author: CONERY, Judge.

text:
    Craig Wilson COLE v. Joy Teressa Bonnette COLE.
    No. 13-1442.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Rodney M. Rabalais, Attorney at Law, Marksville, Louisiana, for Plaintiff/Appellant, Craig Wilson Cole.
    Cory P. Roy, Brandon J. Scott, Benjamin D. James, Roy & Scott Attorneys at Law, Marksville, Louisiana, for Defen-dantyAppellee, Joy Teressa Bonnette Cole.
    Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   CONERY, Judge.

pin this child support case, the father, Craig Wilson Cole, appeals the trial court’s judgment increasing the child support award for their minor child from $288.00 to $872.12 per month, finding a material change of circumstances from the last time the child support award was set. The trial court based its ruling on evidence presented that Craig’s custody of the minor child was no longer a shared custody arrangement, but a de facto joint custody arrangement. Support was set pursuant to statute using the joint custody guidelines required by the application of Worksheet A and not Worksheet B, shared custody, for a proper determination of the child support award. The trial court also found that Craig’s income increased due to regular and consistent overtime earnings. Finding no abuse of discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

Joy Teressa Bonnette Cole and Craig Wilson Cole were married on December 5, 1998, and are the parents of one minor child, a son born August 30, 2005. There is a history of disputes between the parties concerning the terms of both the custody arrangement and the amount of child support.

On August 4, 2008, the parties filed a joint petition for divorce seeking joint custody and a designation as co-domiciliary status. A consent judgment was signed by the trial court appointing Joy as the domiciliary parent and awarding Craig visitation privileges. Craig agreed to and was ordered to pay Joy $500.00 a month in child support for their minor child.

Since the original consent judgment in 2008, the parties have entered into four other consent judgments relating to both custody and child support. On October 18, 2012, the parties agreed to the last of the four consent judgments. The |aOctober 18, 2012 Consent Judgment allowed Craig additional time with the minor child, including extended alternating four-day weekends, two weekdays per week, and additional time during the summer. The addition of these days changed the custody of the minor child from joint to shared custody, requiring coordination with the “father’s work schedule so that each parent enjoys an equal amount of time with the child.” Craig’s monthly child support award was reduced from $774.04 to $288.00 using the child support guidelines for shared custody contained in Worksheet B.

Following the entry of the October 18, 2012 Consent Judgment, Joy filed a motion asking that an evidentiary hearing be re-fixed to address a change in circumstances. Joy claimed that the October 18, 2012 Consent Judgment was no longer in the best interests of the minor child and sought a hearing to address “custody, visitation and support.” The trial court held a hearing on February 15, 2013, and issued oral reasons from the bench. On March 19, 2013, a considered decree was signed. However, the record of the February 15, 2013 hearing only addressed the issue of custody. There is no evidence in that record of any testimony relating to the issue of child support.

In the March 19, 2013 Considered Decree, the trial court determined that custody between the parents remain shared. However, the trial court modified the October 18, 2012 Consent Judgment by increasing Craig’s every other weekend schedule to five days, beginning on Thursday at 10:00 a.m. and concluding on Tuesday at 5:00 p.m. The weekday schedule was reduced to “One two-day, one night block each and every month commencing at 10:00 a.m. and ending at 5 p.m. the next day.” The trial court also ordered Craig to choose the two days and one | .¡¡night upon receiving his work schedule each month and to notify Joy immediately of the time he wished to exercise custody.

The March 19, 2013 Considered Decree provided that “all other provisions contained in any previous judgment that are not in conflict with this Judgment shall remain in force and effect.” Per the provisions of the March 19, 2013 Considered Decree, the $288.00 award for monthly child support remained “in force and effect” as ordered in the October 18, 2012 Consent Judgment.

Two months later, on May 21, 2013, Joy filed a rule to increase child support on the basis that the modification of visitation in the March 19, 2013 Considered Decree changed the child custody arrangement from shared back to joint custody, and justified an increase in the child support award. Additionally, Joy also sought an increase in child support due to an increase in Craig’s income from regular overtime pay.

On August 19, 2013, the trial court held a hearing to address the issues raised in Joy’s May 21, 2013 rule. The trial court issued a ruling on September 4, 2013, and assigned written reasons for judgment. The trial court found that the actual time that the minor child was in Craig’s physical custody did not conform with the custodial times set forth in either the March 19, 2013 Considered Decree or the October 18, 2012 Consent Judgment and, therefore, no longer met the statutory and/or jurisprudential definition of shared custody. The $288.00 per month child support award had been calculated premised on a shared custody plan where each party would have the child equally. In its September 4, 2013 ruling, the trial court found factually that a defacto joint custody scheme was in effect between the parties and not a shared custody plan. The actual time the minor child was in the parents’ custody was found to be 61% with Joy and 39% with Craig Rand, therefore, was commensurate with the statutory definition of joint custody. This finding resulted in a material change in circumstances. The trial court exercised its considerable discretion and applied Worksheet A, rather than Worksheet B, for a determination of Craig’s child support obligation under the de facto joint custody plan then existing between the parties.

The trial court then considered the issue of Craig’s overtime pay as an additional basis for a material change in circumstances. Craig testified that his income had increased since the October 18, 2012 Consent Judgment based on his overtime work schedule. Craig testified that he consistently worked overtime and was expected to continue to do so for the foreseeable future.

The trial court found that based on Craig’s new income figures, the “payment of $288.00 is not fair or adequate for the child.” The trial court ruled Craig’s increase in income, based on his pay for consistent overtime work, provided another basis for a material change in circumstances.

The trial court ordered that Craig’s child support obligation be modified using Worksheet A, “because joint custody instead of shared custody is applied between the parties in the amount of the time that each parent has physical custody of the child” and “to reflect a material change in circumstances due to an increase in Craig’s income, from the time the previous child support judgment was rendered.” The modification based on joint custody and the use of Worksheet A, coupled with Craig’s increase in income, resulted in an increase in the child support award from $288.00 based on shared custody using Worksheet B to $872.12 per month, and was more in line with the $774.04 amount that Craig was paying prior to the October 18, 2012 Consent Judgment.

IfiThe trial court’s September 4, 2013 ruling is memorialized in its October 9, 2013 judgment, which is the source of Craig’s one assignment of error on appeal wherein he alleges that “The trial court erred in increasing support.”

LAW AND ANALYSIS

Standard of Review

In the absence of manifest error or unless it is clearly wrong, an appellate court may not set aside a trial court’s findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). The standard of review for child support awards is well established in this circuit and others. “The trial court has great discretion in decisions concerning modifications of child support decrees, and such decisions will not be disturbed on appeal absent clear abuse of discretion.” Stelly v. Stelly, 02-113 (La.App. 3 Cir. 6/26/02), 820 So.2d 1270.

In McCorvey v. McCorvey, 05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 362, writ denied, 05-2577 (La.5/5/06), 927 So.2d 300, this court stated, “The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.”

Louisiana Civil Code Article 142 provides in pertinent part, “An award of child support may be modified if the circumstances of the child or of either parent materially change.” Louisiana Revised Statutes 9:311(A)(1) provides, “An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the | (¡previous award and the time of the rule for modification of the award.” The party seeking modification of the child support award, in this case Joy, has the burden to prove there has been a material change in circumstances. Lord v. Lord, 09-457 (La.App. 3 Cir. 11/4/09), 22 So.3d 1134, writ denied, 09-2634, (La.2/12/10), 27 So.3d 849. “This implies that the parties must return to court with their evidence.” Walker v. Walker, 02-606, p. 3 (La.App. 3 Cir. 12/4/02), 832 So.2d 1098, 1101. The statute does not otherwise define “material.” The court in Walker references Comment (A) under La.R.S. 9:311. The comment is not part of the statute, but nevertheless discusses “material” as “a change in circumstance having real importance or great consequences for the needs of the child or the ability to pay of either party.”

