author: KEATY, Judge. THIBODEAUX, Chief Judge,

text:
    Danette Williams McMANUS v. Bryan Keith McMANUS.
    No. 13-699.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Henry R. Liles, Attorney at Law, Lake Charles, Louisiana, for Plaintiff/Appellee, Danette Williams McManus.
    Walter M. Sanchez, The Sanchez Law Firm, L.L.C., Lake Charles, Louisiana, for Defendant/Appellant, Bryan Keith Mc-Manus.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 Bryan Keith McManus appeals a custody determination and judgment rendered by the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Bryan and Danette Williams McManus were divorced on February 23, 2012. A stipulated judgment awarded Bryan and Danette joint custody of their two minor children, Londyn Blaire McManus (Blaire) and Brysley Kate McManus. Danette was named domiciliary parent, and Bryan was given structured visitation. On July 30, 2012, Danette was admitted into the psychiatric ward of Lake Charles Memorial Hospital after consuming alcohol and prescription medication. Bryan subsequently filed a Petition for Ex Parte Award of Custody. An ex parte order granted Bryan temporary custody of the minor children. Danette filed a Motion and Order to Vacate Ex Parte Order, Rule for Contempt of Court, and Alternatively for Unsupervised Telephone Access which was denied by the trial court. Danette filed supervisory writs with the third circuit and supreme court. Both writs were denied.

On November 30, 2012, and December 4, 2012, a hearing was held regarding Bryan’s rule for modification of custody. On December 18, 2012, the trial court issued its oral ruling and reasons for judgment, and it signed a judgment on January 28, 2013, awarding the parties joint custody with Bryan to remain as the temporary domiciliary parent, subject to future status conferences. The purpose of these future status conferences was to determine Dan-ette’s mental status in contemplation of her resumption as the domiciliary parent. The judgment also |2provided for an independent assessment of Danette’s psychological health by an expert of the trial court’s choosing. The judgment provided that custody would thereafter revert back to Danette as long as she complied with the requirements outlined therein.

Bryan appeals, asserting that after rendering a considered decree on December 18, 2012, and January 28, 2018, the trial court erred in its final custody determination in direct contravention of the heavy burden rule set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

DISCUSSION

Modification of Child Custody

Bryan asserts that after rendering a considered decree, the trial court erred in designating Bryan as a temporary domiciliary parent, rather than domiciliary parent, in direct contravention of the heavy burden rule set forth in Bergeron. Bryan contends that the purpose of the supreme court’s holding in Bergeron was to ensure that a heavy burden was applied in any future modifications of custody, negating any temporary designations of custody after a considered decree is issued. Bryan alleges that the status conferences contemplated by the considered decree |sare also contrary to the Bergeron standard. Bryan asks this court to reverse that portion of the trial court’s ruling purporting to modify its designation of him as domiciliary parent and void any modifications of custody rendered in any subsequent status conference.

In opposition, Danette contends that the January 28, 2018 judgment was an interim ruling rather than a considered decree. As such, the interim ruling was proper.

In reviewing child custody determinations, the trial court’s decision “ ‘is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion.’ ” Martin v. Martin, 11-1496, p. 2 (La.App. 3 Cir. 5/16/12), 89 So.3d 526, 528 (quoting Franklin v. Franklin, 99-1738 (La.App. 3 Cir. 5/24/00), 763 So.2d 759). Louisiana Civil Code Article 131 directs that “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” As such, custody cases are to be decided upon their “own particular facts and circumstances,” keeping in mind that “the paramount goal is to do what is in the best interest of the minor children.” Hebert v. Blanchard, 97-550, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1102, 1105.

Louisiana Civil Code Article 134 provides twelve relevant factors the trial court “shall” consider in determining the best interest of the child. Those factors include: (1) the love, affection, and emotional ties between each party and the child; (2) the capacity 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 of each party to provide the child with material needs such as clothing, food, and medical care; (4) the length of time the child has lived in an adequate, stable environment and the desirability of maintaining that environment; (5) the |4permanence, as a family unit, of the proposed or existing custodial home(s); (6) the moral fitness of each party with respect to how it affects the welfare of the child; (7) the physical and mental health of each party; (8) the community, school, and home history of the child; (9) the reasonable preference of the child; (10) the ability and willingness of each party to facilitate a close and continuing relationship between the child and the other party; (11) the distance between the residences of the parties; and (12) the responsibility for the rearing and care of the child previously exercised by each party.

Trial Court’s Ruling and Reasons for Judgment

Keeping in mind the above, we must determine the propriety of the trial court’s oral ruling and reasons for judgment on December 18, 2012, and subsequent written judgment on January 28, 2013. If the trial court was correct in setting the judgment for future review while designating Bryan as temporary domiciliary parent, then Bryan’s argument is without merit.

As mentioned above, the judgment provided that both parents were awarded joint custody with Bryan designated as the temporary domiciliary parent. Danette was ordered to continue treatment -with her psychiatrist, Dr. Charles Murphy, as well as continue psychotherapy with Brenda LaFleur, LCSW. Danette was also required to submit to an independent assessment by John Simoneaux, Ph.D., the trial court’s expert. Dr. Simoneaux was ordered to render a recommendation to the trial court by June 11, 2013, as to Dan-ette’s ability to resume primary domiciliary care. It also ordered a future status conference with Dr. Murphy and Ms. La-Fleur to take place on March 12, 2013. Both were required to submit written reports regarding Danette’s progress. A second status conference was scheduled to take place on June 11, 2013, with Dr. Simoneaux, Dr. Murphy, and Ms. LaFleur. The |5purpose of these conferences was to discuss Danette’s progress and determine her fitness to resume primary domiciliary custody.

The trial court’s oral ruling and reasons provide that the hearing for modification of custody arose out of Danette’s alleged suicide attempt on July 30, 2012. It recognized and discussed its obligation to weigh all of the La.Civ.Code art. 134 factors in order to “determine the best interest of these children.” In doing so, the trial court concluded that factor one weighed equally in favor of both parents. With respect to factor two, the court was concerned with Blaire’s struggles in school after Bryan obtained ex parte custody and with the fact that Bryan was unaware of Blaire’s low and failing grades during two semesters while in his custody. It acknowledged that Blaire, while in Danette’s care, was on the honor roll. Although the trial court partially attributed the failing grades to moving the children to a new school, it indicated that this factor favored Danette.

The trial court found that factors three, five, and six weighed equally in favor of both parents. As to factor eight, it noted that the children resided primarily with Danette and only visited with Bryan four days a month, concluding that factor eight favored Danette. Factor nine was found to be irrelevant.

With respect to factor ten, the trial court indicated that Danette introduced evidence that Bryan excluded her from the lives of the children since he had been granted custody. It found this “disturbing,” indicating that this factor was not in Bryan’s favor. It found factor eleven irrelevant and factor twelve in Danette’s favor. Specifically, the court noted that prior to the incident which resulted in the ex parte order, the children primarily resided with Danette, who was the primary provider for the rearing of the children.

|fiThe trial court combined its analysis of factor four, the length of time the children have lived in a stable and adequate environment, and factor seven, the mental and physical health of each party. It found that those two factors were the catalyst for Bryan’s filing of the ex parte petition and summarized its analysis of the various witnesses’ testimonies and the evidence as they pertained to factors four and seven.

In that regard, the trial court concluded that Bryan was an integral part of his family business which often took him away from his children. It noted that Bryan admitted to drinking daily, although he did not consider himself an alcoholic. The court found that he had a previous history of drug and alcohol abuse and possibly attended rehabilitation in Miami. It further indicated that Bryan was involved in an intimate relationship with his fiancée at the same time that he was involved in a “bizarre” relationship with Danette. The court noted that Bryan and Danette would exchange explicit texts and meet for sex, leading Danette to believe that there was a chance that she and Bryan could reconcile.

