author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Henry B. AGUILLAR aka Henry Aguilar aka Henry Perez aka Henry A. Perez aka Henry Guilar-Modesto.
    No. 12-KA-728.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Assistant District Attorneys, Gretna, LA, for PlaintiffyAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

1^Defendant, Henry B. Aguillar (a.k.a. Henry Aguilar, a.k.a. Henry Perez, a.k.a. Henry Aguilar-Modesto), appeals his convictions and sentences for two counts of forcible rape, in violation of LSA-R.S. 14:42.1. For the following reasons, we affirm defendant’s convictions and sentences, and we grant appointed counsel’s motion to withdraw.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by indictment with two counts of aggravated rape of a known juvenile who was under thirteen years of age, in violation of LSA-R.S. 14:42. At arraignment, he pled not guilty to the charges. The State later amended the indictment to charge defendant with two counts of forcible rape, in violation of LSA-R.S. 14:42.1. Thereafter, defendant withdrew his not guilty pleas and pled guilty to both counts. He was sentenced to 15 years imprisonment on each count, to run concurrently with each other. The first two years of the sentences were |sordered to be served without benefit of parole, probation, or suspension of sentence. Defendant filed a motion for appeal, which was granted.

Because defendant pled guilty and did not proceed to trial, the facts are derived from the factual basis provided by the State. At the time of defendant’s guilty pleas, the State provided the following:

On November 19th, 2009, and February 9th of 2010, the defendant did commit aggravated rape of a known juvenile, date of birth June 25th, 1997. However, Judge, pursuant to a plea agreement worked out between myself and the defense, I’m going to be amending these charges to forcible rape.

At the hearing, defendant confirmed that the information provided by the State was correct and that he was pleading guilty because he was, in fact, guilty.

LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court | ¿explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In the present case, appellant counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. In counsel’s brief, he sets forth a procedural history and factual basis of the case and then requests an error patent review be conducted by this Court. Counsel addresses the rulings on pre-trial motions and finds no non-frivolous issues for appeal. He also asserts that the evidence alleged would likely have supported a verdict of guilty if the matter had been taken to trial. He notes that defendant was properly charged and was present for all critical court proceedings. Counsel further contends that the plea colloquy was thorough and complete. He also notes that defendant’s sentence was in accordance with the plea agreement.

| ¡Appellant counsel has filed a motion to withdraw as attorney of record that states he has mailed a copy of his motion to withdraw, his Anders brief, and the Pro Se Briefing Notice to defendant. He has requested that this Court preserve defendant any and all rights he may possess, including the right to file a pro se supplemental brief. The State has filed a response to appellant counsel’s brief, concurring in appellant counsel’s assertions.

Our independent review of the record supports appellant counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The record reveals that the indictment in this case properly charged defendant and that defendant appeared at each stage of the proceedings against him. In addition, the court took steps to ensure that defendant understood the proceedings by the use of an interpreter. Further, defendant pled guilty. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

The record does not reveal any irregularities in defendant’s guilty pleas. The record shows that an interpreter was present throughout the proceedings in this matter. The transcript and the waiver of rights form reflect that defendant was aware that he was pleading guilty to two counts of forcible rape. The State provided a factual basis for the offenses, and defendant agreed that he committed the offenses. The trial judge advised defendant of his Boykin rights. Defendant was also advised of these rights by means of the waiver of rights form, and he indicated that he understood that he was waiving these rights.

| (¡Defendant further stated that he had not been forced, coerced, intimidated, or promised anything for his guilty pleas. He indicated that he understood that a future felony conviction could result in greater penalties as a habitual offender. He was also advised of the possible consequence of deportation. Defendant was advised of the sentencing range for each count and informed of the sentences that would be imposed if he pled guilty.

Defendant’s sentences were imposed pursuant to a plea agreement, and his sentences fall within the sentencing range prescribed by LSA-R.S. 14:42.1(B). LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

Appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. Accordingly, we affirm defendant’s convictions and sentences and grant appellant counsel’s motion to withdraw as attorney of record.

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). After thorough review of the record before us, no errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences, and we grant defense counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11.

      . Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct 1709, 1711-12, 23 L.Ed.2d 274 (1969).


source: Caselaw Access Project

author: DREW, J. CARAWAY, J.,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee v. I.C.S., Defendant-Appellant. State of Louisiana, Plaintiff-Appellee v. C.M.S., Defendant-Appellant.
    Nos. 47,829-KA, 47,830-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Rehearing Denied April 4, 2013.

      Richard C. Goorley & James C. Stevens, for Appellants.
    John Schuyler Marvin, District Attorney, Alexandra S. Aiello, Andrew C. Jacobs, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, CARAWAY and DREW, JJ.
   DREW, J.

|, FACTS

In January of 2012, C.S., age 20, and I.S., age 21, pled guilty to one count each of indecent behavior with juveniles, in violation of La. R.S. 14:81. Their admitted offenses occurred over seven years, at which time:

• C.S. was 12 years old and his victim was not yet 6 years of age; and
• I.S., the brother of C.S., was 13 years old and his victim was not yet 8 years of age.

Prosecuted in adult criminal court, C.S. was sentenced to five years at hard labor, suspended, with three years of probation. I.S. was sentenced to three years at hard labor, suspended, with three years of probation. Both were ordered to register as sex offenders for 15 years, in compliance with La. R.S. 15:542.

In a consolidated appeal, we are asked to review only one issue: the legality of the registration requirement under these unique facts.

Defendants argue that:

• they were indisputably juveniles when these criminal events occurred;
• they could not have been ordered to register had they been charged and prosecuted as juveniles while they were juveniles;
• fairness dictates that they should not have to register now just because the prosecution was delayed until after they became adults; and
• La. R.S. 15:542(A) instructs that a juvenile’s age at the time of the offense determines whether registration is required.

The state responds that the trial court had a mandatory duty to order the defendants to register. The father of the victims requests registration.

During a sentencing hearing on May 29, 2012, the trial court stated that:

|⅞« the defendants had been prosecuted under La. Ch. C. art. 857(C)(2);
• with the exception of these matters, each defendant had a clean record;
• one defendant is a high school graduate and the other received a G.E.D.; and
• both were employed.

INITIAL ANALYSIS

1. The purpose of sex offender registration is to protect the public.

2. These defendants are sex offenders, as each has committed a sex offense.

|s3. Sex offenders must register as such.

4. Had these offenses been discovered and prosecuted when the defendants were still juveniles, their cases could not have been transferred to adult court, since each was under 14 when the crimes occurred, and also because the crime of indecent behavior with juveniles is not one of the seven crimes allowing a transfer to adult prosecution of juveniles who are 14 or older at the time of their crime.

L5. The district court has proper adult criminal jurisdiction of these defendants, though any period of confinement is limited to that which they could have received had they been prosecuted while still juveniles.

6. This confinement limitation is repeated in the Code of Criminal Procedure.

7. Sex offender registration and notification requirements are mandatory.

8. To protect the public, the legislature has established onerous probationary conditions for sex offenders.

|b9. We have no issue of prescription here.

JURISPRUDENCE

A. There is not much jurisprudence, and nothing directly on point.

B. One sister circuit has interpreted La. Ch. C. art. 857(C)(2) in State v. Odoms, 2011-2092 (La.App. 1st Cir.6/8/12), 94 So.3d 166. In that case, the defendant was 29 when he was charged with a murder committed when he was 14. According to the law at the time of the crime, a 14-year-old convicted of murder could not be sentenced to a period of confinement extending past his 21st birthday. The trial court sentenced Odoms to imprisonment until his 21st birthday, candidly recognizing that the sentence would have no practical effect, since he had already surpassed the maximum age of confinement.

