text:
    Chester Lavelle PEPPER, Jr., Plaintiff-Appellant v. Dorothy Mearl Hollowell PEPPER, Defendant-Appellee.
    No. 49,185-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Bowers Law Firm, LLC, by Clinton M. Bowers, for Appellant.
    Kammer & Huckabay, Shreveport, by Pugh T. Huckabay, III, for Appellee.
    Before BROWN, PITMAN & GARRETT, JJ.
   PITMAN, J.

| TAppellant, Chester Lavelle Pepper, Jr., through his administratrix, Sherri P. McIntyre (“the Administratrix”), appeals the trial court’s denial of the peremptory exception of res judicata and judgment in favor of Appellee, Dorothy Mearl Hollowell Pepper (now “Ms. Barber”). For the following reasons, we affirm.

FACTS

Mr. Pepper and Ms. Barber married on November 16, 1985. On July 21, 2004, Mr. Pepper filed a petition for divorce. On August 2, 2004, Ms. Barber filed a petition to partition. On September 16, 2004, the trial court signed a judgment awarding the parties a divorce. A partition judgment was filed on December 15, 2005. Notably to this case, the partition judgment partitioned Mr. Pepper’s “Retirement/Pension/Annuity/ Thrift Savings Plan” with the U.S. Postal Service (USPS). On December 30, 2005, Ms. Barber filed a motion for new trial. On March 15, | g2006, the parties entered into a receipt, release and satisfaction of judgment, and specifically exempted from release:

any claim that [Ms. Barber] might have against [Mr. Pepper] pertaining to the future division of any savings, pension and/or retirement plan of [Mr. Pepper] in connection with his employment with the U.S. Postal Service and/or the enforcement of any right to a proportionate share of the subject savings, pension and/or retirement benefits as recognized by the Court and specifically referenced in the Judgment filed in these proceedings on December 15, 2005.

On April 28, 2006, Ms. Barber filed a motion to dismiss and stated that the motion for new trial was resolved through compromise and settlement.

Mr. Pepper died on December 30, 2011.

On March 6, 2012, Ms. Barber filed a petition to amend/supplement partition of community property, stating that the existence of Mr. Pepper’s Thrift Savings Plan with the USPS was not disclosed during the partition of the community property in 2005 and, therefore, remained unparti-tioned. She requested that the trial court partition the Thrift Savings Plan and that she receive her half of the community portion of that account. On July 10, 2012, Ms. Barber filed an amended petition to partition community property and clarified that no information was provided in discovery specifically regarding the funds held in the Thrift Savings Plan.

On January 16, 2013, the Succession of Mr. Pepper, through the Administratrix, filed an answer and peremptory exception. The Administratrix argued that Ms. Barber’s claims were precluded by the doctrine of res jvdicata as a result of the 2005 partition judgment.

A trial on the matter was held on September 10, 2013. The parties stipulated to the value of the Thrift Savings Plan. The Administratrix |sargued that the 2005 partition judgment provided that Mr. Pepper’s Retirement/Pension/Annuity/Thrift Savings Plan be partitioned in accordance with the Sims v. Sims formula; and, therefore, the doctrine of res judicata precluded relitigation of the partition. The Administratrix also pointed out that Ms. Barber’s detailed descriptive list specifically mentioned the “Retirement/Pension/Annuity/Thrift Savings Plan.” Ms. Barber argued that Mr. Pepper had two forms of retirement — a pension plan and a Thrift Savings Plan. She stated that the pension plan was litigated and partitioned in 2005, but the Thrift Savings Plan was not litigated and partitioned. She testified that, when she filed her original petition to partition, although her attorney included the term “Retirement/Pension/Annuity/Thrift Savings Plan” in her detailed descriptive list, she was aware only that Mr. Pepper had some form of retirement with the USPS, but did not specifically know that he had a Thrift Savings Plan because Mr. Pepper handled all of their finances. Ms. Barber explained that she became aware of the Thrift Savings Plan several years after the partition when she contacted the USPS to provide her new address in order to receive her portion of Mr. Pepper’s retirement once he retired. The trial court noted that Mr. Pepper did not list the Thrift Savings Plan in his detailed descriptive list or in interrogatories. It found that Ms. Barber discovered the existence of the Thrift Savings Plan after the partition; and, therefore, the Thrift Savings Plan was not included in the original partition. The trial court overruled the Administratrix’s peremptory exception of res judicata and found that the Thrift Savings Plan could be partitioned pursuant to La. C.C. art. 1380.

|4On September 16, 2013, the trial court filed a judgment overruling the peremptory exception of res judicata and partitioning Mr. Pepper’s USPS Thrift Savings Plan, finding that the Thrift Savings Plan in the amount of $67,290.93 was an unpar-titioned asset of the former community of acquets and gains and allocating one-half (½) of the value of the Thrift Savings Plan to each party.