The trial court found that the July BO, 2012 incident resulted from a combination of social media excerpts and the behavior of Danette after Bryan finally ended their tumultuous relationship. Danette’s version of the incident was that she was a jilted lover who wanted to get back at Bryan. Bryan’s version of the incident was that Danette was deranged, unstable, and bent on self-destruction. The trial court stated that it was called upon to determine whether to accept Danette’s or Bryan’s version, which it referred to as the “crux of this case.”

After hearing all of the witnesses’ testimonies, the trial court indicated that it was relying on the expert witnesses in determining what was really going on during the July 30, 2012 incident. It stated that it could give greater weight to |7expert testimony. In that regard, it discussed Dr. Murphy’s testimony, indicating that he initially treated Danette in the hospital following her alleged suicide attempt. In his initial assessment, Dr. Murphy did not feel that Danette was suicidal. Dr. Murphy, however, felt that she needed to continue treating with him. Dr. Murphy was not ready to discharge her because he wanted to do a reassessment.

The trial court also discussed Ms. La-Fleur’s testimony. Ms. LaFleur treated Danette with psychotherapy after the alleged suicide attempt. She agreed with Dr. Murphy’s assessment that Danette was not suicidal or bipolar; nor did she suffer from major depression. Ms. La-Fleur opined that Danette had an adjustment disorder with depressive symptoms due to her toxic relationship with Bryan, but that she was doing well in therapy and addressing these concerns. Ms. LaFleur found it significant that Danette acknowledged making mistakes and to some extent bringing the situation on herself.

The trial court found that the testimony of Dr. Todd Peavy, Danette’s primary care physician, was important in that he indicated that Danette’s vital signs were in the normal range on the night of her hospitalization and that he did not give credence to an alleged suicide attempt. It noted that Nannette Territa-Prejean, an addiction specialist, concluded that Danette did not have a substance abuse or dependency problem.

In concluding its analysis of factors four and seven, the trial court indicated that it still could not determine whether the incident which led to the ex parte petition being filed was a suicide attempt or an attention-grabbing exercise by Danette. In order to ensure that the best interests of the children were being served, the trial court appointed its own expert, Dr. Simo-neaux, to conduct an independent assessment of Danette’s psychological health to determine whether she had any |sserious mental health issues which would preclude her from resuming domiciliary care of her children.

The trial court relied on the fourth circuit’s finding in Molony v. Harris, 10-1316 (La.App. 4 Cir. 2/23/11), 60 So.3d 70, in making its decision to allow Danette to continue treatment with her therapists and/or physicians and to appoint an independent expert to further assess Danette’s mental state. In Molony, an interim judgment was issued whereby the parties were granted temporary, shared physical custody of the child. The judgment ordered the mother to attend daily Alcoholic’s Anonymous meetings and to continue her weekly therapy; it also appointed a mental health expert, pursuant to La.R.S. 9:331, to evaluate and assess issues related to the mother’s alleged alcohol abuse. Thereafter, another hearing was held regarding final custody and visitation. In making its determination, the Molony court took into consideration all of the expert testimony, including the court-appointed expert and the mother’s treating physicians. In the instant case, Dr. Simoneaux’s report confirmed that Danette was mentally stable.

Utilizing the evidence above, we keep in mind the role of a trial court judge. In Turner v. Turner, 455 So.2d 1374, 1379 (La.1984), the supreme court stated:

The trial judge sits as a sort of fiduciary on behalf of the child, and must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child’s emotional, physical, material and social well-being and health which are the judge’s very purpose in child custody cases. He must protect the child from the harsh realities of the parents’ often bitter, vengeful, and typically highly emotional conflict. The legislature has mandated that the judge shall look only to the child’s interests.
In furtherance of this important goal, the court has been vested with broad and independent powers. It may, for example, order that an investigation be conducted into the home lives of the parties, the psychological health of the child, or into any other factor which the judge deems to be important in his determination of the child’s best 13interest. C.C. 146(C)(3). In this way, the court can fulfill its obligations to the child.

The trial court indicated that it was following the supreme court’s mandate in Turner stating:

It’s fundamental, fundamental, that this Court’s primary responsibility is to secure and assure the best interest of these children period. I’m not here to regulate the behavior of parents. God knows if we wait for parents to begin to act right and do the things they’re supposed to do, when are we supposed to take time to ensure the children get this?
We can only describe the actions of some of these parents, and even in this situation, how do you describe that? I’m with the mental health professionals. I’ve got to be convinced that whoever these children are with are going to be doing what’s best for these babies.
I’m going to remind the parents that the reason why this Court is staying involved, I’m going to stay involved in this case, because at the end of the day I am going to find out what is in the best interest of these children.

Additionally, La.R.S. 9:335(B)(1) provides that “[i]n a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.” Louisiana Code of Civil Procedure Article 373 further provides that “[a]n expert appointed by a trial court to assist it in the adjudication of a case in which his special skill and knowledge may aid the court is an officer of the court from the time of his qualification until the rendition of final judgment in the case.”

In this case, the trial court made it clear that it had good cause not to designate a permanent domiciliary parent until it could reach a conclusion regarding La.Civ.Code art. 134 factors four and seven with the assistance of Dr. Simoneaux along with the additional reports of Dr. Murphy and Ms. LaFleur. Thus, the trial court did not abuse its discretion in this regard.

|inWith that said, we keep in mind Bryan’s main argument that the December 18, 2012 oral ruling and the January 28, 2013 written judgment was a considered decree. We view the judgment, however, as an interim order rather than a final, considered decree. As mentioned above, the trial court was statutorily and jurispru-dentially allowed to withhold designating a permanent domiciliary parent until it could reach a conclusion regarding La.Civ.Code art. 134 factors four and seven with the assistance of its expert. Additionally, Bryan’s narrow and restrictive interpretation of the Bergeron rule fails to consider the trial court’s duty to act as a fiduciary on behalf of the children as decreed by the supreme court in Turner. Accordingly, Bryan’s assignment of error is without merit.

DECREE

The judgment rendered by the trial court on January 28, 2013, is affirmed. All costs of this appeal are assessed against Bryan Keith McManus.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

| j Reliance by the majority and the trial court on Molony v. Harris, 10-1316 (La.App. 4 Cir. 2/23/11), 60 So.3d 70, is misplaced. In Molony, an interim consent judgment was entered regarding temporary shared physical custody of the minor child. A trial was later held on visitation, not custody, and the trial court amended the interim agreement and allowed the minor child to spend more time with his mother. A hearing on final custody followed where the court ordered joint custody and designated co-domiciliary status. Molony involved the consideration of the latter judgment, that is, the judgment setting final custody and visitation. It had nothing to do with the interim consent judgment involving temporary shared custody and visitation. Those issues had been resolved prior to the hearing on final custody and visitation. Thus, Molony v. Harris is inapplicable.

The trial record makes it clear that this was a trial on the fitness of the parents at the time of the trial. The issue of fitness is the ratio decidendi of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Certainly, a trial court, as Bergeron explained, always retains the power to modify a child custody order. Here, the court reserved unto itself the power to change the custody order depending upon various review hearings in the future. That was legal error which interdicted discretionary factual findings and which mandate a de novo review. The mother should have been compelled to show what Bergeron requires, that is, a 12change of circumstances materially affecting the welfare of the child before the court would consider making a significant change in the custody order as it did here. It should have required the mother to show a deleterious change in circumstances before it would decide to switch custody back to her in June, 2013.

Both the third and second circuits have disapproved of “review hearings.” These hearings are not authorized in civil child custody cases. See, e.g., Brown v. Brown, 05-1346 (La.App. 3 Cir. 3/1/06), 925 So.2d 662. Judge Genovese, writing as the organ for the court, opined that “it should be noted that review hearings are held in juvenile cases as set forth in La.Ch.Code art. 1454, not in civil custody cases.” Id. at p. 666. Brown was quoted approvingly in Brown v. Mock, 43,571-CA (La.App. 2 Cir. 7/16/08), 987 So.2d 892.

These “review hearings” do not serve to foster judicial efficiency nor do they facilitate some semblance of finality of a court judgment. Rather, the “parents’ often bitter, vengeful, and typically highly emotional conflict,” Turner v. Turner, 455 So.2d 1374, 1379 (La.1984) becomes interminable in cases like this one. Why undergo two full' days of a trial with lay and expert witnesses and a fully developed appellate record on fitness if anticipated future “review hearings” are not subject to the Ber-geron standard?