On appeal, the state argued that:

• the trial court should have applied La. Ch. C. art. 857(A) and (B), which allowed minors who commit any one of eight enumerated crimes when they were at least 14 years of age to be sentenced to confinement until age 31;
• since Odoms was 14 years old at the time of the offense, under La. Ch. C. art. 857(B), the maximum sentence to which he could have been subjected was 17 years, as he was 17 years from age 31 when he committed the murder; and
• even though this amended version of La. Ch. C. art. 857 was not in existence at the time Odoms committed the crime, the state asked the First Circuit to retroactively apply the law so that Odoms could be imprisoned for 17 years.
The First Circuit rejected the state’s request, ruling that:
• to retroactively apply La. Ch. C. art. 857(B) would violate ^constitutional prohibitions against ex post facto laws;
• because the law in existence at the time of Odoms’ crime authorized imprisoning him only until his 21st birthday, to apply art. 857(B) would increase Odoms’ original sentencing exposure by 10 years;
• La. Ch. C. art. 857(C)(2) could be retroactively applied, as this particular provision would not “redefine criminal conduct or increase the penalty by which it is punished. It simply allow[ed] the courts to impose the term of incarceration that could have been imposed at the time of the offense, had the defendant not avoided prosecution at that time”;
• had Odoms been prosecuted at age 14, he could have been imprisoned for seven years until he turned 21;
• accordingly, the court could presently sentence Odoms to seven years; and
• since the sentence imposed was no greater than what he could have received had he been prosecuted at the time of the murder, the retroactive application of La. Ch. C. art. 857(C)(2) did not constitute an ex post facto violation.

The First Circuit’s holding in Odoms, supra, confirms that La. Ch. C. art. 857(C)(2) prohibits offenders from evading punishment for juvenile crimes, even if the offenses are not discovered until adulthood. The court in Odoms did not have before it our specific issue of whether La. Ch. C. art. 857(C)(2) allows the district court to impose any additional sentencing consequences besides imprisonment.

C. The Louisiana Supreme Court has provided some guidance, at least by analogy. In State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735, the court dealt with a claim that La. R.S. 15:542 constituted an ex post facto law.

In its analysis, the court focused upon whether a new law redefines ^criminal conduct or increases the penalty by which the crime is punishable. According to the court, a careful review of the subjective intent enunciated in La. R.S. 15:540 shows that the Legislature enacted these Megan’s Laws with an avowedly nonpuni-tive intent. The court found that the laws of registration were enacted to protect communities, aid police in their investigation of sex offenders, and enable quick apprehension of sex offenders.

In addition, the court found that this legislation was of paramount governmental interest because: (1) sex offenders pose a high risk of engaging in sex offenses, (2) sex offenders have a high incidence of recidivism, (3) unless there was registration and community notification, sex offenders could remain hidden and thereby increase the risk to public safety, (4) the intent of the Legislature was remedial, not punitive, thus (5) the law at the time of sentencing should be applied to protect the public and assist law enforcement in tracking these criminals.

STATUTORY CONSTRUCTION

Legislation is the solemn expression of legislative will and, therefore, the interpretation of legislation is primarily the search for the legislative intent.

When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written and no further | Rinterpretation may be made in search of legislative intent. The remedial intent of the registration and reporting requirements could not be clearer in La. R.S. 15:540. See Footnote 1.

FINAL ANALYSIS

La. Ch. C. Art. 857(C)(2) specifically prohibits the district court from imposing any greater term of confinement than the defendant could have received in juvenile court. La. Ch. C. art. 857 allows a district court to exercise substantive authority depending on the type of offense of prosecution. If the crime is charged as an adult offense, the law still takes into account the youthful age of the offender and affords him some protections from an increased sentence by the trial court.

The defendants are asking us here to extend the ex post facto protections to sentencing consequences that could not have been imposed by the juvenile court had the defendant been prosecuted while still a juvenile. We decline to do so.

The defendants contend that:

• under La. R.S. 15:542, the age of the defendant at the time of the commission of the offense determines whether or not registration is required; and
• they were neither the requisite age when they committed their offenses, nor were they convicted'of one of the seven enumerated crimes allowing transfer.

We agree with the state that registration is required. We conclude this by reading together Olivieri, supra, La. R.S. 15:542(A)(l)(a), and La. 19Ch. C. art. 857(C)(2). Remedial legislation, intended to protect the public, is properly assessed as the law exists at the time that the probationary or parole conditions are fixed.

CONCLUSION

We affirm the trial court’s judgment requiring registration for these defendants who were prosecuted as adults for non-transferrable sex offenses committed when each was a child under the age of 14.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hi agree that Louisiana’s sex offender registration is not criminal punishment but rather a regulatory scheme that is civil and nonpunitive. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Olivieri, supra. The scope of that regulation is substantively set forth in La. R.S. 15:542(A), identifying the total class of offenders subject to the regulation. In that statute, the Legislature’s imposition of the registration requirements upon a juvenile or “child predator” who commits a sex crime is narrowly limited, as follows:

A. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:
(2) Any juvenile who has pled guilty or has been convicted of a sex offense or second degree kidnapping as provided for in Children’s Code Article 305 or 857, with the exception of simple rape but including any conviction for an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offense listed herein for which a juvenile would have to register.

La. R.S. 15:542(A)(2). The only sex offenses listed in the Children’s Code in the cited Articles 305 or 857 are aggravated rape and forcible rape. Rounding out the class of offenders who must register, the other provisions |2of La. R.S. 15:542(A) apply to adults and to other juveniles who commit a crime after attaining the age of 14.

Thus, La. R.S. 15:542(A)(2), the key substantive provision of our law for sex offender registration (which the majority does not address), makes it clear that only the “child predator” who is convicted of rape (aggravated or forcible) shall be regulated for a 15-year period by Louisiana’s sex offender registration. The juvenile who commits the crime of indecent behavior with a juvenile is excluded from Louisiana’s regulation.

In considering La. R.S. 15:542(A)(2), it is clear that the Legislature intended to impose the regulatory scheme upon the child predator rapist (aggravated or forcible) well into the adult years of his life. The obvious corollary of that rule is that the Legislature never intended that a juvenile who commits the crime of indecent behavior with a juvenile have imposed upon him the sex registration requirements extending for 15 years into his adult years. At this point, the competing legislative policy concern of imposing the stigma of such registration upon a non-rapist juvenile for years into adulthood required that no such registration would apply.

These defendants are guilty of the crime of indecent behavior with a juvenile committed by them at ages 12 and 13. As such, they are not included in the class of persons identified by our law who commit a sex crime as a juvenile and fall under the sex offender registration regulation thereafter. La. R.S. 15:542(A). The Legislature expressly chose not to impose Louisiana’s regulatory scheme for sex registration upon them into their adulthood. The other statutes discussed at length by the majority are |^procedural. They never attempt to redefine the class of sex offender registrants. Nor do they address or expand the clear import of La. R.S. 15:542(A)(2). The judgment requiring registration is contrary to the legislative directives and should be reversed.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, MOORE and PITMAN, JJ.

Rehearing denied.

CARAWAY and MOORE, JJ., would grant rehearing.

      . La. R.S. 15:540. Findings; purpose
      A. The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest. The legislature further finds that local law enforcement officers’ efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses and crimes against victims who are minors, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders, sexually violent predators, and child predators who live within the agency's jurisdiction, and the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Restrictive confidentiality and liability laws governing the release of information about sex offenders, sexually violent predators, and child predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense or a crime against a victim who is a minor have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government. Release of information about sex offenders, sexually violent predators, and child predators to public agencies, and under limited circumstances to the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
      B. Therefore, this state’s policy is to assist local law enforcement agencies’ efforts to protect their communities by requiring sex offenders, sexually violent predators, and child predators to register with state and local law enforcement agencies and to require the exchange of relevant information about sex offenders, sexually violent predators, and child predators among state, local, and federal public agencies and officials and to authorize the release of necessary and relevant information about sex offenders, sexually violent predators, and child predators to members of the general public as provided in this Chapter. (Our emphasis.)

      . La. R.S. 15:541. Definitions (in pertinent part)
      (24)(a) “Sex offense” means ... conviction for ... R.S. 14:81 (indecent behavior with juveniles)[.]

      . La. R.S. 15:542. Registration of sex offenders and child predators (our emphasis)
      A.The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:
      (1)Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit either of the following:
      (a) A sex offense as defined in R.S. 15:541, with the exception of those convicted of felony carnal knowledge of a juvenile as provided in Subsection F of this Section[J

      . La. Ch. C. art. 857 Transfer of crimes from juvenile court to district court; authority
      A. The court on its own motion or on motion of the district attorney may conduct a hearing to consider whether to transfer a child for prosecution to the appropriate court exercising criminal jurisdiction if a delinquency petition has been filed which alleges that a child who is fourteen years of age or older at the time of the commission of the alleged offense but is not otherwise subject to the original jurisdiction of a court exercising criminal jurisdiction has committed any one or more of the following crimes:
      (1) First degree murder.
      (2) Second degree murder.
      (3) Aggravated kidnapping.
      (4) Aggravated rape.
      (5) Aggravated battery when committed by the discharge of a firearm.
      (6) Armed robbery when committed with a firearm.
      (7) Repealed.