The Administratrix, on behalf of the Succession of Mr. Pepper, appeals the judgment of the trial court.

DISCUSSION

Res Judicata

In her first assignment of error, the Administratrix argues that the trial court erred in overruling her peremptory exception of res judicata. She contends that the 2005 partition judgment precluded re-litigation of the partition of the Thrift Savings Plan because the cause of action was adjudicated in the original partition.

Ms. Barber argues that the action to partition the Thrift Savings Plan is not barred by res judicata because the partition of this asset was not litigated in the original partition. In the alternative, she contends that, even if res judicata applies, it does not bar her action because the exceptions to res judicata set forth in La. R.S. 13:4232 apply to her case.

The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. State ex rel. Murphy v. Harén, 42,098 (La.App.2d Cir.5/16/07), 957 So.2d 869, writ denied, 07-1285 (Lap/21/07),5 964 So.2d 345, citing Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192, and Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993.

The law on res judicata is set forth in La. R.S. 13:4231, which states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

In other words, a second action is precluded by res judicata when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049.

La. R.S. 13:4232 sets forth exceptions to La. R.S. 13:4231, stating:

A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
|<¾(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action.
B. In an action ... for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

The doctrine of res judicata is strictly construed. Any doubt regarding compliance with its requirements is to be resolved in favor of maintaining the plaintiffs action. State ex rel. Murphy v. Harén, supra, citing Thurston v. Thurston, 31,895 (La.App.2d Cir.8/20/99), 740 So.2d 268.

The application of the Burguieres five-part test to the facts of this case preliminarily suggests that res judicata precludes a second action: the judgment was a valid, final judgment; the parties are the same because Mr. Pepper’s succession is a party pursuant to La. C.C.P. art. 734; the cause of action of the second suit, i.e., the partition of the community property, existed at the time of the first partition; and both causes of action arise out of the termination of the community of acquets and gains. However, the exception to res judi-cata stated in La. R.S. 13:4232(B) applies to the facts of this case. The cause of action was not adjudicated in full because, as discussed infra, the partition of the Thrift Savings Plan was not adjudicated in the 2005 partition judgment. The 2005 partition judgment only has the effect of res judicata as to the community property that was actually partitioned. Therefore, the trial court did not err in denying the Administratrix’s peremptory exception of res judicata.

^Accordingly, this assignment of error is without merit.

Partition of Thrift Savings Plan

In her second assignment of error, the Administratrix argues that the trial court erred in determining that the 2005 partition judgment did not contemplate the partition of the Thrift Savings Plan. She emphasizes that the 2005 partition judgment partitioned the “Retirement/Pension/Annuity/Thrift Savings Plan of Chester Lavelle Pepper, Jr. with the United States Postal Service.” She points out that Ms. Barber’s detailed descriptive list listed as an asset the “Retirement/Pension/Annuity/Thrift Savings Plan of Chester Lavelle Pepper, Jr. with the United States Postal Service” and that Mr. Pepper’s traversal and amended traversal of Ms. Barber’s list traverse this asset. She also notes that Ms. Barber’s post-trial memorandum states, “Ms. Pepper’s interests in the retirement and thrift savings plan at USPS shall be divided pursuant to the formula provided in Sims v. Sims,” and that Mr. Pepper’s post-trial memorandum concurs in this statement.

Ms. Barber argues that the trial court was correct in determining that the Thrift Savings Plan was an unpartitioned asset that was not included in the original action and was properly partitioned pursuant to La. C.C. art. 1380. She states that she was not aware of the existence of the Thrift Savings Plan until after the original partition and that Mr. Pepper failed to provide any information about the Thrift Savings Plan during the 2005 partition.

|8La. C.C. art. 1380 states, “If, after the partition, a discovery should be made of some property not included in it, the partition must be amended or made over again, either in totality, or of the discovered property alone.”

