author: SUSAN M. CHEHARDY, Chief Judge.

text:
    FEDERAL TRUST BANK v. Tracy Glorioso SHEPPARD, Administratrix of the Succession of George E. Annis, Chardonnay Village Condominium Association.
    No. 13-CA-429.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Benjamin B. Dean, Attorney at Law, Dean Morris LLP, Monroe, Louisiana, for Appellant, Federal Trust Bank. .
    Tracy G. Sheppard, Attorney at Law, Metairie, Louisiana, for Appellee, Tracy G. Sheppard, Administratrix of the Succession of George E. Annis.
    Ashley L. Belleau, R. Ethan Zubic, Attorneys at Law, Montgomery Barnett, L.L.P., New Orleans, Louisiana, for Appel-lee, Chardonnay Village Condominium Association, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

UThis matter began as a mortgage foreclosure by a bank under executory process. After seizure and sale of the property, various creditors asserted that their claims to the proceeds of the sale were superior to the mortgage. The bank appeals a judgment placing the bank’s claim third in line for the sale proceeds. We reverse.

FACTS

On March 20, 1986, George E. Annis (“Annis”) acquired Unit 39-A of Chardonnay Village Condominium, 1500 W. Esplanade Avenue # 3, Kenner, Louisiana 70065 (“the Property”). Annis financed the purchase price of the condominium unit with a note secured by a mortgage in favor of Louisiana Federal Savings Bank, in the amount of $60,000.00. The mortgage was recorded in Jefferson Parish on April 24, 1986. That note is now held by Federal Trust Bank (“FTB”), the undisputed successor in interest to Louisiana Federal Savings Bank.

Annis died intestate on October 24, 2004. This resulted in a default in the monthly payments owed to FTB pursuant to the note and mortgage, as well as a default in the payment of condominium assessments owed to Chardonnay Village Condominium Association, Inc. (“CVCA”).

|sOn January 13, 2005, CVCA recorded in the mortgage records an Association Assessment Lien Affidavit, in which CVCA asserted a privilege on the Property for unpaid monthly and special condominium assessments in the amount of $444.16. The lien affidavit asserted CVCA’s privilege under the Louisiana Condominium Act (La. R.S. 9:1121.101 et seq.) and included CVCA’s Condominium Declaration.

On May 26, 2005, CVCA filed a Petition to Enforce Lien and to Appoint Succession Administrator (“the Chardonnay suit”). CVCA requested recognition of its privilege under the Louisiana Condominium Act. Pursuant to CVCA’s request for appointment of a succession representative, Tracy Glorioso (now Sheppard) (“Sheppard”) was appointed administrator of the succession.

On June 27, 2005, Warren M. Barroner (“Barroner”), another unsecured creditor to the estate of Annis, also filed suit by means of a judicial succession proceeding (“the Barroner suit”). Barroner was appointed Provisional Administrator on June 27, 2005, and Letters of Administration were issued by the Clerk of the 24th Judicial District Court.

On May 16, 2006, Sheppard and CVCA entered into a Consent Judgment in the Chardonnay suit. Athough CVCA’s Petition asserts a privilege pursuant to the Louisiana Condominium Act, the Consent Judgment states that the delinquent condominium assessments, late fees, interest, as well as attorney’s fees incurred by CVCA, shall be paid by the Succession to CVCA as a priority claim under La. C.C. art. 3276. The Consent Judgment was executed by counsel for CVCA and by Sheppard as the court-appointed executor in the Chardonnay suit. The Chardonnay Consent Judgment signed on May 16, 2006, was not recorded in the | ¿mortgage records until after FTB filed the instant action. FTB has never been joined in the Chardonnay suit, and had never made a voluntary appearance therein.

On May 1, 2008, FTB instituted this lawsuit to enforce its note and mortgage by executory process, as a result of the default on monthly payments owed to FTB. FTB alleged the principal amount owing was $33,930.46, with interest thereon at 5.960% per annum from August 01, 2005, until paid. Barroner, the Provisional Administrator in the companion proceeding in the 24th Judicial District Court was originally served. On June 11, 2008, FTB filed a supplemental and amending petition requesting removal of Barroner as the named defendant representing the succession, and substituting Sheppard as Provisional Administrator of the succession of Annis. On May 9, 2008, the Barroner suit was dismissed, and Barroner’s appointment as provisional administrator in the ancillary provisional succession proceeding was nullified.

On May 13, 2008, the trial court in the executory proceeding issued an order directing the sheriff to seize and sell the Property to satisfy the FTB mortgage. A notice of seizure was recorded in the Jefferson Parish mortgage records on May 29, 2008. An amended notice of seizure was recorded on July 31, 2008. CVCA ^subsequently filed its hen on September 30, 2008 after the executory proceeding had been filed, and the Property was under a constructive seizure by FTB.

On October 21, 2008, after the trial court in the executory proceeding had issued an order directing the sheriff to seize and sell the Property to satisfy the FTB mortgage, Sheppard filed an ex parte motion in the Chardonnay suit to recognize her curator fees and expenses in the amount of $13,415.62 as a priority claim against An-nis’s succession. On the same day, the trial court in the Chardonnay suit signed the ex parte order, which stated that Sheppard’s curator fees “are hereby deemed a priority claim and are to be paid as such, prior to the payment of any secured and any unsecured claims from the proceeds of any sale, including, but not limited- to any Sheriffs sale.” That order was recorded on the day it was issued, October 21, 2008.

Both CVCA and Sheppard were notified of the pending judicial sale in this executo-ry proceeding, but neither CVCA nor Sheppard intervened to assert entitlement to the proceeds of the judicial sale in this litigation. The judicial sale was consummated on October 7, 2009, at which time FTB was the winning bidder.

On the following day, however, FTB filed a Motion to Set Aside Sheriffs Sale, on the basis that, at the time of the sheriffs sale, there were issues that had to be resolved, specifically the October 21, 2008 order giving curator fees priority over FTB’s mortgage and the September 30, 2008 recordation of the CVCA lien. On October 14, 2009, the motion to set aside the sheriffs sale was granted.

On April 12, 2010, FTB filed a Rule to Show Cause Why Liens Should Not Be Declared Ineffective as to Immovable Property and Alternatively to Rank Liens to determine the relative ranking of the FTB mortgage in relation to the claims of | f,CVCA and Sheppard. Both CVCA and Sheppard filed memoranda in opposition to FTB’s Rule to Show Cause. Subsequently, both FTB and CVCA filed cross-motions for summary judgment regarding the ranking of the CVCA lien.

In support of its motion for summary judgment, CVCA asserts its lien is a privilege on the assets of the succession in accordance with La. C.C. art. 3276, as debts of the decedent accrued after the succession has been placed under administration. CVCA filed an affidavit stating that since Annis’s death, CVCA has insured the property, has gutted and repaired the property following Hurricane Katrina and Hurricane Isaac, and has maintained the property in a habitable and marketable condition. The affidavit stated further that, during the years following Annis’s death, the monthly condominium assessments and fees that are allocated to insure and maintain Unit 39A and the common areas owned by the condominium owners, have amassed in favor of CVCA and remain unpaid.

In her opposition to the rule to rank, Sheppard asserted that the issuance of the ex parte order in the CVCA litigation affords her a similar privilege under La. C.C. art. 3276, and that her lien should also be paid in preference to the mortgage holder, FTB. She also argued that FTB should be estopped from asserting any preference due to its lack of cooperation with the CVCA litigation.

Both the Rule to Rank and the Cross Motions for Summary Judgment were heard in their entirety on February 19, 2013. The trial court issued a written judgment on March 4, 2013 denying FTB’s Rule to Rank and Motion for Summary Judgment and granted CVCA’s Motion for Summary Judgment, holding that CVCA’s lien primed FTB’s mortgage. The trial court additionally took judicial notice of an ex parte Order in the CVCA proceeding and ranked and awarded Sheppard’s fees as Provisional Administrator before both CVCA’s lien and FTB’s mortgage.

17FTB has taken a suspensive appeal.

ASSIGNMENTS OF ERROR

FTB contends that the trial court erred in finding that the claims of Sheppard and CVCA should be paid out of judicial sale proceeds in preference to the mortgage of FTB. FTB asserts the trial court ignored the Civil Code articles that provide for a mortgage creditor to seize and sell the mortgaged collateral and to have the proceeds applied to its debt in preference to the claims of others. FTB argues it is entitled to enforce its mortgage by execu-tory process outside of the succession proceedings of the deceased mortgagor, and is legally entitled to have the proceeds of the judicial sale applied to its debt in preference to the claims of both Sheppard and CVCA.

FTB further contends it was not a party to the Chardonnay suit, it did not acquiesce to the Consent Judgment, was not given notice, before or after, of the signing of the ex parte Order designating Sheppard’s fees as a priority claim, and it should not therefore be bound by the rulings entered therein. FTB also points out that neither Sheppard or CVCA have intervened in the foreclosure proceeding to assert payment in preference to FTB’s secured position.

