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    Sharon MONROE, Plaintiff-Appellee v. PHYSICIANS BEHAVIORAL HOSPITAL, LLC, Defendant-Appellant.
    No. 49,248-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Harper Law Firm, Shreveport, by Jerald R. Harper, for Appellant.
    Ayres, Warren, Shelton & Williams, LLC, by J. Todd Benson, for Appellee.
    Before STEWART, CARAWAY and GARRETT, JJ.
   GARRETT, J.

Bin this suit for unpaid wages filed pursuant to La. R.S. 23:631 et seq., the defendant, Physicians Behavioral Hospital (“PBH”), appeals from a trial court judgment awarding unpaid wages, penalties, and attorney fees to the plaintiff, Sharon Monroe, and denying defense motions for summary judgment and for judgment on the pleadings. It also asserts in this court an exception of prescription. Monroe answered, seeking additional attorney fees on appeal. For the following reasons, we sustain the defendant’s exception of prescription, reverse the trial court judgment in favor of the plaintiff, and reject the plaintiffs request for additional attorney fees on appeal. The arguments regarding the motions for summary judgment and for judgment on the pleadings are moot.

FACTS

In 2009, Monroe was hired to be a program manager for PBH. The position was aimed at establishing intensive outpatient programs (“IOPs”) for the defendant. PBH appears to be engaged in delivering healthcare services to the community, although the exact nature of the services is not clear from the record. Monroe signed employment agreements with PBH in 2009, 2011, and 2012. She was terminated on December 3, 2012. On December 21, 2012, a demand letter was sent to PBH claiming that $173,532 was owed to Monroe. As will be more fully explained below, the demand letter was premised upon inaccurate information supplied by Monroe and set in motion the confusing chain of events which unfolded in this matter.

li>On March 6, 2013, Monroe filed a petition against PBH claiming she was not paid wages owed to her under the 2009 and 2012 employment contracts with PBH. This petition, which was never amended, tracked the claims made in the demand letter, together with demands for penalties and attorney fees under La. R.S. 23:631 et seq. Monroe alleged that the 2009 agreement had a two-year term and specified that she was to receive a salary of $18,000 per month. Monroe asserted that on February 2, 2011, while the 2009 agreement was still in effect, PBH unilaterally lowered her salary to $15,000 per month, effective January 31, 2011. Monroe claimed that she did not receive $21,532, to which she was entitled under the 2009 contract. Monroe did not attach a copy of this agreement to her petition.

Monroe alleged that on July 30, 2011, she entered into a new employment contract -with PBH, effective August 1, 2011. This contract set her monthly salary at $10,000 per month. She lodged no complaints arising under this contract. Monroe entered into a third employment contract with PBH, effective August 1, 2012, with a monthly salary of $8,000. She asserted that the 2012 agreement provided that she could not be terminated without cause for two years.

Monroe claimed that, on December 3, 2012, four months into the 2012 agreement, she was terminated without cause, in violation of the agreement. She urged that PBH owed her $152,000, the amount of wages she claimed were due for the remainder of the contract. Monroe asserted entitlement to a total amount of $173,532 in wages, $33,230.77 in penalties, Land reasonable attorney fees and costs. The allegations in the petition were verified by Monroe, who requested that' the matter be heard as a summary proceeding under La. R.S. 23:631(B).

On June 17, 2013, PBH filed a motion for judgment on the pleadings, claiming that Monroe was seeking to recover for alleged wrongful termination under the terms of the 2012 agreement when the termination was proper in accordance with that agreement and on the face of the pleadings. PBH also filed a motion for summary judgment asserting that Monroe’s petition claimed, under the 2009 agreement, she was to be paid a salary of $18,000 per month, but PBH unilaterally lowered the amount to $15,000 per month. However, PBH noted that the contract actually specified that Monroe’s monthly salary was $15,000, not $18,000. Because Monroe was paid in accordance with the agreement, PBH urged it was entitled to summary judgment dismissing Monroe’s claims. In support of the motion for summary judgment, PBH attached the 2009 contract, which clearly reflected that the monthly salary was $15,000 and not the $18,000 claimed by Monroe in her suit. PBH also attached a portion of Monroe’s deposition where she testified that PBH complied with the 2009 and 2011 agreements. The trial court did not address or rule on either motion prior to hearing the case on the merits.

The matter was tried as a summary proceeding on June 19-20, 2013. Monroe acknowledged in her testimony that, under the 2009 employment l4agreement with PBH, the monthly salary was $15,000, and not $18,000, as claimed in her demand letter and petition. The term of the contract was two years. Monroe also acknowledged that her wages varied during the 2009 agreement. She testified that she was asked to reduce expenses in her department and on more than one occasion she offered to cut her own salary for approximately 60 days to prevent the IOP from being shut down. According to Monroe, although she did not agree with the changes in her salary, she felt she had no choice but to accept a lower rate of pay. She acknowledged that sometimes she was paid more than the amount specified in the agreement. Monroe claimed at the trial that, under the 2009 agreement, she was owed a total of $860,000, but only received $334,911.93. Therefore, she claimed entitlement to approximately $25,000 in unpaid wages under the 2009 agreement. This new figure differed from the amount claimed in the original demand letter and petition and was based upon a completely different theory of recovery.

Monroe testified that in 2011 she entered into an agreement with PBH for a salary of $10,000 per month. The effective date of that agreement was August 1, 2011. A new contract in 2012 set her monthly salary at $8,000. She alleged that the terms of the 2012 agreement prohibited PBH from firing her without cause for two years from the effective date of that agreement, August 1, 2012. On December 3, 2012, Monroe was terminated and PBH notified her that it would pay her for 30 additional days as required by their agreement. Monroe accepted this payment.

IsMonroe admitted there were problems with opening the IOP and she did not recall the date of her first day of employment with PBH. She testified that she did not expect to be paid before she began work. It was eventually established that Monroe actually began working for PBH on September 21, 2009, and her pay under the 2009 agreement commenced on that date. She did not dispute that, if the policies and procedures of the company specified that deductions would be made from her salary for time taken off in excess of the amount she was entitled to, she would have no basis to argue with the deductions. The record shows that there were times when Monroe took off work when she did not have accrued leave time and, on those occasions, she was not paid. No complaints were ever lodged with PBH concerning the calculations in the paychecks or the computations concerning leave time.

PBH also brought out that Monroe owned a business called Monroe Medical Management that set up IOPs and had a contract with a hospital in Stonewall. She had opened a program in Lafayette that was found to be illegal and was shut down. These operations took place even though Monroe’s agreement with PBH contained a noncompetition clause. She attempted to distinguish between activities performed by her company and those she performed personally. Monroe was involved in possibly opening another IOP with Allegiance Health. She claimed that Allegiance Health was not located in the areas covered by her noncompetition agreement. She admitted that she sent an email to Allegiance Health with the names of patients involved in the IOP at PBH, but claimed she did so in error.

| sMonroe acknowledged that her records had been seized by the FBI and the Office of the Inspector General regarding the operation of other IOPs. During the course of her work with PBH, Monroe’s mother and her brother, a convicted felon, were hired to assist with transportation, even though there was an anti-nepotism policy at PBH. According to Monroe, it was not uncommon to have convicted felons working for PBH.

William E. Logan, III, owner of PBH, testified that the company paid Monroe approximately $335,000 under the 2009 agreement, and this was the total amount she was owed. He stated that Monroe’s salary changed from time to time. At one point, when Monroe was asked by PBH to open another IOP at a different location, she was paid more. That IOP was never established. Because of budget issues, Monroe volunteered to take cuts in salary in lieu of others in her department being cut. He stated she never raised any objections about her salary while working at PBH. Logan testified that the company policy was to allow time off without pay if an employee had not accrued paid time off.

In addition to the testimony given by Monroe and Logan, various exhibits were introduced, including Monroe’s pay records. ' The records also contain time sheets, time-off requests, and a “PTO cash in request,” all signed by Monroe. The paycheck stubs contained information pertaining to leave time hours. When the trial adjourned, the trial court ordered the parties to file briefs. Notably, the brief filed by Monroe contained yet 17another set of figures for what she claimed she was owed under the 2009 agreement.

On July 17, 2013, the parties appeared before the trial court to present oral arguments. PBH’s position was that Monroe was not entitled to any recovery and her theories for recovery continually changed. PBH also argued that claims for unpaid wages prescribe in three years and the fact that it had employment contracts with Monroe did not make the 10-year prescriptive period for contracts applicable. The parties disputed whether the 2009 employment contract could be modified orally.

The only issue concerning the 2012 contract, as framed by the parties, was whether Monroe could be terminated without cause. That contract specified that Monroe could not be terminated without cause within the first two years of employment. Monroe argued that she could not be fired without cause within two years of the effective date of the 2012 agreement. Monroe essentially argued that this was a contract for a fixed term, during which she could not be terminated without cause. She claimed that, by terminating her without cause, PBH breached the agreement, entitling her to the remainder of the salary she would have earned under the 2012 agreement. The trial court rejected Monroe’s argument on that point, finding that the agreement specified that Monroe could not be terminated without cause within the first two years of employment and her employment began in 2009. Therefore, in December 2012, PBH was entitled to terminate Monroe without cause and did not owe the remainder of the salary that would have been paid under the contract. Thus, the trial court denied |sher any recovery for unpaid wages under the 2012 agreement and Monroe has not appealed this ruling.

As to the amounts allegedly due under the 2009 agreement, the trial court would not issue a ruling in open court, as it did not have a calculator in the courtroom. The trial court did not address the prescription issue and then took the matter under advisement.