The issue of whether the Thrift Savings Plan was taken into account in the 2005 partition is a question of fact. A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In this case, Ms. Barber testified that she did not become aware of the existence of the Thrift Savings Account until after the 2005 partition when she contacted the USPS. She explained that she was aware Mr. Barber had some form of retirement with the USPS, but that she did not know what specific accounts he had. In her detailed descriptive list, Ms. Barber included the string of terms “Retirement/Pension/Annuity/Thrift Savings Plan” to refer to retirement in general and noted that the value of this asset was “unknown.” Mr. Pepper did not list the Thrift Savings Plan in his detailed descriptive list, interrogatories or deposition — he referred only to an annuity and a pension plan. After hearing the testimony of Ms. Barber and reviewing the documents from the 2005 partition, the trial court accepted Ms. Barber’s testimony that she discovered the existence of the Thrift Savings Plan after the partition and found that it was not included in the original partition. We do not find that the trial court’s finding of fact is manifestly erroneous or clearly wrong. Therefore, the trial court did not err in amending the partition to include the Thrift Savings Plan as it was not previously partitioned.

| Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Appellee Dorothy Mearl Hollowell Pepper, and against Appellant Chester Lavelle Pepper, Jr., is affirmed. Costs of appeal are assessed to Appellant Chester Lavelle Pepper, Jr., through his administratrix, Sherri P. McIntyre.

AFFIRMED.

      . Judge Michael A. Pitman was the trial judge in this case for the divorce in 2004 and original partition in 2005. The issues presented in this appeal were before Judge Ramon Lafitte, not Judge Michael A. Pitman.

      . The partition judgment states, in pertinent part:

        RETIREMENT/PENSION/ANNUITY/THRIFT SAVINGS PLAN OF CHESTER LAVELLE PEPPER, JR. WITH THE UNITED STATES POSTAL SERVICE

      IT IS ORDERED, ADJUDGED AND DECREED that the deferred compensation benefits of CHESTER L. PEPPER, JR. shall be partitioned in accordance with the stipulation of the parties utilizing the formula from the decision of Sims v. Sims, 358 So.2d 919 (La.
      1978) and as described more fully hereinbe-low. Inasmuch as Mr. Pepper is still actively employed by the U.S. Postal Service, the denominator of the fraction is obviously unknown. The numerator of the subject fraction is 224 months. Accordingly, the correct formula to be utilized in determining the interest of DOROTHY MEARL HOLLOWELL PEPPER BARBER is as follows:
      224 months community x ½ x Monthly pension benefit = Ms. Barber's share of the participation in pension ultimately received by Mr. monthly pension paid Total months of credited Pepper employment of Mr. Pepper with the U.S. Postal Service and credit for military service


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Richard Demarcus WILSON, Sr., Plaintiff-Appellee v. Shareese L. FINLEY, Defendant-Appellant.
    No. 49,304-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      George W. Britton, III, for Appellant. Shirley M. Wilson Davis, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

[,In this child custody dispute, the mother, Shareese L. Finley, appeals a trial court judgment awarding primary domiciliary custody of the minor child to the father, Richard Demarcus Wilson, Sr. For the following reasons, we affirm.

FACTS

Richard Demarcus Wilson, Sr. (“Richard”) and Shareese L. Finley (“Shareese”) are the parents of the minor child, “R.J.,” who was born on February 24, 2007. At the time of R.J.’s birth, Richard and Shar-eese were sophomores in high school. Richard’s mother, Judy Wilson (“Mrs. Wilson”) took care of R.J. while Richard and Shareese continued with school and school-related extracurricular activities. Richard and his parents testified that by the end of 2007, Shareese allowed R.J. to live with them “due to the unstable situation with [Shareesej’s family and her living arrangements.” However, Shareese denied allowing R.J. to live with the Wilson family. She testified that R.J. lived with both her and Richard, alternating weeks between the Wilson home and her grandmother’s home.

Richard and Shareese graduated from high school in 2009. Both were offered scholarships to attend college — Richard was offered athletic scholarships from various universities; Shareese received a TOPS scholarship which would pay her tuition to a college or university in the state of Louisiana. Richard decided to attend Southern University in Baton Rouge, while Shareese chose to attend Grambling State University in 12Grambling. The parties decided that R.J. would live with Richard’s parents while Richard and Shareese attended college. Pursuant to the oral agreement, Richard’s parents would take care of R.J. from Sunday evenings until Friday evening; Shareese would care for him from Friday evening until Sunday evening, during holiday breaks and during the summer months.

During the trial, the evidence was virtually undisputed that Richard played college football and rarely came home on weekends when he was in college in Baton Rouge. However, the testimony varied with regard to how often Shareese came to get R.J. from the Wilsons’ home on weekends.

Nevertheless, the agreement remained in place until 2011. According to the testimony presented at trial, Mrs. Wilson called Richard and Shareese and told them they needed to formulate a plan to assume responsibility for caring for R.J. because she and her husband were “getting tired.” At that point, Shareese and her aunt, La-Chandon Finley, met with Mrs. Wilson to address the issue. Initially, Shareese suggested having R.J. come to Ruston to live with her in her off-campus apartment. However, due to her nursing school schedule, the plan was not feasible because on at least one day of the |sweek, she did not have anyone to care for R.J. According to Shareese, her “Plan B” was to have R.J. remain in Monroe and live with her aunt.