Date of Modification of the Child Support Award

Craig argues that the trial court erred in finding that he was not exercising the shared custody ordered by the trial court in its March 19, 2013 Considered Decree. Craig urges that there have been no material changes in the circumstances of either parent or the minor child, as required by La.R.S. 9:311(A)(1), between the March 19, 2013 Considered Decree and the August 19, 2013 hearing on Joy’s rule for an increase in child support. Craig also argues that the trial court erred in considering any time period prior to the March 19, 2013 Considered Decree and that the trial court should have been precluded from considering not only the |7October 18, 2012 Consent Judgment, but also the February 15, 2013 hearing which resulted in the March 19, 2013 Considered Decree.

However, the term “previous award” contained in La.R.S. 9:311(A)(1) has been defined as “the time the last award was set, not the last time a motion was considered and denied.” Deshotels v. Deshotels, 93-2026, p. 4 (La.App. 1 Cir. 6/24/94), 638 So.2d 1199, 1201. The transcript from the February 15, 2013 hearing, when reviewed in conjunction with the March 19, 2013 Considered Decree, reflects that the trial court changed Craig’s custody of the minor child from the October 18, 2012 Consent Judgment. Both judgments, however, attempted to set forth a plan of shared custody on an almost equal basis.

A review of the record of the February 15, 2013 hearing confirms that only evidence on the issue of custody was heard and ultimately determined by the trial court. No evidence on the issue of child support was submitted into the record at that hearing. Moreover, the trial court did not make any factual determination of the percentage of time each parent would have physical custody under either the revised custody provisions contained in the October 28, 2012 Consent Judgment dr in the March 19, 2013 Considered Decree, though both judgments were intended to provide for shared custody.

The trial court found that the evidence at the last hearing on August 19, 2013, demonstrated that the increase in physical custody that was granted to Craig in the October 18, 2012 Consent Judgment and modified in the March 19, 2013 Considered Decree resulting in shared custody was creating confusion for the minor child. Though no motion to change custody had been filed, the trial court factually found that Craig had failed to take advantage of the additional time granted by the trial court in its previous rulings. The trial court found that an equal |Rsharing of custody was problematic due to Craig’s erratic work schedule. The situation was further complicated by the lack of communication between Craig and Joy involving changes in Craig’s work schedule, resulting in confusion for the minor child and unnecessary conflict between the parents.

The meaning of “previous award” when applied to the facts of this case' confirms that the trial court was correct in its ruling that any material change in circumstances for the child and/or either of the parents must be measured from the date of the October 18, 2012 Consent Judgment, which was “the last time the child support award was set” in the amount of $288.00 per month based on shared custody and use of Worksheet B. The March 19, 2013 Considered Decree did not address the issue of child support except to say that all previous rulings not in conflict would remain in effect. La.R.S. 9:311(A); Deshotels, 638 So.2d 1199.

This court finds it helpful to state the rationale of the court in Deshotels for the meaning of “previous award” with which we agree applies to the facts of this case. The first circuit stated:

If a “previous award” is defined as the last time a motion was considered and denied, as in this case, incremental changes in circumstances between motions may not justify a finding that circumstances have changed enough to modify support. Over time, however, incremental changes can build up. If the court is limited to considering changes between rules only, then it cannot take into account incremental buildup of small changes, which can dramatically change the circumstances. The best interest of the child is not served in this way.
On the other hand, when the court looks at the circumstances at the time the last award was set, rather than the last time a motion to modify the award was made, then the court would always be able to decide whether circumstances have changed based on the whole picture and the time frame would encompass any incremental changes.

Deshotels, 638 So.2d at 1201.

In Starks v. Starks, 29,237 (La.App. 2 Cir. 4/3/96), 671 So.2d 1224, the second circuit considered a case with similar circumstances. A consent judgment had been signed addressing custody and child support in August, 1993. Differences ensued between the parties in arranging visitation times which resulted in Mrs. Starks seeking a joint custody implementation plan in which the court provided in an August, 1994 consent judgment, “No change was made in the amount of child support awarded pursuant to the August, 1993, Judgment.” Id. at 1225.

At a subsequent hearing, Mr. Starks sought and was granted a reduction in his child support obligation dating from the original August, 1993 consent judgment. Mrs. Starks appealed, urging error by the trial court in using the original 1993 consent judgment in setting the child support award, rather than the date of the modified custody plan in 1994. The second circuit affirmed the trial court’s ruling that the original 1993 consent judgment was the correct date of the “previous award.” The second circuit stated:

The instant August 1994 consent judgment did not modify or award child support, nor was child support at issue. The language in the joint custody implementation plan indicates that there was no new agreement or judgment on the child support issue, but only that the previous award was still in effect.

Id. at 1226.

In this case, the March 19, 2013 Considered Decree also did not address the issue of child support. We, therefore, agree with the trial court’s determination that the last “previous award” of child support was in the October 18, 2012 Consent Judgment, which was the correct starting point for the trial court’s analysis of the issue of Joy’s request for an increase in the child support award.

| ^Material Change in Circumstances— Shared Versus Joint Custody

The trial court found that a material change in circumstances occurred as a result of the modification of the October 18, 2012 Consent Judgment. The March 19, 2013 Considered Decree rearranged Craig’s visitation schedule. Following the August 19, 2013 hearing, the trial court found in its reasons for ruling filed on September 4, 2013 that Joy had the child 61% of the time and Craig only 39% since the March 19, 2013 Considered Decree. This change, the trial court found, represented a material change in circumstances from the intended shared custody plan to a defacto joint custody plan.

Louisiana Revised Statutes 9:315.9(A)(1) provides, “ ‘Shared custody’ means a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.” In such a situation, Louisiana Revised Statutes 9:315(B) requires the application of Worksheet B, contained in La.R.S. 9:315.20.

Louisiana Revised Statutes 9:315.8(E) states, “ ‘Joint Custody’ means a joint custody order that is not shared custody as defined in R.S. 9:315.9.” Louisiana Revised Statutes 9:315.8(E)(5) provides, “Worksheet A reproduced in R.S. 9:315.20 or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.”

In DeSoto v. DeSoto, 04-1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175, the parties had a custody agreement that provided for a 54.5/45.5 split in custodial time. The trial court set support using Worksheet A for joint custody. A panel of this court found that such a custodial split could be defined as shared custody, but nevertheless affirmed the trial court’s decision to use Worksheet A based on the |nfacts in that case. The panel affirmed the trial court’s vast discretion in setting support based on a fact intensive inquiry on a case-by-case basis.

The court in DeSoto also discussed an additional factor for the trial court to consider in determining whether to apply Worksheet A, joint custody, or Worksheet B, shared custody, in setting child support. The court stated, “the court must determine that the application of the guidelines in the particular case under consideration would not be in the best interest of the child or would be inequitable to the parties.” Id. at 179-80.

In choosing to apply Worksheet A for joint custody, the trial court in this case specifically held:

Since shared custody is not being used[,] worksheet B is not applicable to determine child support because it would not be in the best interests of the child and would be inequitable to the parties. Therefore, worksheet A should be used to calculate child support because joint custody is what is actually being exercised between the parties.

The trial court’s ruling was fully supported by the evidence at the August 19, 2013 hearing. Joy testified that since the March 19, 2013 Considered Decree, she had prepared a breakdown of Craig’s court-ordered as opposed to physically-exercised custody. Joy Exhibit 1 confirmed that Craig had custody of the minor child 39% of the time, and Joy had custody for 61% of the time, based on a 365 day year. The trial court, so found. Joy Exhibit 2, also submitted into evidence, consisted of the parties “Obligation Worksheet,” with supporting documentation, which included financial information of the parties and Joy’s expenses for the minor child’s medical and dental insurance, as well as the daycare expenses she was paying.

|12At the August 19, 2013 hearing on the issue of child support, Craig did not dispute Joy’s calculations, or claim they were not consistent with the actual amount of physical custody he had exercised with the minor child. After the close of evidence at the August 19, 2013 hearing, Craig submitted a post-trial “hypothetical calendar for August 2013,” which was not introduced into evidence, was not considered by the trial court, and, therefore, cannot be considered on appeal. Hamilton v. Progressive Sec. Ins. Co., 10-1005 (La.App.3 Cir. 3/16/11), 59 So.3d 504.