FTB argues that the trial court erred in finding that CVCA’s condominium privilege is a priority privilege under Article 3276 of the Louisiana Civil Code. FTB contends that the rank of CVCA’s claim for unpaid condominium assessments is governed by the Louisiana Condominium Act, not by Louisiana Civil Code Article 3276. FTB farther argues that, under the canons of statutory interpretation, Louisiana Civil Code Articles 3279 and 3307 supersede the provisions of Article 3276 of the Louisiana Civil Code, as to a mortgage creditor, and that the sanctity of the public records doctrine is in peril were this court to determine otherwise.

| sIn opposition to the appeal, CVCA responds that its privilege outranks FTB’s security interest because CVCA’s succession assessment claims arose after Annis’s death and, therefore, are secured by La. C.C. art. 3276, and that an unrecorded Article 3276 privilege is effective against third parties, so that the public records doctrine is irrelevant. As to FTB’s contention that it was not given adequate notice or opportunity to be heard in the Chardonnay suit, CVCA argues that claim has no merit because FTB was notified repeatedly by mail and by facsimile of the privilege CVCA claimed, and of the pending succession proceedings. CVCA contends that FTB should not profit from allowing CVCA and Sheppard to protect FTB’s collateral to CVCA’s detriment.

Sheppard opposes the appeal by arguing that the fees and costs of an appointed succession representative are protected by the succession privilege of La. C.C. art. 3276, and that the succession privilege outranks a conventional mortgage. FTB responds that Sheppard was a curator appointed in accordance with La. C.C.P. art. 5091, and that CVCA, therefore, owes any fees to Sheppard as the plaintiff who requested the appointment of the curator to represent the estate.

LAW AND ANALYSIS

The essential questions before us are the nature and superiority of a duly-recorded conventional mortgage, the ranking of succession privileges against such a mortgage, and whether the characterization of the debts owed to Sheppard and CVCA as post-death charges against the succession, and, therefore, privileges against a secured creditor that do not require recordation and that may be given preference to FTB’s position, are correct as the trial court ruled.

In support of its arguments, FTB relies on La. C.C. art. 3279, which reads:

| ciMortgage gives the mortgagee, upon failure of the obligor to perform the obligation that the mortgage secures, the right to cause the property to be seized and sold in the manner provided by law and to have the proceeds applied toward the satisfaction of the obligation in preference to the claims of others.

Further, regarding the effect and rank of mortgages, FTB cites La. C.C. art. 3307(3), which reads, “The mortgagee is preferred to the unsecured creditors of the mortgagor and to others whose rights become effective after the mortgage becomes effective as to them.” Neither the death of the mortgagor nor transfer of the mortgaged property impinges upon this right. La. C.C.P. art. 3741 (“[A] conventional mortgage may be enforced without reference to any alienation or transfer of the mortgaged property from the original debtor, and the creditor may cause the property to be seized and sold as though it were still owned by the original debtor and in his possession.”)

Under the Louisiana Public Records doctrine, all written instruments affecting real estate must be recorded in the appropriate public records in order to affect third persons. La. C.C. art. 3338; Cimarex Energy Co. v. Mauboules, 09-1170 (La.4/9/10), 40 So.3d 931. “The public records doctrine is founded upon our public policy and social purpose of assuring stability of land titles.” Id. at 943 (citing Camel v. Waller, 526 So.2d 1086, 1089 (La.1988)).

The proceeds from the FTB Mortgage loan were used to fund the purchase of the property that is the subject of this appeal. It is undisputed that the mortgage lender (FTB’s predecessor) relied upon the absence of any other mortgage, lien or privilege when it made the loan, and recorded its mortgage in the mortgage records of Jefferson Parish on April 24, 1986. It is likewise undisputed that the FTB mortgage is the first ranking mortgage on the subject property. The FTB mortgage was properly recorded over 22 years before the claims of Sheppard or CVCA |inbecame exigent. Under the codal provisions cited above, FTB should, therefore, have been entitled to seize and sell the property by judicial sale, and have the proceeds applied to its debt in preference to any claims against the property not recorded before its lien became effective.

The trial court found, however, that the claims of Sheppard and CVCA primed the mortgage in this case, and, relying on La. C.C. art. 3276, placed a priority privilege upon all the assets of the decedent, moveable or immovable, secured or unsecured. The trial court was in error.

La. C.C. art. 3276 reads:

The charges against a succession, such as funeral charges, law charges, lawyer fees for settling the succession, the thousand dollars secured in certain cases to the surviving spouse or minor heirs of the deceased, and all claims against the succession originating after the death of the person whose succession is under administration, are to be paid before the debts contracted by the deceased person, except as otherwise provided for herein, and they are not required to be recorded.

La. C.C. art. 3276 provides for a privilege, which must be considered for purposes of the order of payment of debts in a succession under administration, and the allocation of succession assets, to the extent available to the payment of those debts. The property in this matter is encumbered with a prior conventional mortgage executed long before the death of Annis, which is entitled by law to enforcement without regard to an administration of his succession. As such, it would be considered an asset of the succession subject to administration only to the extent that the executo-ry seizure and sale of the property might generate proceeds in excess of the indebtedness due on the mortgage held by FTB, at which point the order of payment of debts incurred after the death of the decedent would be dictated by La. C.C. art 3276.

InSpecifically, with regard to the rank of unpaid condominium assessments with regard to other privileges, mortgages and encumbrances, CVCA’s claim is governed by the Louisiana Condominium Act, rather than the general Civil Code articles regarding privileges in a succession proceeding. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1229 (“statutes specifically directed to the matter at issue must prevail as an exception to the statute more general in character.”)

The Louisiana Condominium Act, La. R.S. 9:1123.115 reads, in pertinent part:

A. (1) The association shall have a privilege on a condominium parcel for all unpaid or accelerated sums assessed by the association, any fines or late fees in excess of two hundred fifty dollars, and interest thereon at the rate provided in the condominium declaration or, in the absence thereof, at the legal interest rate. This privilege shall also secure reasonable attorney fees incurred by the association incident to the collection of the assessment or enforcement of the privilege. Further, if the unit owner fails to timely pay the assessments for common elements for a period of three months or more during any eight-month period and notice to the delinquent unit owner is provided as set forth in Paragraph (3) of this Subsection, the association may accelerate the assessment on the common elements for a twelvemonth period and file a privilege for the accelerated sums. Assessments for common elements are those assessments that are collected on a regular basis by the association for routine expenditures associated with the property.
(2) To be preserved, the privilege shall be evidenced by a claim of privilege, signed and verified by affidavit of an officer or agent of the association, and shall be filed for registry in the mortgage records in the parish in which the condominium is located.
C. A privilege under this Section is superior to all other liens and encumbrances on a unit except (1) privileges, mortgages, and encumbrances recorded before the recordation of the declaration, (2) privileges, mortgages, and encumbrances on the unit recorded before the recordation of the privilege as provided in Subsection B of this Section ... (Emphasis added).

First, in order to qualify for the priority of La. C.C. art. 3276, the claim must “originate after the death of the person whose succession is under administration.” In this case, CVCA is suing for condominium assessments and dues that originated hawhen Annis purchased the condominium, which are obligations that arose prior to Annis’s death. The fact that CVCA initiated its attempt to collect the debt after his death through the institution of a provisional succession does not change their character, or transform them into obligations owed under La. C.C. art. 3276.

Next, La. C.C. art. 3276 is only applicable “except as otherwise provided for herein,” while La. C.C. art. 3279 and 3307 contain no such limiting language. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art 9. The Civil Code recognized the need for such limitations upon the applicability of La. C.C. art. 3276. To allow otherwise would undermine the public records doctrine and render it meaningless.

Thus, assuming that CVCA has a valid privilege on the property and complied with all provisions of the Louisiana Condominium Act in order to obtain such privilege, its rank is inferior to the FTB mortgage because the FTB mortgage was recorded 19 years before CVCA’s “Association Assessment Lien Affidavit.” The trial court’s grant of summary judgment in CVCA’s favor is hereby reversed.

Turning now to Sheppard’s claim, we find that the trial court has given full effect to an ex parte order rendered in a completely different proceeding, to which FTB was never a party, to place the claims of Sheppard in preference to those of FTB and CVCA. We find that this ruling is in error for the following reasons.

Initially, Sheppard was appointed, in accordance with La. C.C.P. art. 5091, as the succession representative, when CVCA, an unsecured creditor to the estate of Annis, filed suit against the unopened succession. La. C.C.P. art. 5091 reads:

A. The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
11S(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is:
(c) Deceased and no succession representative has been appointed.
(2) The action of proceeding is in rem and:
(a) The defendant is dead, no succession representative has been appointed, and his heirs and legatees have not been sent into possession judicially-

La. C.C.P. art. 5096 reads, in pertinent part:

The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.

While the record in the Chardonnay case is not before this court on appeal, we take judicial notice of the fact that the original petition in that matter was filed by an unsecured creditor seeking to assert its privilege over the property herein by perfecting a lien against that property in a vacant succession proceeding. As such, Sheppard’s appointment falls squarely within the dictates of La. C.C.P. art. 5091, and compensation for that appointment would be due and owing in accordance with La. C.C.P. art. 5096 from CVCA, the party plaintiff who initiated the request for the appointment. We additionally note that virtually all of the fees accrued by Sheppard arose out of the CVCA proceeding, and were incurred to perfect the privilege and lien of CVCA, not to administer the succession in general.

For these reasons, we reverse the summary judgment in this matter, and order that the mortgage of FTB be ranked first in the pending executory proceeding. Costs of this appeal are assessed equally against CVCA and Sheppard.

REVERSED AND RENDERED.

      . MOB 1491, Page 115, Instr. 8618444.

      . MOB 4221, Page 45, Instr. 10502628.

      . Chardonnay Village Condominium Association, Inc. v. Succession of George E. Annis, 24th Judicial District Court, Parish of Jefferson, No. 620-802.

      . Succession of George E. Annis, 24th Judicial District Court, Parish of Jefferson, No. 621-963.