For the foregoing reasons, I respectfully dissent.

      . Biyan argues that this incident was a suicide attempt; whereas, Danette argues that it was not a suicide attempt.

      . Bryan refers to the December 18, 2012 oral ruling and the January 28, 2013 judgment as a considered decree. "A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children.” Evans v. Lungrin, 97-541, 97-577, pp. 12-13 (La.2/6/98), 708 So.2d 731, 738 (citing Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478).

      . In Bergeron, 492 So.2d 1193, 1200, the supreme court held that the standard of review in cases where the trial court has previously entered a considered decree of permanent custody is as follows:
      [T]he party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Charles L. VENABLE, et al. v. Austin DEJEAN, et al.
    No. 13-765.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Dennis Joseph Phayer, Mindy M. Nunez, Burglass & Tankersley, Metairie, LA, for Defendants/Appellees, Rayne Autore-pair, Inc., Michael R. Stanford.
    John M. Jefcoat, Britney L. Hebert, Galloway Jefcoat, L.L.P., Lafayette, LA, for PlaintifRAppellant, Charles L. Venable.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

I,Charles Venable appeals the trial court’s grant of summary judgment dismissing his claims against the owner of a sign that allegedly contributed to the accident in which he was injured. Finding the owner of the sign did not carry its burden of proof, we reverse the judgment of the trial court and remand this matter for further proceedings.

FACTS

Charles Louis Venable (Louis), Chad Venable, and Jennifer Milatovich filed suit against Austin Dejean, Jr., Rayne Auto Repair, Inc., Michael Stanford, and their respective insurers, seeking damages they claim to have suffered when trucks driven by Mr. Dejean and Mr. Chad Venable collided on September 15, 2009. Mr. Deje-an owns a business that is located on East Texas Street in Rayne. His business is next door to Rayne Auto Repair; Mr. Stanford is the owner and operator of Rayne Auto Repair. The plaintiffs alleged that the collision occurred when Mr. Deje-an exited his driveway and hit Mr. Vena-ble’s truck. They further alleged that a sign owned by Rayne Auto Repair and placed near the street blocked Mr. Deje-an’s view of East Texas Street and Mr. Venable’s truck as it travelled toward Mr. Dejean. The plaintiffs contend, therefore, that the sign contributed to the collision and that Rayne Auto Repair and its insurer are liable to them for damages.

Charles and Chad Venable settled their claims against Mr. Austin and his insurer and dismissed their claims against them, reserving their rights against Rayne Auto Repair and the remaining defendants. Chad is no longer a plaintiff in this lawsuit.

pRayne Auto Repair and Michael Stanford filed a motion for summary judgment, asserting they were not at fault in causing the collision between Mr. Dejean and Mr. Venable. After a hearing on the motion, the trial court concluded that Mr. Dejean did not state that Rayne Auto Repair’s sign blocked his view of Mr. Venable’s truck before the collision occurred and granted summary judgment in favor of Rayne Auto Repair and Mr. Stanford. When denying the motion, the trial court stated, “Mr. Dejean denie[d] that he told the police officer that the signs, in fact, impaired or affected his abilities [or] his view.”

ASSIGNMENT OF ERROR

The trial court erred in granting summary judgment in favor of the defendant, as numerous general issues of material fact exist and the defendant is not entitled to a judgment as a matter of law.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23 (La.6/26/09), 17 So.3d 350. A motion .for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

On a motion for summary judgment, the initial burden of proof is on the mover to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). If the movant will not bear the burden of proof at trial, he need not | ./‘negate all essential elements of the adverse party’s claim”; however, he must show “there is an absence of factual support for one or more elements essential to the adverse party’s claim.” Id. If the movant meets this initial burden of proof, the burden shifts to the adverse party “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial.” Id.

“A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (citation omitted). “A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” Id. at 765-66.

Though summary judgments are now favored, “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. When considering a motion for summary judgment, the trial court cannot “consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La.3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La.4/12/05), 907 So.2d 37, 48). It is for “the trier of fact who has the opportunity to hear all the evidence and to observe the witnesses” to make credibility determinations. Belgard v. Am. Freightways, Inc., 99-1067, p. 5 (La.App. 3 Cir. 12/29/99), 755 So.2d 982, 986, writ denied, 00-293 (La.3/31/00), 756 So.2d 1147.

| ¿DISCUSSION

The trial court granted summary judgment because Mr. Dejean denied that he told the police officer who investigated the accident that a sign or signs owned by Rayne Auto Repair impaired or affected his ability to see Mr. Venable’s truck and that he did not see Mr. Venable’s truck because of the sign or signs. Notwithstanding this denial, when asked, “Do you believe that the sign of Rayne Auto Repair obstructed your view,” Mr. Dejean testified, “I probably made the statement.... I most probably told them it was.” Mr. Dejean also plainly stated in his deposition, “I made the statement about the sign.”.

Throughout his deposition, Mr. Dejean vacillated between (1) denying that he stated the signs blocked his view of Mr. Vena-ble’s truck, (2) admitting that he made the statement, and (3) insinuating that Mr. Venable, not him, told the police officer that he stated the sign blocked his view of Mr. Venable’s truck. Mr. Dejean also testified that he could see Mr. Venable’s truck from the time Mr. Venable turned onto East Texas Street until their vehicles collided and that Mr. Venable ran into his truck on purpose.

To be entitled to summary judgment, Rayne Auto Repair and Mr. Stanford had to prove that no genuine issue of material fact exists as to whether a sign owned by them contributed to the collision between Mr. Dejean and Mr. Venable. Mr. Deje-an’s testimony as to whether the sign blocked his view of Mr. Venable’s truck is equivocal and requires a credibility determination that can only be made by the trier of fact after a trial on the merits. Prop. Ins. Ass’n of La., 31 So.3d 1012.

Neither Mr. Dejean’s testimony nor any other evidence establishes that there is an absence of factual support for Mr. Vena-ble’s claim that a sign owned by Rayne Auto Repair and/or Mr. Stanford caused or contributed to Mr. Dejean | shitting his vehicle. Rayne Auto Repair and Mr. Stanford have not proven they are entitled to summary, and the judgment of the trial court must be reversed.

DISPOSITION

The judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings. All costs are assessed to Rayne Auto Repair, Inc. and Michael Stanford.

REVERSED AND REMANDED.


author: EZELL, Judge.

text:
    James LONG v. BENGAL TRANSPORTATION.
    No. WCA 13-793.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendant/Appellant, Bengal Transportation.
    Eugene A. Ledet, Jr., Dalrymple & Le-det, L.L.C., Alexandria, LA, for Plaintiff/Appellee, James Long.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   EZELL, Judge.

Lin this workers’ compensation case, Bengal Transportation Services appeals the decision of the workers’ compensation judge (WCJ) below awarding James Long supplemental earning benefits (SEB), as well as penalties and attorney fees. For the following reasons, we hereby affirm the decision of the WCJ.

Mr. Long was injured in a workplace accident on June 24, 2011, while working for Bengal as a truck driver. He suffered a left ankle fracture, requiring surgery. Bengal does not dispute the workplace injury. Dr. Catherine Johnson, Mr. Long’s orthopedist, determined that Mr. Long was at maximum medical improvement status on May 22, 2012, and he was released to return to work at medium duty. A functional capacity evaluation (FCE) was conducted which concluded that Mr. Long would be able to perform his pre-accident job with modifications. Specifically, the FCE restricted Mr. Long from squatting or crouching, limited walking to thirty minutes at a time, and limited him to thirty pounds of pushing and/or pulling. Bengal hired Buster Fontenot, a vocational rehabilitation specialist, to perform a job assessment on Mr. Long. He concluded that Mr. Long could return to work at Bengal in a position where he would drive only, not binding his loads. This position was approved by Dr. Johnson. Unfortunately, this position did not exist at Bengal; drivers are required, under federal law, to inspect their trucks and trailers before every run, as well as their loads before the run, within the first fifty miles, and thereafter every 150 miles or three hours of drive time, whichever comes first, and readjust the bindings if needed. Mr. Long was instead offered his prior position at full duty, which required him to climb, stoop, squat, and kneel in order to perform the inspections. When he did not report for work at his old | position, Bengal terminated SEB and Mr. Long filed the current workers’ compensation action.

