.C. art. 134. As noted in Penn v. Penn, swpra, the enumerated factors are non-exclusive and simply a guide to the court in making a determination of what custody arrangement is best for the child. In the present case, there is substantial evidence that Nicole’s mental health redounds negatively on the interest of the children. It is also evident that her condition has created problems in regard to the daughters’ school environment, and her behavior is not conducive to promoting a close and continuing relationship between the children and Kevin. On the other hand, it is also clear that Nicole loves her children and fears that they may be taken completely away from her and that this apprehension is exacerbated by her bipolar disorder and often leads to erratic behavior. Considering all of these factors, we cannot say that the trial judge abused his discretion in awarding sole custody to Kevin, with enumerated visitation privileges being reserved to Nicole. Penn v, Penn, supra. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. FIVE— Declining to assign written reasons for judgment

The final issue is whether the trial judge erred in declining to give written reasons for his judgment. La. C.C.P. art. 1917A provides that a request for written reasons for judgment shall be made “not later than ten days after the mailing of the |1Tnotice of the signing of the judgment.” Notice of the signing of the judgment in question was mailed on November 22, 2010 and Nicole’s request for written reasons was not filed until December 15, 2010. It was denied by the trial judge as “untimely.” We find no error in this determination.

CONCLUSION

For the foregoing reasons, the judgment of the district court granting the father sole custody of the two children is affirmed.

AFFIRMED

      . La. C.C. art. 134 provides as follows:
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.


author: MARION F. EDWARDS, Chief Judge.

text:
    Robbie Parker McMULLEN v. Robert McMULLEN.
    No. 11-CA-220.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Tregg C. Wilson, Charles C. Wilson, Wilson & Wilson, LLC, LaPlace, LA, for Plaintiff/Appellant.
    Brenda Braud Birner, Birner & Birner, LaPlace, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

|2The issue before this Court in this appeal involves permanent spousal support after divorce. The parties, Robbie Parker McMullen (“Mrs. McMullen”) and Robert McMullen (“Mr. McMullen”), were married on August 3, 1991. On January 30, 2009, Mrs. McMullen filed a petition for divorce, citing La. C.C. arts. 102 and 103.1. In that petition, Mrs. McMullen alleged the parties physically separated on January 14, 2009 when Mr. McMullen moved out of the family home. In his answer and reconventional demand, Mr. McMullen agrees with this allegation.

In February of 2009, the parties entered into an interim consent judgment setting forth child custody and support obligations. In conjunction with that judgment, the parties filed a “Shared Obligation Worksheet,” showing that Mrs. McMullen’s monthly income was $1,068 and Mr. McMullen’s was $6,700. Based on that presentation, the trial court assessed each party’s child support obligation.

|aThe community existing between the parties was terminated effective January 30, 2009 by an order of the trial court dated August 14, 2009. On April 6, 2010, the trial court signed a judgment of divorce based on the provisions of La. C.C. art. 102. That judgment also reserved the parties’ rights to bring other actions arising from the marriage and ordered that all “previous orders regarding incidental matters remain in effect until further orders of this court.”

On May 18, 2010, the trial court rendered a judgment on the issue of final periodic support sought by Mrs. McMul-len. The trial court judgment indicates a trial was heard on the request by Mrs. McMullen on May 10, 2010, after which Mr. McMullen requested an involuntary dismissal of Mrs. McMullen’s request for failure to sustain her burden of proof. Mr. McMullen’s request was granted and the involuntary dismissal of Mrs. McMullen’s claim was granted. Mrs. McMullen appeals that judgment.

The transcript of the April 6, 2010 divorce hearing is contained in the record. At the start of the proceeding, the parties agreed that the issue of final periodic support, as well as custody, child support, and visitation, would be continued to May 10, 2010. An agreement between the parties on community property was read into the record and confirmed by both parties. During Mrs. McMullen’s testimony, she expressed her desire to have incidental matters, including final spousal support, litigated on “May 10th at 1 p.m.”