Under the facts found by the trial court based on the evidence introduced at trial, we find that the trial court did not abuse its discretion in making the determination that Worksheet A, and not Worksheet B, was applicable to the actual physical custody arrangement existing between the parties. In its reasons for ruling, the trial court cited Lea v. Sanders, 04-762 (La.App. 3 Cir. 12/22/04), 890 So.2d 764, writ denied, 05-183 (La.3/24/05), 896 So.2d 1046, and found the factual circumstances in Lea were quite similar to those before the court in this case:

The Third Circuit held that the father’s visitation of 43% and his pattern was typical of joint legal custody arrangement. The court looked at the fact that the father did not present evidence that he is bearing a greater financial responsibility under this arrangement or that he is decreasing the financial burden of the domiciliary parent. The court found that the father’s visitation does not fall within the shared custody of La.R.S. 9:315.9, where each parent expends time and resources equally in caring for his children. From the evidence, Craig spends 39% of the time with the child and is below the 43% threshold set forth in this case. Further, Craig has made no argument that he has decreased the financial burden of Joy who is paying the minor child’s health insurance and day care costs.

(Emphasis added.) Thus, we find no manifest error in the trial court’s findings and its application of Worksheet A in setting the amount of child support.

| ]S,Material Change in Circumstances— Increased Income — Overtime Work

The trial court also found a material change in circumstances occurred due to an increase in Craig’s income. Craig testified at the August 19, 2013 hearing that although his actual hourly pay had not changed, his income had increased due to his consistently picking up overtime shifts. Craig further testified that he was “expecting to work overtime shifts indefinitely at his place of employment.” A trial court is allowed to consider overtime pay in its calculation of child support if there is a finding that the overtime work is not extraordinary. Ezernack v. Ezernack, 04-1584 (La.App. 3 Cir. 4/6/05), 899 So.2d 198.

Craig argued to the trial court that the increase in his income from the overtime pay was not sufficient to warrant a material change in circumstances, triggering a modification of child support. However, the trial court found as follows:

“The party asking for an increase need only prove a change of circumstances sufficient to justify the increase in child support ... Sometimes the change in circumstances will be substantial and sometimes not; the magnitude of the change of circumstances is peculiar to the facts of a particular case. Simply stated, the type of change in circumstance is presented and determined on a case by case basis.” Rousseau v. Rousseau, 96-502 (La.App. 3 Cir. 12/26/96), 685 So.2d 681, 682; [Stogner v. Stogner ], 98-3044 (La.7/7/99), 739 So.2d 762, 769. Craig argues that his income has not increased to be a maten al change in circumstances. As stated in the Rousseau case, the change does not have to be substantial for the trial court to find that a material change in circumstances has occurred. Therefore, an increase in income of Craig is a material change of the parent that may warrant a modification of child support.[]

|14We find no manifest error in the trial court’s finding that the increase in Craig’s income due to his consistent overtime work schedule constituted a material change in circumstances, which, when coupled with the decrease in the amount of time the child spent with his father, warranted the trial court’s modification of the child support award. Ezernack, 899 So.2d 198.

The trial court properly found a material change in circumstances and properly exercised its discretion to use Worksheet A, relative to joint custody, based on a 61% to 39% custody split, and Craig’s increased overtime earnings, in calculating the proper amount of child support.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court increasing the monthly child support award from $288.00 to $872.12 payable by Craig Wilson Cole to Joy Teressa Bonnette Cole for the support of the minor child. All costs of this appeal are assessed against Craig Wilson Cole.

AFFIRMED.

      . Louisiana Civil Code Article 142 Comment-2001 states, in pertinent part, "The amendment adds materially to describe the change in circumstances necessary to obtain a modification ... of child support.”

      . Louisiana Revised Statutes 9:311 was amended by the Louisiana Legislature in Acts 2001, No. 1082, § 1, to clarify the burden of proof required for a modification of child support. The amendment to La.R.S 9:311 included the terms "material change in circumstances,” which legislatively superseded that portion of the supreme court opinion in Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, holding that a "substantial change in circumstances” was not required for a modification of child support.

      . Although the trial court references the supreme court case in Stogner, which held that the change in circumstances for an increase in child support did not have to be "substantial,” but that any change in circumstances could be considered by the trial court, the trial court’s reasons clearly indicate that it relied on Rousseau v. Rousseau, 96-502 (La.App. 3 Cir. 12/26/96), 685 So.2d 681, 682, in making its determination that a material change of circumstances existed due to the decrease in Craig’s physical custody of the minor child and the increase in Craig’s salary due to his overtime work.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Talesha BERTRAND, et ux. v. Michael KUDLA, M.D., et al.
    Nos. 14-61, 14-62.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Benjamin P. Mouton, McGlynn, Glisson & Mouton, Baton Rouge, Louisiana, for Plaintiffs/Appellants James Bertrand, Ta-lesha Bertrand.
    William C. Rowe, Jr., David C. Bolton, Rowe Law Firm, Baton Rouge, Louisiana, for Intervenors/Appellees Louisiana Patient’s Compensation Fund, Louisiana Patient’s Compensation Fund Oversight Board, through the nominal defendant, Dr. Michael Kudla.
    James R. Shelton, Durio, McGoffin, Stagg & Ackermann, Lafayette, Louisiana, for Defendants/Appellees Louisiana Medical Mutual Insurance Company, Michael Kudla, M.D.
    J. Gregory Bergstedt, Elizabeth F. Shea, Fraser, Wheeler & Bergstedt, Lake Charles, Louisiana, for Defendants/Appel-lees Preferred Professional Insurance Company, Robert Rumsey, M.D.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

1 plaintiffs, Talesha and James Bertrand, appeal from a judgment notwithstanding the verdict (JNOV) denying Plaintiffs’ request for an additional award of special damages to Talesha for her loss of income and for an increase of the general damage award. For the following reasons, we reverse in part and render.

FACTS AND PROCEDURAL HISTORY

Talesha delivered her third baby on December 13, 2004. She subsequently underwent a tubal ligation. Dr. Michael Kudla delivered her third baby and performed the tubal ligation. Dr. Robert Rumsey, a pathologist, examined the tube segments after Talesha’s surgery. In his pathologist report which was prepared on December 16, 2004, Dr. Rumsey indicated that the tubal ligation was incomplete. A copy of this report was placed in Talesha’s hospital chart and in her chart at Dr. Kudla’s office.

Talesha subsequently presented to Dr. Kudla on December 27, 2004, for a postpartum checkup. Dr. Kudla failed to advise Talesha that the tubal ligation was incomplete. Talesha was cleared medically to resume her daily activities, including sexual relations. Talesha thereafter became pregnant with her fourth child, which was unplanned. During her office visit with Dr. Kudla in May of 2005, he referred to Dr. Rumsey’s pathology report advising that Talesha’s tubal ligation was incomplete. Talesha’s fourth baby was subsequently delivered by Dr. Stephen Schorr on March 7, 2006. Dr. Schorr thereafter performed a complete tubal ligation on Talesha.