      (8) Forcible rape if the rape is committed upon a child at least two years younger than the rapist.
      B. Notwithstanding any other provision of law to the contrary, a fourteen-year-old who is transferred pursuant to this Article and subsequently convicted shall not be confined for such conviction beyond his thirty-first birthday.
      C.(l) An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Art. 571 has not lapsed and for which he was subject to prosecution as an adult due to his age at the time the offense was committed shall be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he shall be punished as an adult as provided by law.

      .La. Ch. C. art. 857 Transfer of crimes from juvenile court to district court; authority
      C. (2) An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Art. 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed shall be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he shall be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed. (Our emphasis.)

      .La. C. Cr. P. art. 876. Prosecution and sentence for crime committed as a child
      B. An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Article 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed shall be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he may be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed. (Our emphasis.)

      . La. R.S. 15:542 Registration of sex offenders and child predators.
      F.(l) Except as provided in Paragraphs (2) and (3) of this Subsection, the sex offender registration and notification requirements required by this Chapter are mandatory and shall not be waived or suspended by any court. Any order waiving or suspending sex offender registration and notification requirements shall be null, void, and of no effect. Any order waiving or suspending registration and notification requirements shall not be construed to invalidate an otherwise valid conviction.

      . See La. R.S. 15:538. Conditions of probation, parole, and suspension or diminution of sentence.

      . La. C. Cr. P. art. 571.1 fixes the time to institute criminal proceedings for indecent behavior with juveniles at 30 years from the 18 th birthday of the victim.

      . See U.S. Const. Art. I, § 10; Louisiana Const. Art. I, § 23.

      . See Smith v. State, 2010-1140 (La.1/24/12), 84 So.3d 487; State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.

      . La. C.C. art. 1; Burnette v. Stalder, 2000-2167 (La.6/29/01), 789 So.2d 573; Succession of Boyter, 1999-0761 (La.1/7/00), 756 So.2d 1122.

      . La. C.C. art. 9; Boyter, supra, 756 So.2d at 1128-29.

      . "[T]he economically harsh results of this well justified system of public notification is not the result of government action, but as a consequence of the sex offenders’ crimes. As such, we find that there is no infraction of the ex post facto prohibitions of the federal and state constitutions.”

      . The state incorrectly argues that these defendants are subject to La. R.S. 15:542(A)( l)(b), which requires registration by ”[a]ny adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration, or any conspiracy to commit ... a criminal offense against a minor.” The term "criminal offense against a minor” is defined by La. R.S. 15:541, and does not include the crime of indecent behavior with a juvenile, the instant crime of conviction.

      . See State v. Sorrell, 95-136 (La.App. 5th Cir.5/10/95), 656 So.2d 1045, writ denied, 95-1268 (La.6/30/95), 657 So.2d 1035, which held, in referencing a condition of parole, that "the law in effect at the time of a prisoner’s release governs the terms of that release.”

      . See Olivieri, supra, “we find that although Louisiana’s Megan's Law has provisions which may be remotely similar to historical forms of punishment, the immediate need for public protection is a corollary of rather than an addendum to the punishment of sex offenders.”

      . La. Ch. C. art. 857 deals with transfers for criminal prosecution of the juvenile charged with first and second degree murder, aggravated kidnapping and aggravated rape, aggravated battery with discharge of a firearm, armed robbery with a firearm, forcible rape of a child at least two years younger.
      La. Ch. C. art. 305 addresses the divestiture of juvenile court jurisdiction for a child who commits first degree and second degree murder, aggravated rape, aggravated kidnapping, attempted first and attempted second degree murder, manslaughter, armed robbery, aggravated burglary, forcible rape, simple rape, second degree kidnapping, aggravated battery with a firearm, second or subsequent offense aggravated battery, second or subsequent offense aggravated burglary and second or subsequent offense burglary of an inhabited dwelling.


author: BROWN, Chief Judge. MOORE, J.,

text:
    Cheryl NICKERSON, Claimant-Appellee v. FINANCE AMERICA OF LA, Defendant-Appellant.
    No. 47,876-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Baton Rouge, LA, by M. Levy Leatherman, for Appellant.
    Cheryl Nickerson, Pro Se, Appellee.
    Before BROWN, MOORE, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

1 ¶ Defendant, Finance America of Louisiana, has appealed from the WCJ’s April 24, 2012, order confirming a default judgment and awarding benefits and penalties to claimant, Cheryl Nickerson. Defendant’s argument on appeal is that the WCJ erred in confirming a default based upon insufficient evidence to constitute a prima facie case and in awarding wage benefits and penalty wages to claimant, as the evidence established that claimant received her wages in full during her period of disability. We reverse that portion of the WCJ’s judgment awarding indemnity benefits and penalties based upon defendant’s failure to pay indemnity benefits.

Facts and Procedural Background

Claimant, Cheryl Nickerson, worked as a district manager for defendant, Finance America of Louisiana. While attending a meeting at the corporate office in Baton Rouge, Louisiana, on October 20, 2011, she fell on some uneven pavement and sustained injuries. Claimant did not work during the period of October 20 — December 5, 2011. She filed a Disputed Claim for Compensation on November 30, 2011.

Defendant was served with claimant’s petition on December 12, 2011. Claimant filed a Request for Preliminary Default on January 4, 2012. No answer was filed, and the preliminary default was granted. Thereafter, a hearing for confirmation of the default was held on March 19, 2012. The WCJ rendered judgment in open court the same day, finding that:

-Claimant was an employee of defendant and was injured while in the course and scope of her employment with defendant on October 20, 2011.
-As a result of the accident, claimant sustained injuries to her right ankle and left knee.
| ¾-CIaimant is entitled to temporary total disability benefits for the period of October 20 — December 5, 2011, at the rate of $333.35 per week.
-All related medical and pharmacy expenses are to be paid by defendant.
-Claimant is to be reimbursed for any out-of-pocket expenses incurred as a result of the accident.
-Defendant was aware of the work-related injuries sustained by claimant and failed to present a reasonable basis for the denial of her medical treatment.
-Defendant’s actions are thus arbitrary and capricious.
-A $2,000 penalty for failure to pay indemnity benefits to claimant was assessed, as was an additional $2,000 for failure to approve medical treatment on claimant’s behalf.
-Costs were assessed against defendant.

It is from this judgment that defendant, Finance America of Louisiana, has appealed.

Discussion

On appeal, defendant contends that the WCJ erred in confirming the default judgment and awarding claimant indemnity benefits and penalties for nonpayment because she failed to establish a prima facie case of her entitlement thereto.

A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C. C. P. art. 1702; Nickens v. Patriot Home Systems, 97-0291 (La.App.1st Cir.06/29/98), 713 So.2d 1179. A prima facie case is established when the claimant proves the essential allegations of her petition, with competent evidence, to the same extent as if the allegations had been specifically | ¡¡denied. Nickens, supra. If no answer is filed, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. La. R.S. 23:1316.1(A); Horne v. Lowe’s Home Improvement, 35,683 (La.App.2d Cir.02/27/02), 810 So.2d 1235. A prima facie case shall include but not be limited to proof of the employee’s average weekly wage; the existence of an employer-employee relationship at the time of the work-related accident; the occurrence of an accident arising out of and in the course of the employment, or the existence of an occupational disease; and entitlement to benefits under the provisions of this Chapter. La. R.S. 23:1316.1(B). (Emphasis added).

An employer is entitled to credit for wages paid to an injured worker against compensation benefits due when wages are unearned because they are considered to be in lieu of compensation. Keyes v. Rockwood Ins. Co., 502 So.2d 223 (La.App. 3d Cir.1987). See also Bartholomew v. Ourso & Co., 234 So.2d 448 (La.App. 1st Cir.1970); Carpenter v. Employers Mutual Liability Ins. Co. of Wisconsin, 178 So.2d 486 (La.App. 1st Cir.1965). Wages in lieu of compensation are defined as unearned wages paid to an employee after an injury. Feyerabend v. Boomtown Casino, 08-807 (La.App.5th Cir.02/25/09), 9 So.3d 228. Generally, the payment of unearned wages during disability is treated as workers’ compensation. Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (La.1972); Reeves v. Reeves Dirt Pit, 606 So.2d 881 (La.App. 2d Cir.1992).