After trial, the WCJ determined that Mr. Long established that he was unable to earn ninety percent of his pre-injury wages and that Bengal failed to show that there was a position available for him which would pay him at least 90% of his pre-injury earnings. Moreover, the WCJ determined that the termination of benefits was arbitrary and capricious. Bengal was ordered to reinstate SEB and was assessed a $4,000.00 penalty and attorney fees of $7,500.00 for the suspension of benefits. From that decision, Bengal appeals.

Bengal asserts two assignments of error on appeal. It claims that the WCJ erred in awarding Mr. Long SEB, and that the WCJ erred in awarding him penalties and attorney fees for the termination of his benefits.

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

Bengal first claims that the WCJ erred in awarding Mr. Long SEB after he was able to return to work as a truck driver.

| ¡¡“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin—Williams Co., 545 So.2d 1005, 1009 (La. 1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793, pp. 4-5 (La.1/9/11), 56 So.3d 170, 174 (alteration in original)(footnote omitted). “In determining whether a [workers’ compensation judge’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166.

According to Mr. Long’s testimony, he is unable to squat, kneel, stoop, crouch, or crawl. This is corroborated by the FCE, as well as the medical records of Dr. Johnson. It’s further clear from the testimony of Bengal’s representative and safety director, Ms. Dana Myers, that there was never a job available to Mr. Long only driving a truck. The only job that that was available to him at Bengal was his full prior employment, which entailed inspections of his truck and load as ^frequently as four to five times a day under federal law. Mr. Long testified that these inspections would require him to squat, kneel, stoop, crouch, or crawl-all tasks he could not physically perform and that he was restricted from doing by his physician. Accordingly, there is a reasonable factual basis for the WCJ’s finding that Mr. Long had established that he’s entitled to SEB. As that finding is supported by the record, it cannot be manifestly erroneous. This assignment of error is without merit.

Finally, Bengal claims that the WCJ erred in granting Mr. Long penalties and attorney fees for its termination of Mr. Long’s benefits. The Louisiana Supreme Court discussed the meaning of “reasonably controverting a claim” in Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, as follows:

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact and subject to the manifest error/clearly wrong standard of review. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224.

The record before this court does not show that the WCJ erred in granting Mr. Long penalties and attorney fees for Bengal’s failure to pay SEB. The medical | ¿records show that the one job Mr. Long was cleared for by his doctor was for a position where he would drive only. This position, as stated by Ms. Myers, did not exist. In fact, Ms. Myers testified that the only position ever offered him back his old job at full duty, which he could not perform due to his injury and the restrictions imposed by his physician. The fact that Mr. Long was never offered the imaginary driving-only position shows that Bengal did not rely on Mr. Fontenot’s report prior to the termination of benefits, as it knew the job offered required more than driving only. Bengal cannot rely on a report by a vocational rehabilitation specialist as reasonably controverting Mr. Long’s claims when Bengal itself admitted that the report was faulty. There is no evidence the WCJ’s awards of penalties and attorney fees were manifestly erroneous. Thus, this assignment of error is also without merit.

Mr. Long has answered this appeal seeking additional fees for work done on appeal. Considering our decision affirming the judgment, Mr. Long is entitled to additional attorney fees for work done on appeal, and same will be awarded.

For the above reasons, the decision of the WCJ is hereby affirmed. Mr. Long is awarded additional attorney fees of $3,000.00 for work performed on this appeal. Costs of this appeal are hereby assessed against Bengal Transportation.

AFFIRMED AS AMENDED.


author: CONERY, Judge.

text:
    STATE in the Interest of S.S. (Male) & S.S. (Female).

    Nos. 13-877, 13-878, 13-879.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Nicholas Pizzolatto, Jr., Department of Social Services, Lake Charles, Louisiana, for Appellant: State of Louisiana, Department of Children & Family Services.
    Stephen A. Berniard, Jr., Raggio, Cap-pel, Chozen, etc., Lake Charles, Louisiana, for Appellee: State of Louisiana, Office of Community Services.
    Ronald Augustin Rossitto, District Attorney, Lake Charles, Louisiana, for Ap-pellee: State of Louisiana.
    Jack Wright, Jr., Attorney at Law, Monroe, Louisiana, for Appellee: L.S. (mother).
    Richard L. Fewell Jr., Law Office of Richard Fewell, West Monroe, Louisiana, for Appellee: L.S. (mother).
    Stephanie Landry Cochran, Attorney at Law, Lake Charles, Louisiana, for Appel-lee: State of Louisiana.
    Robert Michael McHale Jr., Attorney at Law, Lake Charles, Louisiana, for Appel-lee: R. S., Jr. (father).
    Richard Scandrett, Children’s Advocacy Program, Lake Charles, Louisiana, for Ap-pellee: S.S. (child), S.S. (child).
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.

      . In the interests of privacy, we have used the initials of the parties involved in this matter. See Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2.

   CONERY, Judge.

liThe State of Louisiana Department of Children & Family Services (“DCFS”), appeals the imposition of an expert witness fee ordered by the trial court for the services of a psychologist who testified on behalf of R.S., Jr., the father of the minors S.S. (male) and S.S. (female). DCFS filed a motion and order to vacate the December 5, 2012 order directing DCFS to pay the psychologist’s witness fee, which was denied by the trial court. DCFS seeks reversal of the trial court’s order on the basis that it is without authority to order DCFS, a State agency, to pay court costs. DCFS filed a motion and order to vacate the judgment. The order vacating judgment was denied without a hearing by the trial court on December 13, 2012. DCFS timely appealed. For the following reasons we reverse and render.

FACTS AND PROCEDURAL HISTORY

This matter involving S.S. (male) and S.S. (female) has a long and complicated history, which includes child in need of care (CINC) petitions filed on three separate occasions. The parents of the minors are L.S., the mother, and R.S., Jr., the father. The three CINC petitions are listed below as follows:

(1) Docket Number 22570-JUV, filed on July 14, 2009 and assigned to Judge Ronald. F. Ware.

(2) Docket Number 24760-JUV, filed on April 10, 2010 and assigned to Judge Robert L. Wyatt.

|2(3) Docket Number 25015-JUV, filed on August 14, 2012, and also assigned to Judge Robert L. Wyatt.

On April 5, 2012, Judge Guy Bradberry issued an oral Instanter Order and then signed a written order on April 9, 2012, placing the two minor children in the custody of the State of Louisiana based on allegations of neglect and sexual abuse by the father, R.S., Jr. On April 12, 2012, a CINC petition resulting from the Instanter Order was lodged in docket number 24760-JUV.

On July 19, 2012, there were two hearings set on Judge Wyatt’s docket involving the minor children. The first was an adjudication hearing, held in the morning, involving the continuing custody of the two minors in the care of the State of Louisiana under docket number 24760-JUV based on the petition filed on April 12, 2012 by DCFS. Mr. Stephen Berniard, Jr., representing DCFS, requested that the CINC petition filed on April 12, 2012, in docket number 24760-JUV be dismissed with prejudice. There being no objection, the trial court ordered the dismissal with prejudice of docket number 24760-JUV. Once the trial court granted DCFS’s dismissal of docket number 24760-JUV, the custody of the minor children reverted from DCFS to L.S., the mother.

The second hearing, on the afternoon of July 19, 2012, was based on a motion filed on behalf of R.S., Jr., the father, seeking to “Rescind Stay Away Order And Reinstate Visitation,” lodged in docket number 22570-JUV, which was the first CINC petition originally filed by DCFS on July 14, 2009. On December |s16, 2009, Judge Ware had previously released DCFS from any further involvement in docket number 22570-JUV, when custody was granted to L.S., the mother and R.S., Jr.’s visitation rights were terminated based on earlier child sexual abuse allegations against R.S., Jr. in 2009.