A request for a medical review panel against Dr. Kudla and Dr. Rumsey was filed by the Bertrands. Dr. Kudla settled the claims against him before the case | ¿was reviewed by the medical review panel. Dr. Kudla’s professional liability insurer, the Louisiana Medical Mutual Insurance Company (LAMMICO), paid the Bertrands $100,000.00 in settlement. The Bertrands then filed a Petition for Damages against Dr. Kudla and LAMMICO (collectively Dr. Kudla) arising out of Dr. Kudla’s medical malpractice. After Dr. Kudla answered, the Bertrands filed a Petition Seeking Approval of Settlement and Demanding Payment of Additional Damages from the Louisiana Patient’s Compensation Fund (PCF). Dr. Kudla filed his answer to this petition acknowledging the settlement for $100,000.00. A Judgment of Approval of the settlement between the Bertrands and Dr. Kudla was signed by the trial court on August 23, 2007. In February 2008, the PCF intervened.

The medical review panel subsequently reviewed the claims against Dr. Rumsey. After the panel issued an opinion, the Ber-trands filed suit in December of 2008 against Dr. Rumsey and his professional liability insurer, Preferred Professional Insurance Company (PPIC) (collectively Dr. Rumsey). The two cases were consolidated in the trial court.

In June of 2012, the consolidated cases went to trial by jury. At trial, the Ber-trands attempted to prove that Dr. Rum-sey breached the standard of care. The Bertrands argued that Dr. Ramsey’s alleged negligence, combined with Dr. Kud-la’s admitted negligence, caused the undesired fourth pregnancy. The Bertrands sought general and special damages. The jury rendered a verdict in favor of Dr. Rumsey and against the Bertrands, dismissing their demands with [3prejudice against Dr. Rumsey only. The jury, however, found in favor of the Bertrands and against Dr. Kudla, and awarded $50,000.00 in general damages plus medical expenses from May 31, 2005, through March 15, 2006, in the amount of $6,252.15 for a total $56,252.15. The jury assigned 5% fault to Talesha and 95% fault to Dr. Kudla. James was awarded nothing on his loss of consortium claim. The trial court signed a judgment on November 26, 2012, in conformance with the jury verdict. The money judgment against Dr. Kudla was reduced by the 5% fault assigned to Talesha for a total of $58,439.54 plus legal interest.

The Bertrands subsequently filed a motion for JNOV. Their JNOV dealt with four aspects of the jury’s verdict in favor of Talesha and against Dr. Kudla. The JNOV was granted in part and denied in part by the trial court. Specifically, the trial court found that the jury’s finding of 5% fault to Talesha was contrary to the law and evidence and granted the JNOV as to this issue, finding Dr. Kudla 100% at fault. The trial court also granted the JNOV as to the jury’s award for past medical expenses, increasing the award from $6,252.15 to the stipulated amount of $19,588.56. The motion was denied in all other respects. Importantly, and for purposes of this appeal, the JNOV was denied with respect to the Bertrands’ request for an additional award of special damages to Talesha for loss of income. It was also denied with respect to the Bertrands’ request for an increase of the general damage award to at least $150,000.00.

Accordingly, the Bertrands appeal assigning the following errors on the part of the trial court:

(1) the jury abused its fact-finding discretion in failing to award Talesha special damages for the nine-and-a-half-month loss of income resulting from her inability to return to work arising out of the unplanned fourth pregnancy resulting from Dr. Kudla’s admitted malpractice; and
|4(2) the jury abused its fact-finding discretion by awarding Talesha only $50,000.00 in general damages resulting from the physical and emotional effects of the unplanned fourth pregnancy resulting from Dr. Kudla’s admitted malpractice.

DISCUSSION

Motion to Strike

At the outset, we address the Ber-trands’ Motion to Strike portions of the PCF’s appellee brief. The Bertrands contend that the PCF failed to answer this appeal, and it failed to file a separate appeal from either the judgment on the merits or the JNOV judgment.

Louisiana Code of Civil Procedure Article 2138 provides:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court....
B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.

Despite the PCF’s failure to answer the appeal, the Bertrands allege that in its appellee brief, the PCF addresses the jury’s fault determination and argues that the Bertrands were partially at fault for not contacting Dr. Kudla. The Bertrands contend, however, that the fault issue was resolved by the trial court in its ruling on |Bthe JNOV motion. As such, the Ber-trands allege that any discussion on this issue should be stricken from the PCF’s appellee brief.

The Bertrands further contend that in the PCF’s appellee brief, the PCF argues that the jury’s award of some, but not all, of the stipulated past medical expenses was reasonable and should not be disturbed on appeal. The Bertrands allege that this error was also corrected by the trial court in its ruling on the JNOV motion. The Bertrands, therefore, contend that the PCF waived its right to argue for a modification of the JNOV by not answering the appeal or appealing the trial court’s JNOV ruling.

We agree with the Bertrands and grant their Motion to Strike. We will only consider the arguments contained in the PCF’s brief regarding the two issues which are before this court on appeal: the jury’s failure to award Talesha past lost wages and the jury’s general damage award.

Special Damages

In their first assignment of error, the Bertrands contend that the jury abused its discretion by failing to award Talesha lost wages for a period encompassing nine and a half months. The Bertrands allege that special damages are warranted since Dr. Kudla’s liability was admitted and established. The Bertrands contend that the uncontested documentary evidence and testimony support a lost wage award.

In opposition, the PCF as statutory in-tervenor, through the nominal Defendant Dr. Kudla, contends that Talesha is not entitled to loss of income considering the testimony of the bookkeeper for the family’s automobile business, ^Patricia Smith. The PCF alleges that Smith was unclear as to when or whether Talesha planned to return to work. Smith’s testimony, according to the PCF, was also unclear as to the amount of income which her husband, James, was going to allocate to Talesha. The PCF alleges that Talesha testified, on cross-examination, she voluntarily stopped working so that she could raise her children. The PCF contends the foregoing supports the jury’s determination that lost wages were not warranted.

In Louisiana, special damages “are those damages that can be established to a reasonable mathematical certainty” and “include awards for past and future lost earnings.” Cottle v. Conagra Poultry Co., 06-1160, p. 3 (La.App. 3 Cir. 3/14/07), 954 So.2d 255, 257-58. In order to recover actual wage loss, the supreme court has held that “a plaintiff must prove that he would have been earning wages but for the accident in question. In other words, it is the plaintiffs burden to prove past lost earnings and the length of time missed from work due to the accident.” Boyette v. United Servs. Auto. Assoc., 00-1918, p. 3 (La.4/3/01), 783 So.2d 1276, 1279 (citations omitted). In Thibeaux v. Trotter, 04-482, p. 4 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, 1131, writ denied, 04-2692 (La.2/18/05), 896 So.2d 31 (citations omitted), this court further held that:

The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. An award of special damages is reviewed pursuant to the manifest error standard of review, unlike a general damage award which is reviewed pursuant to the abuse of discretion standard. Thus, the “adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration.

As mentioned above, the trial court granted in part and denied in part the Bertrands’ motion for JNOV which focused on four aspects of the jury’s verdict. 17With respect to this first assignment of error, the trial court denied the Bertrands’ request to award special damages to Tale-sha for her loss of income.

In Louisiana, a motion for JNOV may be granted on the issue of damages, liability, or both. La.Code Civ.P. art. 1811(F). The criteria applicable to our review of the partial denial of the Ber-trands’ motion for JNOV was set forth by the supreme court in Peterson v. Gibraltar Sav. & Loan, 98-1601, 98-1609, pp. 5-6 (La.5/18/99), 733 So.2d 1198, 1203 (citations omitted):

JNOV is warranted only when the facts and inferences, viewed in the light most favorable to the party opposing the motion, is so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. Refusal to render a judgment notwithstanding the verdict (JNOV) can only be overturned if it is manifestly erroneous.

Therefore, the standard governing our review of the trial court’s partial denial of the Bertrands’ motion for JNOV is that of manifest error.