The only part of claimant’s case that defendant disputes is her entitlement to weekly benefits. Defendant points out that at the March 9, |42012, default confirmation hearing, claimant testified that she received her regular salary in full during the period of October 20 — December 5, 2011, and that she did not work at all during that time period. The wages paid to claimant by defendant amounted to more per week than the compensation benefits which became due between those dates. These wages were clearly not earned by claimant, but were in lieu of compensation. Therefore, claimant was not entitled to an award of weekly indemnity benefits in addition to her weekly salary, and the WCJ erred in making this award. See Ausberry v. Ouachita Fertilizer Co., 38,883 (La.App.2d Cir.09/22/04), 882 So.2d 666, writ denied, 04-2600 (La.12/17/04), 888 So.2d 873; Pender v. National Fire and Marine Ins. Co., 255 So.2d 95 (La.App. 3d Cir.1971), writ denied, 260 La. 132, 255 So.2d 355 (La.1971). We will likewise reverse the WCJ’s $2,000 penalty for nonpayment of weekly benefits inasmuch as defendant’s continued payment to claimant of her regular salary fulfilled the employer’s weekly compensation obligation to claimant. Therefore, the refusal to pay weekly indemnity benefits in addition to claimant’s weekly salary was not arbitrary and capricious.

Conclusion

For the reasons set forth above, that portion of the WCJ’s judgment awarding claimant weekly indemnity benefits and a $2,000 penalty for non-payment of said benefits is REVERSED. In all other respects, the WCJ’s judgment is AFFIRMED. Costs of this appeal are to be assessed to defendant-appellant, Finance America of Louisiana.

MOORE, J., concurs with written reasons.

MOORE, J.,

concurs.

_J_J respectfully concur, agreeing with the majority’s conclusion that the claimant failed to make a prima facie case sufficient to confirm the default judgment. I also note, however, that the employer obtained all the relief it sought on appeal — reversal of the weekly indemnity benefits, penalty and attorney fee. I question whether it is equitable to condemn the prevailing party to pay all appellate costs, but given the court’s wide discretion under La. C.C.P. art. 1920, I reluctantly concur in this portion of the opinion.


author: CARAWAY, J.

text:
    David HOLLINGSWORTH, Plaintiff-Appellee v. STEVEN GARR LOGGING and Louisiana Insurance Guaranty Association, Defendants-Appellants.
    No. 47,884-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Nelson, Zentner, Sartor & Snellings, L.L.C., Monroe, LA, by F. Williams Sartor, Jr., Allison M. Jarrell, for Appellants.
    Street & Street, Monroe, LA, by C. Daniel Street, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   CARAWAY, J.

hln this workers’ compensation action, summary judgment was granted against the employer and the insolvent insurer’s successor, Louisiana Insurance Guaranty Association (“LIGA”), in favor of the employee who contested the termination of his benefits after 19 years of voluntary payments. Defendants claimed that the wage payments made were for supplemental earnings benefits which extend for only 10 years. Penalties and attorney fees were assessed against the employer for wrongful termination of benefits. This appeal ensued. We affirm.

Facts

While employed as a foreman with Steven Garr Logging in September of 1991, David Hollingsworth was injured when a log rolled off of a truck, hitting him in the head. In addition to head trauma, Holl-ingsworth also received injuries to his neck, elbow, legs, heels, back and nose and lost two fingers on his left hand. Voluntary weekly workers’ compensation benefits of $240 were paid to Hollingsworth by his employer until April 12, 2010, when LIGA terminated the benefits. Thereafter on June 24, 2010, Hollingsworth instituted a disputed claim against LIGA and Steven Garr Logging (“Defendants”) seeking reinstatement of total and permanent disability benefits.

On August 12, 2011, Defendants filed a motion for summary judgment on the grounds that Hollingsworth had received the statutory maximum of 520 weeks of supplemental earnings benefits (SEB) and was |2not permanently and totally disabled. Defendants argued that Hollingsworth’s indemnity benefits were converted to SEBs on an unspecified date and that he had produced no evidence to show his permanent and total disability.

Subsequently, Hollingsworth also filed a motion for summary judgment urging recognition of his total and permanent disability and continued weekly benefits. Attached to the summary judgment were Hollingsworth’s affidavit, which included a copy of LIGA’s benefit termination letter, the medical records of neurosurgeon and treating physician, Dr. Russ Greer, and a copy of the report of Dr. Douglas Brown, who conducted an independent medical examination of Hollingsworth on May 9, 2011.

In his affidavit, Hollingsworth attested to the following facts:

He was 61 years old and had never graduated from high school.
As the result of the September 21, 1991 accident, Hollingsworth lost the first two fingers of his left hand, chipped his elbow, displaced leg muscles and suffered injuries to his neck, back, heels and nose.
Hollingsworth continues to suffer from headaches, dizziness and pain in the neck and shoulders. He has balance issues due to dizziness and blackout spells due to the blow to his head. He has pain in his low back, aching in both feet and numbness in both heels. He requires the use of a cane to help in walking.
Hollingsworth has not worked since the accident except that in 2010, after the termination of his benefits, he tried to earn money by mowing yards but was unable to perform the work due to his injuries.

The medical records of Dr. Greer span from September 21, 1991 through November 12, 1996. Immediately after the accident, Hollingsworth was placed in intensive care and diagnosed with head injury with small [^extra-axial blood collection of the right temporal area and tiny collection in the right parietal area, congenital abnormality of C2-3 fusion, bony irregularity of anterior Cl arch, amputation of his left long finger and small laceration of the left elbow. During his initial hospitalization, Hollingsworth complained of double vision and dizziness. Through the end of 1991 and beginning of 1992, Hollingsworth continued to experience dizziness, stiffness in his neck, some limitation to range of motion of the head and neck and mild tenderness in the cervical region. He began to use a walker for stabilization. It was then that Dr. Greer ordered Hollingsworth not to return to work and concluded that he suffered from “post-traumatic cephalgia and head injury syndrome.” Dr. Greer referred Hollingsworth to Dr. Lawrence Danna for his consideration of “possible post-traumatic vestibular neuronitis.”

By August of 1996, Hollingsworth continued to experience headaches, dizziness and neck and shoulder pain. Specifically he reported the sudden onset of a “pain in the back of the head that goes from the neck up to the back of the head” that caused him to grab his head, as well as “a sensation on the top of the head” that would last a few days. He continued the use of a walking stick for balance. Although Dr. Greer was unsure of the pathology of Hollingsworth’s complaints, he noted the persistence of them since the time of the accident.

|4By September 1996, Hollingsworth’s headaches and dizziness remained unchanged. Tests done on his cervical spine in November of 1996 resulted in the recommendation of cervical surgery including extensive decompressive cervical laminec-tomy and foraminotomies. Hollingsworth refused this treatment.

Orthopedist Dr. Douglas Brown, issued an independent medical examination report addressing Hollingsworth’s condition on May 9, 2011. He referred to the above-noted diagnostic testing of 1996. Dr. Brown concluded that Hollingsworth suffered with herniated C3-4, degenerative C4-5, C5-6, C6-7, probable post-traumatic with foraminal stenosis, postraumatic amputation left second and third fingers, post traumatic vestibular neuronitis with secondary ataxia and imbalance and cervical spondylosis with resulting cervical loss of movement. Dr. Brown assessed Hollings-worth with a 15% whole body impairment due to the vestibular dysfunction with secondary ataxia, 38% whole body impairment due to the multi-level disc herniations and 40% hand impairment and 22% total body impairment from the amputated fingers. Dr. Brown concluded that Hollingsworth was 100% disabled from his logging job and all jobs for which he would be qualified.

In opposition to Hollingsworth’s summary judgment, the Defendants re-urged that Hollingsworth’s evidence was insufficient to establish his entitlement to permanent total disability benefits. After further discovery and an IME of Hollings-worth by Dr. Randolph Taylor, Defendants | ¿supplemented their opposition to Hollingsworth’s motion for summary judgment with Hollingsworth’s deposition and Dr. Taylor’s report.