On May 10, 2010, Mrs. McMullen testified that she is a pre-school teacher earning about $12,000 to $14,000 annually. Since the separation from her husband, she went back to school to further her education. She is attending ITT Technical Center studying computer drafting and design. She still has one year to complete the program, after which she expects to get some assistance getting a job. To finance her education, Mrs. McMullen has taken out two loans totaling about |4$11,000. In support of her testimony, Mrs. McMul-len introduced a document from her employer, Joan’s Day Care and Preschool, L.L.C., into the record showing her annual income was about $14,000.

Mrs. McMullen further testified that, during the marriage, her husband paid most of the bills. She stated that Mr. McMullen earned about $100,000 the previous year. Mrs. McMullen also testified that she is not at fault in the breakup of the marriage. She explained that Mr. McMullen was both physically and mentally abusive, and she was frightened of him. He has thrown things at her on occasion. One day, after a fight, Mr. McMullen left the couple’s home and moved out of the family home and has not returned.

At the end of Mrs. McMullen’s testimony, Mr. McMullen moved for an involuntary dismissal of the motion for spousal support on the basis that she did not meet the burden of proof. Mr. McMullen argued that no documentation was presented to support Mrs. McMullen’s testimony of her need or Mr. McMullen’s ability to pay, and there was no proof that she was not at fault in the breakup of the marriage. At the end of the arguments by both parties, the trial court granted the motion for involuntary dismissal. It does not appear that any other matters set for hearing that day were considered.

LAW AND ANALYSIS

Mrs. McMullen assigns two errors for our review. First, she argues that the trial judge erred in granting the involuntary dismissal because the matter was not properly set before the trial court. She also argues that she met the burden of proof necessary to support her demand for permanent spousal support.

We find no merit in Mrs. McMullen’s first argument. It is clear from her testimony that she fully intended to litigate the issue of final spousal support in the |sMay 10, 2011 hearing. That issue was properly before the trial court, and the trial judge did no err in considering and ruling on the issue.

La. C.C. art. 112(A) provides that if a spouse is not 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. Thus, a spouse seeking permanent support has the burden of proving that she is without fault in causing dissolution of the marriage, is in necessitous circumstances, and is in need of support.

Prior to the repeal of La. C.C. art. 138, fault was determined by analogy to the grounds for separation in that article, which included adultery, habitual intemperance, excesses, cruel treatment or outrages, making living together insupportable, and abandonment. While the trial judge in the matter before us did not make a factual determination on fault, it is clear from the petition for divorce and the answer thereto, that the husband admits moving out of the family home. Further, he made no allegations of fault against his wife. Therefore, we find Mrs. McMullen has met her burden of proof that she is not at fault in the breakup of the marriage.

The income of each of the parties was proven in the record with the joint worksheet submitted by the parties for purposes of calculating child support and interim spousal support. The record also contains a descriptive list of assets and liabilities of the community for the purposes of settling the community property issues.

| fiHowever, there was no evidence presented to show that Mrs. McMullen is in necessitous circumstances as required by La. C.C. art. 112. The spouse claiming permanent alimony has the burden of proving necessitous circumstances or that he or she has insufficient means for support. In making an alimony determination, a court considers the expenses required to procure the basic necessities of life, such as food, shelter, and clothing. Also included in the determination are reasonable and necessary automobile expenses, medical and drug expenses, utilities, and household expenses.

The trial court found that this essential element of La. C.C. art. 112 was not proven. We agree. A trial court is vested with great discretion in making alimony determinations, and its rulings should not be disturbed unless the appellate court finds an abuse of sound discretion. A trial court’s discretion in granting alimony may be disturbed when there has been a clear abuse of this discretion or manifest error in the factual determinations. After reviewing the record, briefs and applicable law in this case, we find no such abuse of discretion or manifest error by the trial court in its judgment.

Accordingly, the judgment on appeal is affirmed, and the matter is remanded for further proceedings.

AFFIRMED AND REMANDED

      . La. C.C. art. 102 provides:
      Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.
      The motion shall be a rule to show cause filed after all such delays have elapsed.

      . Skannal v. Skannal, 25,467, 26,030 (La.App. 2 Cir. 1/19/94), 631 So.2d 558, writ denied, 94-0697 (La.5/13/94), 637 So.2d 1067.

      . Allen v. Allen, 94-1090 (La. 12/12/94), 648 So.2d 359, 362.

      . Anderson v. Anderson, 98-675 (La.App. 5 Cir. 3/10/99), 732 So.2d 537, 539 (citations omitted).