The record contains the testimony of Smith, who testified on behalf of the Ber-trands. Smith stated that she began working for the Bertrands’ automobile company in 2002 and was still working for them at the time of trial. Smith initially performed secretarial/clerical tasks and eventually began doing the company’s bookkeeping. Smith testified that Talesha was working at the company until about October of 2004 when she stopped to give birth to her third child. This third child was born two months later, in December 2004, according to Talesha’s testimony. Smith testified that Talesha made approximately $4,900.00 per month in 2004.

Smith testified that Talesha planned to return to work at some point in 2005 after having her third child. Smith indicated that Talesha did not return to work until 2011 and that her failure to return to work in 2005 arose out of her pregnancy | sfor her fourth child. Despite not returning to work, Smith testified that Talesha and her children “were in and out of the office all the time” in 2005. During these interactions in 2005 when Talesha was pregnant, Smith testified that Talesha “was pretty well overloaded.”

Talesha testified at trial that she has four children: Acacia, who was born in 2001; Trey, who was born in December of 2002; Israel, who was born in December of 2004; and, Eden, who was born in January of 2006. Talesha testified that she began working for the family automobile business in the middle of 2004. Talesha began working because “[bjusiness was increasing, we needed more help in the office, and I knew about the business and it made the most sense for me to be there.” Talesha stated that she earned approximately $4,900.00 per month for her work, which included submitting contracts, paying bills, managing the floor plans and title work, filing, and paperwork. Talesha stated that the last paycheck she received was in October of 2004 prior to returning to work in 2011.

Talesha testified that, in the spring of 2005, she became suspicious that she was pregnant because she “always felt sick.” Her suspicions were realized on May 31, 2005, when Dr. Kudla confirmed her pregnancy. When questioned as to whether she returned to work in 2005, she testified: “I never went back to work officially. I was in and out of the office, of course. I was getting ready to return back to work, but I never did.” She further testified that she was only asking the jury to award her $4,900.00 per month for the period of time during her fourth pregnancy when she was unable to work.

Talesha testified that she was never told by any physician that she could not return to work during her fourth pregnancy. When questioned as to why she failed to return to work after her third child, she replied: “Well, I was pregnant and I had l3three small children. It would’ve been very strenuous for me to go to work.” Other than gestational diabetes, Talesha testified that her pregnancy was “fairly normal.”

On cross-examination, Talesha was questioned about her deposition testimony wherein she testified regarding her ability to handle her three children while pregnant with her fourth child. In that regard, the following colloquy took place between Talesha and the PCF’s counsel:

Q Okay. Again, in that deposition that Mr. Bergstedt just went over with you, on page 23, line 23, I’m going to ask you to read for the jury the highlighted part starting with line 23.
Q (MR. ROWE) What does that say?
A I do not think that I could physically and emotionally handle the children I already had.
Q That’s referring to the three children, correct?
A Correct, and this was after I became pregnant.
Q But your feelings about the children you already had was that you couldn’t handle them, true?
A True.
Q And that’s why you stopped working at the start of 2005?
A I stopped working at the end of 2004.
Q Right. That’s why you stopped, because you were overwhelmed—
A Correct.
Q —with the three you had.
A Yes.
Q And you never went back to work until 2011, true?
IiqA Yes.

With respect to Talesha’s plan to return to work after her third baby, her husband James testified at trial as follows:

Well, the plans were is [sic] that she would get through the pregnancy, she would get herself reestablished, and we don’t know what the time frames of that period are going to be, you know. You play it by ear. And so basically she would have a few months off and kind of re-gather herself and start to reenter the business on whatever level she could as she got, you know, better. We — you know, from pregnancy to pregnancy you don’t — you know everything just doesn’t happen in a canned way, you know. It’s not like two weeks — it’s not like a cookie cutter approach, you know and I don’t know what it’s like to be a woman and have a baby just know that I’m a father of four kids and I have watched it and it changes. Things change.

Based on the foregoing evidence and testimony, Talesha met her burden of proving entitlement to special damages by a preponderance of the evidence. The testimonial evidence shows that Talesha planned to return to work in 2005 prior to finding out that she was pregnant with her fourth child. Specifically, Smith testified that Talesha planned to return to work in 2005 after having her third child. James testified that Talesha would “reenter the business” after having her third child. Ta-lesha testified that she failed to return to work in 2005 because she was pregnant. Talesha and Smith testified that Talesha returned to work in 2011.

The testimonial evidence further shows that Talesha proved, by a preponderance of the evidence, her past lost earnings and the length of time missed from work due to the pregnancy. Specifically, Talesha and Smith testified that Talesha was earning approximately $4,900.00 per month in 2004. Talesha further testified that she was only seeking lost wages for the nine and a half months that she was pregnant for her fourth child.

In ruling on the Bertrands’ motion for JNOV, the trial court was required to determine whether the foregoing evidence, viewed in the light most favorable to | ,Tthe PCF, pointed so strongly in favor of the Bertrands that reasonable persons could not arrive at a contrary verdict on the issue of whether the Bertrands proved that Talesha was entitled to lost wages. The trial court, in its oral reasons for denying in part the Bertrands’ motion for JNOV, stated that:

Well, you know, that’s the thing. Trying to get in the mind of the jurors is something that I don’t like and I don’t think it’s appropriate for me to try to do in these circumstances. You know, there were a couple where I granted the JNOV. I felt like that was the only just thing that could really be done in this case under the law, and this matter, on the lost wages, I mean I think that was a discretionary matter for the jury to consider in light of all the evidence and the testimony. I mean there were credibility determinations that they had to make and maybe that was based on the credibility determination, but I don’t think it’s appropriate on that issue for me to change the jury’s verdict.
So I’m going to deny the JNOV on that issue.

We disagree. Given the testimony and evidence presented herein, there was not a reasonable basis for the jury’s finding. Although the jury awarded special damages for medical expenses, we find that the jury was manifestly erroneous in failing to award additional special damages for lost wages. We further find that the trial court’s denial of the Bertrands’ motion for JNOV with respect to lost wages was manifestly erroneous. Therefore, we reverse the trial court’s denial of the Bertrands’ motion for JNOV regarding the lost wages issue and award Talesha lost wages in the amount of $46,550.00 ($4,900.00 x 9.5) representing the nine-and-a-half-month period from May 31, 2005 through March 15, 2006.

General Damages

In their second assignment of error, the Bertrands allege that the jury abused its discretion by awarding Talesha only $50,000.00 in general damages. The Ber-trands contend that Talesha is entitled to at least $150,000.00 in general damages.

112In opposition, the PCF contends that Smith v. Clement, 01-87 (La.App. 3 Cir. 10/3/01), 797 So.2d 151, writs denied, 01-2878, 01-2982 (La.1/25/02), 807 So.2d 249, 843, cited by the Bertrands and discussed below, is distinguishable from the facts in the present case. The PCF alleges that the jury’s verdict in the present case is based upon the facts contained in the evidence.

In Louisiana, general damages are defined as:

[Tjhose which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life style which cannot be measured definitively in terms of money.

Leyva v. Iberia Gen. Hosp. & Med. Ctr., 93-768, pp. 8-9 (La.App. 3 Cir. 5/24/95), 660 So.2d 486, 491, writ denied, 95-2731 (La.1/26/96), 666 So.2d 674 (citations omitted). In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted), the Louisiana Supreme Court articulated the following standard for reviewing general damage awards:

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonable within that discretion.

Additionally, “[r]efusal to render a judgment notwithstanding the verdict (JNOV) can only be overturned if it is manifestly erroneous.” Peterson, 733 So.2d at 1203.

In Leyva, 660 So.2d at 491 (citations omitted), this court held:

A court of appeal may award damages in cases where the trier of fact initially rejected the plaintiffs demands and the record contains sufficient proof of damages. In making an initial award of damages at the appellate level, we are not limited to an award of either the lowest or' highest amount we would affirm. Instead, we set the | lsaward in an amount which is just compensation for the damages revealed by the record.