Meanwhile, Richard considered dropping out of college to return home to care for R.J. After contemplating the alternatives, Mrs. Wilson decided that it was best for R.J. to remain in her home; Richard and Shareese agreed. At some point, Richard decided to return to Monroe to “take care of [his] responsibility as a man” and assume the care of R.J. For the 2011-2012 school year, Richard transferred to Grambling State University, resided at home with his parents and R.J., and commuted to Grambling for classes. Subsequently, he was offered a scholarship to play football at Grambling and moved into an apartment in Ruston. Richard then sustained a football injury and moved back to Monroe to live with his parents. At that time, according to Richard and his parents, he assumed the day-to-day care of R.J., doing tasks such as helping R.J. get dressed for school, helping him with homework in the evenings, volunteering for certain activities at the school and coaching some of R.J.’s sporting activities. Richard continued with his studies at Grambling, commuting from Monroe to Grambling for classes.

On March 27, 2013, Richard filed a petition seeking primary domiciliary custody of R.J. Thereafter, the trial court entered an interim custody order, awarding domiciliary custody to Richard; Shareese was granted “liberal visitation.” Following a conference, the hearing officer recommended that the parties be awarded joint custody, with Richard ^designated as the domiciliary parent. Shareese objected to the hearing officer’s report, and a trial to determine the custody of R.J. was held.

During the hearing, the evidence established the following: R.J. was a student at Robinson Elementary School; he was well-behaved; he made good grades; Shareese was employed full-time at Glenwood Regional Medical Center; Shareese had her own apartment in Ruston and received government housing assistance; Richard was a full-time college student; he resided with R.J. at his parents’ home; he was not employed.

R.J.’s teachers from pre-kindergarten and kindergarten testified at trial. R.J.’s pre-kindergarten teacher testified that he had not met Shareese. He stated that Richard came to the school to check on R.J.’s progress, and Richard and his parents attended parent/teacher conferences. R.J.’s kindergarten teacher testified that Richard participated in R.J.’s education and he came to the school for parent lunches and field day activities. She further testified that Shareese picked up R.J. from school “maybe two times” and attended his kindergarten graduation. However, the teacher testified that she did not recall discussing R.J.’s progress in school with Shareese.

The testimony at trial varied with regard to who provided for R.J. financially. Shareese testified that she purchased “everything” R.J. needed, including “all” of his school clothes and supplies, Christmas gifts and [,/¡birthday presents. She also stated that she paid for all of his birthday parties, while Richard never purchased anything for R.J. She and her witnesses testified that she spent as much as $500 per year on school clothes and at least $700 per year on Christmas gifts.

Conversely, Richard and his parents testified that Shareese never provided any financial support for R.J.’s care. Richard and his mother testified that Shareese received benefits through the Supplemental Nutrition Assistance Program (“SNAP”), in part, by claiming R.J. as a dependent on her application. They also testified that the only contribution Shareese made for RJ.’s care was that she allowed Mrs. Wilson to use her SNAP card to purchase food for R.J. in the amount of $65 per month. According to the Wilsons, Richard purchased R.J.’s school clothes and supplies and paid his school fees. They admitted that Richard and Shareese both purchased Christmas gifts for R.J.

It appears that the relationship between the parties became volatile and deteriorated when, in January 2013, Mrs. Wilson informed Shareese that she would be claiming R.J. as a dependent on her federal and state income tax returns because he resided with her. Prior to that year, Shar-eese |fihad been claiming R.J. as a dependent and receiving both the child tax credit and earned income credit, although he primarily resided with the Wilsons.

Following a three-day hearing, the trial court awarded the joint custody of R.J. to the parties, with Richard being designated the primary domiciliary parent. The court also ordered that the recommendations of the hearing officer be maintained.

Shareese appeals.

DISCUSSION

Shareese contends the trial court erred in awarding primary domiciliary custody to Richard. She argues that the court erred in finding that Richard is in a better position to provide food, clothing and medical care to R.J. She points out that, at the time of the hearing, Richard was unemployed, had a very limited employment history and lived with his parents, who had filed Chapter 13 bankruptcy proceedings. Shareese further | 7argues that at the time of the trial, she had a full-time job and her own apartment.