Defendants contended that in his deposition, Hollingsworth admitted that he had not received medical treatment since November 12, 1996. Further, they argued that Dr. Brown was not his treating physician, only saw claimant on one occasion and failed to establish that Hollingsworth was permanently and totally disabled under the law. Finally, Defendants urged that Dr. Greer never indicated Hollings-worth’s permanent and total disability. The Defendants also pointed out that the differences in the opinions of Dr. Brown and the January 4, 2012 IME report of Dr. Taylor precluded summary judgment. Therein, Dr. Taylor concluded:

In my opinion, Mr. David Hollingsworth would be unable to return to logging type work. Since he has not been employed for 20 years and has a 9th grade education, he will not return to the work force. (Even if he could be retrained and there were a job available.)
In summary, Mr. David Hollingsworth is 100% disabled but appears to be disabled due to the effects of aging and obesity.

After considering the IME reports of both physicians and hearing the arguments of counsel, the workers’ compensation judge (“WCJ”) granted summary judgment in favor of Hollingsworth reinstating his benefits for total and permanent disability weekly benefits in the amount of $240, and assessed $8,000 penalties and $8,000 attorney fees against Steven Garr Logging due to the failure to fully investigate the termination of benefits. This appeal by Defendants ensued.

| (¶;Discussion

On appeal Defendants argue that the WCJ erred in granting Hollingsworth’s motion for summary judgment and assessing the employer, which was uninvolved in the decision to terminate benefits, with penalties and attorney fees. Specifically, Defendants contend that the evidence submitted in support of and in opposition to the summary judgment failed to establish Hollingsworth’s permanent and total disability. Defendants also argue that because of the dispute in medical evidence, the WCJ erred in not ordering a medical examination of Hollingsworth by an independent physician. Alternatively, Defendants urge that a finding of permanent and total disability was premature until Hollingsworth completes an updated rehabilitation evaluation.

Appellate courts review summary judgments de novo, using the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Moreno v. Entergy Corp., 12-0097 (La.12/4/12), 105 So.3d 40. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but |7rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

In 1991, total permanent benefits were awarded for any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience in an amount of 66¾ percent of wages during the period of such disability. La. R.S. 23:1221(2)(a). Total permanent benefits are awarded if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(2)(c).

The clear and convincing standard in a workers’ compensation case is an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01), 784 So.2d 1284; Young v. Physicians & Surgeons Hosp., 39,348 (La.App.2d Cir.3/2/05), 895 So.2d 723. To prove a matter by clear and ^convincing evidence means to demonstrate that the existence of the disputed fact is highly probable or much more probable than its nonexistence. Young, supra.

A judgment of total and permanent disability is not indefinite. Such a finding is always subject to modification as expressly provided in La. R.S. 23:1221(2)(d). Comeaux v. City of Crowley, 01-0032 (La.7/3/01), 793 So.2d 1215; 1 H. Alston Johnson, III, Workers’ Compensation Law and Practice § 275, in 13 Louisiana Civil Law Treatise (5th ed.2010). After a prior judicial determination of benefits, the employer bears the burden of proof in seeking termination or modification of benefits. Snelling Personnel Services v. Duhon, 00-661 (La.App.3d Cir.11/2/00), 772 So.2d 350.

La. R.S. 23:1226(D) also provides:

D. Prior to the hearing officer adjudicating an injured employee to be permanently and totally disabled, the hearing officer shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.

The requirement of La. R.S. 23:1226 must be construed in pari materia with La. R.S. 23:1221(2); Comeaux, supra; Jones v. Walpole Tire Service, Inc., 38,206 (La.App.2d Cir.3/3/04), 867 So.2d 927. Unsuccessful rehabilitation attempts, including the lack of ability to be educated or retrained, along with physical incapacity, are proper factors to consider in determining whether a claimant proved his permanent and total disability. Comeaux, supra; Dennis v. Boh Bros. Const. Co., 39,548 (La.App.2d Cir.4/6/05), 899 So.2d 761, unit denied, 05-1178 (La.11/28/05), 916 So.2d 145.

Regardless of the ultimate nature of the injury, the worker who meets with an accident is usually incapacitated for a time thereafter. During this convalescent period he must be regarded as totally disabled, and he is entitled to compensation accordingly. Johnson, supra, § 285. In this situation, the Act defines temporary total disability benefits (TTD) as any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience. The Act provides for maximum benefits of 66⅜ percent of wages during the period of such disability. La. R.S. 23:1221 (l)(a). TTD cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs. La. R.S. 23:1221(l)(d).

The Act also provides for SEBs of 66⅜ percent of the difference between the employee’s pre- and post-injury average monthly wages for injury which prevents the employee from earning 90 percent or more of wages at time of injury. La. R.S. 23:1221(3)(a). The right to receive SEBs [inis limited to 520 weeks in La. R.S. 23:1221(3)(d) and this limitation underlies the dispute surrounding the Defendants’ termination of Hollingsworth’s benefits.

The voluntary payment of benefits by an employer does not constitute an admission of liability under La. R.S. 23:1204. Stonetrust Commercial, Ins. Co. v. George, 46,560 (La.App.2d Cir.9/28/11), 81 So.3d 9; Snelling, supra. Although the workers’ compensation law allows an employer or employee to file a claim to resolve disputes, it is not legally necessary that the employer file a 1008 form requesting permission to terminate benefits that are being paid voluntarily. The employer may terminate voluntary payments at will and with impunity, provided the termination is not arbitrary and capricious. Stonetrust, supra; Smiling, supra. The employer that chooses not to terminate benefits through the filing of an 1008 form puts itself at risk of having to pay penalties and attorney fees. If the employer sues to terminate benefits, it does not have the burden of proving that the benefits were not due, even though it is the plaintiff in the litigation. Smiling, supra; Alston, supra, § 285.

An employer may not shift an employee’s indemnity benefits from temporary total disability to supplemental earnings benefits in the absence of an appropriate justification. Key v. Monroe City School Bd., 45,096 (La.App.2d Cir.3/10/10), 32 So.3d 1144; Glover v. General Motors, 38,805 (La.App.2d Cir.8/18/04), 880 So.2d 172. When an employee has suffered a compensable injury under the Act, which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall | ube entitled to prompt rehabilitation services. La. R.S. 23:1226. This requirement has been referred to as a “statutory obligation” of the employer. Frith, supra.

The voluntary payments by Defendants of two-thirds of Hollingsworth’s average wages commenced at the time immediately after the accident when Hollingsworth was completely disabled and unable to work. The evidence also indicates that following his hospitalization and the passage of time, the extent of Hollingsworth’s recovery could be established by a reasonably reliable determination of the extent of the disability so that under La. R.S. 23:1221(d), his entitlement to wage benefits for TTD ended. Nevertheless, such determination of the disability was not made and shared between the parties at any time during the first five years after the accident as Hollingsworth received medical treatment. Therefore, though Hollingsworth’s temporary total disability may have technically ceased under the law, the parties reached no understanding whether the wage benefits voluntarily paid thereafter were for Hollingsworth’s permanent total disability or merely SEB.

With this situation, we find that the most important inquiry concerning Hollingsworth’s status involves the initial five years of treatment by Drs. Greer and Danna. The reports of their treatment and Hollingsworth’s testimony demonstrate to us that there was clear and convincing evidence to establish that Hollings-worth remained totally disabled from working. He was disabled by the combination of various factors, including the permanent injury to his hand, his cephalgia and head 112injury syndrome, and his spinal injuries. Significantly, Defendants did not produce any evidence of efforts to perform rehabilitation services. With the lengthy passage of time and Defendants’ statutory obligation for rehabilitation services, the record circumstantially indicates that any such rehabilitation efforts to achieve other gainful employment proved unsuccessful. Thus, under guidance of the Comeaux ruling, we find that Hollingsworth met his burden of proof for the establishment of permanent total disability.

With this finding measured by Hollingsworth’s medical and work status in the 1990s after the accident, the Defendants produced no evidence demonstrating a shift of that status whereby Hollings-worth became able again to work. Only then might the voluntary wage benefits be considered as SEBs. With Defendants’ primary argument being the payment and satisfaction of their obligation for SEBs over ten years, they did not establish when Hollingsworth’s permanent total disability ended and the statutory 10-year period began.

The second issue concerns the WCJ’s award of penalties and attorney fees against the employer. LIGA was not assessed for these punitive measures because of its exemption from such measures recognized under the jurisprudence. Defendants assert that LIGA alone implemented its decision to terminate Hollings-worth’s benefits.