The hearing on July 19, 2012, in docket number 22570-SUV, proceeded before the trial court. DCFS’s attorney, Mr. Bern-iard, as well as counsel for R.S., Jr. and L.S., participated in the hearing. Dr. Jerry Whiteman was subpoenaed by counsel for R.S., Jr., and was qualified as an expert in the field of psychology. He testified on behalf of R.S., Jr. As of March 17, 2005, Dr. Whiteman was R.S., Jr.’s treating psychologist. In a prior proceeding in 2011, Dr. Whiteman had been ordered by Judge Wyatt to conduct an updated psychological evaluation of R.S., Jr. and had rendered his updated report to the trial court on August 12, 2011. The mother of R.S., Jr. was also a patient of Dr. White-man’s as demonstrated by Dr. Whiteman’s letter dated June 23, 2010. Dr. Whiteman rendered his expert opinion, over the objection of counsel for L.S. and Mr. Bern-iard.

At the end of the hearing, the trial court was inclined to establish some visitation between R.S., Jr. and his minor children, unless “something was presented to the Court that suggested otherwise.” This statement was in reference to the possible additional allegations of sexual improprieties involving the minor children and R.S., Jr. As previously indicated, allegations of this nature resulted in R.S., Jr.’s loss of his visitation privileges in prior proceedings before Judge Ware in 2009.

The July 19, 2012 hearing was recessed and continued until August 7, 2012. The trial court issued an interim order allowing R.S., Jr. to have supervised visitation at Well Springs, in Monroe, Louisiana. L.S. objected to the supervised |4visitation and DCFS joined in that objection,' but the trial court overruled their objections and ordered supervised visitation. Further, the supervised visitation allowed more time for any further allegations against R.S., Jr., should any arise, to be brought to the court’s attention.

Mr. Berniard was present representing DCFS at the August 7, 2012 hearing. Mr. Berniard continued to lodge an objection to the supervised visitation, and on his motion, the trial court ordered in the interim that R.S., Jr.’s visits with the minor children be monitored and notes made by an observer. During both the July 19, 2012 and August 7, 2012 hearings, L.S. had custody of the two minor children, not DCFS. Technically speaking, DCFS was no longer a party.

At the November 27, 2012 hearing, involving R.S., Jr.’s request to reinstate visitation in docket number 22570-JUV, the case was mistakenly captioned under the previously dismissed docket number 24760-JUV. The trial court granted R.S., Jr.’s motion to have his visitation rights restored. Mr. Berniard was present at the hearing on behalf of DCFS, as was Mr. Tom Sanders, Jr., who is also listed as counsel for DCFS. There was a previous civil divorce and custody suit between L.S. and R.S., Jr. in the Fourth Judicial District Court, Parish of Ouachita, docket number 08-3874. The “Joint Custody Plan” filed in that case on November 13, 2008, set forth the visitation rights for R.S., Jr. with his minor children. Judge Wyatt restored R.S., Jr.’s full visitation rights at the November 27, 2012 hearing and, in effect, adopted the “Joint Custody Plan” in that case. No appeal was taken by anyone from this ruling, and the issue of custody and visitation is not properly before this Court.

The issue of the payment of the court costs associated with Dr. Whiteman’s expert testimony in the July 19, 2012 hearing was discussed on the record with the | .¡trial court at the November 27, 2012 hearing, and resulted in the assessment of Dr. Whiteman’s $750 expert fee to DCFS. The following colloquy between the trial court, Mr. MeHale, counsel for R.S., Jr., and Mr. Berniard ensued:

MR. MCHALE:
Your honor, one other matter that Dr. Whiteman asked me to address for the Court.
Previously, we didn’t subpoena him, but the Court wanted him here to testify. And I don’t think the Court has ever ordered anything regarding his fees.
THE COURT:
That fee is $750 to be paid by the agency-
MR. MCHALE:
Yes, sir. Thank you, Your Honor.
THE COURT:
That was in the last hearing — he appeared when y’all refused to—
MR. BERNIARD:
We didn’t call Dr. Whiteman, did we?
THE COURT:
Y’all were the ones disputing the change of custody. Agency will take care of it.

The discussion with the trial court does not end there. Mr. Sanders, counsel for DCFS, also attempted to clarify the procedural posture of the cases at the November 27, 2012 hearing and the following colloquy takes place on the record:

MR. SANDERS:
Your Honor, with respect with the — I know I’m not at the microphone. Can we find out who issued the subpoena to appear?
THE COURT:
Mr. McHale issued the subpoena.
MR. SANDERS:
Shouldn’t he bear the expense of having Dr. Whiteman?
THE COURT:
No. Y’all were the ones that were contesting it.
|fiMR. SANDERS:
We dismissed the case, Your Honor.
THE COURT:
No, no. I’m talking about the other case. I’m not talking about the new case. I talked [sic] about the other case.
MR. SANDERS:
All right.
THE COURT:
You’re the ones who contested the return of custody. You wanted to argue. Good, you pay for it.
MR. BERNIARD:
We didn’t contest the return to custody, Judge. The mother already had custody.
THE COURT:
We didn’t have a hearing?
MR. BERNIARD:
No. There was an allegation, though, that they had been abused. That’s what we were involved with.
THE COURT:
Right.
MR. MCHALE:
We had—
THE COURT:
I have issued my ruling. What don’t you understand?

On November 29, 2012, the trial court signed its written judgment memorializing its judgment reinstating R.S., Jr.’s visitation rights rendered in open court on November 27, 2012. However, the trial court made no mention in the written judgment of the assessment of the expert fee of Dr. Whiteman against DCFS. On December 5, 2012, the trial court issued an order, again erroneously filed in previously dismissed docket number 24760-JUV, requiring DCFS to pay an expert witness fee of $750 to Dr. Jerry Whiteman for his July 19, 2012 appearance in court.

|70n December 13, 2012, DCFS filed its “MOTION AND ORDER TO VACATE THE ORDER RENDERED IN OPEN COURT ON NOVEMBER 27, 2012,” in docket number 24760-JUV. The motion requested the trial court rescind its oral order regarding the expert witness fee on November 27, 2012, as well as the written judgment dated December 5, 2012, and requested that the court set a contradictory hearing to decide the issue. DCFS’s motion was denied ex parte without a hearing by the trial court on December 13, 2012. It is from this denial that DCFS appeals, arguing that all cases, save and except for the civil suit in Ouachita Parish, have now been consolidated by confusion.

ASSIGNMENT OF ERROR

DCFS maintains, “[t]he trial court committed manifest error when it ordered the Appellant, Louisiana Department of Children & Family Services to pay the $750.00 fee of Dr. Jerry White-man for his testimony on July 19, 2012.”

LAW AND DISCUSSION

Statutory interpretations are a question of law. Shell v. Wal-Mart Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-1149 (La.6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial court’s reasonable decision on a question or matter properly within the trial court’s discretion, if the trial court’s decision is based on an erroneous interpretation or application of the law, such an incorrect decision is not entitled to deference. Kern Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

|rDCFS argues that La.Ch.Code art. 405(A) applies and that the assessment by the trial court of the $750 witness fee to Dr. Whiteman should be reversed. The Article states:

Except as otherwise provided by law, no court or witness fees shall be allowed against any party to a petition, and no salaried officer of the state or of any parish or municipality therein shall be entitled to receive any fee for the service or for attendance in court in any such proceedings. All other persons acting under orders of the court may be paid in the same manner as in the district court for services or service of process and attendance or serving as witnesses, the fees provided by law for like services in cases before the district court. (Emphasis added.)

DCFS further argues that La.R.S. 13:4521(A)(1) also applies to this case, as that statute does not allow the imposition of court costs, including expert witness fees, against the State and its subdivisions, which would include DCFS. Louisiana Revised Statutes 13:4521(A)(1) states in pertinent part:

Except as provided in R.S. 13:5112, R.S. 19:15 and 116, and R.S. 48:451.3, and as hereinafter provided, neither the state, nor any parish, municipality, nor other political subdivision, public board, or commission, nor any officer or employee of any such governmental entity when acting within the scope and authority of such employment or when discharging his official duties shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state, or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state[.] (Emphasis added.)