It is well settled in our statutory and jurisprudential law that the .paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131; Evans v. Lung-rin, 97-0541 (La.2/6/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir. 12/16/09), 27 So.3d 1024; Shivers v. Shivers, 44,596 (La.App.2d Cir.7/1/09), 16 So.3d 500. The court is to consider all relevant factors in determining the best interest of the child. LSA-C.C. art. 134.

| ¡/The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSA-C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra; Robert v. Robert, 44,528 (La. App.2d Cir.8/19/09), 17 So.3d 1050, writ denied, 2009-2036 (La.10/7/09), 19 So.3d 1; Bergeron v. Bergeron, 44,210 (La.App.2d Cir.3/18/09), 6 So.3d 948. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

LSA-R.S. 9:335(A)(2)(b) provides that, to the extent feasible and in the best interest of the child, physical custody of the child should be shared equally. However, the law is clear: substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Semmes, supra; Stephenson v. Stephenson, 87,323 (La.App.2d Cir.5/14/03), 847 So.2d 175.

The trial court has vast discretion in deciding matters of child custody and visitation. Semmes, supra; Slaughter v. Slaughter, 44,056 (La.App.2d Cir.12/30/08), 1 So.3d 788; Gaskin v. Henry, 36,714 (La.App.2d Cir.10/23/02), 830 So.2d 471. Therefore, the trial court’s determination will not be disturbed on appeal, absent a clear showing of an abuse of discretion. | ^Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Semmes, supra; Slaughter, supra. As long as the trial court’s factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not reverse, even though convinced it would have weighed the evidence differently if acting as the trier of fact. Id.

In the instant case, all of the witnesses testified that R.J. is a bright, well-adjusted child and is flourishing academically and socially. Richard testified that he is a good parent to R.J.; Shareese testified that she is a good parent to R.J. They both agreed that the previous custody and visitation schedule had worked in the past.

In weighing the factors set forth in LSA-C.C. art. 134, the trial court noted the following findings:

• Both parents were college students.
• Both parents had “significant” love, affection and emotional ties with R.J.
• Both parents had the capacity and disposition to provide R.J. with love, affection and spiritual guidance and to continue his education and rearing.
• Neither parent had the ability to independently provide food, clothing, medical care for R.J.
• Richard’s family had been financially providing for R.J. most of the child’s life.
• Richard returned to live with his parents to help rear R.J. while continuing his education. -
|in* R.J. had lived with Richard’s family “most of his life.”
• Richard’s family provided a nurturing and stable environment for R.J.
• It was in the best interest of R.J. to continue in the family unit with Richard’s family.
• R.J. attended elementary school in the district in which Richard’s family lived and he is an “A” student.
• Richard attends to R.J.’s day-to-day needs and activities.

The trial court acknowledged that Shar-eese is receiving housing assistance while she is attending college. However, the court noted that if her assistance ended, she may not be able to provide a home for R.J. The court also expressed its concern that Shareese was contemplating applying to medical school. It concluded that Shar-eese’s plans for a more stable future had been “derailed by the fact that [she] failed out of nursing school.” The court further concluded:

[T]he best interest of R.J. is for him to maintain where he is[.]
[I] think to take a child who is well-adjusted, happy, loving, good student, healthy, by all regards, and to remove him into a place that would only potentially be that way, only speculatively be that way, but also could potentially be disruptive to that — what has been clearly against his best interest.

We have reviewed this record in its entirety and we are convinced, as |nwas the trial court, that both Richard and Shareese are loving parents. However, the paramount goal in child custody cases is to reach a decision which serves the best interest of the child. The trial court observed the demeanor of the parties and the witnesses and expressly noted that both parties loved R.J. However, the trial court’s conclusion that Richard, with the continued assistance of his parents, was able to provide a stable and safe living environment for R.J. is supported by the facts of this case.

The trial court also considered the prior physical custody arrangement established by the parties and the willingness of Richard and his parents to foster a relationship between R.J. and his mother. It is apparent that the court endeavored to fashion a custody plan for R.J. which would continue his close relationship with both parents, and yet ensure his safety and stability. Moreover, the custody and visitation schedule ordered by the trial court is markedly similar to the previous custody arrangement agreed upon by the parties.

Based on the record before us, we find that the trial court did not abuse its discretion in concluding that it was in R.J.’s best interest to award primary domiciliary custody to Richard, with liberal visitation in favor of Shareese.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to the appellant, Shar-eese L. Finley.

AFFIRMED.

      . Richard and his parents testified that Shar-eese's decision to allow R.J. to live with them stemmed from a drug bust that occurred at her mother’s residence in December 2007.