      . FTB’s Petition to Enforce Security Interest by Executory Process originally named as defendant "Warren M. Barroner, Provisional Administrator of the Succession of George E. Annis” (see Note 3, above), but later was amended to dismiss Barroner as defendant and replace him as defendant with Tracy Glo-rioso Sheppard, as Administratrix of the Succession of George E. Annis.

      .FTB also sought recovery of
      all expenses incurred in enforcing the note and mortgage including reasonable attorney's fees not to exceed 20% of the sums due; (c) if/as applicable, such other or additional amounts incurred or advanced for taxes, insurance premiums, special assessments, repairs to and/or maintenance of the property, for the protection, preservation, repair and recovery of the property, for the protection and preservation of the lien of the mortgage, for the protection and preservation of the mortgagee's interest thereunder, and other amounts provided by the mortgage and applicable law, such as late charges, escrow advances for the payment of taxes and insurance, corporate advances, property appraisals, inspection fees, prior attorney fees and expenses, abstract and title charges, NSF charges, attorney fees and expenses, and other charges which plaintiff is permitted to prove by verified petition, verified supplemental petition, or affidavit filed or submitted before distribution by the sheriff of the proceeds of the judicial sale herein; and (d) all law charges, costs, fees and expenses including sheriff’s commission.

      . MOB 4373, Page 496, Instr. 10830524.

      . MOB 4380, Page 429, Instr. 10841599.

      . MOB 4385, Page 921, Instr. 10850297.

      . MOB 4388', Page 202, Instr. 10853643.

      . According to FTB, the sheriff refused to execute an act of sale or disburse proceeds from the judicial sale, and the sheriff requested that FTB filed to motion to set aside the sale.

      . The record shows these notifications were dated November 23, 2005, December 27, 2005, February 26, 2006, and March 10, 2006.

      . See also, La. C.C.P. art 2701.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge. JOHNSON, J.,

license: Public Domain

text:
    G.A. LOTZ COMPANY, LTD. v. Louis J. ALACK, Greg J. Alack, Alack Refrigeration Company, Inc., Lotz Culinary Equipment & Supplies, Inc.
    No. 13-CA-674.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Edward A. Rodrigue, Jr., Charles K. Chauvin, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Douglas T. Curet, Rick A. Singer, Attorneys at Law, Hammond, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

| gLouis J. Alack, Greg J. Alack, Alack Refrigeration Co., Inc., and Lotz Culinary Equipment & Supplies, Inc. appeal the trial court’s grant of summary judgment dismissing claims against third-party defendants, David T. DeMonte and Paul J. Varisco, Sr., individually, with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter concerns a contractual dispute over the sale of business assets from G.A. Lotz Company, Ltd., (“GALCO”) to Louis J. Alack, Greg J. Alack, Alack Refrigeration Co., Inc., and Lotz Culinary Equipment & Supplies, Inc. (“LCESI,”. collectively “Alack”). On November 29, 2005, after the exchange of several drafts, a written sales agreement was executed by the following in their respective capacities:

David T. DeMonte, as President of GALCO:
Louis J. Alack, as President of LCESI; Louis J. Alack, further in his individual capacity as “Guarantor;”
David T. DeMonte and Paul J. Varisco, Sr., as “Intervenors.”

The sales agreement scheduled four payments as follows:

1,4. PRICE
a. This sale is made and accepted for and in consideration of the sum of the following amounts:
i. Cash payments in the amounts and on the dates set forth in the following Subparagraphs:
A. On December 1, 2005, $200,000.00
B. On March 1, 2007, $250,000.00
C. On March 1, 2008, $250,000.00
D. On March 1, 2009, a sum equal to four times Adjusted EBIT-DA, [“earnings before interest, depreciation, taxes, and amortization”] less the sum of the installments payments described in subparagraphs 4, a. i. A., B., and C. delivered to GALCO, but in no event more than $400,000.00, provided however, if the amount due on March 1, 2009, exceeds $250,000.00, LCESI shall pay such excess, plus interest at the rate then fixed by the Internal Revenue Service for mid-term obligations under IRS Section 1274, in 36 equal consecutive monthly installments of principal and interest commencing on April 1, 2009. LCESI shall incur no penalty for early payment of such excess.

The contract further provided that De-Monte and Varisco would stay on as employees of LCESI and have access to LCESI’s financial records and statements during the defined two-year EBITDA, that is “earnings before interest depreciation, taxes, and amortization” period of January 1, 2006 to December 31, 2007.

Appellants paid the first three scheduled installments totaling $700,000.00. The parties then disputed the amount of the final payment; appellants’ EBITDA calculation was rejected by the opposing party as was the appellees’ in turn. On March 2, 2012, GALCO sued Alack for failure to pay the final installment of $400,000.00. On November 8, 2011, Alack answered denying liability, | ¿reconvened against GALCO, and third-partied DeMonte and Varisco, contending it overpaid the purchase price based on its calculation. In its second amended answer, reconventional demand, and third-party demand, Alack sought reimbursement of $414,573.00, which it claims it had overpaid GALCO based on the adjusted EBIDTA formula. Alack contended the calculation was delayed due to late receipt in 2009 of the corporate tax returns for the EBITDA period (2006-07). Alternatively, Alack sought a declaratory judgment in reconvention, acknowledging and maintaining the contract sales price, or further in the alternative, reformation of the sales agreement to reflect the parties’ intent. Alack contends that to the extent it may still owe a final payment under the terms of the contract of sale, their agreement was induced by fraud on the part of GALCO, DeMonte, and Varisco such that GALCO, DeMonte, and Varisco are liable for damages, costs, and attorney fees. Alack also third-partied attorney Kenneth J. Berke alleging legal malpractice in that he violated his fiduciary duties to appellants by drafting the sales agreement for GALCO/ DeMonte while also representing Alack.

Motion for summary judgment. On January 16, 2013, GALCO, DeMonte, and Varisco filed a motion for summary judgment to address claims set forth in the reconventional and third-party demands. GALCO, DeMonte, and Varisco argued that based on the plain language of the contract of sale, Alack was without any right of reimbursement, even assuming the truth of the allegations of overpayment. The motion for summary judgment also sought dismissal of the third-party claims against DeMonte and Varisco on the grounds that they were not personally liable under the sales contract and that there was no evidence of fraud that would | ¡^otherwise subject them to personal liability. GALCO also sought the dismissal of the reconventional demand.

Trial court ruling. On February 20, 2013, the trial court granted a partial motion for summary judgment, dismissing from this litigation third-party defendants, DeMonte and Varisco, individually with prejudice. In orally assigned reasons, the trial court found no basis to hold them personally liable as nowhere in the contract are DeMonte or Varisco named as guarantors. The trial court found no genuine issue of material fact that they could be personally liable. The trial court specifically found that “the document was not ambiguous as to the particular provision regarding price and the terms of conditions of that.” The trial court thus rejected appellants’ argument that the contract was misleading as to price. The trial court referred the issue of GALCO’s reimbursement to trial and stated that it would entertain a motion for directed verdict, if any, after hearing the evidence at trial. The trial court, therefore, did not dismiss the reconventional demand for reimbursement against GALCO.

Appeal. The notices of signing the judgment were mailed on February 28, 2013. The Alack group filed a timely writ application on March 28, 2013, which was granted “for the limited purpose of remanding the matter to the district court with instructions that relators be given thirty days from the date of this disposition to perfect an appeal if they so desire.” Lotz v. Alack, et al, 13-276 (La.App. 5 Cir. 4/30/13) (unpublished writ opinion). On May 2, 2013, the trial court designated the February 27, 2013 judgment as a final, appealable judgment. On May 15, 2013, Alack filed a Motion and Order for Appeal in which it sought a devolutive appeal from the grant of summary judgment dismissing the third-party claims against DeMonte and Varisco. GALCO, DeMonte, and Var-isco moved to dismiss the appeal, contending that La. C.C.P. art. 2087’s sixty-day limit to perfect an | fiappeal is jurisdictional, appellant’s timely-filed writ notwithstanding. This Court denied appellees’ first motion to dismiss on September 16, 2013. We find that the appellants timely filed them appeal consistent with this Court’s order, and thus the appellees’ re-urged motion to dismiss this appeal for lack of jurisdiction lacks merit.

ASSIGNMENTS OF ERROR

FRAUD AND GUARANTOR ISSUES

1. The trial court erred in failing to acknowledge and recognize the existence of genuine issues of material fact precluding summary judgment, particularly in consideration of allegations of fraud, which necessitate a trial on the merits regarding the issue of whether third-party defendants David DeMonte and Paul Var-isco [appellees] were complicit in their company’s (GALCO’s) fraud, and whether they were guarantors under the Sale Contract.

2. The trial court erred by granting in part the motion for summary judgment dismissing the third-party demand of Louis J. Alack, et al. [appellants] against third-party defendants DeMonte and Varisco, finding that they were not guarantors, and ignoring the greater issue of fraud and complicity of the third-party defendants.

3. The trial court erred in dismissing the third-panel claims of appellants against third-party defendants (ap-pellees) by failing to acknowledge and recognize that legal bases of fraud, complicity and culpability exist, both in relation to and independently of whether third-party defendants signed the Sale Contract as guarantors.

4. The trial court erred in granting in part the summary judgment in favor of third-party defendants by failing to recognize that the continued existence of the fraud issue against the defendant-in-reconvention GALCO must result in the continued existence of the fraud issue against third-party defendants DeMonte and Varisco, GALCO’s only principals.

CONTRACT OF EMPLOYMENT

5. The trial court erred in dismissing the third-party demand against De-Monte via summary judgment when there exists, in addition to the fraud allegations, a claim against him for breach of his obligations under the employment contract executed ancillary to the Sale Instrument.