In Leyva, the plaintiff sued her physician for medical malpractice, alleging that he failed to ligate her left fallopian tube during a bilateral tubal ligation performed after the birth of her second child. After this first surgery, she underwent an exploratory laparotomy to determine whether the left tube was ligated. After this second surgery, the plaintiff alleged that the physician negligently failed to obtain a tissue specimen for pathological analysis and failed to verify that the left tube was properly ligated. As a result, the plaintiff alleged that she should be compensated for the pain and suffering caused by the exploratory laparotomy and the anxiety of not knowing whether she is sterile.

The trial court entered judgment on the jury verdict in favor of the physician. Leyva, 660 So.2d 486. On appeal, this court affirmed the trial court’s judgment. The supreme court thereafter granted writs, and subsequently reversed and remanded. On remand, this court held that the physician was negligent during both surgical procedures and awarded the plaintiff $50,000.00 in general damages. This court stated:

The record in the case sub judice shows that Ms. Leyva was hospitalized for one day after the laparotomy. She testified that the pain was “awful” for approximately two weeks and that she could not take care of her children during this time; her mother had to do everything for her. The scar on her lower abdomen, some three inches in length, is still very sensitive and is a painful reminder of the failed surgery. Ms. Leyva has been subjected to two surgical procedures to assure that she can bear no more children, yet even today, she remains uncertain whether she is sterile. Under the facts of this case, we find that $50,000 is an appropriate award of general damages, to include mental and physical pain and suffering.

Leyva, 660 So.2d at 491.

| uSince the plaintiff in Leyva received $50,000.00 in general damages approximately twenty years ago for an incomplete tubal ligation that failed to result in a subsequent pregnancy, the Bertrands contend that Talesha is entitled to more than $50,000.00 in general damages.

The Bertrands also contend that the jury unreasonably limited Talesha’s general damage award following the birth of her fourth child. The Bertrands allege that this is evident since the jury did not award damages for loss of income and since they only awarded less than a third of the stipulated medical expenses in special damages. The Bertrands contend that this court must correct that error. The Bertrands ask this court to review Smith for guidance on an appropriate amount of general damages for the pain, injuries, damages, and inconvenience suffered by Talesha.

In Smith, 797 So.2d 151, the plaintiffs filed a medical malpractice claim against the patient’s physician. The plaintiffs contended that the physician failed to properly perform a bilateral tubal ligation and failed to verify that the surgery was properly performed. The trial court entered a default judgment against the physician and denied his motion for new trial. The PCF intervened in the physician’s appeal. This court affirmed the trial court’s judgment. Notably, the trial court awarded the plaintiffs a lump sum of $192,749.05. This award included $23,891.00 in medical expenses related to the undesired pregnancy and delivery. Although this general damage award was not itemized, the husband received $25,000.00 for loss of consortium.

The Bertrands contend that the general damage award in Smith of approximately $145,000.00 ($192,749.05 - $23,891.00 - $25,000.00 = $143,858.05) 11swas made more than ten years ago. As such, the Bertrands allege that $145,000.00 should represent the lowest possible award of general damages in the present case.

In Smith, 797 So.2d at 158, we made an award based on the following:

Mr. and Ms. Smith took steps to insure that they did not have any more children after their second child was born in August 1996. Not only were they surprised to learn that Ms. Smith was pregnant, they were not in a financial position that allowed them to deal with the prospect of another child easily. Their living quarters were too small. Neither of their vehicles was large enough to accommodate another child. During the pregnancy, an ultrasound indicated that there might be a problem with the baby. Ms. Smith was depressed during much of the pregnancy which affected her relationship with her husband and their children. She felt like she was not there for them when she should have been. Additionally, the baby was breach and had to be delivered by C-section which increased Ms. Smith’s recovery time. Under the facts presented, we find no abuse of discretion by the trial court.

The record in the instant case contains the trial testimony of Dr. Stephen Schorr, Talesha’s treating obstetrician for her fourth pregnancy. As to whether Talesha was considered high-risk, he testified that “she really didn’t have a high risk diagnosis until she had an abnormal blood sugar ... but even that, I mean she was class A-1, so she wasn’t by any means ... the typical high risk patient that we would see in our practice.” When asked whether he placed any physical restrictions on Talesha during her pregnancy, Dr. Schorr responded: “Nothing outside of the ordinary.” Dr. Schorr testified that they induced labor when she was thirty-nine weeks pregnant. Dr. Schorr stated that Talesha had a vaginal birth and that he could not recall any complications she may have experienced after birth. Dr. Schorr discussed the need for Talesha to return at a later date to undergo a tubal ligation, which was performed under general anesthesia.

Talesha testified that she was “really devastated” and she was “in shock” when she found out that she was pregnant for her fourth child. She testified that 11Rshe was sick during this pregnancy. She was “tired and emotionally messed up.” Tale-sha testified that during her third trimester, she was “on the verge” of having gestational diabetes and “had to see a dietician.” She further testified that she felt that she was on an “emotional roller coaster.” Some days she would be upset, and some days she would be excited. Ta-lesha testified that she had a “fairly normal pregnancy.” Talesha experienced painful contractions before getting an epidural. Talesha also testified that she had concerns about being a mother to her three children while pregnant with her fourth child, and she felt that her other children were “in some ways” neglected during that time.

James testified that he initially told Ta-lesha that she could not be pregnant for her fourth child since she had a tubal ligation after her third child. During this fourth pregnancy, James testified , that Ta-lesha “kept visiting the trauma and the results and the experience” and that “life became a roller coaster.” He stated that Talesha “was mostly unstable” during the beginning of her pregnancy. James testified that he felt animosity from Talesha during this pregnancy.

After our review of the testimony in the present case, we find many similarities between the facts in this case and the facts in Smith. Just like in Smith, the Ber-trands took steps to insure that they did not have any more children after the birth of their third child. Specifically, Talesha underwent a tubal ligation performed by Dr. Kudla. Just like in Smith, Talesha’s tubal ligation was incomplete. Just like in Smith, the Bertrands were surprised to learn that Talesha was pregnant with her fourth child. Just like in Smith, Talesha was depressed during much of the pregnancy which affected her relationship with her husband and their children.

117The facts in the present case are also similar to Leyva in that both the plaintiff in Leyva and Talesha had a failed tubal ligation. Importantly, the failed tubal ligation in Leyva did not result in the birth of another child whereas the failed tubal ligation in the present case resulted in the birth of another child. Under the facts presented in this case, we find an abuse of discretion by the trial court in denying an increase in the jury’s general damage award of $50,000.00 to Talesha.

In ruling on the Bertrands’ motion for JNOV, the trial court was required to determine whether the foregoing evidence viewed in the light most favorable to the PCF pointed so strongly in favor of the Bertrands that reasonable persons could not arrive at a contrary verdict on the issue of whether the Bertrands proved that Talesha was entitled to an increase in general damages. The trial court, in its oral reasons for denying in part the Ber-trands’ motion for JNOV, stated that:

[B]ut a jury has so much discretion. I can’t ... substitute my judgment for that of the jury....
I don’t feel comfortable changing that because the jury, out of everything, they may have felt that 50,000 was appropriate ... and that ... she had a happy, healthy baby and that helps offset a lot of the negative.... So I’m going to deny that.

We disagree. Given the testimony and other evidence presented herein, there was not a reasonable basis for the jury’s finding. Thus, we find that the trial court abused its discretion in denying the Ber-trands’ motion for JNOV regarding an increase in general damages. We therefore reverse the trial court’s denial of the Ber-trands’ motion for JNOV on this issue and award general damages in the amount of $150,000.00.

DECREE

The July 16, 2013 judgment notwithstanding the verdict rendered by the trial court denying an additional award of special damages for lost wages is reversed. | lsWe hereby award Talesha Bertrand the amount of $46,550.00 representing lost wages from May 31, 2005 through March 15, 2006. We further reverse the trial court’s denial of an increase in general damages to Talesha Bertrand and increase the award to $150,000.00. All costs of this appeal are assessed against the Louisiana Patient’s Compensation Fund.