      . Richard's father, Lavelle Wilson, Sr., testified that Shareese only visited R.J. "maybe once a month.” Richard’s sister, Jasmine Wilson, testified that R.J. was with her parents "most weekends." According to Jasmine, Shareese only came to get R.J. when the Wilsons called her to come and get him. Judy Wilson, Richard's mother, testified that Shareese only came to visit R.J. "every now and then.”
      Conversely, Shareese testified that after she left for college, she picked R.J. up every weekend. Her friends, Brittany Smith and Eunei-sha Brown, corroborated Shareese’s testimony that she picked R.J. up every weekend. However, one witness testified that she picked him up “sometimes on the weekends”; another witness testified that she picked him up "every other weekend” and another witness testified that she picked him up "when she [could] during school.”

      . Shareese stated that she had nursing "clini-cals” in Minden every Tuesday from 6:00 a.m. until 6:00 p.m.

      . Shareese's status as a college student is unclear. She testified that due to the child custody proceedings, she made poor grades during the Fall 2013 semester and was "kicked out” of the nursing program at Grambling. Shareese also stated that she was changing her major to chemistry and planned to go to medical school. She later stated that she was considering transferring to Delta Community College in Monroe to obtain an associate's degree in nursing.

      . She stated that she has worked since high school and the money she spent on R.J. came from her income and refunds she received from college through the Federal Pell Grant Program.

      . The Wilsons also testified that Shareese receives federal housing assistance by claiming R.J. as a dependent on her application; Shar-eese admitted that she does so because at the time she applied for the benefits, she “was planning” for R.J. to live with her.

      . According to Richard, he supported R.J. with money he earned while working summer jobs and from refunds he received through the Federal Pell Grant Program.

      . On Friday March 15, 2013, Shareese went to the Wilson residence to pick up R.J. She was informed that R.J. would not be allowed to leave with her. After she insisted that he be allowed to leave with her, the Wilsons called the Ouachita Parish Sheriff's Department and a deputy instructed Shareese to leave the premises because this "was a civil matter.”

      .After the conference, the hearing officer recommended that Shareese be awarded visitation every other weekend. During the school year, on the weeks she did not have weekend visitation, Shareese was awarded overnight visitation from 6:00 p.m. Thursday until 8:00 a.m. Friday. Also, during the summer months, Shareese was awarded "three nonconsecutive two-week periods ..., provided she gives [Richard] notice of the desired weeks in writing by March 1 of each year. If the parties cannot agree or if no notice is given, it will be the first two weeks of June, July and August." The hearing officer had also recommended specific visitation for Mother’s Day, Father’s Day, Easter, Spring Break, Thanksgiving and Christmas. The order further provided that should either parent have to work during his or her periods of visitation, then he or she "shall contact the other parent and offer them the right of first refusal to care [for] the minor child before leaving the minor child with another family member or babysitter.” As stated above, Shareese objected to the hearing officer's recommendation and the case was fixed for trial.

      . LSA-C.C. art. 134 provides, in pertinent part:
      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.

      . Richard testified that Shareese is a good mother to R.J.; however, although Shareese described Richard as a "good father” in her deposition testimony, during the trial she refused to admit that he is a good father. Rather, she described his relationship with R.J. as "more like a brother.” Shareese further testified that Richard's mother plays the role of R.J.’s "father” more than Richard. She admitted that she consulted with Mrs. Wilson regarding decisions concerning R.J., rather than calling Richard.

      . The court concluded that even if Shareese were to improve her GPA and be accepted into medical school, her plans to commute from Monroe to LSU-Shreveport were unrealistic and impractical.


author: McClendon, j.

text:
    Quintin N. BRIDGES v. NEW ORLEANS TRUCKING AND RENTAL DEPOT, INC. & Varice A. James, Sr.
    No. 2013 CA 1969.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2014.

      Joseph G. Albe, New Orleans, LA, for Plaintiff/Appellee Quintín N. Bridges.
    Stephen W. Brooks, Jr., Richard J. Voelker, Covington, LA, for Defendants/Appellants New Orleans Trucking and Rental Depot, Inc. and Varice James.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

| RA commercial trucking carrier appeals a judgment rendered by the Office of Workers’ Compensation (“OWC”) finding that a truck driver was its employee and requiring it to pay workers’ compensation benefits. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On May 9, 2012, Quintín Bridges was driving a tractor-trailer rig and traveling west on Interstate 610 at Elysian Fields Avenue in New Orleans when he was involved in an accident with a pickup truck. Mr. Bridges was injured in the accident.

On May 23, 2012, Mr. Bridges filed a Disputed Claim for Compensation with the OWC, alleging that New Orleans Trucking and Rental Depot, Inc. (New Orleans Trucking) and Varice A. James, Sr. were his employers. In his disputed claim, Mr. Bridges alleged that: (1) no wage benefits had been paid; (2) no medical treatment had been authorized; (3) the workers’ compensation rate was incorrect; (4) a procedure recommended by his doctor had not been authorized; and (5) he was denied his choice of a primary care physician. Mr. Bridges also made a request for penalties and attorneys’ fees.