Thereafter, on September 25, 2013, the trial court generated a judgment in favor of Monroe, granting her unpaid wages, penalties, and attorney fees. The trial court reasoned that under the 2009 agreement, from August 15, 2009, until August 15, 2011, PBH was obligated to pay Monroe $15,000 per month for. 24 months, minus wages of $336,585.08 paid during that period. Under the 2009 agreement, the trial court found that Monroe was entitled to unpaid wages in the amount of $23,464.92. Although Monroe was not awarded any unpaid wages under the 2012 agreement, the trial court found that she was entitled to $3,400 for unpaid vacation, even though it noted that “Counsel for Plaintiff put forth no specific amount of unpaid vacation.” The trial court awarded statutory penalties to Monroe in the amount of $62,307.90, and attorney fees of $17,660.50, plus costs. The trial court denied the exception of improper use of summary proceedings, motion for judgment on the pleadings, and motion for summary judgment. PBH appealed suspensively.

| .PRESCRIPTION

As set forth below, we find that Monroe’s claims were completely invalid and that the trial court’s rulings were manifestly erroneous. Monroe did not prove that she was entitled to any recovery at all in this matter. However, we will address the exception of prescription filed by PBH in this court on March 25, 2014. PBH argued that Monroe filed suit for unpaid wages on March 6, 2013, and under La. C.C. art. 3494, such actions are subject to a three-year prescriptive period. According to PBH, any claims for unpaid wages allegedly owed before March 6, 2010, along with demands for penalties and attorney fees, had prescribed and should be dismissed. PBH contends that the existence of the employment contracts does not change the prescriptive period to the 10-year period for contracts. This court referred the exception of prescription to the merits. For the following reasons, we sustain the exception of prescription.

Legal Principles

An exception of prescription may be filed for the first time in the appellate court. La. C.C.P. art. 2163 provides in pertinent part:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception of prescription. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Holmes v. LSU/E. A. Conway Med. Ctr., 43,662 (La.App.2d Cir.10/22/08), 997 So.2d 605.

| ¶nThe general prescriptive period for a personal action, such as for breach of contract, is set forth in La. C.C. art. 3499:

Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.

In 1983, the legislature enacted exceptions to this general prescriptive period. La. C.C. arts. 3492-3498 establish shorter prescriptive periods for some personal actions. See La. Acts 1983, No. 173; Starns v. Emmons, 538 So.2d 275 (La.1989).

The prescriptive period applicable to a claim for unpaid wages is found in La. C.C. art. 3494, which provides in pertinent part:

The following actions are subject to a liberative prescription of three years:
(1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions[.]

All of the actions covered by La. C.C. art. 3494 essentially arise from contractual relationships. The article does not present a choice between a contract remedy and some other remedy; it merely provides an exception to the general rule stated in La. C.C. art. 3499, that a personal action prescribes in 10 years. Starns v. Emmons, supra.

In considering a claim regarding the applicable prescriptive period for unpaid wages under an employment contract, the Louisiana Supreme Court in Grabert v. Iberia Parish Sch. Bd., 93-2715 (La.7/5/94), 638 So.2d 645, stated:

Plaintiffs, and the court of appeal, would have us believe that article 3494’s three year prescriptive period for past wages is not applicable here because their action for breach of contract is distinguishable from a claim for past due wages.
[nThe answer appears to be simple enough. A petition claiming breach of contract by the payment of wages less than what is due and seeking judgment for the underpaid wages is clearly a cause of action asserting the right to recover unpaid wages. Breach of contract is not a free standing cause of action. It is a legal premise, or principle, which gives rise to the right to claim some substantive remedy at law. Here that remedy is the recovery of past due wages.
The actions are plainly for salary or wages past due under the allegedly appropriate salary index. The three year prescription provided for in article 3494 is directly and explicitly applicable. The nature of the claim (for under paid wages) is not something different because it arises out of breach of contract. The contract breached made provisions for the very wages sought.
This petition to recover underpaid “compensation for services rendered” is admittedly a personal action as defined by Louisiana Civil Code of Procedure article 422.3. However, the ten year prescriptive period set forth in article 3499, is only applicable to personal actions “unless otherwise provided for by legislation.” La.Civ.Code art. 3499 (West 1994). The prescriptive period for ... suits for the recovery of underpaid wages is otherwise provided for in article 3494, for that article, as earlier indicated, provides a three year prescriptive period for personal actions seeking “compensation for services rendered.”

The supreme court noted that virtually all claims for wages arise out of breach of contract, oral or written, to pay wages for services rendered. The Grabert court observed that the employer’s failure to pay the full and proper compensation for services provided gives rise to an action for breach of contract for which the remedy is recovery of wages. Because the remedy is the recovery of wages, the three-year prescription period of La. C.C. art. 3494 applies. See also Fishbein v. State ex rel. Louisiana State Univ. Health Sciences Ctr., 2004-2482 (La.4/12/05), 898 So.2d 1260; Chandler v. Kenyan, 38,084 (La.App.2d Cir.12/19/03), 862 So.2d 1182; Dill v. 32nd Judicial Dist. Court Judicial Clerk’s Fund, 44,949 (La.App.2d Cir.12/16/09), 12 27 So.3d 1056; Assaleh v. Sherwood Forest Country Club Inc., 2007-1939 (La.App. 1st Cir.5/2/08), 991 So.2d 67; Parry v. Administrators of Tulane Educ. Fund, 2002-0382 (La.App. 4th Cir.9/4/02), 828 So.2d 30, writ denied, 2002-2478 (La.12/19/02), 833 So.2d 346.

This prescription commences to run from the day payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies, or other services. La. C.C. art. 3495. In Ledoux v. City of Baton Rouge/Parish of E. Baton Rouge, 1999-2061 (La.2/29/00), 755 So.2d 877, the Louisiana Supreme Court considered the meaning of the word “exigible.” The court stated:

Black’s Law Dictionary defines an “exi-gible” debt as a liquidated and demanda-ble debt; a mature claim. Comment (b) to article 3495 states:
On principle, liberative prescription commences to run from the day a cause of action arises and its judicial enforcement is possible. See 2 M. Planiol, Traite elementaire de droit civil 3 Pt. 2, at 358 (Louisiana State Law Institute trans. 1959):
Liberative prescription begins to run as soon as the action accrues, or, as Pothier said “the day on which the creditor could institute his demand.” It cannot commence sooner, because the time given for prescription should be a time during which the action can be exercised, and one cannot reproach the creditor for not having acted at a time when he did not have the right to do so. Otherwise, it could happen that the right would be lost before it could be exercised, which would be as unjust as absurd (Cass. Civ., 11 Dec. 1918, D.1923.1.96, P. and S.1921.1.161).

The prescriptive period for claims for unpaid wages begins to run at the point that demand for payment can be made. In cases dealing with salaries and wages, the demand for payment can be made as soon as the 113wages are earned and payable. See Fishbein v. State ex rel. Louisiana State Univ. Health Sciences Ctr., supra; Dill v. 32nd Judicial Dist. Court Judicial Clerk’s Fund, supra; Webster v. Penn Treaty Network Am. Ins. Co., 12-90 (La.App. 5th Cir.7/31/12), 99 So.3d 708; Doan v. Technical Eng’g Consultants, Inc., 06-166 (La.App. 5th Cir.9/26/06), 942 So.2d 1145. This is true in spite of policy considerations that it is difficult for an employee to sue his employer during the employment for fear of retaliation. See Doan v. Technical Eng’g Consultants, Inc., supra.

Discussion

The jurisprudence is clear that an action to recover compensation for services rendered is subject to a three-year prescriptive period, even if an employment contract existed between the parties. Monroe’s claim is clearly one to recover compensation for services rendered and is subject to the three-year prescriptive period of La. C.C. art. 3494. Further, the prescriptive period begins to run on the day payment is exigible. Monroe argues that her claims only became exigible when her contracts ended. However, her claims are for unpaid wages. These claims were exigible at the time the wages were earned and payment was due. At that point, Monroe could have complained about any alleged underpayment of wages due her and could have asserted her claims. Prescription on those claims began to run at that time. Therefore, any possible claims for compensation arising prior to March 6, 2010, three years prior to the date she filed her | upetition, have prescribed. This prescription is evident on the face of the pleadings. Therefore, we sustain the exception of prescription asserted by PBH as to any alleged claims for unpaid wages prior to March 6, 2010.

PROOF OF ENTITLEMENT TO UNPAID WAGES, PENALTIES, AND ATTORNEY FEES

PBH also asserts that Monroe failed to carry her burden of proving any entitlement to unpaid wages. Further, because Monroe is not entitled to any unpaid wages, she should not have been awarded penalties and attorney fees. These arguments also have merit.

Legal Principles

Absent an abuse of discretion or manifest error, a reviewing court cannot disturb the factual findings of a trial court. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Coates v. Hill Wholesale Distrib. Co., 42,-584 (La.App.2d Cir.10/24/07), 968 So.2d 315, writ denied, 2008-0013 (La.3/24/08), 977 So.2d 953.

Agreements entered into have the effect of law upon the parties thereto. La. C.C. art. 1983; Grosjean v. Grosjean, 45,529 (La.App.2d Cir.10/13/10), 50 So.3d 233, writ denied, 2010-2623 (La.2/4/11), 57 So.3d 311, and writ denied, 2010-2619 (La.2/4/11), 56 So.3d 980. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that 11Bunder the circumstances is clearly indicative of consent. La. C.C. art. 1927; Grosjean v. Grosjean, supra.

An agreement may be modified or abrogated by the mutual consent of the parties. The law is clear that written contracts may be modified by oral contracts and the conduct of the parties. Grosjean v. Grosjean, supra.

La. C.C. art. 1848 provides:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement. [Emphasis supplied.]