^STANDARD OF REVIEW

Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. The Court must consider whether summary judgment is appropriate under the circumstances of the case and whether there is a genuine or triable issue on which reasonable minds could disagree. Western v. Stoot, 05-186 (La.App. 5 Cir. 10/6/05), 916 So.2d 1195, 1196.

LAW AND DISCUSSION

Appellants’ assignments of error one through four address two issues of the trial court’s ruling: (1) was there any evidence of fraud; and (2) were DeMonte and Varisco guarantors or otherwise personally liable under the sales agreement?

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. A contract is formed by the consent of the parties, established by offer and acceptance. La. C.C. art. 1927. Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage by one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art. 1953. Consent may be vitiated by fraud. La. C.C. art. 1948. Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. La. C.C. art. 1954. “A party who signs a written document is presumed to know of its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him. Aguillard v. Auction Mgt. Corp., 04-2804, 04-2857 (La.6/29/05), 908 So.2d 1, 17. Here, Louis |RAlack, LCESI’s President and the only one signing for LCESI, admitted he signed the six-page document without reviewing it.

Fraud requires pleading with particularity. La. C.C.P. art. 856. The two elements essential to establish legal fraud are an intent to defraud and gain an unfair advantage and a resulting loss or damage. Autin v. Autin, 617 So.2d 229 (La.App. 5 Cir.1993), writ denied, 620 So.2d 846 (La.1993); Victorian v. American Deposit Ins. Co., 04-852, 04-853 (La.App. 1 Cir. 9/23/05), 923 So.2d 650. La. C.C. art. 1953.

On one hand in the reconventional and third-party demands, appellants contest the calculation as set forth in the sales agreement. The contract provides, for example, that pursuant to the EBITDA calculation, the final payment was to be an amount four times the adjusted EBITDA, less the previous installment payments of $700,000, with a maximum limit of $400,000 as the final payment. The appellants are not challenging their payment of $700,000, nor do they contend they were defrauded on these payments or seek to rescind the contract. Rather, they seek reimbursement based on different EBITDA calculations and interpretation thereof. DeMonte calculated that GALCO was due the maximum amount of $400,000 under the contract; whereas LCESI initially determined that the balance of the selling price was $174,164 and then added in revised expenses to conclude that it had overpaid by $285,427.

On the other hand, appellants contend that the omission of “averaging” language from the EBITDA calculation for the two-year period (2006-07) reflects DeMonte and Varisco’s intent to mislead them and constitutes the fraud claim. The average would provide an estimate of one year’s earnings. Appellants contend that the agreement’s language did not represent the intent of the parties to average the two-year period and thereby increased the price of the last installment. | JDeMonte admits this was a clerical error in the agreement and testified that the parties always intended that the amount be averaged:

EXAMINATION BY COUNSEL FOR APPELLANTS
Q. These were the terms submitted to Greg Alack. Did he agree with what was set forth in here with respect to the formula?
A. The concept was agreed. These are not exactly the way it came down at the end. These in principle were the talking points of the negotiations.
Q. It refers to average over the first 24 months?
A. Right.
Q. How did it change in terms of the averaging over 24 months?
A. It didn’t. It’s just a clerical error in the contract. It was always the intent of the parties it would be averaged.
Q. Over 24 months?
A. Yeah.

Appellants argue that DeMonte’s admission came only after his attempt to defraud was discovered. Regardless of the timing of the revelation, the issue of averaging the two-year EBIDTA period would appear to be moot and not a basis of fraud without any resulting damages. Nothing in the record indicates that appellees intentionally concealed information to defraud appellants. DeMonte’s testimony, admitting that the omission of “averaging” from the sales agreement was a clerical error, belies appellants’ allegation of fraud as it highlights DeMonte and Varisco’s lack of intent to obtain an unjust advantage or to cause damage or inconvenience to plaintiff.

Whether on the issue of averaging EBIDTA, the limited use of the “guarantor” classification in the sales agreement to Louis Alack alone, or ultra vires acts to pierce the corporate veil, appellants argue repeatedly that mere allegations of fraud are sufficient to withstand summary judgment. Citing Murphy’s Lease and Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, 00-979 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, unit denied, 01-1005 (La.6/1/01), 793 So.2d 195, appellants argue the “exception to the limited liability principle attaches to the corporate concept is if a claim alleges the existence of fraud.” Appellants argue further that “caution should be exercised in dismissing claims involving fraud and/or misrepresentation, especially asserted against corporation.” In their reply brief, absent proof, appellants argue that “the important underlying fact of appellants’ position in the case at bar is that where there is fraud alleged in the inducement or confection of the contract, summary judgment is inappropriate, and individual liability for corporate obligations is imposed.”

These assertions of fraud are not substantiated in the record, by evidence, or by testimony. DeMonte and Varisco are thus not personally liable based on appellants’ unsubstantiated, conclusory allegations of fraud, and appellants’ failure to rebut the presumption that Louis Alack knew the contents of the document when he admittedly failed to read it.. We further find appellants’ conjectural allegations of fraud are too speculative and that appellants have failed to produce factual support sufficient to establish they would be able to satisfy their burden of proof at trial.

In Additionally, we find the trial court’s granting appellees’ motion for summary judgment, dismissing claims against the third-party defendants, was appropriate as there is an absence of factual support of loss or damage, an element essential to the adverse parties’ fraud claim. In response to appellees’ motion, appellants have failed to come forth with any factual support that they will be able to satisfy their evidentia-ry burden of proof of loss at trial. La. C.C. P. art. 966 (C)(2).

Guarantor:

The third-party demand seeks damages and reimbursement from De-Monte and Varisco as guarantors. The plain language of the agreement does not name them as “Guarantors,” and nowhere in the document do they sign or appear as “Guarantors.” Rather, they sign as “inter-venors,” which appellees argue indicates their rights under the contract to remain as employees for the purposes of calculating the final installment. Louis Alack, in stark contrast, executed the sales agreement in his capacity as “Guarantor” for LCESI, the purchasing entity. Louis Alack testified he knew he was signing as guarantor. Additionally, Louis Alack is defined as LCESI’s guarantor under Section l(q) of the agreement. No one signed the agreement nor was listed or defined in the agreement as the guarantor for GAL-CO, the selling entity. Section 8 of the agreement defines Intervention as “Now intervenes LCESI’s Guarantor, who binds himself with LCESI to the performance of LCESI’s obligations hereunder and in the LCESI Employment Contracts.” The parties were thus aware of the option of appearing as guarantor and declined to require a personal guarantee from anyone other than Louis Alack.

Greg Alack, Chief Operating Officer of LCESI, testified in his deposition that he participated in negotiating the agreement to purchase GALCO. He recognized that the personal guarantee was limited to his father, Louis Alack, and |12that he did not see anywhere in this or any other document reference to DeMonte or Varisco as guarantors. Greg Alack admits that the only party designated a guarantor by the agreement in question was Louis Alack.

Q. Please look at the document and tell me where you see that they [De-Monte/Varisco] appeared as guarantors.
A. I don’t see the word “guarantors.”
Q. Do you have any other documents you’re aware of agreed to by the parties where Paul Varisco and Dave DeMonte and were guarantors of the sale agreement?
A. Not that I’m aware of.

Appellants contend that the trial court neglected that portion of Greg Alack’s deposition testimony wherein he stated his understanding regarding the purpose of DeMonte and Varisco signing as interve-nors was to mislead appellants that they were guarantors. On de novo review, we find that the parties made a distinction between those signing as guarantors and those signing otherwise. There is no genuine issue of material fact that indicates that the parties intended by the written contract to include other guarantors. We further reject appellants’ argument that appellees intended to mislead appellants by the guarantor/intervenor dichotomy, where the document does not indicate that intervenors are guarantors. Indeed, the document and Greg Alack indicate to the contrary that DeMonte and Varisco are never referred to as guarantors as was his father. The record further indicates that appellants were not without counsel to review the document, as their current counsel Douglas Curet was involved in the negotiations.

Under the facts alleged, DeMonte and Varisco are not personally liable for the debts of GALCO. See New Orleans Jazz & Heritage Found’n v. Kirksey, 09-1433 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 403, writ denied, 10-1475 (La. 0/1/10),1!⅛ 45 So.3d 1100; La. R.S. 12:93(B) (“A shareholder of a corporation ... shall not be liable personally for any debt or liability of the corporation.”).

On de novo review, we find no material issue of fact that DeMonte and Varisco could be personally Hable: they did not sign as guarantors, and they are not liable for the debts of the corporation. We therefore find the trial court did not err in dismissing all claims against them individually.

Assignments of error one through four lack merit.

Appellants’ assignment of error number five addresses whether a claim against De-Monte exists for a breach of an employment contract.

In its third-party demand, Alack seeks reimbursement of $28,692.00 paid to De-Monte for accounting work. On February 27, 2013, the trial court dismissed the third-party demands against DeMonte with prejudice. On de novo review of the sales agreement, we find no provision which sets forth the specific terms of an employment contract on which to base a claim for reimbursement or breach. We further find no evidence to support the reimbursement claim for payments made. We find only self-serving and conclusory allegations which are insufficient to withstand summary dismissal on de novo review. See La. C.C.P. art. 967(B), supra, note 3.

Assignment of error number five lacks merit.

DECREE

For the reasons above, we deny appel-lees’ re-urged motion for lack of jurisdiction, and after de novo review, we affirm the trial court’s granting of summary judgment, dismissing all claims against De-Monte and Varisco, individually, with prejudice.