However, La.R.S. 13:5112(A), provides an exception to La.R.S. 13:4521(A)(1) and states in pertinent part:

In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or | apolitical subdivision against which judgment is rendered, an award of such successful party’s court costs under R.S. 13:4583 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

In C.R.W. v. State, Dep’t of Social Services, 05-1044 (La.App. 1 Cir. 9/1/06), 943 So.2d 471, writ denied, 2006-2386 (La.12/21/06), 944 So.2d 1289, the court applied the exception in La.R.S. 13:5112(A) and affirmed the trial court’s award of costs against the Office of Community Services, State of Louisiana (“OCS”). The trial court found the unique circumstances of that case, which included a finding of gross negligence in the handling of the investigation by the OCS worker, warranted the award of equitable costs against the State.

The record in this case reflects that DCFS had been formally dismissed from docket number 22570-JUV at the time of the hearing on July 19, 2012. However Mr. Berniard participated in the hearing on behalf of DCFS and questioned Dr. Whiteman, attempting to elicit testimony to support the status quo, with custody of the two minor children remaining with the mother and no visitation by the father. DCFS opposed R.S., Jr.’s request for reinstatement of his visitation rights and were still involved in the case due to the recent allegations of sexual improprieties by R.S., Jr., as alleged in the CINC petition filed by DCFS on April 12, 2012, in docket number 24760-JUV. As previously discussed, docket number 24760-JUV, was dismissed with prejudice on the motion of DCFS, in a separate hearing before Judge Wyatt, also held on July 19, 2012.

DCFS is correct that Dr. Whiteman was called as a witness by R.S., Jr. and was subpoenaed by R.S., Jr.’s counsel, Mr. McHale, albeit at the request of the trial court. However, the record reflects that Mr. Berniard, on behalf of DCFS, attended | inand participated in all three hearings held on July 19, 2012, August 7, 2012, and November 27, 2012. Mr. Tom Sanders, Jr. is also listed as counsel for DCFS at the November 27, 2012 hearing.

In C.R.W., our supreme court affirmed the appellate court’s award of court costs against the State based on the particular facts and circumstances of that case involving gross negligence of an OCS worker. We find that La.Ch.Code art. 405(A) and La.R.S. 13:4521(A)(1) are applicable, and the exception under La.R.S. 13: 5112(A) is not applicable in this case. The actions of DCFS in participating in a case from which they were previously dismissed in order to maintain the status quo of custody with the mother, L.S., and to contest the reinstatement of visitation rights to the father, R.S., Jr., does not meet the bad faith standard discussed in C.R.W.

This court does not find that DCFS was in bad faith in contesting the reinstatement of visitation by the father, R.S., Jr., especially in light of the serious nature of the child sex abuse allegations lodged against him. There is no “equitable basis” to apportion expert witness fees to DCFS in this case. Therefore, the costs of the expert witness fee in the amount of $750 may not be assessed against DCFS, a State entity. Dr. Whiteman was subpoenaed by Mr. McHale, counsel for R.S., Jr. Since he was the party requesting that his visitation be re-instated and he had the burden of proof, R.S., Jr. will be cast for the expert fee of Dr. Whiteman.

^DISPOSITION

We find the trial court committed legal error by ordering the State of Louisiana Department of Children & Family Services to pay the court costs in the amount of $750 to Dr. Jerry Whiteman for his expert witness fee for his appearance in court on July 19, 2012. We reverse and render ordering that the expert fee in the amount of $750 is to be paid by R.S., Jr. All costs of this appeal are assessed to R.S., Jr. We hereby dismiss the appeal of docket number 13-879, trial court docket number 25015-JUV.

REVERSED AND RENDERED.

      . None of the Appellees filed a response.

      . Although the three petitions were not formally consolidated at the trial court level, or the appeal level, counsel for DCFS indicated in briefing to this court that "the fact that all of the parties were exactly the same and the issues the same, resulted in them being consolidated by confusion.”
      So, “in an abundance of caution,” DCFS requested the three cases be consolidated on appeal. However, only docket numbers 22570-JUV and 24760-JUV are before this court, as no order involving court costs was issued in 25015-JUV, and that case should not have been part of the consolidation for appeal.

      . Although DCFS appealed docket number 25015-JUV "in an abundance of caution,” as previously stated, no order involving court costs was issued in 25015-JUV and that case should not have been part of the consolidated cases on appeal.

      . The representation of DCFS by Mr. Bern-iard is referenced in the trial court’s minutes for the hearings held on July 19, 2012, August 7, 2012, and November 27, 2012.


author: ROBERTS, J.,

text:
    Thomas GERHOLD a/k/a Thomas Joseph Gerhold, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01442-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.
    Rehearing Denied Oct. 8, 2013.
    Certiorari Denied Jan. 9, 2014.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Warren County Circuit Court found Thomas Ger-hold guilty of touching a child for lustful purposes. The circuit court sentenced Ger-hold to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with seven years suspended and eight years to serve, followed by five years of post-release supervision. Gerhold appeals and claims the circuit court erred when it allowed the prosecution to introduce the victim’s testimony that approximately one year prior to the incident that led to his conviction, Gerhold had touched her inappropriately while she had been sleeping, although she had initially believed that the earlier encounter had been a dream. Additionally, Gerhold claims his conviction is contrary to the overwhelming weight of the evidence. Finally, Gerhold argues that the circuit court improperly declined to enter a supplemental jury instruction when the jury, during its deliberation, sent the circuit court a note that contained a question. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. During April 2009, a mutual friend introduced Gerhold and Jane. Jane had two daughters, Ann and Emily, from a previous relationship. Approximately one month later, Jane and her daughters moved in with Gerhold. Jane and Gerhold never married, although Gerhold had given her an engagement ring and then subsequently taken it back from her due to various disputes.

¶ 3. As of October 2010, Ann was twelve years old. On October 31, 2010, Ann was suffering from a cold. After everyone else went to bed, Gerhold remained awake. Gerhold frequently stayed up after Jane and her daughters went to sleep so that Gerhold could watch pornography and masturbate in the living room.

¶4. Ann explained that she was “just starting to fall asleep” when Gerhold entered her room and “put his penis in her hand.” When Ann pulled her hand away, Gerhold told her that he was “just coming to check on [her],” and he walked out of her room. Ann said that Gerhold’s penis was wet, so she wiped her hand on her mattress, a blanket, and one of her stuffed toys. Ann later testified that she was shocked by what had happened and that “she didn’t know what to do.” After staying up “most of the night,” she told Jane about her encounter early the following morning. Jane later explained that she was “shocked” by Ann’s revelation.

¶ 5. Following their usual routine, Jane drove Gerhold to work and dropped off Emily at school. Jane then drove Ann to a doctor’s office so that the doctor could treat Ann’s cold. Neither Ann nor Jane mentioned Ann’s encounter with Gerhold.

¶ 6. Not long after Jane and Ann returned home from the doctor’s office, Ger-hold called Jane and asked her to bring him lunch. Jane complied. Not wanting to leave Ann home alone, she brought Ann with her. Jane went inside Gerhold’s workplace and gave him his lunch. She then confronted Gerhold about his contact with Ann. According to Jane, Gerhold became angry because she believed Ann. Jane explained that Gerhold threw his hamburger at her and went outside and punched her car. Jane and Ann left and went directly to the Vicksburg Police Department and reported Gerhold. Ann gave a statement to Officer Lawanda Mal-lett.

¶ 7. Gerhold was arrested later that day. Gerhold also gave a statement to Officer Mallett. According to Gerhold, he had just finished masturbating when he heard Ann coughing. Based on Gerhold’s version of events, he rushed into Ann’s room to check on her. Gerhold explained that he could have failed to ensure that he had placed his penis inside of his boxer shorts. Gerhold later said that he reached over to feel Ann’s forehead. He claimed that his penis could have contacted Ann, but he denied that any such contact was intentional.