11sLa. R.S. 23:1201(1) provides for the payment of both penalties, not to exceed $8,000, and a reasonable attorney fee when the discontinuance of benefits is found to be arbitrary, capricious, or without probable cause. Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed in regard to benefits. Iberia Medical Center v. Ward, 09-2705 (La.11/30/10), 58 So.3d 421. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Id.

The Louisiana Supreme Court has determined that LIGA cannot be assessed with penalties and attorney fees for purposes of the workers’ compensation statutes because penalties and attorney fees are not “covered claims” under the Louisiana Insurance Guaranty Law, La. R.S. 22:2051 et seq., and LIGA is not an “insurer,” for purposes of imposing penalties and attorney fees under the workers’ compensation statutes which limit the imposition of penalties and attorney fees to “any employer and insurer.” Bowens v. General Motors Corp., 608 So.2d 999 (La.1992).

114The ruling in Bowens, supra, excluding LIGA from liability for penalties and attorney fees rested on the following conclusion:

By their clear language, [the penalty provisions of the Act] are applicable only to the employer and his insurer. LIGA is not an insurer, but is, as defined in La. R.S. 22:1379(1), an “association” created under La. R.S. 22:1380.

Id. at 1005 (emphasis in original). With this recognized distinction, we find that the employer remains responsible for timely and reasonable compliance with the obligations of our workers’ compensation law and therefore may be penalized for the termination of payment of wage benefits in this case. The cessation of the payments to Hollingsworth in this case was arbitrary and capricious. The judgment of the WCJ assessing penalties and attorney fees against the employer, Steven Garr Logging, is affirmed.

Conclusion

For the foregoing reasons, the judgment of the WCJ is affirmed. Costs of this appeal are assessed to Defendants.

AFFIRMED.

      . LIGA stepped in as successor to the employer's insolvent workers’ compensation insurer presumably under the pre-2008 statutory provisions of La. R.S. 22:1375 et seq.

      . Dr. Greer’s medical records give no other information on Dr. Danna's speciality. Those records indicate however, that by December 19, 1991, Hollingsworth had seen Dr. Danna at least twice. The medical records of Dr. Danna were destroyed and unavailable to Defendants who had attempted to obtain them.

      . Generally, the law governing an action for workers’ compensation benefits is the law in effect at the time of the injury. Frith v. River-wood, Inc., 04-1086 (La. 1/19/05), 892 So.2d 7.

      . In fact, the only mention of rehabilitation in the record is included in Hollingsworth’s affidavit reference to "someone” trying to find jobs for him and Defendants' brief which concedes that Hollingsworth "underwent previous vocational rehabilitation attempts.”

      . La. R.S. 23:1201(1) was added in 2003. Pri- or to that time, discontinuance of benefits was addressed in La. R.S. 23:1201.2.

      . The current LIGA Law was renumbered from La. R.S. 22:1375 et seq. in the 2008 legislative session. La. R.S. 22:2058 limits LIGA obligations to "covered claims.” La. R.S. 22:2055(6)(b) specifically excludes penalties and attorney fees from the definition of covered claim.


author: PITMAN, J.

text:
    James G. LEWIS, Plaintiff-Appellee v. Jarrod C. WALLACE and America First Insurance, Defendants-Appellants.
    No. 47,885-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Nelson, Zentner, Sartor & Snellings, LLC, Monroe, LA, by George M. Snell-ings, IV, for Appellants.
    Todd A. Harris, Daniel P. Parker, Monroe, LA, for Appellee.
    Before DREW, PITMAN and SEXTON (Pro Tempore), JJ.
   PITMAN, J.

|,Jarrod C. Wallace (“Wallace”) and America First Insurance, Defendants, appeal a judgment awarding Plaintiff, James G. Lewis, special damages of $3,590.44 and general damages of $9,016.20 for injuries sustained or preexisting injuries aggravated in a collision on November 24, 2010. Since the record contains insufficient evidence to establish that Plaintiff was involved in the collision and, as a result, aggravated his preexisting conditions, and for the reasons set forth herein, we reverse the trial court and the Plaintiffs action is dismissed with prejudice.

FACTS

On November 24, 2010, Wallace was driving northeast on Forsythe Avenue in Monroe, Louisiana. Wallace rear-ended a vehicle, driven by Deborah Rainwater (“Vehicle 2”), who was stopped at the traffic signal at the intersection of Forsythe Avenue and Loop Road. Vehicle 2 then collided with the car in front of it, driven by Cassie Owens (“Vehicle 3”). Owens’s mother, Barbara Dean, was a passenger in Owens’s car at the time of the collision. Plaintiffs vehicle was directly in front of Vehicle 8 and Plaintiff filed the present suit alleging that his license plate was struck by the front bumper of Vehicle 3, causing his injuries, or aggravating his preexisting injuries.

Evidence

Plaintiff testified at trial that Vehicle 3 “knocked the devil out of him,” consequently aggravating a preexisting injury. He complained of back and neck pain. Plaintiff contends that his rear bumper was not hit, but that his license plate was struck by the front bumper of Vehicle 3. Plaintiff | ¡^introduced medical records into evidence, including pharmacy records and his treating physician’s report. Dr. J.D. Patterson had been treating Plaintiff for 12 years, and his records indicated that there was no change in treatment after the instant accident. Interestingly, merely four days after the accident, Plaintiff told Dr. Patterson that he was “slowing down in traffic” when he was hit.

Sergeant Jeff Sanders and Corporal Jay Smith, with the Monroe Police Department, investigated the accident at the scene. Sgt. Sanders is a 21-year veteran of the police department and is a certified accident reconstructionist. Sgt. Sanders testified that there was no evidence of contact between Vehicle 3 and Plaintiffs car. Upon first arriving at the scene, Sgt. Sanders did not consider that Plaintiffs car was involved because it was “10 feet apart” from the other three vehicles which were clearly damaged from the collision. It wasn’t until Plaintiff made contact with Sgt. Sanders that he included Plaintiffs vehicle in his investigation and report. Plaintiff testified that his foot came off the brake after he was allegedly hit, causing his car to roll forward for a few seconds. Sgt. Sanders reported no evidence of contact between the front bumper of Vehicle 3 and the rear of Plaintiffs car.

Sgt. Sanders’ report indicated that Vehicle 3 had a plastic license plate frame on the front bumper, which had no evidence of damage. Further, there were several rusty screws protruding from the front of Vehicle 3, but there were no corresponding marks found on Plaintiffs vehicle.

^Despite the police report and evidence to the contrary, Plaintiff testified that the investigating officers never spoke to him or inspected his vehicle for damage.

Sgt. Sanders was shown Plaintiffs license plate, which was entered into evidence at trial, and he testified that it was not in the same condition as it was at the scene when he investigated the accident. Sgt. Sanders recalled examining Plaintiffs license plate immediately after the collision and not noting any markings indicating impact. The markings and dents on the license plate entered into evidence at trial did not match any that were present at the time of the investigation.

Plaintiffs license plate was visibly dented at the trial (April 2012), but the video taken by Wallace’s attorney at Plaintiffs deposition (August 2011) showed only a minor indentation on the license plate. The video was introduced into evidence, but disregarded by the trial court as unreliable and hard to see.

Barbara Dean, owner of and passenger in Vehicle 3, was called to testify at trial. She testified that there was no damage to the front of her vehicle and that she believed her car did not hit Plaintiffs car. Ms. Dean corroborated Sgt. Sanders’ testimony regarding the investigation of both the front of her vehicle and the rear end of Plaintiffs, finding no evidence of impact.

The trial court explained that it was “concerned about the testimony that was given by the police officer” and that the accident investigation was |4not as thorough as it should have been. The trial court determined that Plaintiff was the most credible witness, and so the ruling was in his favor.

DISCUSSION

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” See Rosell v. ESCO, 549 So.2d 840 (La.1989). In Welch v. Willis-Knighton Pierremont, 45,554 (La.App.2d Cir.11/17/10), 56 So.3d 242, writs denied, 11-0075 (La.2/25/11), 58 So.3d 457, and 11-0109 (La.2/25/11), 58 So.3d 459, this court explained that to reverse a trial court, the appellate court must find that a reasonable factual basis does not exist in the record for the finding and that the determination is clearly wrong. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. If the documentary or objective evidence so contradicts the witness’s testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the testimony, the appellate court may find manifest error even where the finding is purportedly based on a credibility determination. Absent a finding of clear error and if the fact finder’s conclusion is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Welch v. Willis-Knighton Pierremont, supra.