AFFIRMED.

JOHNSON, J., Dissents, in Part, With Reasons.

JOHNSON, J.,

Dissents, In Part, With Reasons.

hi, respectfully, dissent, in part, from the majority opinion on whether Defendants, David DeMonte and Paul Varisco, could be held personally liable for the alleged breach of contract by GALCO.

Appellants allege the trial court erred in granting summary judgment in favor of Defendants and dismissing their third-party demand by finding Defendants were not guarantors of the sale contract. Appellants aver there is serious disagreement concerning the nature and significance of Defendants signatures on the sale contract as intervenors. Appellants contend that Defendants executed the sale contract in their respective personal capacities. Appellants also contend Defendants signed the sale contract as intervenors to give the impression that they were signing as counterparts to Louis Alack, guaranteeing the performance of GALCO’s obligations under the contract.

Defendants maintain they are not personally liable for the debts of GALCO. They further maintain the evidence clearly establishes that neither of them signed as personal guarantors. Defendants claim their signatures as intervenors on the sale contract were simply due to the fact that the sale contemplated they would remain as employees of LCESI; and that under the contract, they were granted access to the financial records of LCESI for the purposes of calculating the final | ¡.payment of the sale. Defendants aver the sale contract is void of any language that would suggest they would be held as personal guarantees for GALCO.

Upon de novo review of a summary judgment, this Court must consider whether there is a genuine or triable issue on which reasonable minds could disagree. Johnson v. Ryder Truck Rental, Inc., 10-834 (La.App. 5 Cir. 5/24/11); 66 So.3d 1127, 1130. A material fact is one that would matter in the trial on the merits, and a summary judgment is not a substitute for a trial on the merits. Id. at 1130-31. It is an underlying principle in consideration of motions for summary judgment that no credibility determinations can be made when conflicting evidence exists. Id. at 1131.

In summarizing the law on contract interpretation, this Court has held:

We are obligated to give legal effect to contracts according to the true intent of the parties. La. C.C. art. 2045. The true intent of the parties to a contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. La. C.C. art. 2046. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. In such cases, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La. C.C. art. 1848. Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of the extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. La. C.C. art. 2053. Whether a contract is ambiguous or not is a question of law. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown.

Bourgeois, Bennett, L.L.C. v. Gauthier, Downing, Labarre Beiser & Dean, a Prof'l Law Corp., 07-842 (La.App. 5 Cir. 3/11/08); 982 So.2d 124, 126-27, citing Kappa Loyal, L.L.C. v. Plaisance Dragline & Dredging Co., Inc., 03-124 (La.App. 5 Cir. 6/19/03); 848 So.2d 765.

When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Id. at 126. A contract is ambiguous when it lacks a provision bearing on the issue, its written terms are susceptible to more than one interpretation, there is uncertainty as to its provisions, or the parties’ intent cannot be ascertained from the language used. Id. at 127, citing Campbell v. Melton, 01-2578 (La.5/14/02); 817 So.2d 69.

In the case at bar, Defendants signed the sale contract between GALCO and LCESI as intervenors for GALCO. Although there are numerous definitions provided in the contract, there is no general definition describing the capacity or responsibilities of an intervenor. The only provision regarding intervention provides the following:

8. INTERVENTION
Now intervenes the LCESI’s Guarantor, who binds himself with LCESI to the performance of LCESI’s obligations hereunder and in the LCESI Employment Contracts.

This provision does not indicate, as Appellants argue, that Defendants are guarantors for GALCO. However, there is also an absence of evidence in the sale contract that Defendants only signed as intervenors for the purposes of continued employment with GALCO and access to the company’s financial records. If it was only meant for Mr. DeMonte to act in his official capacity, there would have been no need for him to sign the document twice. It is apparent from Mr. DeMonte’s |4two signatures on the sale contract that there is a distinction between him signing as the president of GALCO and him signing as an intervenor. Because the intent of the roles of Defendants as intervenors cannot be ascertained from the language used within the contract, I find the contract is ambiguous as to the true purpose of Defendants as intervenors and should be determined by the trier-of-fact.

Additionally, conflicting deposition testimony was presented to the trial court as to the intent of the parties regarding the signing of the contract by Defendants as intervenors. In support of their position that they were not guarantors to the contract, Defendants submitted portions of the deposition of Greg J. Alack. In the portions of Greg’s testimony that were submitted, the following exchanges, in pertinent part, occurred between Greg and Defendants’ attorney:

Q. Please show me where in the contract document Dave DeMonte and Paul Varisco appeared as guarantors of anything.
A. Intervenors Paul Varisco and Dave DeMonte.
Q. That wasn’t my question.
A. Oh, what was your question?
Q. My question was guarantors. There’s a difference between inter-venor and guarantor. Please look at the document and tell me where you see that they appeared as guarantors.
A. I don’t see the word “guarantors.”
Q. Do you have any other document you’re aware of agreed to by the parties where Paul Varisco and Dave DeMonte were guarantors of the sale agreement?
A. Not that I’m aware of.
Q. So to the extent that the reconven-tional demand alleges that Dave De-Monte and Paul Varisco were guarantors under the contract, that is simply not true; isn’t that correct?
A. I don’t know. I don’t really know the definition of how |Kthat’s supposed to work out because it says appearing as — I’m not trying to be^ — I mean, I just really — I don’t know. I don’t know.

Later in the deposition, Greg is questioned about the verbal guarantees of Defendants.

Q. And is it also fair to say that neither Dave DeMonte nor Paul Varisco guaranteed anything to Alack Refrigeration or to you with regard to the sales contract? In other words, you’re not aware of any verbal guarantee either, are you?
A. Any verbal guarantee of what?
Q. Dave DeMonte and Paul Varisco.
A. Right. Of what? Any verbal guarantee?
Q. Guaranteeing that they would owe any type of reimbursement if any such thing were owed under the contract.
A. No. Because we never discussed any type of reimbursement being possible, so no.

In support of their opposition to the motion for summary judgment, Appellants also submitted portions of Greg J. Alack’s deposition. In the relevant portion to this issue, the following exchange occurred:

Q. Okay. And what was the purpose for that; for Paul Varisco and Dave DeMonte intervening?
A. So that they would personally be responsible for making sure that GALCO lived up to its responsibilities, and expectations, of the contract.
Q. And why was that that you understood?
A. Because, at the end of this (indicating) transaction, we were purchasing all of the assets of GALCO; so GALCO would then have no additional assets; so they would be intervening on behalf of GALCO.

From the deposition of Greg J. Alack, two positions could be argued as to whether Defendants’ signatures to the contract meant they were guarantors for GALCO. Defendants did not submit any deposition testimony or affidavits from |fiMr. Varisco or Mr. DeMonte stating that they were not guarantors to the contract and only signed as intervenors for employment purposes. Defendants failed to submit any evidence as to the intent of their signatures as intervenors.

These facts, along with the fact that the roles of the intervenors cannot be ascertained from the four corners of the contract, convince me that this issue is not appropriate for summary judgment. In my opinion, I do not think that Defendants have proven that there are no genuine issues of material fact and they are entitled to summary judgment as a matter of law. Therefore, I am of the opinion there is a genuine issue of material fact remaining for the issue of whether Mr. Varisco and Mr. DeMonte could be held personally liable as guarantors for GALCO, and summary judgment on this issue is not appropriate at this point in the proceeding.

      . Varisco was General Manager/Sales Manager of GALCO.

      . On February 29, 2012, Berke’s exception of prescription was granted under La. R.S. 9:5605, dismissing claims against him with prejudice.

      . The cited case is inapposite to the facts presented here. In Murphy’s Lease, the court found there was resulting loss or damage resulting from misrepresentation which is absent here. DeMonte admitted an error, and the Alack group seeks reimbursement and/or reformation of the contract to reflect the parties’ intent.

      . On January 4, 2012 and January 30, 2012, GALCO and Varisco, respectively, filed exceptions of vagueness, claiming a failure to plead with particularity and a lack of factual basis to support their claims including that GALCO is an alter ego of third-party defendants. On February 23, 2012, the trial court sustained the exceptions and gave Alack 60 days to amend. In its second amended answer, amended supplemental reconventional demand and third-party demand, Alack alleges that the formula is inconsistent with the EBIDTA formula agreed to and that DeMonte and Varisco created the contractual errors.

      .La. C.C.P. art. 967(B) provides in part:
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials in his pleadings, but his response by affidavits or otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. (Emphasis added).

      . It is noted that Mr. DeMonte also signed the agreement on a separate line for GALCO in his official capacity as president of the company.


text:
    Sean McCAFFERY v. Christi L. McCAFFERY.
    No. 13-CA-692.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Brett A. Bonin, Attorney at Law, New Orleans, Louisiana, for PlaintiffiAppellant, Sean McCaffery.
    Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee, Christi L. McCaffery.

      Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is a child custody dispute, in which the child’s father appeals two judgments: one that designated the parents as co-domiciliary parents with joint custody, and a second that found the mother’s and the father’s attorneys in contempt, and imposed penalties for the contempt. We affirm the custody judgment, but reverse the contempt judgment in part.

FACTS

Sean McCaffery and Christi L. McCaf-fery were married on October 5, 1992 and divorced on October 27, 2006. Two children were born of their marriage, Dylan McCaffery and Molly McCaffery. Dylan is now an adult. The custody dispute now before us concerns custody of Molly only. At the time of the hearing now on appeal, Molly was 12 years old.