When the underlying contract is not required to be in writing, it may be modified by a subsequent oral agreement, and parol evidence is admissible to prove the subsequent modification. Salley v. Louviere, 183 La. 92, 162 So. 811 (1935); Smith v. Coffman, 46,793 (La.App.2d Cir.2/8/12), 87 So.3d 137; Shreveport Plaza Associates Ltd. P’ship v. L.R. Res. II, 557 So.2d 1067 (La.App. 2d Cir.1990); W.R. Aldrich & Co. v. Spalitta, 285 So.2d 835 (La.App. 1st Cir.1973); Teche Realty & Inv. Co., Inc. v. Morrow, 95-1473 (La.App. 3d Cir.4/17/96), 673 So.2d 1145. Even underlying contracts which contain provisions specifying that the contract may only be modified in writing may be subsequently modified by oral agreement. See Newman Marchive P’ship, Inc. v. City of Shreveport, 41,460 (La.App.2d Cir.11/1/06), 944 So.2d 703, writ denied, 2007-0060 (La.3/9/07), 949 So.2d 448, and writ denied, 2007-0097 (La.3/9/07), 949 So.2d 452; Rhodes Steel Bldgs., Inc. v. Walker Const. Co., 35,917 (La.App.2d Cir.4/3/02), 813 So.2d 1171; Shreveport Plaza Associates Ltd. P’ship v. L.R. Res. II, supra; Wisinger v. Casten, 550 So.2d 685 (La.App. 2d Cir.1989); Fleming v. JE Merit Constructors, Inc., 2007-0926 (La.App. 1st Cir.3/19/08), 985 So.2d 141; Capitol Nursing Home, Inc. v. Nixon, 1999-0378 (La.App. 1st Cir.3/31/00), 764 So.2d 1016, writ denied, 2000-1234 (La.6/16/00), 765 So.2d 336; Wahlder v. Tiger Stop, Inc., 391 So.2d 535 (La.App. 3d Cir.1980), writ denied, 396 So.2d 1351 (La.1981); Christ v. Christ, 251 So.2d 197 (La.App. 3d Cir.1971).

Modification of a written agreement can be presumed by silence, inaction, or implication. Fleming v. JE Merit Constructors, Inc., supra; Cajun Constructors, Inc. v. Fleming Const. Co., Inc., 2005-2003 (La.App. 1st Cir.11/15/06), 951 So.2d 208, writ denied, 2007-0420 (La.4/5/07), 954 So.2d 146.

The party who asserts that an obligation has been modified must prove by a preponderance of the evidence facts or acts giving rise to the modification. La. C.C. art. 1831; Four Rivers Gaming, Inc. v. Reliable Amusement Co., 98-1581 (La.App. 3d Cir.6/16/99), 737 So.2d 938, writ denied, 99-2027 (La.10/29/99), 748 So.2d 1166.

Discussion

The trial court found that, under the 2009 agreement, Monroe was entitled to 24 payments of $15,000 each for a total of $360,000. The trial court also found that she was paid $336,535.08, and was entitled to unpaid wages in the amount of $23,464.92. Under the 2012 agreement, the trial court determined that Monroe was entitled to payment for “unpaid vacation” in the amount of $3,400, but found no bad faith on the part of PBH in 117failure to pay this amount. The trial court then awarded Monroe penalties and attorney fees. The reasoning by the trial court and the judgment are completely unsupported by the testimony and the documentary evidence. The trial court judgment is a clear example of manifest error and must be reversed.

The 2009 agreement had an effective date of August 15, 2009. As stated above, all of Monroe’s claims for unpaid wages that may have arisen prior to March 6, 2010, have prescribed. Therefore, any claims for unpaid wages, if any, from August 15, 2009, through March 6, 2010, cannot be considered.

Monroe acknowledged that she did not begin working for PBH until September 21, 2009, and did not expect to be paid until she began working. Thus, the trial court’s simplistic analysis that $15,000 per month should be multiplied by 24, to cover the period from August 15, 2009, through August 15, 2011, to arrive at $360,000 is flawed from the inception because Monroe was not working during that entire time. Further, the trial court failed to take into account that the initial contract in 2009 was superseded by the second contract, which began on August 1, 2011. Thus, the trial court’s inclusion of periods prior to September 21, 2009, and after July 31, 2011, was clearly wrong. The trial court’s calculations are completely erroneous and unsupported by Monroe’s own testimony, as well as by the documentary evidence.

Further, the payment records filed into evidence in this case show that from March 7, 2010, through November 7, 2010, Monroe was paid in 118accordance with her contract, with the exception of two days she took off in May when she had no accrued paid leave time. Logan testified that the company policy was to allow time off without pay if an employee had no accrued paid leave time. Monroe testified that she had no basis to dispute the company pay records if they showed that she took off more time than she was entitled to. The payment records show that Monroe did not have leave time and, in accordance with company policy, she was not paid for the time she did not work. The records also show that when she had paid time off available to her, she routinely filled out written requests for leave or to cash in and be paid for leave time. All of this indicates she was fully aware of and complied with the employer’s policies. The trial court gave no reason for rejecting credits to PBH for the time Monroe took off without accrued leave time. We find that the trial court erred in failing to consider in its calculations the time Monroe took off without pay.

All the agreements in this case were employment contracts which were reduced to writing. There is no statutory requirement that such contracts be written. Therefore, in accordance with the jurisprudence set forth above, because the underlying contract was not required to be in writing, it could be orally amended, even though it specified that 1 ^modifications must be in writing. The evidence and testimony show that the 2009 agreement was orally amended and that the parties mutually agreed to the changes.

The oral amendments of the 2009 agreement were established by the testimony of both Logan and Monroe. The first amendment occurred on November 8, 2010, and resulted in an increase in Monroe’s salary. Logan testified that when PBH asked Monroe to work toward opening another IOP, her salary was increased. Payment records show that this increase in salary was in effect from November 8, 2010, through January 30, 2011. Monroe did not deny that, at some points, she was paid more than the salary set forth in the 2009 agreement. Thus, in these instances she clearly benefited from the modification of the original agreement.

The testimony of both Logan and Monroe also establishes an oral modification of the written agreement which lowered Monroe’s salary. Beginning January 31, 2011, Monroe’s pay was modified downward and she received wages of $6,435.69 every two weeks. Logan stated that Monroe offered to have her salary reduced in order to keep others in her department from being cut. Monroe acknowledged that she offered to reduce her salary in order to keep the IOP program at PBH from being shut down. Although she stated that she “did not agree” with having to reduce lather salary, her testimony was clear that she offered to do so. Although Monroe clearly was not pleased with a reduction in her salary, the testimony demonstrates that the parties mutually agreed to a reduction in Monroe’s salary. We also note that, at the time this occurred, Monroe did not ever complain to PBH that she was being underpaid or question the amounts of her paychecks.

The testimony and evidence establish that Monroe was paid in accordance with the terms of the 2009 agreement, as orally amended by the parties. When she took time off without having accrued paid leave time, in accordance with company policy, she was not paid for those days. According to our close review of the record, Monroe was paid all that she was due under the 2009 agreement.

The 2009 agreement was to be effective until August 15, 2011. However, the parties executed a new written agreement which was effective August 1, 2011. According to this agreement, Monroe’s salary was reduced to $10,000 per month. Monroe makes no claims for underpayment of wages in connection with the 2011 agreement.

The parties entered into a third written agreement, which was effective on August 1, 2012. That agreement set Monroe’s salary at $8,000 per month. She was paid her gross salary under this agreement until she was terminated on December 3, 2012.As set forth above, the trial court found, correctly, that under the terms of the agreement, Monroe could be terminated without cause and PBH did not breach the agreement and was |21not required to pay the remainder of what Monroe would have earned under the contract had she not been terminated.

However, the trial court inexplicably found that Monroe was entitled to payment for '“unpaid vacation” in the amount of $3,400 under the 2012 agreement. This finding is also clearly wrong and manifestly erroneous. Monroe never asserted in her pleadings or at trial that she was entitled to any payment for “unpaid vacation” time. A judgment rendered beyond the pleadings is a nullity. Havener v. Havener, 29,785 (La.App.2d Cir.8/20/97), 700 So.2d 533. Although the trial court has discretion to allow enlargement of the pleadings to conform to the evidence, that did not occur in this case. See La. C.C.P. art. 1154 and Havener v. Havener, supra.

La. Const. Art. 1, § 2, provides that no person shall be deprived of life, liberty, or property except by due process of law. The essentials of “due process of law” are notice and an opportunity to be heard and to defend in an orderly proceeding rules and principles established in our system adapted to the nature of the case. Havener v. Havener, supra.

La. C.C.P. art. 862 grants the trial court authority to render a final judgment granting the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded relief in his pleadings. Nothing in the article is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it. Ha-vener v. Havener, supra. Because the trial court granted recovery not requested in the pleadings or argued at trial, that portion of the judgment is a nullity.

1 ^Further, the evidence in this case does not support the trial court’s finding. In its written judgment, the trial court found that, although Monroe was not entitled to any unpaid wages under the 2012 agreement:

[T]he arguments of Counsel persuades this Court to determine that Plaintiff was entitled to vacation. Upon her termination, Plaintiff was not compensated for unused vacation. Counsel for Defendant argued that the amount of unpaid vacation was definitely less than $5,000.00; Counsel for Plaintiff put forth no specific amount of unpaid vacation. After reviewing and considering Exhibit P-7, documents of “Time Off Request” dated 12/19/11, 03/20/12, 03/28-30/12, 10/10/12, 10/09/12, one undated, 11/05/12, and 11/19/12, this Court now determines that Plaintiff is entitled to the amount of $3,400.00 for unpaid vacation based upon a reasonable calculation most favorable to Defendant. This Court also finds that Defendant’s failure or refusal to pay Plaintiff for said amount of vacation in a timely manner was not in bad faith. [Emphasis in original.]

This statement is totally unsupported by the record. In fact, the transcript of the argument referred to by the trial court reveals that the court’s recollection of the argument was completely erroneous.