¶ 8. Officer Wayne Lynch went to Ger-hold’s house and used an ultraviolet light to find several stains on Ann’s mattress. Officer Lynch collected a small sample of Ann’s mattress so that it could be tested for Gerhold’s DNA. Officer Lynch also obtained DNA samples from Gerhold. Officer Lynch then sent Gerhold’s DNA and the sample of Ann’s mattress to a laboratory for testing. Kathryn Rogers, a forensic scientist, later confirmed that Gerhold’s sperm was present on the sample of Ann’s' mattress.

¶ 9. Gerhold was indicted for one count of touching a child for lustful purposes. He pled “not guilty” and went to trial. Prior to trial, Gerhold’s attorney moved to exclude Ann’s anticipated testimony that approximately one year prior to the October 31, 2010 incident, Gerhold had entered her room and touched her inappropriately, and Ann initially thought she had dreamed the event, but after the later inappropriate contact, was convinced that the earlier event had actually occurred. The circuit court held that it would allow testimony about the earlier event, but Gerhold would be allowed to cross-examine Ann to point out that she initially believed it had merely occurred in a dream.

¶ 10. When Gerhold went to trial, the prosecution called Ann as its first witness. As anticipated, Ann testified that approximately one year prior to the October 2010 event, Gerhold went into her room and “poked her finger with his penis.” Ann said that Gerhold’s penis had also been wet during the earlier event. Gerhold’s attorney vigorously cross-examined Ann regarding the fact that Ann had initially believed that she had dreamed the earlier contact. However, Ann adamantly stated that after the October 2010 event, she knew the earlier event had not been a dream.

¶ 11. Following Ann’s testimony, the prosecution called Jane, Officer Mallett, Officer Lynch, and Rogers. After the prosecution rested its case-in-chief, Ger-hold called his new girlfriend, Keri Crawford, who testified that she trusted Ger-hold around her four-year-old daughter. Gerhold also chose to testify.

¶ 12. Gerhold’s testimony was consistent with the statement that he gave to Officer Mallett. When asked why his sperm was found on Ann’s mattress, Ger-hold testified that he and Jane had “christened” the home that he and Jane had moved into by having sex in every room of the house, which included Ann’s room and, by extension, Ann’s mattress.

¶ 13. The jury found Gerhold guilty of touching a child for lustful purposes. The circuit court sentenced Gerhold to fifteen years in the custody of the MDOC, with seven years suspended and eight years to serve, followed by five years of post-release supervision. Following unsuccessful post-trial motions for a judgment notwithstanding the verdict or a new trial, Ger-hold appeals.

ANALYSIS

I. PRIOR BAD ACTS

¶ 14. Gerhold claims the circuit court erred when it allowed Ann to testify that Gerhold had touched her inappropriately approximately one year before the event that led to Gerhold’s conviction. We are mindful that “[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, [an appellate court] will not reverse [the trial judge’s decision].” Gore v. State, 37 So.3d 1178, 1183 (¶ 13) (Miss.2010) (citation omitted).

¶ 15. Gerhold acknowledges that prior instances of inappropriate contact between a defendant and a victim are generally admissible under Mississippi Rule of Evidence 404(b) to show the defendant’s intent or motive. See Wiltcher v. State, 724 So.2d 933, 936 (¶5) (Miss.Ct.App.1998) (“[S]ubstantially similar acts with the same person, that is, sexual acts of the same general type as those charged in the indictment, are probative and admissible.”) However, Gerhold argues that the circuit court should have found that Ann’s “dream” testimony was inadmissible under Mississippi Rule of Evidence 403. Rule 403 provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....” According to Gerhold, the prejudicial effect of Ann’s testimony outweighed its probative value, because Ann was not certain whether she had merely dreamed that the earlier contact had occurred. Additionally, Gerhold argues that the circuit court should have prohibited Ann’s testimony based on Mississippi Rule of Evidence 602, which states that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he [or she] has personal knowledge of the matter.”

¶ 16. During Ann’s direct examination, she testified that after the October 2010 incident, she no longer thought that she had dreamed her previous encounter with Gerhold. Immediately after her previous encounter, Ann had told Jane what had happened, and Ann only concluded that it had been a dream after she spoke with Jane. During cross-examination, Gerhold’s trial attorney attempted to have Ann testify that she was not certain whether her previous encounter with Gerhold had been a dream. Under vigorous cross-examination, Ann testified that she did not see Gerhold’s penis during the earlier encounter, and she did not know how she was certain that Gerhold’s penis had been touching her finger. Gerhold’s trial attorney then asked Ann, “So we don’t know for sure if that actually happened, then, do we?” Ann responded, “I don’t know.” To emphasize Ann’s response, Gerhold’s trial attorney asked, “What was that answer?” Ann responded, “I’m sure it happened. I am positive. I am not — I’m not going to lie about something like that.”

¶ 17. Later during cross-examination, the following exchange occurred:

Q. Now, in 2010, October, we have a similar story from you, right?
A. Yes, sir.
Q. As in 2009, which you’re not sure about?
A. Yes, sir.

Gerhold’s trial attorney essentially addressed two substantially different subjects in his second question: (1) the 2009 incident was similar to the 2010 incident; and (2) Ann was not certain about the 2009 incident. It is unclear which subject Ann’s response addressed.

¶ 18. Gerhold’s trial attorney subsequently revisited the subject of the earlier encounter as compared to the October 2010 incident. To be precise, Gerhold’s trial attorney asked, “So, unlike in 2009, there’s no question about this, right? It actually happened?” Ann responded, “Yes, sir.” Again, Gerhold’s trial attorney included his own statement that Ann was uncertain about the 2009 incident, and he then asked Ann whether the 2010 incident actually occurred. The logical interpretation of Ann’s response is that she was affirmatively responding that the 2010 incident had actually happened.

¶ 19. Gerhold’s trial attorney addressed the 2009 incident one final time during the following exchange:

Q. So, basically the same set of facts you claimed happened in 2009 now has happened in 2010, a year later?
A. Yes, sir.
Q. Okay. No question in your mind?
.A. No, sir.
Q. Now, .since you don’t know what happened in 2009, when did you make the decision that it wasn’t a dream anymore?
A. When — when it — when it happened again in 2010.
Q. Okay, so it suddenly — it wasn’t a dream anymore?
A. No, sir.
Q. Even though you never saw it?
A. No, sir.
Q. And [you] don’t actually know what happened in 2009, do you?
A. No, sir.
Q. And suddenly in 2010[,] you wake up out of a sleep and [you] say, [“]there’s a penis, I see it, it’s in my hand,[”] right?
A. Yes, sir.

Ann had consistently testified that she was certain that Gerhold had touched her inappropriately in 2009. After Gerhold’s trial attorney told Ann multiple times that, contrary to her consistent testimony, she did not know what happened in 2009, Ger-hold’s trial attorney finally managed to have Ann testify according to his position.

¶ 20. At thirteen years old, Ann was under intense cross-examination. She had testified numerous times that she was certain that she had not dreamed that Ger-hold had entered her room in 2009 and touched her with his penis. We do not find that the circuit court abused its discretion when it allowed Ann to testify that she was certain that the 2009 incident had occurred. At that point during Gerhold’s trial, the probative value of her testimony was not questionable. Within the context of other questions, Gerhold’s trial attorney told Ann that she was uncertain about the 2009 incident. Finally, after numerous attempts to characterize Ann as uncertain about the 2009 incident, Ann conceded somewhat.

¶21. Gerhold’s trial attorney’s cross-examination created a question of fact for the jury to resolve. We do not find that the circuit court abused its discretion when it did not prohibit the testimony at issue. Ann testified that she was certain about what had happened. Ann was certainly in a position to have personal knowledge regarding her testimony. Furthermore, the circuit court subsequently instructed the jury as follows:

[Djuring the course of this trial[,] you have heard evidence of other crimes, wrongs, or acts that the defendant allegedly committed against the child. You cannot consider other crimes, wrongs, or acts of the defendant allegedly committed as any evidence that the defendant committed the crime charged in the indictment. The evidence of other crimes, wrongs, or acts that the defendant committed may only be considered by the jury as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The evidence of other crimes, wrongs, or acts that the defendant allegedly committed may not be used to prove the charge of molestation of a child, as set forth in the indictment in this case.