REVERSED IN PART AND RENDERED.

      . The Motion and Order for Intervention contained in the record lists only the PCF as an intervenor. Other documents in the record, however, indicate that both the PCF and the PCF Oversight Board are intervenors through the nominal Defendant, Dr. Kudla. Therefore, we will refer to the PCF as including both the PCF and the PCF Oversight Board.

      . In their brief, the Bertrands contend that this nine-and-a-half-month period encompasses May 31, 2005, through March 15, 2006. The Bertrands allege that May 31, 2005, is the start date that Talesha would have returned to work approximately five months after having her third child.


text:
    Kerry J. CLOFER v. Jeannette AUGUST.
    No. 14-74.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    James Darren Stewart, The Southwest Louisiana Law Center Lake Charles, Louisiana, for Plaintiff/Appellee Kerry J. Clofer.
    Abril Baloney Sutherland Geri Brous-sard Baloney Broussard Baloney Law Firm New Orleans, Louisiana, for Defendant/Appellant Jeannette August.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

hln this child custody matter, the mother appeals a trial court judgment denying her exceptions of no right of action and improper venue and granting sole custody of the minor child to the father with supervised visitation in her favor. For the following reasons, we vacate and remand.

FACTS AND PROCEDURAL HISTORY

Zoey August was born on August 27, 2006, as a result of the union between Jeannette August and Kerry Clofer, who were never married. Mr. Clofer, a resident of Calcasieu Parish, filed a Petition for Custody (the Petition) in the Fourteenth Judicial District Court on April 16, 2013, seeking joint custody of Zoey with him being designated as domiciliary parent and with Ms. August, a resident of St. John the Baptist Parish, entitled to visitation every other weekend and holidays. Mr. Clofer also sought to be listed as the father on the minor child’s birth certificate and to change the minor child’s name from “Zoey August” to “Zoey Clofer.” The matter was set for hearing on June 24, 2013. On June 18, 2013, Ms. August, through counsel, filed a motion to continue the June 24, 2013 hearing because of a scheduling conflict. According to the motion, Ms. August’s counsel was notified that opposing counsel was to be out of the office until the morning of the scheduled hearing and was, thus, unable to consent or object to the motion for continuance.

An Interim Order in the record dated June 24, 2013, provides that after the matter was called for hearing on that date and Ms. August did not appear, Mr. Clofer was awarded sole custody of Zoey with Ms. August having supervised ^visitation. The Interim Order set a hearing for August 13, 2013, to determine whether to modify custody and visitation. Despite having issued the June 24, 2013 Interim Order, the trial court signed the Order attached to Ms. August’s motion to continue on June 27, 2013, continuing the hearing scheduled for June 24, 2013, to August 13, 2013.

On June 28, 2013, Ms. August filed a pleading entitled Exceptions, Incorporated Memorandum In Support of Exceptions, Answer, Motion to Vacate, and Memorandum In Support Thereof. Therein, Ms. August asserted exceptions of no right of action and improper venue and answered the Petition in the form of a general denial. She also sought to vacate the Interim Order on the basis that she had not arbitrarily failed to appear at the June 24, 2013 hearing, as evidenced by her timely filing of a motion to continue. Ms. August further submitted that the Interim Order should be vacated because it was based upon false testimony given by Mr. Clofer that Zoey was currently in his physical custody and had been in his physical custody for the past two years. Ms. August’s prayer for relief requested that the matter be set for trial and that she be given adequate time to conduct discovery. By undated Order file-stamped on July 2, 2013, the trial court vacated the June 24, 2013 Interim Order and set Ms. August’s exceptions for hearing on August 13, 2013.

On August 8, 2013, Ms. August filed a Motion to Forfeit Oral Argument, Motion for Judgment on Pleadings, and Incorporated Memorandum. In her motion, Ms. August asked the trial court to declare that Mr. Clofer forfeited his right to orally argue any opposition to her exceptions by failing to file an opposition | .¡memorandum as required La.Dist.Ct.R. 9.9. Ms. August further requested that the trial court render judgment on the pleadings in accordance with La.Code Civ.P. ■ art. 965 because of the hardship involved in her or her counsel making an appearance in Lake Charles. In that regard, Ms. August submitted that the trial court should not consider Mr. Clofer’s unsupported allegations of paternity, while it should accept the allegations pled in her answer as true as none were denied by Mr. Clofer. Ms. August prayed for judgment on the pleadings in her favor, granting her exceptions of no right of action and improper venue and dismissing Mr. Clofer’s Petition at his cost. The trial court signed the Order attached to Ms. August’s motion wherein it “ORDERED that [Mr. Clofer] forfeits his privilege of oral argument on Defendant’s exception set for hearing on August 13, 2013, and this Court will render Judgment on the Pleadings, pursuant to La. C.C.P. Art. 965.” The Order further provided that the “hearing set for August 13, 2013 is hereby removed from the Court’s docket.” Although the Order is file-stamped August 8, 2013, no date appears near the trial court’s signature line to indicate when the trial judge signed the Order.

The record contains a transcript from a hearing that took place on August 13, 2013, at which Mr. Clofer and his counsel were present. No appearance was made by Ms. August or her counsel. According to the transcript, the trial court was unsuccessful in its attempt to contact Ms. August’s counsel that morning. The transcript reveals that Mr. Clofer’s counsel presented the trial court with a Motion to Vacate Order granting Ms. August’s Motion to Forfeit Oral Argument and for Judgment on the Pleadings. Thereafter, Mr. Clofer was sworn in and was questioned by the trial court. Mr. Clofer testified that Ms. August contacted him in 14October of 2011 to say that she had given birth to a child five years ago and that he might be the father. He took a paternity test that confirmed he was the father of Zoey. Later, Ms. August told him that she was unable to take care of Zoey. According to Mr. Clofer, he picked Zoey up from school on May 31, 2012, and.she has stayed with him ever since, except for a few times when he brought her back to visit Ms. August for short periods of time. Mr. Clofer explained that Zoey had attended Oak Park Elementary School in Calcasieu Parish during the 2012/2013 school year. Under direct examination from his attorney, Mr. Clofer testified that after he secured the Interim Order on June 24, 2013, awarding him sole custody of Zoey, Ms. August refused to let him retrieve Zoey from her which led him to enlist the help of the Sheriffs Office. Eventually, he found Zoey walking around Ms. August’s neighborhood. Thereafter, he picked Zoey up and notified the police who examined his paperwork and let him take Zoey back with him. Mr. Clofer stated that he lived with his mother in Lake Charles and that Zoey was at home sleeping that morning while he was at court. At the conclusion of Mr. Clofer’s testimony, the trial court orally rendered judgment from the bench granting Mr. Clofer’s Motion to Vacate and granting sole custody of Zoey to Mr. Clofer with Ms. August allowed supervised visitation every other Saturday and Sunday at Millennium Park in Lake Charles. Written Judgment was signed on August 13, 2013.

Ms. August now appeals, asserting the following two assignments of error:

til. The trial court’s failure to give Ms. August notice of the hearing date on her exceptions and trial on the merits was clearly erroneous, and the absence of evidence of such notice in the record nullifies the judgment.
2. The trial court erred when it failed to conduct a hearing as to Ms. August’s declinatory exception of improper venue and exception of no right of action, in advance of conducting a trial on the merits.

DISCUSSION

Assignment of Error Number One

“[Pjarents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law.” State ex rel. J.A., 99-2905, pp. 7-8 (La.1/12/00), 752 So.2d 806, 810.

The interest of a parent in having a relationship with h[er] children is manifestly a liberty interest protected by the Fourteenth Amendment’s due process guarantee. The United States Supreme Court has declared it “plain beyond the need for multiple citation” that a biological parent’s right to “the companionship, care, custody, and management” of h[er] children is a liberty interest far more important than any property right. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981).