Monroe’s counsel never argued to the trial court that the plaintiff was entitled to payment for unpaid vacation under either the 2009 or the 2012 agreement. At the argument, the trial court engaged in a colloquy with PBH’s counsel regarding the amount of credit that might be due to PBH under the 2009 agreement for time Monroe took off without accrued leave time and for which she was not paid. Several of these instances occurred prior to March 6, 2010, and are prescribed. There was no discussion of the 2012 agreement. Counsel for PBH stated that the amounts not paid to Monroe because she did not have accrued leave time were less than $5,000. At the end of the argument, the trial court stated that, under the 2009 agreement, it found that Monroe was entitled to $360,000, less the amounts | ¡^actually paid to her. The trial court declined to subtract the amounts PBH withheld from Monroe’s pay when she was off work without accrued leave time. As discussed above, the trial court erred in failing to consider that, according to company policy, Monroe was not entitled to be paid for time she took off without accrued paid leave time.

Monroe’s counsel then argued regarding the amount of unpaid wages allegedly due under the 2012 agreement. Counsel for both parties agreed that the sole issue concerning that agreement was whether Monroe was entitled to recover the total amount of salary she would have earned under that agreement if she had not been terminated. Monroe’s counsel never argued that the plaintiff was entitled to payment for any “unpaid vacation” time under the 2012 agreement.

In making an award for “unpaid vacation” time, the trial court cited several requests for time off contained in exhibit P-7. This exhibit contained all of Monroe’s pay records from PBH. These records show that, beginning in January 2012, Monroe had accrued 80 hours of paid time off. On March 20, 2012, she used four hours; during the period of March 28 through March 30, 2012, she used 20 hours; on October 4, 2012, she used eight hours; on October 12, 2012, she used eight hours; on October 24, 2012, she used eight hours; on October 25, 2012, she used eight hours. For the pay period covering October 22 through November 4, 2012, Monroe cashed in 20 hours and was paid $923.20 in addition to her regular salary. On November 16, 2012, Monroe used the last four hours of paid leave time she was entitled to. She was terminated on December 3, 2012. At that time, 124the records are undisputed that Monroe had no “unpaid vacation.” PBH clearly did not owe her for any unused leave time and Monroe never claimed this. The trial court decision, which simply created an award for “unpaid vacation,” is manifestly erroneous and clearly wrong.

The record in this case shows that Monroe was paid all she was entitled to receive under the 2009 agreement with PBH, as orally amended. The record also shows that she was not entitled to any payment for “unpaid vacation” under the 2012 agreement. Finding that the trial court judgment was manifestly erroneous and clearly wrong, we reverse the judgment in favor of Monroe, which granted her unpaid wages, payment for “unpaid vacation,” penalties, and attorney fees.

CONCLUSION

For the reasons stated above, we sustain the exception of prescription in favor of the defendant, Physicians Behavioral Hospital, LLC. We reverse the trial court judgment in favor of the plaintiff, Sharon Monroe, against the defendant, Physicians Behavioral Hospital, LLC. We render judgment in favor of Physicians Behavioral Hospital, LLC, dismissing all claims of the plaintiff, Sharon Monroe, against it. Costs in this court are assessed to the plaintiff, Sharon Monroe.

EXCEPTION OF PRESCRIPTION SUSTAINED; JUDGMENT REVERSED AND RENDERED.

      . The attorney who prepared the demand letter was not the attorney who later represented Monroe in this litigation.

      . The effective date of the 2009 agreement was August 15, 2009. Monroe incorrectly stated in her petition that the effective date of the 2009 agreement was August 1, 2009.

      . PBH also filed an exception of improper use of summary proceedings, which was not ruled upon by the trial court prior to the trial on the merits. PBH has not sought review of the trial court’s failure to rule on this exception before trial.

      . As will be discussed below, the "PTO cash in request" resulted in Monroe being paid for 20 hours of accrued personal paid time off.

      . Sharon Monroe is correctly named as the plaintiff in the caption and the introductory portions of the judgment. However, the decree grants judgment to Mary G. Huckabee against PBH. This appears to be a clerical error because Mary G. Huckabee does not appear in this suit at any point. Had this been an issue, the judgment might possibly have been amended under La. C.C.P. art. 1951. Because there has been no argument that the trial court intended to award judgment to anyone other than Monroe and due to our disposition of this appeal, no action is necessary.

      . Cases dealing with unpaid wages are distinguishable from cases dealing with payment for unpaid leave and sick time, which cannot be demanded until an employee retires or is terminated. See Wyatt v. Avoyelles Parish Sch. Bd., 2001-3180 (La.12/4/02), 831 So.2d 906; Ledoux v. City of Baton Rouge/Parish of E. Baton Rouge, supra.

      . The records also show that Monroe took time off from work prior to March 6, 2010, when she had no accrued paid leave time. Because those instances occurred prior to the prescription date, there is no need to discuss them in detail. However, they are relevant to show that she never voiced any complaints about her pay until she was terminated.

      . The 2009 agreement incorporates the policies and procedures of PBH by stating that:
      The Program Director acknowledges that as an employee of the Hospital, the Program Director shall abide by the Policies and Procedures Manual and personnel policies and procedures adopted from time to time by the Hospital.

      . The plaintiff relies on Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 2005-2364 (La.10/15/06), 939 So.2d 1206, in support of its argument that, because the parties in this case specified in the 2009 agreement that all amendments to the agreement must be in writing, the agreement could not be orally amended. Joseph does not support that argument. The issue in Joseph was whether a stipulation pour autrui existed. The supreme court held that a stipulation pour autrui does not have to be in writing unless the underlying contract must be written. Because the parties in Joseph had a written contract that stated the document constituted the entire agreement between them, the stipulation pour autrui would have to be written as well. The court in Joseph never discussed the type of verbal change in the agreement itself that is at issue here.

      . Because we reverse the judgment in favor of Monroe and render judgment in favor of PBH, it is not necessary to consider PBH’s arguments regarding its motion for summary judgment. Further, because penalties are not due in this case, we do not consider PBH's argument that penalties were not proper where there was a genuine dispute as to entitlement to unpaid wages. Because Monroe is not entitled to unpaid wages, she is not entitled to attorney fees, and, of course, she is not entitled to additional attorney fees on appeal.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Mary Ann RICHARDS, Plaintiff-Appellant v. James Bruce RICHARDS, Defendant-Appellee.
    No. 49,260-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Gary D. Nunn, for Appellant.
    Darrell R. Avery, Jonesboro, for Appel-lee.
    Before DREW, PITMAN and GARRETT, JJ.
   GARRETT, J.

|,The plaintiff, Mary Ann Richards, appeals from a trial court judgment denying her request for reinstatement of final periodic spousal support. She also contends that the trial court erred in not ruling against her former husband, James Bruce Richards, for his failure to maintain proper medical insurance on their younger daughter. We affirm in part, reverse in part, and render.

FACTS

When Ms. Richards and her former husband divorced, Ms. Richards was found to be free of fault in the breakup of the marriage. In an order setting child support in 1998, Mr. Richards was ordered to either maintain insurance on the parties’ two daughters, Laura and Amy, or pay an additional $129 per month. The exact language in the initial custody plan was as follows:

JAMES BRUCE RICHARDS shall pay the sum of $910.00 per month as child support and shall maintain insurance on the children at a cost of $129.00 per month. During any month that JAMES BRUCE RICHARDS fails to maintain insurance on the children, his child support shall be calculated to be $1,039.00.

In January 1999, Mr. Richards was also ordered to pay $400 per month in spousal support. However, the trial court directed that the spousal support would end if Ms. Richards received Social Security disability (SSI) benefits. The trial court also stipulated that any party could seek amendment in the future if there was a change of circumstances. In August 2009, Ms. Richards’ final periodic spousal support was terminated due to her receipt of SSI benefits. At that time, the amount of the child support 12was $1,300 per month. In May 2011, Mr. Richards made his last payment of child support when his younger daughter, Amy, turned 18 and graduated from high school.

In June 2011, Ms. Richards filed a rule to modify the previous spousal support judgment and for contempt. She sought reinstatement of spousal support. She asserted that this was necessitated by the loss of the monthly child support and her inability to work due to her disability.

Ms. Richards also asserted in her rule that Mr. Richards had stopped paying the $129 for insurance in July 2009, claiming that he had gotten insurance for Amy. However, Ms. Richards alleged that Mr. Richards’ insurer had informed Amy’s medical providers that the insurance was not good in Louisiana and that Amy only had coverage in Massachusetts and Rhode Island. Ms. Richards claimed that she had incurred numerous medical expenses for Amy since June 2009, including a broken arm and dental work. She requested that Mr. Richards be ordered to pay $3,096 ($129 per month from July 2009 to May 2011), plus legal interest, and $129 per month for every month he did not have insurance on the children since October 1998, when he was first ordered to provide insurance or pay $129 per month. Ms. Richards further requested that Mr. Richards be held in contempt and be ordered to pay attorney fees and court costs. In response, |sMr. Richards filed a general denial in which he claimed to have paid hundreds of dollars in dental expenses for Amy without Ms. Richards paying her half.

Following one continuance, the original hearing on the rule was scheduled to be held on November 3, 2011. However, during a pretrial conference, the trial court indicated that it was going to rule that the loss of child support was not a change in circumstances justifying reinstatement of spousal support. In court, the parties entered into stipulations as to some of the basic underlying facts and introduced exhibits such as affidavits pertaining to the parties’ respective expenses and income. No testimony was adduced at that time due to the legal ruling made by the trial court. The medical insurance issue was continued without date, pending action by the appellate court on the spousal support issue. Judgment denying Ms. Richards’ request for final periodic spousal support was signed on November 23, 2011.