In its answer, New Orleans Trucking alleged that it was not required to provide compensation benefits to Mr. Bridges under the Louisiana Workers’ Compensation Act (the Act) because Mr. Bridges was an independent contractor.

In April 2013, the OWC conducted a trial on the merits. Following trial, the OWC took the matter under advisement. Subsequently, the OWC rendered judgment in favor of Mr. Bridges, finding that Varice James was Mr. Bridges “lending employer” and New Orleans Trucking was Bridges’ “borrowing employer” such that New Orleans Trucking was required to provide workers’ compensation under the Act. The OWC ordered New Orleans Trucking to pay total temporary disability benefits and supplemental earnings benefits, all medical bills for treatment rendered by Dr. William Alden and Dr. F. Allen |,^Johnston, and all future reasonable and necessary medical treatment related to the accident.

New Orleans Trucking has appealed, assigning the following errors:

I. The OWC committed reversible error in finding that Bridges was not an independent contractor.
II. The OWC committed reversible error in finding that Bridges was entitled to temporary total disability benefits from the date of the accident to March 27, 2013 and entitled to supplemental earnings benefits at zero wage earning capacity from March 28, 2013 through the date of trial.
III. The OWC committed reversible error in finding that New Orleans Trucking refused to admit that it was liable for any workers compensation benefits, including medicals; therefore, the medical treatment guidelines did not apply to treatment rendered prior to the date of the judgment.
IV. The OWC committed reversible error in granting Bridges’ motion to compel MRI on January 17, 2013, then finding that New Orleans Trucking did not timely comply with the order to pay for an MRI and initial evaluation.

DISCUSSION

Employees in Louisiana are assured protection from work-related injuries through the Louisiana Workers’ Compensation Law, set forth in LSA-R.S. 23:1021 et seq. “A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.” LSA-R.S. 23:1044. An alleged employer can rebut this presumption by either (i) establishing that the services were not pursuant to any trade, business, or occupation, or (ii) establishing that the individual was performing services but was doing so as an independent contractor. Hillman v. Comm-Care, Inc., 01-1140 (La.1/15/02), 805 So.2d 1157,1161.

An independent contractor is defined in LSA-R.S. 23:1021(7), as amended by 2004 La. Acts 188, as follows:

“Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified |4result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter. (Emphasis added.)

The legislature has recognized that owner operators, and their drivers, are not employees of the common carrier if the owner operator and common earner enter into a written contract that identifies the owner operator as an independent contractor. Specifically, LSA-R.S. 23:1021(10), as enacted by 2004 La. Acts. 488, provides:

“Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.

The parties do not dispute that Varice James entered into a written contract to lease its truck to New Orleans Trucking. The contract identifies Varice James as the owner/operator and as an independent contractor. The contract also specifically provides that Varice James “understand[s] that neither my driver(s) nor I am an employee of New Orleans Trucking and Rental Depot, Inc. My drivers will be my employees and, except insofar as otherwise required by law, will be under my exclusive control.” Moreover, Varice James agreed to be “solely responsible for carrying and providing [workers’] compensation insurance \ -non all drivers and other employees of Owner/Operator who are connected with or perform and service under this Agreement.” (Italics in original.)

New Orleans Trucking contends, by operation of LSA-R.S. 23:1021(10), that neither Varice James, as owner operator, nor Mr. Bridges, as the driver of the leased vehicle, were employees of New Orleans Trucking. Rather, New Orleans Trucking contends that Varice James, and his driver, were independent contractors as defined in LSA-R.S. 23:1021(7). Accordingly, New Orleans Trucking concludes that it did not and was not required to provide workers’ compensation coverage to Mr. Bridges.

In opposition, Mr. Bridges cites Zeringue v. O’Brien Transp., Inc., 05-760 (La.App. 5 Cir. 4/11/06), 931 So.2d 377, writ denied, 06-1107 (La.9/1/06), 936 So.2d 205, and asserts that despite the contractual language, courts must look beyond the contract to examine the circumstances of each case. Mr. Bridges notes that the use of lease agreements by common carrier is a common practice, as an attempt to immunize themselves by making their employees independent contractors, but such action does not necessarily shield employers from liability under the Act. Zeringue, 931 So.2d at 380. Mr. Bridges suggests that New Orleans Trucking was, in essence, his principal or statutory employer such that New Orleans Trucking was responsible for providing him workers’ compensation coverage. See LSA-R.S. 23:1061.