On April 2, 2007, the parties entered into a consent judgment that provided both parties would have “shared and equal care, custody, and control” of the minor children, but did not name a domiciliary parent. The consent judgment stated further, “If the parties are unable to agree on any visitation/physical custody, then the parties reserve their rights to seek judicial intervention and return to court.” |3The consent judgment also provided that neither party was to pay child support to the other, but stipulated that each party would be responsible to pay for 50 percent of school tuition, fees and costs; 50 percent of summer camp fees and costs; and 50 percent of non-covered medical expenses of the children.

On June 17, 2008, the court rendered a consent judgment on partition of the community property, by which the parties agreed that Christi McCaffery had received full ownership of the former family residence and that she agreed to refinance the property or take any necessary steps to remove Sean McCaffery’s name from the mortgage note at the earliest possible date, not to exceed 36 months. Christi further agreed to pay the mortgage note in a timely manner as long as Sean’s name remained on the mortgage. The parties stipulated that if Christi failed to remove Sean’s name from the mortgage within 36 months or failed to timely pay the mortgage note, Christi would sell the home.

On April 30, 2010, Sean filed a motion seeking to be designated as the domiciliary parent with primary physical custody, a motion for contempt against Christi for failure to pay her share of the children’s expenses (first contempt motion), and a motion for contempt for failure to pay the mortgage timely (second contempt motion).

On June 7, 2010, the court rendered a judgment that ordered Christi to pay Sean the sum of $3,350.00 by the end of the month to reimburse Sean for one-half of Dylan’s school tuition.

On July 8, 2010, Sean filed a third motion for contempt, alleging that Christi continued to fail to pay or to reimburse him for her one-half of the children’s expenses.

On November 19, 2010, the court issued an interim order that made Sean the domiciliary parent of Dylan and allowed Dylan to continue to reside solely with |4Sean. Both parties were named co-domiciliary parents of Molly. Sean’s second motion for contempt (concerning removal of his name from the home mortgage) was declared moot, because Christi had listed the former family home for sale, and Christi was ordered to pay Sean the sum of $641.00 per month as child support for Dylan, retroactive to April 30, 2010.

On January 12, 2011, the court rendered an interim judgment in which both parties agreed to submit to a custody evaluation. Christi was held in contempt of court for non-payment of child support, and was ordered to pay Sean an additional $3,483.48 for one-half of the children’s expenses Sean had covered himself, and $1,000.00 in attorney’s fees, plus costs. The judgment ordered an income assignment for Christi’s future child support payments.

The January 12, 2011 interim judgment denied Sean’s motion for contempt concerning Christi’s failure to timely pay the mortgage on the former family home. The court found that although Christi agreed she had been untimely in her payments, she was not in contempt under the terms of the consent judgment, because she had listed the house for sale in May 2010, and had accepted the only offer she received, a lease-purchase offer.

On February 15, 2011, the trial court upheld the contempt finding against Christi for nonpayment of child support, and rendered an executory judgment against her in the amount of $4,400.00, representing the amounts due for reimbursement of expenses in the amount of $3,500.00, plus attorney’s fees of $750.00, and court costs of $150.00. That judgment also rescinded Christi’s income assignment and ordered her to pay $1,500.00 per month towards the executory amount, beginning on March 15, 2011.

On April 19, 2011, Sean filed several more motions against Christi: a fourth motion for contempt for failure to pay child support, a fifth motion for contempt jjfor failure to consult with him in obtaining a therapist for Dylan, a sixth motion for contempt for failure to pay her portion of Dylan’s tuition, and a motion for the court to name a custody evaluator pursuant to the consent judgment.

In compliance with the January 12, 2011 judgment, in which both parties agreed to submit to a custody evaluation, the parties subsequently agreed to the appointment of Dr. Stephen Thompson as the court’s custody expert. In his custody evaluation report dated June 18, 2012, Dr. Thompson recommended to the court that Sean be designated as the domiciliary parent of Molly with primary physical custody, assigning visitation to Christi every other weekend and one overnight visit every week.

On October 16, 2012, Sean filed a motion to set a hearing on his motion to be designated as domiciliary parent with primary physical custody, along with a second motion to enforce the partition judgment concerning removing his name from the mortgage on the former family home since the 36-month deadline had passed, and another motion for contempt for Christi’s continued failure to pay child support.

On January 10, 2013, Sean filed an updated supplement to his motion to be designated as domiciliary parent with primary physical custody. In the supplement, he alleged that Christi’s actions had a negative effect on Molly and further warranted his being designated as the domiciliary parent with primary physical custody.

Also on January 10, 2013, an interim judgment was rendered on Sean’s fourth motion for contempt, holding Christi in contempt for failing to pay child support and ordering her to pay Sean $7,692.00 in back child support.

On March 6, 2013, the district court judge conducted a status conference with counsel for both parties, at which time the court formally appointed Dr. ^Thompson as the court’s custody evaluator and ordered him to update his June 2012 evalúation, findings, and recommendations, if necessary. The court subsequently ordered that the custody evaluation be maintained under seal in the judge’s chambers.

On March 12, 2013, Christi filed a motion to be designated primary domiciliary parent.

In compliance with the March 6, 2013 judgment, Dr. Thompson met again with both parties, met with Molly on two occasions accompanied by each parent separately, and completed an updated custody evaluation report on March 25, 2013. In his updated report and recommendations, Dr. Thompson again recommended that Sean be designated as the domiciliary parent of Molly with primary physical custody and awarding visitation every other weekend and one overnight every week to Christi.

On March 26, 2013, after denying Christi’s objection to the domestic commissioner’s order denying her exceptions, the court commenced the hearing on Sean’s motion to be designated as the domiciliary parent with primary physical custody.

Dr. Thompson’s custody evaluation reports of June 18, 2012 and March 25, 2012, which included Dr. Brian Murphy’s psychological evaluation of Christi dated September 14, 2011 and his psychological evaluation of Sean dated August 9, 2011, were both admitted into evidence without objection.

Dr. Thompson testified as follows: Dylan had advised him that his mother had withdrawn money from an account that had been set aside in his name for his education post high school and never returned it. An OCS complaint had been filed against Sean’s current wife, but Dr. Thompson had been shown documentary | ./evidence that OCS did not find anything worthy of making a report or any further investigation. During the course of the litigation, Christi had made domestic violence claims against Sean, alleging the incidents took place in the presence of Molly. Molly, however, denied those allegations to her therapist. Christi had denied having women sleep at her house, but that claim was later contradicted by both Molly and Dylan. Christi had given Molly permission to go with Christi’s friend to play neighborhood pranks such as ringing doorbells then running off, and papering houses with toilet paper. Christi was critical of Molly’s choice to become a Catholic altar server, and of her acceptance of the Pope, contrary to her claims that the parties agreed on everything, including religion. Christi took Molly with her when she spent the night at a friend’s house, left Molly to sleep on the downstairs couch, and did not respond to repeated text messages from Molly during the night.

Dr. Thompson further testified that Christi withheld Sean’s cherished childhood possessions from him during the litigation, but gave most of them away to charity despite Sean’s repeated requests for them. Sean’s new wife or Christi’s mother lent Christi money to cover Christi’s portion of Dylan’s tuition. The only reason the children were able to participate in activities was because Sean paid for 100 percent of most of those activities. Christi, however, refused to help Dylan pay for his high-school class ring and let-terman’s jacket. When asked, he responded, “[s]he couldn’t afford it,” despite that the parties earned nearly the same amount of salary. Sean had over-extended himself by signing to refinance the family home during the divorce proceedings when he did not need to, so that their children could remain in the family home with Christi. Molly was reaching the same age when Dylan started experiencing tension in his relationship with his |smother, namely 13 to 14 years of age. Dr. Thompson opined that Sean was the “preferred recommended domiciliary parent.”

Christi McCaffery testified that she advised the children of her change in sexual orientation without consulting with Sean or letting him in on the dialogue. She told Dylan about six months prior to the hearing that his father cheated on her during the marriage. After Sean filed his motion to be designated the domiciliary parent, Christi moved from the former family home to her aunt’s house. There she rented a loft and a separate space in the house from her in November of 2010, then moved from her aunt’s house to her girlfriend’s house in November of 2012. She said the aunt asked her to leave because the aunt’s son and his family needed a place to stay. Molly was upset when they had to unexpectedly leave Christi’s aunt’s house.

Christi testified further that she took Molly when she spent the night at her girlfriend’s house on August 10, 2012. She admitted she had received many texts from Molly that night, but did not realize it at the time because she was sleeping. She said she did not know why Molly did not just come upstairs and knock on the door where she and her girlfriend were sleeping. Molly had told her that she did not want to move into Christi’s girlfriend’s house and was uncomfortable with it.

Christi admitted she had been ordered to pay expenses for Molly, to pay tuition, and to pay child support, but admitted she stopped paying child support immediately after leaving a hearing in which the court warned her that if she continue to generate arrearages then she would be at risk of facing another rule for contempt. She admitted emptying Dylan’s bank account, but said she had paid it back.

Christi denied pawning Molly’s jewelry, but did not dispute records from a jewelry store that identified her as having pawned a bracelet with Molly’s name on | nit. She said she could not recall half the items she pawned. She admitted she had two gym memberships at the same time Sean was seeking reimbursement for the children’s expenses, but she claimed that one of them was a temporary free trial. She told Molly that her father didn’t want her to be at her birthday party. She denied telling Molly that the Catholic Church protects pedophiles, but then claimed Molly may have overheard a conversation in which she said, “I’m sure I said that the church seems to protect pedophiles.” She took Molly to the racetrack the night before she went on her high school admission interview, but said Molly was in bed by 10 p.m.