The issue was appealed to this court. In September 2012, we ruled that while the loss of child support alone could not carry Ms. Richards’ burden of showing a material change in circumstances, the jurisprudence did not preclude it from being a factor considered by the trial court under the appropriate circumstances. We reversed the trial court judgment and remanded the matter for further consideration. In particular, we noted that from the record before us, we could not discern which expenses between mother and child were shared, why her prior spousal support was terminated, and whether Ms. Richards’ income and expenses had changed |4since the 2009 decree terminating her spousal support. The trial court was directed to decide on remand whether any of the fixed and previously shared expenses should be considered and to give consideration of Ms. Richards’ claim for further support under the overall test of La. C.C. art. 112(B). See Richards v. Richards, 47,492 (La.App.2d Cir.9/20/12), 105 So.3d 77.

Following remand, a hearing was eventually held on January 14, 2013. The parties again stipulated to many of the underlying facts. Additionally, they both testified and submitted affidavits of expenses and income. According to the testimony, Ms. Richards’ sole income was $710 in SSI benefits. At the conclusion of the evidence, the trial court tasked the attorneys with contacting the Social Security Administration (SSA) to find out how an award of spousal support would affect Ms. Richards’ SSI benefits. Both attorneys informed the court by letter that it was their understanding that there would be a dollar for dollar reduction of her benefits. Ms. Richards’ counsel further requested spousal support of $1,750. Mr. Richards’ counsel asserted that, after subtraction of improper expenses, Ms. Richards had only shown monthly needs of $800 to $1,000.

On July 1, 2013, the trial court issued very brief written reasons for judgment which specifically adopted Mr. Richards’ arguments and denied Ms. Richards’ request to reinstate spousal support without explanation or details. It stated that various expenses she claimed were not reasonable and necessary. It noted that some expenses were attributable to both her and her adult daughter. The court found that, after deductions of improper expenses IsCwithout specifying what was improper), Ms. Richards was unable to demonstrate a need for reinstatement of spousal support. A judgment was eventually signed on September 12, 2013. No mention of the insurance issue was made in either the written reasons for judgment or the judgment itself.

With more than three years having passed from the filing of the rule, the matter is again before us on appeal.

FINAL PERIODIC SPOUSAL SUPPORT

Law

A spouse may be awarded final periodic support when he or she has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay. A claimant spouse does not need to prove “necessitous circumstances.” Anderson v. Anderson, 48,027 (La.App.2d Cir.5/15/13), 117 So.3d 208; King v. King, 48,881 (La.App.2d Cir.2/26/14), 136 So.3d 941. Final periodic spousal support, formerly known as permanent alimony, is limited to an amount sufficient for maintenance, as opposed to continuing an accustomed style of living. The court shall consider all relevant factors in determining the amount and duration of final support. La. C.C. art. 112; King v. King, supra. Included among the factors that may be considered are the earning capacity of the parties and the health and age of the parties. La. C.C. art. 112.

Maintenance includes the basic necessities of life, such as food, shelter, clothing, transportation, medical and drug expenses, utilities, household maintenance, and income tax liability generated by alimony | repayments. Jones v. Jones, 38,790 (La.App.2d Cir.6/25/04), 877 So.2d 1061. Depending upon the facts of the case, television and internet services may be considered as necessary items. Anderson v. Anderson, supra; King v. King, supra. Lawn maintenance may also be included. Prestenback v. Prestenback, 2008-0457 (La.App.lst Cir.11/18/08), 9 So.3d 172.

An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. La. C.C. art. 114; Richards v. Richards, supra. An award of alimony is never final. Gibbs v. Gibbs, 33,169 (La.App.2d Cir.6/21/00), 764 So.2d 261.

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. La. R.S. 9:311(A)(1); Richards v. Richards, supra. The party seeking the modification or termination of support carries the burden of proof that circumstances have changed since the original award. Gilbreath v. Gilbreath, 32,292 (La.App.2d Cir.9/22/99), 743 So.2d 300.

The trial court is vested with much discretion in determining awards of spousal support, and its determinations will not be disturbed absent a clear abuse of discretion. Gremillion v. Gremillion, 39,588 (La.App.2d Cir.4/6/05), 900 So.2d 262.

| ^Evidence

Ms. Richards testified that she is disabled and physically unable to work due to a multitude of health issues, including fibromyalgia, short-term memory loss, mi-tral valve prolapse, and scoliosis. She further testified as to a recent serious downturn in her health — the devastating loss of 20 pounds which reduced her weight to a meager 81 pounds and rendered her even more acutely ill. She had also been recently diagnosed with abdominal adhe-sions. Although she has Medicaid, it does not cover all of her medical expenses, such as prescriptions and doctor’s visits. She explained that not all of her doctors take Medicaid, including her pain specialist. Some of her medicines have increased in cost. As a result, she has accumulated substantial indebtedness to medical care providers and pharmacies.

The original award of spousal support was terminated after she began receiving SSI benefits in 2009. At the time the spousal support was terminated, she was receiving about $250 per month in SSI benefits, plus the child support. After termination of the spousal support, her SSI benefits increased. They were $674 per month in 2011 and $694 per month in 2012. She testified that they had recently increased to $710 per month.

While she is a co-owner with her brother of the house where she and Amy reside, Ms. Richards testified that its condition was so poor it could not pass an inspection for obtaining homeowner insurance and that she could not afford to repair it. She stated that Amy — who was 19 years old and a student at the time of the hearing— helps with some expenses like car repairs. Ms. Richards drives an old 1999 Ford Contour which is in bad |sshape and recently required $900 in repairs. Amy also helps with the utility bills when their services are about to be cut off.

On her January 2013 affidavit, Ms. Richards listed a total income of $710 in SSI benefits. Her total living expenses were given as $1,851.29, plus $257.50 in fixed debt, or total expenses of $2,108.79. As to the shared expenses, such as utilities, Ms. Richards testified that they would be basically the same even if Amy lived elsewhere.

The expenses listed on Ms. Richards’ affidavit, and as explained in her testimony, included the following:

LIVING EXPENSES
Food $300.00
Electricity $150.00
Water and sewage $59.00
Telephone $62.00
Gas $80.00
Cable $57.79
Household Supplies $100.00
Personal Necessities $125.00
Clothing $100.00
Auto Expense & Upkeep $125.00
Auto Insurance $70.00
Medical Care $112.50
Prescriptions $280.00
Lawn Care $70.00
$1,691.29
FIXED DEBT:
Dr. Roneal $10.00
Discover Card ($3,700.00) $100.00
Mitchell’s Pharmacy ($950.00) $25.00
Green Clinic ($300.00) $7.50
Mayfield Chiropractic ($300.00) $5.00
Collection Associates ($106.80) $10.00
| (Attorney Fees ($1,500.00) $100.00
$257.50
TOTAL EXPENSES $1,948.79

However, in brief, Ms. Richards appears to request only the living expenses, not the fixed debt items.

In his affidavit, Mr. Richards listed a gross monthly income of $11,360, a total net monthly income of $7,495, and total expenses of $7,022.67. However, during his testimony, it was revealed that the expenses he listed for himself were actually for his entire family (which included his current wife, who does not work outside the home, and their eight-year-old son) and that some of the monthly expenses he listed (e.g., $100 for alcoholic beverages, $78 for dog veterinarian and medicine, and $460 for vacation) were improperly included. He also admitted that the income information on his affidavit was based on a 40-hour week, not on what he actually makes, which includes considerable overtime. Documentation showed that in the first six months of 2011, he made more than $85,000.

Discussion

The record before us shows an acute and devastating financial need on the part of Ms. Richards, who is clearly in seriously declining health. (Her recent and dramatic weight loss indicates that her condition has worsened since she first sought reinstatement of the final periodic spousal | msupport.) While she was able to limp along with the combined income of her SSI benefits and the child support she received for Amy, the loss of the child support has been financially catastrophic for Ms. Richards.

Contrary to Mr. Richards’ contention and the trial court’s finding, Ms. Richards has shown valid needs in excess of $800 to $1,000 per month. By our count, she has listed reasonable expenses of at least $1,691.29. Careful and painstaking review of these items shows no extravagance. Her poor health necessitates certain of the expenses, such as medical care, lawn care, and cable. See King v. King, supra. Her only monthly income — $710 in SSI benefits — is grossly inadequate to sustain her.

The evidence in the appellate record pertaining to the history of the setting of the child support and alimony is scant and consists mostly of stipulations. However, from what we can glean, it is clear that the alimony and child support were always intertwined. While Ms. Richards’ alimony was stopped after she began to obtain fairly meager SSI benefits, the child support increased. This is noteworthy because, despite one of the parties’ children becoming a major, the child support did not decrease. To the contrary, it remained at $1,300 with only one minor child. Furthermore, the parties expressly stipulated that, in 1999 when Mr. Richards was ordered to pay $400 in spousal support which would terminate if Ms. Richards ^received SSI, it was specified that any party could still seek amendment should there be a change of circumstances in the future.

The loss of child support cannot be the sole reason for reinstituting final periodic spousal support. However, it can be considered as a factor in determining the need for final periodic spousal support in an appropriate case. Richards v. Richards, supra. Under the unique circumstances of the instant case, we find that the loss of the substantial amount of child support, in combination with the serious decline in Ms. Richards’ health, constitutes a material change in circumstances warranting reinstatement of final periodic spousal support.

Having determined Ms. Richards’ need and a change in circumstances, we look to Mr. Richards’ ability to pay. Despite Mr. Richards’ efforts to exaggerate his expenses and underestimate his income, on this record there is no question whatsoever as to his ability to pay.