There is a presumption that the jury follows the trial court’s instructions. Payne v. State, 462 So.2d 902, 904 (Miss.1984) (citation omitted). Because we do not find that the circuit court abused its discretion when it allowed Ann’s testimony, we find no merit to this issue.

II. WEIGHT OF THE EVIDENCE

¶ 22. Gerhold argues that the circuit court erred when it overruled his motion for a new trial. Under the circumstances, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). The supreme court has further instructed that when reviewing a trial court’s decision to deny a motion for a new trial:

The motion ... is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote, internal citations, and quotations omitted).

¶ 23. Gerhold was charged with violating Mississippi Code Annotated section 97-5-23(1) (Rev.2006). Section 97-5-23(1) provides:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his ... lust, or indulging his ... depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his ... body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, ... shall be guilty of a felony....

Gerhold argues that the weight of the evidence indicated that his penis had accidentally touched Ann. Additionally, Gerhold argues that because he had finished masturbating immediately before he went into Ann’s room, the weight of the evidence indicated that he did not have any lustful intent when he went into Ann’s room. Gerhold urges us to reverse the circuit court’s judgment and remand this matter for a new trial.

¶ 24. We quote the State’s entire argument as it appears in its brief:

The defense tries to claim the evidence is legally insufficient to prove that the touch was done “for the purposes of gratifying lust or indulging licentious sexual desires” as required by [section 97-5-23],
The testimony is that “he put his penis in my hand” and that she was awake and saw it. Further the penis was “wet.” And that there was enough on her hand to wipe off on her bedding and a toy bunny. Further expert testimony linked that [“]wet[”] stain by DNA evidence to be that of [the] defendant.
The record reflects substantial credible evidence supporting the jury’s determination that Lowe possessed the opportunity, place, and ability to download the material. The record also shows evidence of Lowe’s behavior upon learning of the investigation by the sheriffs department; namely, Lowe fled the state. Additionally, the jury heard testimony supporting the defense’s argument that someone other than Lowe downloaded the material from Lowe’s personal computer. Specifically, the defense argued that the computer was not in Lowe’s possession at the time it was recovered; the owner of the company where Lowe worked testified he had never seen Lowe with a computer at work; and the State’s own expert testified that someone other than Lowe could have downloaded the material. However, “when considering whether a jury verdict is against the overwhelming weight of the evidence, we ‘show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the State’s favor.’ ” Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 378 (¶ 9) (Miss. 2004) (quoting Venton v. Beckham, 845 So.2d 676, 684 (¶ 27) (Miss.2003)). Thus, although some evidence favors Lowe’s claim of innocence, the jury nonetheless found Lowe guilty; and that verdict does not sanction an “unconscionable injustice.” Accordingly, we find this issue is without merit.
Lowe v. State, — So.3d -, at - (¶ 31) (Miss.Ct.App.2012) (rehearing denied Mar. 12, 2013) ].
It is the position of the State that looking at the evidence that supports the verdict[,] there is not an unconscionable injustice in affirming the verdict of the jury and the sentence of the trial court. []
No relief should be granted on this claim of error.

¶ 25. Aside from the standard of review, the language that the State quotes from Lowe — an unpublished opinion at this time — is unrelated to Gerhold’s argument. The State utterly fails to elaborate regarding its reasoning. Based on the contents of the State’s brief, we can only surmise that the State’s argument is that because a conviction for exploitation of children was not contrary to the overwhelming weight of the evidence in Lowe, Gerhold’s conviction for gratification of lust is likewise not contrary to the overwhelming weight of the evidence.

¶ 26. However, despite the State’s largely unrelated response, the State correctly points out that Ann testified that Gerhold “put his penis in my hand.” Ann never characterized her contact with Ger-hold’s penis as incidental. Furthermore, the State correctly notes Ann’s testimony that Gerhold’s penis was wet. Ann testified that she wiped her hand on her mattress, and Gerhold’s semen was recovered from Ann’s mattress. Gerhold argues that such evidence is indicative that his lust had been satisfied. However, our review requires that we view the evidence in the light most favorable to the jury’s verdict. Accordingly, we decline to find that Ger-hold could not have possessed any lustful or licentious intent even if he had ejaculated in a different room immediately before he placed his penis in Ann’s hand. As this Court stated in Bradford v. State, 736 So.2d 464, 466 (¶ 9) (Miss.Ct.App.1999), “some evidence of sexual arousal by the defendant during the encounter ... might be sufficient to permit the jury to draw a reasonable inference as to the improper purpose of the defendant’s act.” Without question, the jury could have concluded that Gerhold was aroused when, immediately after he had been masturbating, he placed his penis in Ann’s hand. Suffice it to say, affirming the jury’s verdict would not be the equivalent of sanctioning an unconscionable injustice. It follows that there is no merit to this issue.

III. JURY INSTRUCTIONS

¶ 27. Finally, Gerhold takes issue with the circuit court’s decision to decline to enter a supplemental instruction after the jury sent the circuit court a note while the jury was deliberating. Specifically, the jury’s note contained the following written question: “Does the accidental touching by either part[y] during or after masturbation/ejaculation meet the intent of item #4?” “Item #4” referred to the fourth element of the charge as listed in jury instruction S-l. That instruction stated that the jury must find, beyond a reasonable doubt, that “Gerhold’s purpose in touching [Ann] was to gratify his lust or indulge his depraved, licentious sexual desires.” The circuit court’s response stated that “[t]his is a question for the jury to decide based upon all [of] the instructions given to you by the [c]ourt.”

¶ 28. According to Gerhold, the circuit court “improperly deferred a pure question of law.” Gerhold also argues that the circuit court’s response “was misleading and failed to resolve the jury’s confusion.” However, while the circuit court was considering its response to the jury’s question, the circuit court gave the prosecution and Gerhold’s trial attorney an opportunity to comment on an appropriate response. The prosecution recommended that the circuit court respond that the jurors had “been given the instructions of law from the [c]ourt and that they are to follow the instructions that they’ve been given.” The prosecution also opined that if the circuit court respond differently, the circuit court would be “highlight[ing] one instruction over another, and that’s improper.” Ger-hold’s trial attorney also said that the circuit court should respond by saying that “[tjhat’s a jury instruction that you need to decide, which is what the instructions say.” Gerhold’s trial attorney said that he had no objection when the circuit court stated that it would respond with a message that “[t]hat is a question for the jury to decide based on all instructions given to you by the [cjourt.”

¶ 29. When defense counsel agrees to a circuit court’s response to a jury’s question, a defendant is procedurally barred from arguing on appeal that the circuit court’s response was inappropriate. Hughes v. State, 90 So.3d 613, 624 (¶ 26) (Miss.2012). It follows that this issue is procedurally barred based on the lack of a contemporaneous objection during Ger-hold’s trial.

¶ 30. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF TOUCHING A CHILD FOR THE PURPOSE OF GRATIFYING HIS LUST AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SEVEN YEARS SUSPENDED AND EIGHT YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . We substitute the fictitious names Jane, Ann, and Emily to protect the victim’s identity-

      . Jane later testified that she could not decide whether she should kick Gerhold out or pack her and her daughter's things and move out She also said that she could not decide whether she should report Gerhold to authorities before or after she or Gerhold moved out.

      . Gerhold’s trial attorney was obligated to zealously represent his client, so this opinion should not be construed as criticizing Ger-hold’s trial attorney for the manner in which he conducted his cross-examination.

      . Our analysis of this issue does not contemplate "affirming ... the sentence of the trial court.” The circuit court’s sentence is irrelevant to whether the jury’s verdict was contrary to the overwhelming weight of the evidence.