      . Id.

        .Falterman v. Falterman, 98-158 (La.App. 5 Cir. 1/13/99), 726 So.2d 1023, 1025-26 (citations omitted).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF CHILDREN & FAMILY SERVICES in the Interest of A.F. v. Joseph FENNIDY.
    No. 11-CA-547.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry M. Bou-dreaux, Timothy P. O’Rourke, Amanda L. Calogero, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appellant, State of Louisiana Department of Children and Family Services.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

12This is a nonsupport action brought by the State of Louisiana, Department of Children and Family Services (hereafter “the State”), against a father. The State appeals a ruling that deviated from the Child Support Guidelines.

The defendant, Joseph Fennidy, is the father of A.F., born on February 25, 1997. On April 19, 1999, pursuant to a petition by the State on behalf of the child, the Jefferson Parish Juvenile Court entered a child support order against the defendant. Thereafter the matter came up periodically for review pursuant to La. R.S. 9:311.

On November 9, 2010 the matter came up for a three-year modification hearing as provided in La. R.S. 9:311(C)(2). The hearing officer made a recommendation that support be increased to $1,061.55 per month, which was adopted by the court.

The defendant disagreed with the recommended amount of support because he also was paying support for a child who was not the subject of the action before the court. The other child lives in Orleans Parish. The defendant was paying $300 |sa month for the Orleans Parish child pursuant to a verbal agreement with the child’s mother, but there was no support order for that child.

The defendant requested a disagreement hearing, which took place on December 6, 2010. The judge set support at $861 per month, but granted the defendant a credit of $150 per month (half the amount the defendant said he was paying in Orleans Parish). That reduced the support payable in this case from $861 to $711 per month.

The State and the recipient, Marisa Jones, objected on the ground that the defendant failed to produce evidence to verify the existence of the Orleans Parish child, such as the agreement with that child’s mother, or proof of payments. The State filed a motion for new trial on the ground that the defendant requested a deviation from the modified amount for a child who did not live with him and for whom he did not have a court order of support, he provided no evidence of the child’s relationship to him, and he provided no of any proof of payments being made. The court granted the motion for new trial.

Prior to the new trial hearing, the defendant obtained a support order for the Orleans Parish child in Civil District Court for the Parish of Orleans.

The new trial in this matter took place on February 14, 2011. The defendant presented a birth certificate identifying him as the father of K.A.F., who was born on April 28, 2010. He also produced an order of support for K.A.F. from the Orleans Parish district court. The court upheld the December 6, 2010 ruling.

|4The State and the recipient objected and the State filed another motion for new trial, which again was granted.

The second new trial was held on March 14, 2011. The judge maintained the support award of $861 per month as well as the second-family credit. He reduced the amount of the credit from $150 to $75, setting support at $786 per month.

The State requested that the court give reasons for deviation from the guidelines. In response, the court stated:

The reasons are that we have a child that he’s doing visitation ... seeing the child, giving money to and everything, and I think he ought to get credit for that. And that credit ought to be $75.00. And any other reductions ought to be ... that’s for Orleans Parish to do.... And I think it’s in the best interest of the child....

The State now appeals, with two assignments of error:

1. The Court committed manifest error in granting the deviation under La. R.S. 9:315.1(0(3) because the Defendant did not meet his burden of proof when he failed to argue or present any evidence that the multiple support orders would reduce his income below the lowest income level on the schedule contained in La. R.S. 9:315.19.
2. The Court abused its discretion in granting the deviation under La. R.S. 9:315.1(0(8) because it failed to give specific reasons supported by evidence in the record explaining why the guideline amount would not be in the best interest of the child or inequitable to the parties.

There is a rebuttable presumption that the amount of support obtained by use of the child support guidelines is the proper amount of child support. La. R.S. 9:315.1(A). Relevant considerations applicable here include the following, in pertinent part:

B. (1) The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to |5the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.
⅜ * *
C. In determining whether to deviate from the guidelines, the court’s considerations may include:
(3) That in a case involving one or more families, consisting of children none of whom live in the household of the noncustodial or nondomiciliary parent but who have existing child support orders (multiple families), the court may use its discretion in setting the amount of the basic child support obligation, provided it is not below the minimum fixed by R.S. 9:315.14, if the existing child support orders reduce the noncustodial or nondomiciliary parent’s income below the lowest income level on the schedule contained in R.S. 9:315.19.
(8) Any other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties.