Based upon the foregoing, we find that the trial court abused its discretion in denying Ms. Richards’ request for reinstatement of final periodic spousal support. We order judgment in favor of Ms. Richards and against Mr. Richards awarding Ms. Richards monthly final periodic spousal support of $1,691.29. The order is made retroactive to January 14, 2013, the date of the hearing on remand. See La. R.S. 9:310(C). We also direct | ^that Mr. Richards be given a credit for the amount of SSI benefits received by Ms. Richards since that date.

INSURANCE

Although the trial court indicated during the hearing that it believed that Mr. Richards had complied with the court order pertaining to Amy’s health insurance, it made no specific ruling on this issue in its written reasons or judgment. When a judgment is silent as to a claim or demand, it is presumed that the claim or demand has been denied. Bell Foundry Co. v. Lonnie McCurry’s Four Wheel Drive Ctr., Inc., 46,553 (La.App.2d Cir.10/5/11), 75 So.3d 529, writ denied, 2011-2467 (La.1/20/12), 78 So.3d 145; Sheets Family Partners-Louisiana, Ltd. v. Inner City Refuge Econ. Dev. Corp., 47,156 (La.App.2d Cir.6/20/12), 94 So.3d 964.

Ms. Richards testified that Mr. Richards stopped paying the $129 per month for Amy’s insurance after the June 2009 payment, telling her that he had insurance coverage on Amy. Ms. Richards produced a May 2010 letter addressed to Amy at her father’s address in Massachusetts stating that she had coverage under an HMO plan “effective 6/1/07 through the present.” However, Ms. Richards testified that Medicaid had to pay the emergency room bill when Amy broke her wrist because the hospital determined that Amy was not eov-ered by any insurance. Ms. Richards further testified that the office of Dr. Brown, an orthopedic surgeon Amy went to see about having a cast put on her wrist, also said she had no insurance coverage. Nonetheless, a 2009 bill for treatment of Amy’s broken wrist shows some | iaHMO/PPO adjustments. Additional documents from the insurer show that Amy was included on her father’s insurance plan and that some of her claims were paid by the insurer. One of the paid claims appears to be from the doctor whose office supposedly said Amy had no coverage.

Also admitted into evidence was a letter dated March 10, 2008, from Mr. Richards to Ms. Richards about an uncovered medical bill of Amy’s. It stated:

What do you think the $129.00 a month I send you is for anyway? For Amy’s healthcare. You need to submit this bill to your Medicaid.

Mr. Richards testified that his insurance covered Amy only if she was a student and went to the emergency room. He could not explain why he did not say that he had medical coverage for Amy in his March 2008 letter to her mother.

Review of the record reveals that Ms. Richards failed to carry her burden of proof on this issue. Although she testified that information from an emergency room and a doctor’s office indicated Amy did not have insurance coverage, the documentary evidence suggested otherwise. A doctor bill for treatment of Amy’s broken wrist does, in fact, show some PPO/HMO adjustments, and a statement of Amy’s claims showed that some of them were paid. Despite the testimony that Amy’s insurance only 114covered emergency room treatment, the documents suggest that there was other coverage as well. In light of this conflicting evidence, we are unable to find that the trial court was manifestly erroneous in denying Ms. Richards’ claim on the insurance issue.

CONCLUSION

The trial court judgment denying final periodic spousal support to Mary Ann Richards is reversed. Judgment is rendered in favor of Ms. Richards and against Mr. Richards awarding Ms. Richards final periodic spousal support of $1,691.29 per month. The order is made retroactive to January 14, 2013, the date of the hearing on remand, and subject to a credit for the SSI benefits received by Ms. Richards since that date. The trial court’s denial of the insurance claim is affirmed.

Costs of this appeal are assessed equally to the parties.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Documents from a separate nonsupport proceeding which purported to show the circumstances surrounding this increase were attached to Mr. Richards’ brief as exhibits. However, they were not admitted into evidence at the hearing or otherwise found in the appellate record. Attachments to appellate briefs do not constitute part of the appellate record, and, therefore, the court is precluded from considering them. State ex rel. R.C. v. Clarke, 33,023 (La.App.2d Cir.10/27/99), 743 So.2d 843.

      . At some point following the dissolution of his marriage to Ms. Richards, Mr. Richards had moved to Massachusetts and remarried.

      . When she filed her rule in June 2011, the SSI benefits were $674. By the time the rule was heard after our remand, the benefits were $710.

      . Although Mr. Richards contends that this is an unreasonable amount for this item for one person, we note that he claimed to spend $300 per month in the same category for his three-person household.

      . We have omitted several items such as education, gifts, and recreation, which Ms. Richards has conceded were not appropriate expenses.

      .We observe that the fixed debt increased substantially since her November 2011 affidavit, at which time it was only $60.00.

      . At oral argument, counsel for Mr. Richards was unable to dispute Ms. Richards’ dire health.

      . Similarly, in a case involving the converse of the instant one — the termination of spousal support necessitating an increase in child support — the fourth circuit admitted that the entire amount paid to the mother (both spousal support and child support) was used to finance the entire household. See Langley v. Langley, 98-2759 (La.App. 4th Cir.11/10/99), 747 So.2d 183.

      .Since Mr. Richards believes that the SSI benefits will essentially terminate upon an award of spousal support, Ms. Richards will apparently no longer receive the SSI check or will receive only a nominal amount. If it should develop that the parties’ representations to the lower court are incorrect, then Mr. Richards can, of course, petition the lower court for relief in the future.

      . This bill shows Amy was treated by Dr. Fletcher Sutton for her wrist on three different dates — 9/21/09, 10/15/09 and 11/05/09. (The bill also suggests that Dr. Sutton was in practice with Dr. Douglas Brown.) Although testimony indicated that Amy only had emergency room coverage, there are HMO/PPO adjustments on charges for the last two dates.

      . This document shows payment of a November 15, 2009, charge from Dr. Sutton but denial of the other two charges from him. A charge from Dr. Douglas Brown for September 30, 2009, is also shown as paid.


author: PITMAN, J.

text:
    Michael David COX, Plaintiff-Appellee v. Leigh Ann O’BRIEN, Defendant-Appellant.
    No. 49,278-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Michael D. Cox, Pro Se.
    Mayer, Smith & Roberts, LLP, Shreveport, by Steven E. Soileau, for Appellee.
    Before CARAWAY, LOLLEY & PITMAN, JJ.
   PITMAN, J.

| , Appellant Michael D. Cox appeals the district court’s maintaining of an exception of res judicata filed by Appellee Leigh Ann O’Brien and its imposition of sanctions. For the following reasons, we reverse the district court’s maintaining of the exception of res judicata and enter a judgment dismissing Mr. Cox’s action of nullity for failure to disclose a cause of action, affirm the district court’s imposition of sanctions and assess attorney fees against Mr. Cox for filing a frivolous appeal.

FACTS

The appeal sub judice arises out of a series of lawsuits, beginning with a divorce and custody lawsuit in which Mr. Cox represented the husband, Andrew Davisson. Mr. Davisson filed a defamation suit against Ms. O’Brien, a licensed clinical social worker who was appointed by the district court to evaluate the parties and advise the district court in the divorce and custody case. The district court granted summary judgment in favor of Ms. O’Brien. Mr. Davisson appealed, and this court affirmed and assessed attorney fees for a frivolous appeal and all costs of court “in solido, against Andrew Davisson and his attorney, Michael Cox.” Davisson v. O’Brien, 47,384 (La.App.2d Cir.8/8/12), 104 So.3d 467. Mr. Cox filed an action of nullity (“first action of nullity”) requesting that the district court annul this court’s award of attorney fees in Davisson v. O’Brien, supra. After stating it lacked jurisdiction to hear the case, the district court granted summary judgment in favor of Ms. O’Brien and dismissed Mr. Cox’s suit. Mr. Cox filed a notice of appeal, but did not timely pay the costs of appeal, so it was dismissed.

[¡.On July 3, 2013, Mr. Cox filed a petition for action of nullity (“second action of nullity”) requesting that the district court annul the judgment of the court of appeal that rendered a money judgment against him in Davisson v. O’Brien, supra. Mr. Cox argued that the court of appeal did not have subject matter jurisdiction or personal jurisdiction over him because he was not a party to the lawsuit.

On August 2, 2013, Ms. O’Brien filed an exception of res judicata, arguing that Mr. Cox had previously filed an action praying for the same relief and that the district court granted the motion for summary judgment and dismissed this action with prejudice.

On August 20, 2013, Mr. Cox filed an opposition to Ms. O’Brien’s exception of res judicata. He argued that the first action of nullity was dismissed for lack of jurisdiction, was not adjudicated and was not dismissed with prejudice.

A hearing on the exception of res judi-cata was held on October 28, 2013. Mr. Cox argued that res judicata could not apply in this case because the first action of nullity was dismissed for lack of jurisdiction and was, therefore, not a valid, final judgment for the purposes of res judicata. He further argued that the district court did have jurisdiction pursuant to La. C.C.P. art.2006 to annul the judgment of the court of appeal and also alleged that he had been denied due process by the court of appeal because he had not been made a party to the case and had never been served or impleaded. The district court found that it did not have jurisdiction to annul the court of appeal’s judgment against Mr. Cox, granted the exception of res | judicata and sanctioned Mr. Cox pursuant to La. C.C.P. art. 863 for filing a frivolous lawsuit and harassing Ms. O’Brien and her attorney.

On November 18, 2013, the district court signed and filed a judgment maintaining the exception of res judicata and dismissing Mr. Cox’s claims at his cost. The district court also sanctioned Mr. Cox in the amount of $2,500 for “filing an Action of Nullity for an improper purpose and/or asserting an Action of Nullity which is not warranted by existing law.”

Mr. Cox appeals.