In a personal injury action seeking damages, the plaintiff has the burden of proving a causal relationship between the accident and any alleged injuries. The plaintiff must prove causation by a preponderance of |Bthe evidence. That burden is satisfied when the plaintiff proves through medical and lay testimony that it was more probable than not that the injury was caused by the accident. Bradshaw v. Brookshire Grocery Co., 38,960 (La.App.2d Cir.10/27/04), 886 So.2d 623.

Whether the accident caused the plaintiffs injuries is a factual question which should not be reversed on appeal absent manifest error. Reversal is warranted only if the appellate court finds that a reasonable factual basis for the trial court’s finding does not exist in the record and that the finding is clearly wrong on the record. Bradshaw, supra.

We find that a reasonable factual basis does not exist to support the finding that Plaintiff was involved in the November 24, 2010 accident, or that his injuries were sustained or worsened by the incident. The trial court’s decision was clearly wrong. The evidence presented does not support a finding that Plaintiffs vehicle was struck by Vehicle 3, and a decision to the contrary is manifestly erroneous.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding Defendant, Jarrod C. Wallace, liable and awarding Plaintiff, James G. Lewis, special damages of $8,590.44 and general damages of $9,016.20 for injuries sustained is reversed, and Plaintiffs action is dismissed with prejudice. Costs of appeal are assessed to Plaintiff, James G. Lewis.

REVERSED.


text:
    Angela SHARP, Plaintiff-Appellant v. David Gregory MOORE, Defendant-Appellee.
    No. 47,888-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Donald L. Kneipp, Monroe, LA, for Appellant.
    Loomis & DeMent, Monroe, LA, by Albert E. Loomis, III, for Appellee.
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   CARAWAY, J.

|, The parents of the minor agreed to transfer domiciliary parent status to the father in a consent judgment. In that connection, the father’s support payments ended and he agreed to waive his prior demand for child support. Less than a year later, the father filed a rule to fix the mother’s child support. After determining that the waiver did not bind the father to show a material change in circumstances to seek the mother’s child support, the trial court utilized the child support guidelines for the first time and fixed the mother’s child support at $370.27 a month. The mother filed this appeal to challenge her child support obligation. We affirm the trial court’s ruling.

Facts and Procedural History

Angela Sharp (“Angela”) and David Moore (“David”) were married on September 2, 1995, and divorced on February 2, 2000. During their marriage, they had one son. Angela was granted custody of her child by a North Carolina court on June 6, 2000. The father was ordered to pay $400 a month in child support payments, health insurance, and one-half of out-of-pocket medical and dental expenses. He was also granted supervised visitation. On June 23, 2000, Angela obtained a judgment in Ouachita Parish making the North Carolina judgment executory.

On April 9, 2001, David filed a rule to establish child custody or alternatively to modify child custody and visitation rights in Ouachita Parish. He argued that he had not received notice of the North Carolina proceedings as they were instituted after he went to work in Louisiana. Both parents attended a court ordered co-parent education session and |2interview with a psychologist. The psychologist felt that both parents were acting in the best interests of their son and would be positive influences in his life.

Pursuant to joint stipulations read into the record, the trial court rendered a judgment in 2001 that granted the parents joint custody of the minor. Angela was named domiciliary parent and the judgment outlined the custody and holiday arrangements. Since David had not seen his son in over a year, his initial visitations were to occur in the presence of a licensed psychologist. David’s child support obligation was maintained at $400 per month.

On March 2, 2010, David filed a motion and rule for a change of custody and other relief due to a change of circumstances. In this motion, he requested primary custody of his son and that the trial court fix Angela’s child support obligation upon the change in custody. Since the last judgment, David had moved to within three miles of Angela and his son and he asserted that his 14-year-old son wished to spend more time with him. In addition, he asserted that Angela was going through a divorce and her soon to be ex-husband primarily took care of their son. Furthermore, David alleged that Angela was using drugs and letting various men stay overnight. On June 10, 2010, David amended the petition alleging that a drug test from Angela’s divorce case showed that she tested positive for amphetamine, benzo-diazepines, and marijuana.

The trial court referred the matter to a hearing officer who helped the parents enter into a “Joint Stipulation and Consent Judgment.” While the [.^parents would continue to have joint custody of the minor, David was named as the domiciliary parent. Because the child did not desire to visit his mother at this time, the court referred the parents to Dr. Baker, a counselor, to try and mend this relationship. As for child support, the consent judgment stated that:

The prior child support award in favor of the mother is terminated retroactive to July 12, 2010. Father waives any right to seek reimbursement for any over payment of child support. Father waives his prior demand for child support.

On September 21, 2010, the consent judgment was approved and adopted by the court. Additionally, the trial court adopted the hearing officer’s recommendation that Angela be drug tested.

On July 20, 2011, Angela filed a petition for damages and a rule for contempt. She alleged that since the consent judgment was entered, she had not spoken with her son nor had they visited Dr. Baker. She asserted damages for alienation of affection. David filed an exception of no cause of action, an answer, and a reconventional demand for child support. Angela contested child support arguing that there had been no material change in circumstances as required under La. R.S. 9:311(A)(1). She asserted that the consent judgment set her initial child support at $0. At the hearing on these issues, the parties agreed to drop all of their claims except for the issue of child support.

On February 2, 2012, the court ruled that David was not bound by the waiver in the consent judgment. After a child support worksheet was completed, the child’s basic child support obligation was determined to be [4$1,653 a month. Based upon her income, Angela was ordered to pay $370.27 per month in child support. Angela appeals the trial court’s ruling.

Discussion

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and education their children. La. C.C. art. 227. A parent may discharge this duty by either (1) providing support in kind as a domiciliary parent or (2) paying money for obtaining the support, maintenance, and education as a nondomiciliary parent. State ex re. Gilbert v. Gilbert, 34,203 (La.App.2d Cir.12/20/00), 775 So.2d 1182; LeFebvre v. LeFebvre, 589 So.2d 66 (La.App. 1st Cir. 1991). The party without legal custody or nondomiciliary party shall owe his or her total child support obligation as a money judgment of child support to the custodial or domiciliary party, minus any court ordered direct payments made on behalf of the child for work-related net childcare costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses provided as adjustments to the schedule. La. R.S. 9:315.8(D).

La. R.S. 9:315.1 provides the framework for the court’s authority in fixing child support awards, as follows.

A. The guidelines set forth in this Part are to be used in any proceeding to establish or modify child support filed on or after Oct. 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth is the proper amount of child support.
B. (1) The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral | Bor written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.
D. The court may review and approve a stipulation between the parties entered into after the effective date of this Part as to the amount of child support to be paid. If the court does review the stipulation, the court shall consider the guidelines set forth in this Part to review the adequacy of the stipulated amount and may require the parties to provide the court with the income statements and documentation required by R.S. 9:315.2.

Additionally, in no event shall the court set an award below one hundred dollars, except in cases involving shared or split custody as provided in La. R.S. 9:315.9 and 9:315.10. La. R.S. 9:315.14.

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). To obtain a reduction or increase in support, the change in circumstances of one of the parties must be material, defined as a change in circumstance having real importance or great consequences for the needs of the child or the inability to pay of either party. La. R.S. 9:311, Comment (a).

In this case, the court approved the consent judgment changing the domiciliary parent status from Angela to David. As a result of that change, the trial court recognized that Angela no longer had any right to receive child support payments and terminated such payments. The consent | ¿judgment then provided that the “[f]ather waives his prior demand for child support.”

From our review of the record, the parties and the trial court did not fix a child support award according to the guidelines in 2010. La. R.S. 9:315.1(A). At the time of the 2010 consent judgment, no evidence of the parties’ incomes was presented nor was a child support worksheet completed. La. R.S. 9:315.2(A) and 9:315.8. In accepting the consent judgment, the trial court did not give any consideration to the guidelines.

The leading Supreme Court case that examined the trial court’s role in reviewing consent judgments and the effect of such judgments thereafter is Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762. In Stogner, a prior consent judgment and child support award were approved by the trial court without reference to the guidelines. Reviewing the language of all the provisions of La. R.S. 9:315.1, the court found that when the trial court reviews the agreement proposed by the parents, it shall consider the guidelines to review the adequacy of the stipulated amount. The court explained:

As authorized in La. R.S. 9:315.1(B), the trial court, after reviewing the proposed stipulation in light of the considerations enunciated in La. R.S. 9:315.1(0), may nevertheless approve a deviation from the guidelines provided it specifies for the record, either orally or in writing, the reasons for the deviation. Such an approach underscores the integral role of the trial court as gatekeeper in this area of paramount importance. If properly performed in accordance with the guidelines, this judicial review will further assure the adequacy and consistency of child support awards, foster evenhanded settlements, |7and preserve a record for the evaluation of later proceedings to modify initially stipulated child support awards. Stogner, supra at 768.