In addition, deviations by the trial court from the guidelines set forth in this Part shall not be disturbed absent a finding of manifest error. La. R.S. 9:315.1.

The State argues it is unclear whether the court granted the deviation under La. R.S. 9:315.1(C)(3) or (C)(8), but regardless the deviation was unjustified. If under paragraph (C)(3), the State asserts, the court committed manifest error because the defendant did not meet his burden of proof to justify deviation under La. R.S. 9:315.1(0(3). Specifically, he failed to present any evidence that the multiple support orders would reduce his income below the lowest income level on the schedule contained in La. R.S. 9:315.19.

The State contends further that the trial court committed manifest error and abused its discretion if it was granting the deviation under the multiple families provision, La. R.S. 9:315.1 (C)(8), because it failed to give specific reasons ^supported by evidence in the record explaining why the guideline amount would not be in the best interest of the child or inequitable to the parties.

We agree with the State. For a deviation from the guidelines under the multiple support orders provision of La. R.S. 9:315.1(0(3), there must be proof that “the existing child support orders reduce the noncustodial or nondomiciliary parent’s income below the lowest income level on the schedule contained in R.S. 9:315.19.” Here, the defendant presented no such proof. Accordingly, the deviation was not justified under paragraph (C)(3).

On the other hand, if the court was relying on La. R.S. 9:315.1(0(8), “[a]ny other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties,” the court failed to give adequate “specific oral or written reasons for the deviation.” Pursuant to La. R.S. 9:315.1(B)(1), the specific reasons must include “the particular facts and circumstances that warranted a deviation from the guidelines.” The reasons assigned by the trial judge here were not specific, nor were the “facts” recited therein proven by the defendant — that is, the defendant proved only that he was subject to a child support order for the Orleans Parish child, but he did not prove he was either visiting the child, or actually paying money for the child. The court failed to enumerate the reasons for the deviation with adequate specificity, failed to include particular facts and circumstances supported by evidence, and failed to state whether application of the guidelines would be either inequitable to the parties or not in the best interest of the child.

The trial court’s discretion in setting the amount of child support is structured and limited. State ex rel. D.F. v. L.T., 05-1965 (La.7/6/06), 934 So.2d 687, 690. This obligation must be administered and fairly apportioned between parents in their mutual financial responsibility for their children; toward that end, |7guidelines balance the needs of children with the means available to parents. Id. The standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Id.

Accordingly, we find the trial court was manifestly erroneous and abused its discretion in deviating from the child support guidelines to modify support in this case.

For the foregoing reasons, the judgment is reversed and the prior child support amount of $861 per month is reinstated.

JUDGMENT REVERSED; PRIOR CHILD SUPPORT AMOUNT REINSTATED

      . Employing our judicial discretion, we refer to the children by their initials to protect their privacy, although that confidentiality is not mandated in this proceeding. Compare Uniform Rules, Louisiana Courts of Appeal, Rule 5-2.

      . The State’s brief points out that different judges have ruled in this case, and the ruling on which the State seeks review was made by a pro tempore judge who sat in this section of court on several occasions. The identity of the judge who made the ruling is not in itself a basis to challenge the ruling. Accordingly, in this opinion we do not differentiate between the judges, because each when sitting on the bench acted as "the court.”

      .According to the State’s brief, the Jefferson Parish Juvenile Court typically refers to a deviation under La. R.S. 9:315.1(C)(2) as a "second family credit.” The State asserts the court apparently was using it to describe a deviation under La. R.S. 9:315.1(C)(3). The State argues that the only time it should be considered a "credit” is if there is a preexisting support obligation that is used to offset gross income under La. R.S. 9:315.

      . With each award the court awards five percent for court costs, which is added to the amount of support awarded and payable on a monthly basis.

      . The support order was contained in a consent judgment that declared J.F. to be the father of K.M. (whose name subsequently was changed in the new birth certificate to K.A.F.), and ordered the defendant to pay child support of $803 per month.