Christi admitted that Molly’s grades fell after Christi moved into her girlfriend’s home. Christi denied that had an effect on Molly, but acknowledged that any move is strenuous or stressful. She admitted that after Molly’s school informed her that Molly wasn’t doing her homework, she said it was Molly’s responsibility to do homework. After the trial judge questioned Christi on her supervision, she retracted the statement by saying it was also her responsibility. She also pointed out that in the semester preceding the custody hearing, Molly’s grades had improved to her prior high level.

Christi admitted that she had come home intoxicated one night when Dylan was 14 years old, and on another occasion she had returned home from a bar with a black eye, but she said those incidents occurred “a couple of years, at least three or four years ago.”

Sean McCaffery testified as follows: After he and (his then-fiancée, now-wife) Jana moved in together, Christi stopped paying for her portion of the children’s expenses, and he couldn’t afford everything. Christi then started saying disparaging things about Jana. When Christi could not come up with an answer during an argument, she would tell him, “You miss me, you still love me.” |inChristi’s claiming that Sean still loved her, saying negative things about Jana, and not taking care of her own kids, caused problems in his relationship with Jana. Jana stepped in a few times to cover expenses for Dylan and Molly when Sean did not have the money, and Jana’s mother lent Christi her portion of the children’s tuition. Christi signed a note agreeing to repay the loan at the rate of $100 a month with no interest charge. Christi, however, was late in making payments; so the relationship between Jana and Christi grew worse.

Sean testified further that once when he went to Christi’s house to drop off or pick up something from Molly, Christi started yelling at him, pushed him back toward the door, slammed the door on him, started yelling at Molly for opening the door for him, and then had her attorney send a letter accusing Sean of striking her. When their family counselor, Diana Carroll, met with Molly regarding the incident, Molly denied that her father ever struck her mother. Sean testified the allegation could have cost him his job and career as a state trooper. He stated the incident and allegation occurred after he filed for designation as domiciliary parent.

Sean testified that by referring to the teachers’ homework log, he saw that Molly was failing to turn in homework on days after she had spent the night with her mother. There had been about 20 incidents in the last three years. He noted that Molly gets “retentions” when that happens, which require her either to stay after school or to come early to school.

Sean testified further that Molly kept begging her mother to allow her to be an altar server at church, but Christi kept telling her no. He said Molly has stated that after Pope Benedict retired, Christi told her the Pope and the Catholic Church protect pedophiles. He also testified that Christi has taken Molly to services of other church denominations instead of going to a Catholic Mass, although he and In Christi previously had always agreed that Molly would be raised Catholic. Sean said he has concerns about what Christi is telling Molly, given that she has been raised as a Catholic and is attending Catholic school. He stated that Molly broke down crying because Christi wanted to go boating, instead of taking Molly to her first Mass as an altar server. He said further that he had taken Molly to Mass when Christi wouldn’t, but he stopped doing that as a result of Christi not allowing him, and because of her accusations against him.

Sean testified further that Molly told him she did not want to move to the home of Roxanne, Christi’s girlfriend. He said that when he found Molly had transmitted numerous texts to her mother in one night, Molly advised him she was at Roxanne’s house sleeping on the couch while her mother was sleeping in the bedroom with Roxanne, and that did cause her some stress and strain. Since Christi moved in with Roxanne, Molly has called him twice asking to be picked up. Once she could not express why; both times he told Molly that he needed to speak to her mother, and Christi told him it was because they were fighting. He said both incidents happened after November of 2012.

Sean testified that Christi acknowledged and defended allowing several of her guests to take Molly into the neighborhood to ring doorbells, knock on doors, and run. Molly told Sean she was “freaked out” because they had been chased by a man. He also said that if Christi did not get the response she wanted from him, she would involve Molly to get what she wanted. As an example, he said she used Molly to get herself, her family, and her friends invited to the separate birthday party he gave for Molly.

Sean testified he once observed Christi raising her balled fist inches away from Jana’s face. He said he stopped talking to Christi on the phone after she accused him of striking her, because he wanted everything to be in writing and on |1zthe record. He said Christi’s failure to properly support Molly forced him to pick up the burden so Molly could do things and be successful. He believes the incidents he related as to why he communicates only in writing with Christi have affected Molly and that she has been traumatized by them. As an example, he testified, Christi placed a telephone conversation with him on speakerphone so that Molly, who was with Christi, could listen to them argue without his knowledge.

ACTION OF THE TRIAL COURT

At the conclusion of the hearing on March 26, 2013, the trial court rendered a judgment that designated both parties as co-domiciliary parents, ordered the parties to submit a joint custody implementation plan by a specified deadline, ordered the parties to select a parenting coordinator and to split the cost of the parenting coordinator “fifty-fifty,” and denied Sean’s request for primary physical custody, refusing to alter the physical custody schedule.

In oral reasons for judgment, the judge stated in pertinent part:

Now, in terms of altering the time that the child shall spend with one parent versus another ..., this Court has not been ... presented ... with any evidence suggesting the child has been subjected to a harmful environment on the part of either of these parents, in effect a material change in circumstances. The method by which ... Mr. McCaffery comes to court today, seeking a change based upon his claim of a material change in circumstances is paradoxically challenged by the fact that Mr. McCaffery and Ms. Christi McCaf-fery have followed the same game plan for at least two years, if not longer, in getting Molly to a point to where she receives such high praise by Dr. Thompson.
Dr. Thompson’s report, among other things, ... indicates that she, Ms. Molly, apart from being delightful and bright and intelligent, all right, enjoys splitting her time with mom and dad. She expresses, according to the report, not that she dislikes mom’s significant other or dad’s wife, all right, but instead she regards them as impediment, each as an impediment to be able to spend more time with her parents.
liaWe’re not talking dislike her necessarily, remember this is an interpretation of what comes from the mouth of a 12-year-old. So you have to understand that world. But, this is a young lady who misses dearly and loves dearly both mom and dad and apparently would rather not have to share dad and mom with those folks, your wife, Mr. McCaf-fery, your significant other, okay, she doesn’t want to share them with you, she wants you all to herself, that’s the way it comes out.
Now, in my old fashioned mind what that means to me is not that Ms. Roxanne is a bad person or that Ms. Jana is a bad person, all right, but that this child loves you very much and apparently needs you both. Whatever you’ve been doing keep doing it, that’s all I can tell you. It doesn’t get any better than that.
This is the most positive example of a well-loved child that I’ve ever read about.

On May 3, 2013, the court held another hearing to consider the parties’ objections to the hearing officer’s recommendations that were made an order of the court on January 10, 2013. On May 3, 2013, the trial court upheld the recommendations, finding Christi in contempt for the nonpayment of child support in the amount of $7,692.00, and ordering her to pay Sean $750.00 in attorney’s fees and costs in the amount of $100.00. The court also took up the March 26 finding of contempt against Sean’s attorney, Brett Bonin, and fined Mr. Bonin $100.00.

Sean has appealed both the March 26, 2013 judgment and the May 3, 2013 judgment.

ASSIGNMENTS OF ERROR

On appeal Sean raises six assignments of error, four regarding the custody issues and two regarding the contempt issues.

Motion to Strike

We first address Christi’s motion to strike an exhibit attached to Sean’s brief.

| uDuring the hearing, Sean’s counsel reserved the right to proffer the testimony of Dylan McCaffery. On appeal, Sean attached to his brief, as Exhibit E, an affidavit by Dylan dated December 2, 2013 (two days before his appellate brief was filed in this Court). Sean explained in his brief that when the parties’ attorneys were in chambers with the trial judge, the judge asked that Dylan’s testimony be submitted by affidavit to be attached to any appeal, so that the judge could let his court reporter go for the day.

Christi filed a Motion to Strike in this Court, seeking to have Sean’s Exhibit E stricken from his brief, on the grounds it is not part of the trial court record. It was not appropriately proffered, and it is inadmissible hearsay.

We find merit in all these grounds. No testimony by or affidavit of Dylan was introduced at trial. Although Sean’s counsel advised the trial judge that he wished to make a proffer of a statement by Dylan, no proffer was made. As stated in the motion to strike, the proper procedure to proffer testimony during or after a trial is to take testimony before the court reporter without the judge or jury, with opposing counsel present, giving opposing counsel the opportunity to cross-examine the witness. Because the witness was not subject to cross-examination and opposing counsel was not given the opportunity to cross-examine the witness, this affidavit is hearsay. The hearing was held on March 26, 2013, but the affidavit was not executed until December 2, 2013, almost nine months after the hearing. Consequently, the affidavit is not part of the record to be reviewed.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review 11fievidence that is not in the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164.

We agree that Exhibit E cannot be considered on appeal. Accordingly, the Motion to Strike Exhibit E of the Appellant’s Brief is granted.

Custody

In his first assignment of error Sean asserts, “The Trial Court erred in issuing findings, reaching conclusions, and issuing its final decision in the middle of a hearing and prior to hearing all of the evidence and testimony, thus, the standard of review should be de novo because the fact finding process was fatally flawed.” He complains further that the court erred in “suggesting that Mr. McCaffery’s Counsel was going to ask questions merely to make a record as if what Mr. McCaffery said would not matter to the Court in the middle of a hearing and prior to hearing all of the evidence and testimony.” He states further,

As a result of the Court’s failure to properly hear all of the evidence and testimony prior to announcing how it would rule on fact issues and final determinations, the March 26, 2013 Judgment of the trial court should be reversed, this Honorable Court should review the record, evidence, and testimony de novo in light of Civil Code Article 131 and 134 and issue its own Judgment on Mr. McCaffery’s request to be designated the domiciliary parent with primary physical custody based on what is in Molly’s best interest.