Thus, despite the trial court’s approval of the prior consent judgment in Stogner, the supreme court considered that judgment flawed by the trial court’s failure to address the guidelines for the deviation from the required support obligation. The court concluded that it was error to rely upon the flawed consent judgment in denying the domiciliary parent’s later claim for modification of the child support.

This court has decided numerous child support cases since Stogner. Durfee v. Durfee, 44,281 (La.App.2d Cir.5/13/09), 12 So.3d 984; State v. Reed, 44,119 (La.App.2d Cir.1/14/09), 5 So.3d 269, writ denied, 09-0379 (La.4/3/09), 6 So.3d 777; Neill v. Neill, 33,398 (La.App.2d Cir.6/21/00), 764 So.2d 235. Interpreting an extrajudicial consent agreement, Durfee struck down an agreement permanently waiving child support. Such agreement is against public policy and void. Durfee, supra at 988. In Reed, we held that the prior child support judgment was flawed, because the trial court deviated from the guidelines without providing specific reasons for the deviations. “Stogner directs that a previously flawed judgment cannot be used to deny a modification of child support.” Reed, supra at 272.

The facts of the present case are similar to those in the Neill case. After two separate consent judgments had been approved by the trial court, the mother filed a rule to increase the father’s child support obligation. The trial court noted that the prior judgments did not calculate the father’s child support award according to the guidelines. It then calculated the support | ¡jObligation under the guidelines and awarded the mother increased support. The father appealed asserting that no material change in circumstances had occurred. Following Stogner, this court affirmed the ruling. Since the prior consent judgments did not rely upon the guidelines, the judgments should not be relied upon in determining whether a change of circumstances warrants the modification of a support award. Neill, supra at 238.

In this case, the prior consent judgment allegedly fixing Angela’s support at $0 was not a mere deviation from the guidelines; it fixed no support obligation at all. Likewise, a total waiver of support by a parent is against public policy and void. With these flaws in the parties’ pri- or consent judgment, Stogner shows that the necessity for a showing of a material change in circumstances is inapplicable. With this ruling of our highest court, appellant’s arguments must be rejected and the trial court’s judgment is affirmed.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of these proceedings are assessed to appellant.

AFFIRMED.

      . While the legislature amended La. R.S. 9:311 as a result of the Stogner decision, we rely on the Supreme Court’s examination of La. R.S. 9:315.1 which is still the leading authority,


author: BROWN, Chief Judge.

text:
    LeDonald SANDERS, Plaintiff-Appellant v. Felisha BROWN, Defendant-Appellee.
    No. 47,893-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Ronald J. Miciotto, Shreveport, LA, for Appellant.
    Michael J. Vergis, for Appellee.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| plaintiff, LeDonald Sanders, appeals from a custody judgment naming defendant, Felisha Brown, domiciliary parent of the parties’ child and granting plaintiff physical custody during weekends. For the reasons set forth herein, we AFFIRM.

Facts and Procedural History

LeDonald Sanders and Felisha Brown are the parents of a son born on September 7, 2010. The parties were never married. They lived together from approximately September 2010 until February 2011. The relationship was troubled. Le-Donald had another intimate relationship with the mother of his older daughter; this woman conceived yet another child with LeDonald during the time he lived with Felisha.

In December 2011, Felisha filed for a protective order. It is undisputed that LeDonald had no interaction with the parties’ child for approximately three weeks prior to the protective order being denied on January 6, 2012.

On December 8, 2011, LeDonald filed a petition to establish paternity and custody. He requested that he be named the domiciliary parent with defendant having physical custody on alternating weekends. On February 6, 2012, the trial court ordered the parties to participate in mediation and issued an interim custody order, awarding both parties “the joint shared care, custody and control” of the child. Pursuant to the order, the parties had alternating weeks of physical custody.

12Trial was held on March 20, 2012. Testimony was heard from the parties, LeDonald’s mother, Felisha’s mother and a friend of Felisha’s. At the close of trial, the court awarded the parties joint custody, named Felisha as the domiciliary parent, and specified that LeDonald would have physical custody of the child every weekend and certain holidays. The trial court filed a final judgment on April 26, 2012. Thereafter, LeDonald filed this timely appeal.

Discussion

LeDonald argues that the trial court failed to properly apply La. R.S. 9:335(A)(2)(b), which provides that under an award of joint custody “[t]o the extent it is feasible and in the best interest of the child, physical custody should be shared equally.” Citing Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731, LeDonald claims that the failure of the trial court to award equal sharing is legal error interdicting its factual findings in this case and warranting a de novo review by this court.

Addressing the same issue of shared custody versus equal sharing of time under La. R.S. 9:335(A)(2)(b), this court in Ramos v. Barrios, 45,295 (La.App.2d Cir.03/03/10), 32 So.3d 324, held that there was no basis to invoke the de novo review standard as employed in Evans v. Lungrin, supra. The court in Barrios further stated that “the jurisprudence is legion that La. R.S. 9:335(A)(2)(b) does not require strict equality of time.” Id. Likewise, it has been held that when the trial court finds that a decree of joint custody |sis in the best interest of the child, La. R.S. 9:335(A)(2)(b) does not necessarily require an equal sharing of physical custody. Id. The paramount consideration in any determination of child custody is the best interest of the child. Stephenson v. Stephenson, 37,323 (La.App.2d Cir.05/14/03), 847 So.2d 175. Custody determinations are made on a case-by-case basis. Watson v. Watson, 45,652 (La.App.2d Cir.08/11/10), 46 So.3d 218. The trial court has vast discretion in deciding matters of child custody and visitation. Id. An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Id. A de novo review in the case sub judice is not warranted.

The trial court is to consider all relevant factors in determining the child’s best interest. Coleman v. Coleman, 47,080 (La.App.2d Cir.02/29/12), 87 So.3d 246. La. C.C. art. 134 lists some of the relevant factors to be considered in determining the best interest of the child. The trial court is not bound to make a mechanical evaluation of all the statutory |4factors listed in La. C.C. art 134, but should decide each case on its own facts in light of those factors. Coleman, supra; Bergeron v. Bergeron, 44,210 (La.App.2d Cir.03/18/09), 6 So.3d 948. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the court. Watson, supra.

LeDonald argues that the parties had a satisfactory custody arrangement under the interim order granting each alternating weeks with physical custody. He contends that the parties’ cooperation during this period shows that such a permanent custody arrangement would be feasible. As noted above, to the extent feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335 A(2)(b); Barrios, supra. Nevertheless, even when joint custody is in the best interest of the child, the statute does not mandate an equal sharing of physical custody; substantial time, rather than strict equality of time, is the objective of joint custody. Id.

In the ease sub judice, LeDonald testified that he works as a truck driver weekdays; “I work from anywhere — my start time changes. It’s from maybe 7:00 or 8:00 maybe 9:00 (a.m.) I go in and I get off 5:00, 6:00, 7:00 in evening.” The trial court granted LeDonald “every weekend, from 30 minutes after he finishes work until- 6 p.m. on Sunday.” This is obviously quality as well as substantial time with the child. Further, the trial court thoroughly evaluated the pertinent factors listed in La. C.C. art. 134 and found that five of the factors favored Felisha, while four favored | sboth parties and two were not applicable. The trial court also found LeDonald not to be credible.

After review, we cannot say that the trial court abused its discretion in awarding joint custody, naming Felisha the domiciliary parent, allocating substantial physical custody to LeDonald on weekends and on designated holidays. Given the evidence adduced and trial court’s credibility determinations, this record falls far short of providing grounds for reversal based upon manifest error or abuse of discretion.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of appeal are assessed against appellant, LeDonald Sanders.

AFFIRMED.

      . Shortly before the trial of this case, LeDo-nald married the mother of his other children.

      . The state, through the District Attorney, filed a rule to establish support against LeDo-nald Sanders, as the mother was receiving support from the State Department of . Children and Family Services.

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