DISCUSSION

Res Judicata and No Cause of Action

In his first assignment of error, Mr. Cox argues that the district court erred in maintaining Ms. O’Brien’s exception of res judicata as to the second action of nullity when it denied that it had jurisdiction to hear the first action of nullity. Mr. Cox reasons that, because the first action was dismissed for lack of jurisdiction, it cannot be a valid, final judgment as contemplated by the res judicata statute, La. R.S. 13:4231. He further argues that the district court had jurisdiction pursuant to La. C.C.P. art.2006 to nullify the judgment. In his second assignment of error, Mr. Cox argues that the district court erred by stating that it lacked subject matter jurisdiction to hear the first action of nullity, but then signed a judgment granting Ms. O’Brien’s motion for summary judgment.

Ms. O’Brien argues that the district court correctly maintained the exception of res judicata because the second action of nullity is “clearly a duplicate” of the first action of nullity with the same parties and issues. She | contends that the district court properly granted summary judgment in her favor as to Mr. Cox’s first action of nullity and that it was a final judgment because Mr. Cox failed to timely pay costs of appeal.

The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993, citing Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192. The doctrine of res judicata is stricti juris; any doubt concerning application of the principle of res judicata must be resolved against its application. Tealwood Properties, LLC v. Succession of Graves, 47,446 (La.App.2d Cir.9/20/12), 105 So.3d 120, citing Kelty v. Brumfield, 633 So.2d 1210 (La.1994).

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

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

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

For purposes of res judicata, a valid judgment is one rendered by a court with jurisdiction over both the subject matter and the parties after proper notice was given. Id., citing La. R.S. 13:4231 cmt. d (1990). Likewise, a final judgment is one that disposes of the merits in whole or in part. Id. A claim is not barred by res judicata if the court in which the first action was brought lacked subject matter jurisdiction to adjudicate the claim. Teal-wood Properties, LLC v. Succession of Graves, supra.

The district court’s actions in this case are contradictory and create an unclear record. In examining the record, we note that, at both the hearing on the first action of nullity and the hearing on the second action of nullity, the district court stated that it did not have jurisdiction to annul the court of appeal’s judgment, but then proceeded to sign judgments regarding the action of nullity. The transcript of the hearing on the first action of nullity suggests that, even though the district court signed a motion for summary judgment to dismiss the action of nullity, its dismissal was based on its|fidenial of jurisdiction, not on the grounds for summary judgment. Therefore, because the district court declined jurisdiction in the first action of nullity, there was no valid judgment as required by La. R.S. 13:4231 and res judicata does not apply in this case.

Although the district court stated that it did not have jurisdiction to annul a judgment of the court of appeal, it noted in both hearings that La. C.C.P. art.2006 does not apply to the facts of this case. We agree with this statement; and, on our own motion, we find that Mr. Cox failed to disclose a cause of action. La. C.C.P. art. 927(B). Mr. Cox contends that La. C.C.P. art.2006 applies to the facts of this case; we disagree.

In Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993), the Louisiana Supreme Court explained the law on the exception of no cause of action and stated:

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. [La. C.C.P.] art. 931. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the 17plaintiff is legally entitled to the relief sought. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Kuebler v. Martin, 578 So.2d 113 (La.1991).

The nullity of a final judgment may be demanded for vices of either form or substance. La. C.C.P. art. 2001. Regarding vices of form, a final judgment shall be annulled if it is rendered against an incompetent person not represented as required by law; against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken; or by a court which does not have jurisdiction over the subject matter of the suit. La. C.C.P. art. 2002. Regarding vices of substance, a final judgment obtained by fraud or ill practices may be annulled. La. C.C.P. art. 2004. A judgment affirmed, reversed, amended or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court. La. C.C.P. art. 2005. An action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court. La. C.C.P. art. 2006.

Neither a vice of form nor a vice of substance is present in the judgment rendered by this court in Davisson v. O’Brien, supra. This court had jurisdiction pursuant to La. C.C.P. art. 2164 to assess attorney fees for a frivolous appeal. A court may award frivolous appeal damages against both the claimant and his attorney. Mitchell v. Brown Builders, 39,673 (La.App.2d Cir.5/11/05), 902 So.2d 1288, citing State Farm Mut. Auto. Ins. Co. v. Callahan, 571 So.2d 852 (La.App. 3d Cir.1990), writ denied, 576 So.2d 51 (La.1991). La. C.C.P. art. 2006 does not afford a remedy for the facts alleged by Mr. Cox, and he is not legally entitled to the relief sought.

The appropriate remedy Mr. Cox should have pursued regarding Davisson v. O’Brien, supra, was requesting a rehearing with the court of appeal or a writ of certiorari with the supreme court pursuant to La. C.C.P. art. 2166. La. C.C.P. arts. 2001-2006 are not a substitute for applying to the court of appeal for a hearing or to the supreme court for a writ of certiorari. See La. C.C.P. art. 2005, cmt. b (1960), citing Landry v. Bertrand, 48 La. Ann. 48, 19 So. 126 (1896). An action for nullity should not be employed to avoid the fees of applying for a rehearing or writ of certiorari or to overcome a missed deadline for applying for the same.

Accordingly, we find that, although the district court erred in maintaining the exception of res judicata after stating that it did not have jurisdiction, Mr. Cox failed to disclose a cause of action in his second action of nullity; and, therefore, his second action of nullity is dismissed.

Sanctions by District Court

In his third assignment of error, Mr. Cox argues that the district court erred by imposing La. C.C.P. art. 868 sanctions against him for filing a second action of nullity when the first action of nullity was dismissed for lack of subject matter jurisdiction. Mr. Cox contends that there is no legal basis for sanctioning him for relying on the district court’s pronouncement of lack of jurisdiction and that he did not intend to waste time and money by filing his second action for nullity. In his fourth assignment of error, |flMr. Cox argues that the district court erred by imposing La. C.C.P. art. 863 sanctions against him because it declined to describe the conduct violating that article. He also contends that he has been denied due process because he has not had a hearing on the merits regarding sanctions.

Ms. O’Brien states that Mr. Cox is “thumbing his nose at ... the trial court with each and every additional pleading he files.”

La. C.C.P. art. 863 sets forth the circumstances under which a trial court may impose sanctions and states, in pertinent part, that:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
* * *
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation |inof the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
* ⅜ *
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

A court of appeal reviews a trial court’s factual determination that La. C.C.P. art. 863 has been violated under the manifest error or clearly wrong standard of review. Joyner v. Wear, 27,631 (La.App.2d Cir.12/6/95), 665 So.2d 634, writs denied, 96-0040-0042 (La.2/28/96), 668 So.2d 370.

In this case, the district court noted in its written ruling that it imposed $2,500 in sanctions due to Mr. Cox’s “filing an Action of Nullity for an improper purpose and/or asserting an Action of Nullity which is not warranted by existing law.” During the hearing on the second action of nullity, the district court stated:

I believe that you have filed this second [action] knowing what the outcome was going to be because you just said it and that you are dragging this case out indefinitely to not have to pay the $2500 attorney fees from the Court of Appeals; to ... cause Ms. O’Brien to incur addition attorney fees; to ... punish [her attorney] for ... doing what he was hired to do as defense counsel and to go to Court and ... to the appellate level and to everything as many times as possible that if it’s going to cost you $2500 you’re going to make it cost[] them three times that much.

The district court then allowed Mr. Cox an opportunity to respond, and he | T1 explained why he thought his motion was not frivolous.

We find that the district court was not manifestly erroneous or clearly wrong in imposing sanctions in this case. It allowed Mr. Cox the opportunity to present an argument regarding the imposition of the sanction, as required by La. C.C.P. art. 863(E). The district court clearly described the conduct that it determined violated La. C.C.P. art. 863(B) and explained the basis for the sanction imposed as required by La. C.C.P. art. 863(G).

Accordingly, this assignment of error is without merit.

Attorney Fees Imposed by Appellate Court

In his fifth assignment of error, Mr. Cox argues that the court of appeal in Davisson v. O’Brien, supra, erred by imposing a money judgment against him pursuant to La. C.C.P. art. 2164 when he was not a party to the suit.

La. C.C.P. art. 2166(A) states in pertinent part that “[t]he judgment of a court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the supreme court for a writ of certiorari is timely filed.”

Neither an application to this court for rehearing nor an application to the supreme court for a writ of certiorari was timely filed as to Davisson v. O’Brien, supra. Therefore, this is a final judgment, and this court will not reconsider the award of attorney fees it imposed in Davisson v. O’Brien, supra.

Accordingly, this assignment of error is without merit.

Additional Sanctions

| isMs. O’Brien seeks .additional attorney fees and costs and asks that this court impose other sanctions as it deems appropriate.

La. C.C.P. art. 2164 states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

This provision is penal in nature and is to be strictly construed. Straughter v. Hodnett, 42,827 (La.App.2d Cir.1/9/08), 975 So.2d 81, writ denied, 08-0573 (La.5/2/08), 979 So.2d 1286, citing Pratt v. Louisiana State Med. Ctr. in Shreveport, 41,971 (La.App.2d Cir.2/28/07), 953 So.2d 876. Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be allowed. Hampton v. Greenfield, 618 So.2d 859 (La.1993), citing City of Shreveport v. U.S. Fid. & Guar. Co., 131 La. 933, 60 So. 621 (1913). Damages for frivolous appeal are only allowed when it is obvious that the appeal was taken solely for delay, that the appeal fails to raise a serious legal question or that counsel is not sincere in the view of the law he advocates, even though the court is of the opinion that such view is not meritorious. Straughter v. Hodnett, supra; Hampton v. Greenfield, supra, citing Parker v. Interstate Life & Acc. Ins. Co., 248 La. 449, 179 So.2d 634 (1965).

The appeal before this court is a frivolous appeal that stems from a previous frivolous appeal. Mr. Cox’s actions continue to force Ms. O’Brien and her attorney into court in 2014 for an issue that should have been 11sresolved by a request for rehearing or writ of certiorari by Mr. Cox in 2012.