The rule regarding de novo review was set by the Louisiana Supreme Court follows:

[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a |1fiparty of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. [Citations omitted.]

Evans v. Lungrin, 97-541, 97-577, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735.

Sean cites the following comments by the trial judge as evidence that the judge improperly made up his mind before hearing all the evidence, announced how he was going to rule in the midst of the hearing, and suggested that Sean’s counsel was asking questions simply to make a record for appeal:

The events that would lead up to and cause me to conclude a material change in circumstances, those events have not occurred as it relates to Molly.
[A]s I pointed out in chambers, that your client has been one hell of a parent and this lady has been one hell of a parent.
By the end of this day when this hearing conclusions [sic], and Lord help me, I hope it concludes by the end of this day, at least this part of it, I’m going to order, okay, domiciliary status.
And the way it’s going to be ordered is going to present a challenge to both of you. But, since you both are wishing for it, you’re going to get what you wished for, okay.
Thank you for spending time with me. Your lawyer wants to ask you questions to make a record as he’s entitled to do.

In his second assignment of error, Sean contends that the trial court erred in holding that it needed to find a change in circumstances to appoint Mr. McCaffery as the domiciliary parent, when no domiciliary parent had ever been designated.

In his third assignment of error, Sean contends the trial court erred in holding that it could not modify the visitation schedule without a finding of a material change in circumstances, when the parties had reserved their right to seek judicial intervention if they were unable to agree on visitation or physical custody.

|17In his fourth assignment of error, Sean argues that if a material change in circumstances is deemed necessary to change the visitation or physical custody schedule, the trial court erred in not finding a material change in circumstances given the record in this matter.

In the second, third and fourth assignments, Sean also argues the trial court erred in failing to issue a judgment based on the court-appointed custody evaluator’s recommendations.

We agree that the trial court erred in pronouncing his decision before Sean had presented all of his case. However, we do not find the trial court’s premature pronouncements prejudiced Sean’s case. His counsel was permitted to continue presenting evidence to support Sean’s claims. Accordingly, it is not necessary for us to conduct a de novo review. Instead we conduct a normal review, applying the standards of manifest error to factual findings and abuse of discretion to other determinations.

The primary consideration in a determination of child custody is the best interest of the child. La. C.C. art. 131; Mulkey v. Mulkey, 2012-2709, pp. 9-10 (La.5/7/13), 118 So.3d 357, 364. The best interest of the child rule applies in actions to change custody as well as in those to initially set it. Gray v. Gray, 2011-548, p. 19 (La.7/1/11), 65 So.3d 1247, 1258.

In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

La. C.C. art. 132.

When joint custody is decreed, the court shall designate a domiciliary parent, defined as “the parent with whom the child shall primarily reside,” and who has | ^“authority to make all decisions affecting the child unless an implementation order provides otherwise.” La. R.S. 9:335(B)(2)-(3). “If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title YII of Book I of the Civil Code.” La. R.S. 9:335(C).

When joint custody is decreed, “[t]o the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.” La. R.S. 9:335(A)(2)(b).

The burden of proof for a parent seeking a change in a custody arrangement differs, depending on whether the prior custody award was made by a considered decree or by a consent judgment:

A “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Once a considered decree has been rendered, the proponent of the change bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child.
A consent decree, on the other hand, is one in which no evidence of parental fitness is presented. In such a case, the heavy burden of proof rule enunciated in Bergeron does not apply. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. [Citations omitted.]

Silbernagel v. Silbernagel, 10-267, pp. 6-7 (La.App. 5 Cir. 5/10/11), 65 So.3d 724, 728.

|13With respect to Christi, in his oral reasons for judgment the trial judge stated,

I’m impressed that she’s a decent person. I’m impressed that no one in this courtroom has ever called her an unfit mom regarding Molly, that’s never been in this conflict at all mentioned today, nor does it appear in any of the paperwork that I’ve seen. Nor is there an allegation that she’s strange, that she’s bizarre, that she doesn’t fit in our society or in our world, that doesn’t appear anywhere, except maybe in the imaginations of some people who maybe haven’t learned to get past their own demons.

An award of child custody is not a tool to regulate human behavior. Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La.1979) (on rehearing). Every child custody case must be viewed within its own peculiar set of facts. Connelly v. Connelly, 94-0527, p. 4 (LaApp. 1 Cir. 10/7/94), 644 So.2d 789, 793. The paramount consideration in any determination of child custody is the best interest of the child. Evans, Supra, 708 So.2d at 738.

The trial judge is in the best position to ascertain the best interest of the child within each unique set of circumstances. Accordingly, a trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La.1988) (per curiam).

We find the standard to be applied is whether Sean has proven there was a material change of circumstances since the April 2, 2007 consent judgment. The language on which Sean relies as exempting him from that burden of proof does not in fact state the burden of proof would be changed. Rather, it merely states what is already the law: parties to an agreement can seek judicial intervention if they cannot agree on some not-yet-specified aspect of the judgment.

| snAfter scrutinizing the record and the transcript of this proceeding, we neither find manifest error nor abuse of discretion in the trial court’s determination that Sean has not shown a material change of circumstances as to Molly individually that would justify a change in the custody arrangements. We agree with the court’s ruling that the parties should be co-domiciliary parents with joint custody, subject to a joint custody implementation plan and the advice of a parenting coordinator.

With respect to Sean’s claim that the trial court erred in not following the recommendations of the court’s custody evaluator, Dr. Thompson, we note that “the trial court is not bound by the testimony of an expert; rather, expert testimony is to be weighed the same as any other evidence.” McFall v. Armstrong, 10-1041, p. 8 (La. App. 5 Cir. 9/13/11), 75 So.3d 30, 36-37. “A trial court may accept or reject in whole or in part the opinion expressed by an expert.” Id. “The effect and weight to be given to expert testimony is within the broad discretion of the trial judge.” Id.; see also, In re M.S.E., 12-553, p. 26 (La. App. 5 Cir. 3/13/13), 113 So.3d 327, 341.

Considering those principles, we find no abuse of discretion in the trial court’s rejection of Dr. Thompson’s recommendations.

Contempt

Sean’s last two assignments of error concern his appeal of the contempt ruling against Christi and against his attorney. In reviewing these rulings, we bear in mind that the trial court is vested with great discretion regarding rulings on contempt. See, e.g., City of Kenner v. Jumonville, 97-125, 97-210, 97-602 p. 11 (La.App. 5 Cir. 8/27/97), 701 So.2d 223, 230, writ denied, 97-2890 (La.1/30/98), 709 So.2d 718,

Cert. denied, 524 U.S. 953, 118 S.Ct. 2371, 141 L.Ed.2d 739 (1998).

| ^Contempt against Sean’s Counsel

In assignment of error number five, Sean asserts:

The Trial Court erred in holding Counsel for Mr. McCaffery in contempt for asking a general question concerning requests to stop private schooling and erred in holding that contempt over Counsel’s head for two hearings. The contempt judgment should be reversed and the Court’s Judgment of March 26, 2013 should be reversed as a result of the profound effect it had on limiting Mr. McCaffery’s representation.

In fact, we note that the trial judge’s complaint was that Sean’s attorney’s line of questioning kept going beyond what the judge deemed necessary; the judge desired that the questions be limited specifically to matters concerning Molly. He said, “I want to know ... why things have changed so much, ... materially I might add, to use an expression used by the court, that I need to change a child’s relationship by law with her parents, a child who seemingly is not at this point in time in any need of help.” The court admonished Mr. Bonin, Sean’s counsel, repeatedly on that point.

Mr. Bonin responded he felt his questions were necessary to make a full record of Sean’s case against Christi. The transcript indicates Mr. Bonin maintained respectful language toward the judge at all times.

Under the circumstances, having reviewed the transcript carefully, we find the trial court abused its discretion. We reverse the contempt ruling and the fine assessed against Mr. Bonin.

Contempt against Christi

In his assignment of error number six, Sean contends the trial court erred in its contempt ruling against Christi on May 3, 2013, because this was the second time Christi had been held in contempt for failure to pay child support and the third time a child support arrearage was for a large amount. Sean argues he should ^receive a higher attorney’s fee award and Christi should have received a fine and jail time.

Again, referring the abuse-of-discretion standard, we find no abuse such as to warrant our imposing harsher penalties on Christi than the trial court thought necessary. We make no change in the contempt ruling against Christi.

DECREE

For the foregoing reasons, the judgment of March 26, 2013 is affirmed. The judgment of May 3, 2013 is affirmed with respect to the contempt ruling and penalties against defendant, Christi L. McCaffery.

The judgment of May 3, 2013 is reversed with respect to the contempt ruling and penalties against counsel for the plaintiff, Mr. Brett Bonin. The parties are cast with their own costs for this appeal.

JUDGMENT OF MARCH 26, 2013 AFFIRMED; JUDGMENT OF MAY 3, 2013 AFFIRMED IN PART AND REVERSED IN PART.

      . Because the parties and their children, as well as the father’s current wife, all bear the last name McCaffery, we use the parties' first names in most of this opinion to avoid repetitious use of the last name.

      . “OCS" refers to the state’s former Office of Children’s Services, now known as the Department of Children and Family Services or DCFS.

      . “If the parties are unable to agree on any visitation/physical custody, then the parties reserve their rights to seek judicial intervention and return to court.”