In re Adoption of B.G.S., 556 So.2d 545, 549 (La.1990).

“[L]ack of adequate notice implicates a procedural due process concern.” Flemming v. Flemming, 13-22, p. 8 (La.App. 3 Cir. 6/5/13), 114 So.3d 1285, 1290, writ denied, 13-1624 (La.11/15/13), 125 So.3d 1108. Louisiana Code of Civil Procedure Article 1571(A)(1), provides in pertinent part that “[t]he district courts shall prescribe the procedure for assigning cases for trial, by rules which shall: (a) [rjequire adequate notice of trial to all parties.” In Guillory v. LaFleur, 469 So.2d 444, 446 (La.App. 3 Cir.1985), this court recognized the principal that “[a]n ex parte custody order granted by a trial judge without notice, service of pleadings, Rand without affording a hearing to the parent having custody of the child is null and without effect.”

Ms. August submits that the record establishes that the trial court issued an order removing the hearing on her exceptions to the Petition from its August 13, 2013 docket and declared that it would render judgment on the pleadings. She further submits that the record further establishes that the trial court subsequently vacated that order and conducted a trial on the merits in her absence and without notice to her and/or her counsel, thus rendering the August 13, 2013 judgment null.

While Mr. Clofer acknowledges that the trial court did sign an order removing the hearing from its August 13, 2013 docket, he submits that no formal notice of the removal was sent to either of the parties or their counsel prior to the hearing date. Mr. Clofer further submits that the hearing went forward after he appeared on the hearing date with a Motion to Vacate the order removing the matter from the docket, which the trial court signed in open court.

In Porter v. Hobbs, 627 So.2d 751, 752 (La.App. 2 Cir.1993), the father of a child born out-of-wedlock filed a “Petition in Rule for Child Custody” against the child’s mother, seeking sole custody, or alternatively joint custody, with himself being named the primary custodial parent. The child resided with his mother since birth, although there was no judicial award of custody up until that time. The record showed that the mother was personally served with the citation and rule for custody. After the mother appeared at the scheduled custody hearing without legal representation, the trial court held an in-chambers pre-trial conference between the mother, the father, and the father’s attorney before rescheduling the hearing. The father was granted weekend visitation in the interim, and the trial court ordered the Louisiana Department of Health and Human Resources (DHHR) to conduct home studies of the father’s and mother’s homes. In addition, the trial court advised the |7mother that “she needed to obtain counsel.” Id. at 753. When the mother appeared at the rescheduled custody hearing, again with no legal representation, the trial court held another in-chambers pre-trial conference between the mother, the father, and the father’s attorney.

During this [second] conference, the trial judge apparently indicated that he would rule in favor of [the father] based upon the recommendations made in the DHHR Home Studies. Thereafter, the following was recited in open court by [the father’s] attorney, Mr. Adams:
THE COURT:
Mr. Adams, do you want to go ahead and make your stipulations[] for the record?
MR. ADAMS:
Yes, Your Honor, [ ... ] the Court has ordered that primary physical custody of the minor child [ ... ] shall be placed with the father [ ... ] for the school term to take effect on Friday, October the 30th, 1992....
A written judgment, setting forth the details of the custody award as recited in open court, was signed by the trial judge on November 12, 1992. [The mother] was granted weekend and holiday visitation with [the child], and was given the right to petition the court for review of the custodial “arrangement” on November 1,1993.

Porter, 627 So.2d at 753. Thereafter, the mother retained legal representation who filed a motion for new trial alleging that “the trial court’s judgment was improper because it was rendered after discussions held in chambers, at which time no evidence was taken, and no witnesses were sworn and placed under oath” and “because she was not represented by legal counsel, did not understand the nature of the proceedings, and was not aware that she had the right to put on evidence.” Id. Following a hearing, the trial court denied the mother’s motion for new trial.

On appeal, the second circuit declared that “parental rights are protected by due process” and, as such, “the right to some kind of hearing is paramount” before Isthose rights can be limited or modified. Id. at 754. The second circuit went on to state that due process requires that:

In order to adjudicate a contested custody case[,] the trial court must afford the parties an evidentiary hearing at which time the parties may present evidence in an attempt to rebut the presumption that joint custody is in the best interest of the child and to determine which parent shall be designated the primary domiciliary parent.”

Id.

After reviewing the record, the appellate court determined that:

Although the clerk’s minute entry of October 26 shows that [the mother] was present when the “stipulations” were recited by [the father’s] attorney, the record does not show that she received an explanation of the implications of the purported custody settlement, that she understood it, or that she even consented to it. From this record, we cannot say that [the mother] reached a settlement of this custody dispute or that the trial court was within its authority by ruling on the dispute without receiving evidence other than the DHHR Home Studies. If [the mother] agreed to settle the case, or agreed that the Court could make a ruling based solely on the Home Studies and statements made in chambers, the record fails to reflect it.

Id. at 755. As a result, the judgment was vacated, and the matter was remanded for further proceedings consistent with the appellate court’s opinion.

The record before us indicates that this is a highly contested matter involving the custody of seven-year-old Zoey. As a result of the trial court having signed an order removing the matter from its August 13, 2013 docket, neither Ms. August nor her counsel were present in court on that day. Nevertheless, the trial court held a hearing and received evidence from only the father before vacating the motion removing the matter from its docket and rendering judgment determining the custody of Zoey on an ex parte basis. Because that judgment was rendered without proper notice to Ms. August, she was denied the opportunity to present evidence on her exceptions to, as well as the merits of, Mr. Gofer’s Petition for Custody. Accordingly, the August 13, 2013 judgment is a nullity and is vacated in its entirety.

| ^Assignment of Error Number Two

Louisiana Code of Civil Procedure Article 929(A) provides that “[t]he declina-tory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.” The record reveals that Ms. August filed an answer and exceptions to Mr. Gofer’s Petition for Custody on June 28, 2013. Thus, the trial court should have ruled on the exceptions prior to conducting trial on the merits. Although the transcript of the August 13, 2013 hearing is void of any discussion of the merits of Ms. August’s exceptions of no right of action and improper venue, the written judgment states that those exceptions were denied. It was error for the trial court to conduct trial on the merits without first trying and deciding the merits of Ms. August’s exceptions. Upon remand, the trial court is ordered to dispose of Ms. August’s exceptions in advance of trial on the merits.

DECREE

For the foregoing reasons, the judgment of the trial court is vacated, and this matter is remanded to the trial court for proceedings consistent with this opinion. All costs of this appeal are assessed to Kerry Gofer.

VACATED AND REMANDED.

      . Although the Order attached to the Petition set the matter for hearing on May 29, 2013, the parties agree that the hearing was reset to June 24, 2013.

      . The record does not contain a transcript from the June 24, 2013 hearing.

      . Ms. August also asserted exceptions of prematurity, no cause of action, and improper use of summary proceedings.

      . We note that according to La.Dist.Ct.R. 1.1(b), the rule upon which Ms. August relied as the basis for her contention that Mr. Clofer forfeited his right to oral argument, i.e., La. Dist.Ct.R. 9.9, does not apply to family and juvenile proceedings.

      . The paternity test results were accepted into evidence as Clofer 1.

      . Zoey’s report card for the 2012/2013 school year, along with the results of a standardized test that Zoey took in April 2013, and several awards that Zoey received during the school year were accepted into evidence as Clofer 2 in globo.

      . The judgment also ordered that Zoey’s birth certificate be altered to change her surname to "Clofer” and to name "Kerry J. Clofer” as her father. Ms. August has not appealed those aspects of the judgment.

      . On appeal, the second circuit agreed with the mother’s argument that the so-called "stipulations" were not agreed to by the parties but were, instead, “merely a recognition of the trial judge’s decision.” Id. at 755.