Un Hair v. Louisiana Crane & Trucking Co., 48,566 (La.App. 2 Cir. 9/17/08), 996 So.2d 485, a truck driver hauled goods for a carrier. The truck driver and carrier entered into a contract recognizing the driver as an independent contractor. The truck driver was subsequently injured and sought workers’ compensation benefits from the carrier. The appellate court, affirming that there was no employer-employee relationship, cited the following facts found by the trial court: 1) the contract defined the status of the parties and required the truck driver to provide his own workers’ compensation insurance; 2) the truck driver owned his truck, for which he paid fuel and all upkeep; 3) the truck driver secured his own commercial driver’s license, at his cost; 4) the carrier issued forms 1099, not W-2s, to the driver; 5) the carrier paid the driver a percentage for each load, in lieu of an hourly wage; and 6) the driver chose his own route and set his own hours and work traits. In concluding that the carrier did not provide compensation coverage, the court noted:

The result here is harsh, but the contract could not be much clearer. The facts of this case, as applied to the law and to the contract between the parties, inescapably [preponderate] towards affirming the ruling made by the trial court. Signatures to legal documents have significance and consequences, and we find that the relationship of the parties, as per contract, and as implemented |7on the ground, was that of a contract carrier that contracted with an independent contract truck driver.

Hair, 996 So.2d at 437. Accord Course v. Fox Wolff Constr., 08-58 (La.App. 5 Cir. 5/27/08), 987 So.2d 277, writ denied, OS-1396 (La.9/26/08), 992 So.2d 992.

Similarly, in this case, Varice James and New Orleans Trucking entered into a contract that met the requirements set forth in LSA-R.S. 23:1021(10). Also, Varice James and Mr. Bridges testified that Mr. Bridges’ only duties were to drive the rig, which pulled the trailers. Although New Orleans Trucking instructed when and where the trailers were to be delivered, Mr. Bridges determined his own route. Varice James was paid for the runs made by the rig, and Varice James, in turn, paid Mr. Bridges 30% of the gross receipts earned by the truck. Mr. Bridges maintained his own records of his weekly trips, and calculated the 30% of the trucks’ earnings, and was paid in accordance with those records. Varice James paid Mr. Bridges directly, and his annual earnings, for tax purposes, were reflected on an IRS form 1099. In light of the foregoing, we conclude that Varice James was an independent contractor.

Nevertheless, Mr. Bridges asserts that even independent contractors are covered employees if a substantial part of the work time is spent in manual labor carrying out the terms of the contract. LSA-R.S. 23:1021(7). At the hearing, Mr. Bridges testified, in addition to driving the rig, he fueled the rig, connected electrical lines and air hoses, and hooked and unhooked the trailers. Mr. Bridges sometimes also swept the empty containers. In reaching its decision that New Orleans Trucking was responsible for providing workers’ compensation coverage, the OWC reasoned:

Claimant [Mr. Bridges] performed the manual labor of hooking [and] unhooking the trailer, cleaning inside the trailer and moving the cargo inside the trailer as needed, all of which was done on behalf of N.O. Trucking, and within the course and scope of his employment with N.O. Trucking. Therefore, claimant is covered by the workers’ compensation act and defendant N.O. Trucking is the proper defendant to pay workers’ compensation benefits herein.

| ^However, in reaching this determination, the OWC failed to consider LSA-R.S. 23:1021(7), which specifically provides:

The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter. [Emphasis added.]

Therefore, the only manual labor provided by Mr. Bridges, and referenced by the OWC, was occasionally sweeping the empty trailers. Sweeping of the trailers, however, was not a substantial part of Mr. Bridges’ work time. Therefore, we conclude that no employer-employee relationship existed between New Orleans Trucking and Mr. Bridges.

CONCLUSION

In light of the foregoing, we reverse the OWC judgment signed on June 5, 2013. Costs of this appeal are assessed to appel-lee, Quintín N. Bridges.

REVERSED.

PETTIGREW, J., concurs.

      .Varice James has also appealed, but we note that he was not cast in judgment.

      . At the time of the amendment, the definition appeared in subsection 6 of the statute.

      . At the time it was enacted, the definition appeared in subsection 13 of the statute.

      . Louisiana Revised Statutes 23:1061 provides:
      A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any "principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the "contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
      (2) A statutory employer relationship shall- exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.
      (3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services’.
      B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

      . We recognize that the OWC also found that Mr. Bridges sometimes moved cargo inside the trailer. However, the testimony only reflects one isolated incident that required Mr. Bridges to dispose of Styrofoam and empty boxes.

      . In finding merit in assignment of error number one, we pretermit discussion of the remaining assignments of error. Moreover, we do not address whether workers’ compensation benefits may be owed by Varice James.