Accordingly, we award $1,000 in attorney fees against Mr. Cox.

CONCLUSION

For the foregoing reasons, we reverse the district court’s maintaining of Appellee Leigh Ann O’Brien’s exception of res judi-cata and render a judgment dismissing Appellant Michael Cox’s second action for nullity for failure to disclose a cause of action. We affirm the district court’s imposition of sanctions against Mr. Cox. Additionally, attorney fees of $1,000 and costs of appeal are assessed to Appellant Michael Cox.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

CARAWAY, J., concurs.

      . Specifically, the district court stated:
      My reasoning ... is I believe that the ... sanctions given by the Court of Appeals were based ... on actions and ... argument and other things that took place once I was divested of jurisdiction and that Article 2006 of the Code of Civil Procedure does not apply. And I do not have jurisdiction ... to make that call.
      Mr. Cox voiced his concern with the district court signing a motion for summary judgment after it had just stated that it was denying the action of nullity for lack of jurisdiction. The district court responded:

        That’ll be in the record.

      So if you’re going to appeal it, they're going to look at the record. So they’re going to know exactly why ... I denied it.


author: LOLLEY, J.

text:
    Leo Casey FRADELLA on behalf of Minors, Plaintiff-Appellant v. Sharon ROWELL and Jimmy Rowell, Defendants-Appellees.
    No. 49,350-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Ronald J. Miciotto, Shreveport, for Appellant.
    Sockrider, Bolin, Anglin & Batte, Shreveport, by Gregory H. Batte, for Ap-pellees.
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

|, Leo Casey Fradella appeals a judgment of the 26th Judicial District Court, Parish of Bossier, State of Louisiana, wherein the trial court held him in contempt of court for violating a previously rendered consent judgment which granted grandparent visitation rights to Sharon and Jimmy Rowell. Fradella also appeals the trial court’s decision to impose a modified visitation schedule in connection with its findings of contempt. For the reasons that follow, we affirm the trial court’s judgment.

Facts

Sharon and Jimmy Rowell are the maternal grandparents of Garrett and Gabe Fradella, twin boys who are currently 16 years old. Garrett and Gabe’s mother, Fradella’s former spouse, died in April of 2010. Fradella is not the boys’ biological father; however, he adopted them in 2006 when they were approximately eight years old.

Following the death of their daughter, the Rowells filed a petition to establish custody and/or visitation, whereby they sought sole custody of Garrett and Gabe, or in the alternative, visitation in accordance with La. C.C. art. 136 and La. R.S. 9:344(A). It is evident from the record that there were allegations made by the Rowells that the boys were not being cared for properly while in the custody, care, and control of Fradella. After extensive discovery and the appointment of a mental health professional, a consent judgment was rendered on September 12, 2012, awarding the Rowells specific periods of visitation with their grandchildren. In particular, the Rowells were granted visitation for the second weekend of each month beginning in September 2012, from Friday at 5:00 p.m. until Sunday at 5:00 |i>p.m. Garrett and Gabe were ordered to contact the Rowells no later than the Wednesday prior to the Friday which the Ro-wells were to receive visitation and inform them whether they wished for their grandparents to pick them up at 5:00 p.m. on Friday or at 9:00 a.m. on Saturday. But, in no event, would the Rowells’ visitation be less than the period from 9:00 a.m. on Saturday until 5:00 p.m. on Sunday. The Rowells were also granted ten days during each summer to allow for vacation time with the boys. Further, Fradella was ordered to keep the Rowells informed of Garrett and Gabe’s extracurricular and school activities.

On April 11, 2013, the Rowells filed a rule for contempt against Fradella alleging that he was interfering with certain times of scheduled visitation. The Rowells also filed supplemental rules for contempt on July 19, July 23, and September 23, 2013, again alleging that they did not receive visitation and that Fradella failed to apprise them of the boys’ extracurricular and school activities. Fradella responded by filing a cross rule for contempt alleging that on several occasions the Rowells returned the boys home past the 5:00 p.m. Sunday deadline.

Trial in the matter was held over a three-day period on July 25, October 4, and October 25, 2013. After hearing a considerable amount of testimony, and after meeting with the boys off the record, the trial court found Fradella in contempt of court for interfering with the Rowells’ visitation and also for not supplying the Rowells with information concerning the boys’ extracurricular and school activities. More specifically, the trial court found that Fradella denied visitation for the | ..¡months of May and June 2013, and the vacation time in July 2013. The Rowells were not held in contempt for returning the boys home past the 5:00 p.m. Sunday deadline. Moreover, by an agreement between the parties, the trial court modified the visitation schedule to coincide with the Benton High School holiday calendar in an attempt to accommodate the difficulties the parties were experiencing with the previous schedule.

As a result of his contemptuous behavior, Fradella was sentenced to ten days in the parish jail, with the sentence to be suspended upon Fradella meeting certain conditions, as more specifically set forth in the trial court’s judgment. This appeal by Fradella ensued.

Discussion

Contempt of Court

Fradella’s first three assignments of error all relate to the issue of contempt. Specifically, he argues that the trial court erred in: (1) finding him in contempt of court for denying the Rowells’ visitation; (2) finding him in contempt of court for failing to provide the schedules of the boys’ school and extracurricular activities; and, (3) failing to find the Rowells in contempt of court for returning the boys past the 5:00 p.m. Sunday deadline.

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. The willful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La. C.C.P. art. 224. To find a person guilty of constructive contempt, the court must find that he or she violated the |4order of the court intentionally, knowingly, and purposely, without justifiable excuse. Mabry v. Andrus, 45,135 (La.App.2d Cir.04/14/10), 34 So.3d 1075, writ denied, 2010-1368 (La.09/24/10), 45 So.3d 1079. The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court’s order and its decision will only be reversed when the appellate court can discern an abuse of that discretion. Mabry, supra.

As previously mentioned, the trial court first found that Fradella intentionally violated the 2012 consent judgment by denying the Rowells’ visitation for the periods of May, June, and July, 2013. However, according to Fradella, a complete and thorough review of the record will show that there is no evidence that he intentionally, knowingly, and purposefully thwarted the Rowells’ visitation. Instead, Fradella maintains that for each instance of alleged contempt, he had the boys available for visitation, but the boys refused to go because they were upset with the Rowells for the pending litigation against their father. In fact, Fradella argues that he did everything short of physically forcing the boys to go on visitation with the Rowells.

The trial court expressly rejected this argument when presented at trial. In finding Fradella in contempt, the trial court placed a heavy emphasis on the fact that Fradella intertwined the boys in the litigation process and inappropriately placed them in a decision making role by allowing them to decide whether or not they were going to participate in visitation. Ultimately, the trial court determined that the Rowells were | ^completely denied visitation for May, June, and July, 2013, which it found to be an outright violation of the 2012 consent judgment.

After a careful review of the record, we cannot say that the trial court abused its discretion in finding Fradella in contempt. The trial court was in the best position to evaluate all of the facts in the instant matter, and it did so accordingly over a three-day trial. Each party to this lawsuit was able to testify and the trial court was able to consider matters of credibility and weigh the evidence. In the end, Fradella denied the Rowells’ visitation which, as the trial court noted, is an outright violation of the 2012 consent judgment. Thus, Fradel-la’s first assignment of error is without merit.

The record also supports the trial court’s decision to hold Fradella in contempt for not furnishing information to the Rowells concerning the boys’ school and extracurricular activities. As discussed above, the 2012 consent judgment specifically ordered Fradella to provide the Ro-wells with information pertaining to Garrett and Gabe’s activities. Fradella, by his own admission, did not do so. He instead relied on the boys themselves or their coaches to relay this information. Accordingly, the trial court did not abuse its discretion in this regard, and Fradella’s second assignment of error is equally without merit.

We also reject Fradella’s third assignment of error that the trial court erred in failing to find the Rowells guilty of contempt for not returning the boys home by the 5:00 p.m. Sunday deadline. Although the Rowells admitted by that the boys were returned past 5:00 p.m. on several occasions, the trial court found that this was unintentional and did not amount to |Rcontempt. As discussed by the trial court, each time the Rowells were going to be late, a phone call was made to Fradella informing him of the situation. Further, Fradella never complained about the Ro-wells returning the boys late from visitation. We find no abuse of discretion in this regard.

Visitation Schedule

As his final assignment of error, Fradella argues that the trial court abused its discretion by modifying the 2012 visitation schedule. Fradella contends that the modified visitation schedule is rather excessive given his constitutional right as a fit parent, demonstrates no regard for the boys’ extracurricular activities, and overall, is not in the best interest of the minor children. We disagree.

Prior to our analysis, we note that as part of their original rule for contempt, the Rowells requested that the Wednesday phone call and the Friday night visitation option be eliminated and they be allowed to exercise a full weekend of visitation. However, by an agreement reached at trial, the trial court modified the visitation schedule to coincide with Monday school holidays, so as to avoid Friday nights altogether. With the new schedule, the Ro-wells were to receive visitation on long holiday weekends beginning at 12:00 p.m. on Saturday until 3:00 p.m. on Monday. The Rowells were granted three full weeks in the summer as well. In its reasoning, the trial court explained that it was taking into consideration the fact that the boys wanted to attend Benton High School home football games, which occur on Friday nights. As to the additional summer visitation, the trial court referenced a telephone conversation between Mrs. Rowell and Fradella |7where Fradella stated that he could use help caring for the boys while he was at work in the summer. Further explaining its reasoning, the trial court noted that the Rowells would be essentially exercising the same amount of visitation under the modified schedule as in the 2012 visitation schedule. We find no abuse of discretion in this decision, especially in light of the findings of contempt against Fradella.

Conclusion

So considering, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Leo Casey Fradella.

AFFIRMED.