author: CARAWAY, J.

text:
    Kathleen Snow STEPHENS, Plaintiff-Appellant v. Lewis Wayne STEPHENS, Defendant-Appellee.
    No. 48,957-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Hesser & Flynn By David C. Hesser, Alexandria, for Appellant.
    David G. Moore, Shreveport, for Appel-lee.
    Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

|! Following a divorce judgment which extended interim spousal support for 100 days, the plaintiff waited over 4 years before asserting a claim for final periodic spousal support by the filing of a rule to show cause. The defendant asserted the three-year peremption of C.C. art. 117 as a bar to plaintiffs claim. Plaintiff argued that certain payments by defendant for an arrearage on his interim support obligation delayed the running of peremption. The trial court rejected plaintiffs argument and dismissed her claim because of per-emption. Plaintiff appeals. We affirm the trial court judgment.

Facts

Kathleen and Lewis Stephens were married on February 20, 1982, and of the marriage two children, who are now adults, were born. On June 12, 1995, Kathleen filed a pro se petition for divorce from Lewis. In the original petition, Kathleen sought alimony pendente lite. By agreement, a judgment of August 15, 1995, directed Lewis to pay Kathleen $700 monthly for temporary alimony.

On January 5, 1996, Lewis obtained an order setting the divorce hearing for January 26,1996. Through her attorney, Kathleen supplemented her divorce petition on January 19, 1996, with a claim for post-divorce alimony, which was also set for hearing on January 26, 1996. Nevertheless, court proceedings considering these matters did not occur. Although child custody issues were litigated and property matters raised, no divorce was rendered.

|2Notably, in March 2000, Kathleen filed a rule for contempt concerning Lewis’s delinquency in payment of interim spousal support. Finally, on October 26, 2004, a judgment of divorce was granted. The judgment contained language addressing support as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the rights of Petitioner, KATHLEEN SNOW STEPHENS, to interim spousal support shall continue until February 8, 2005, as if there were pending a request by her for final spousal support.

On December 1, 2008, community property issues were litigated between the parties. A judgment followed on December 5, 2008 and included the following language:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that as of December 1, 2008, LEWIS WAYNE STEPHENS, owes KATHLEEN SNOW STEPHENS, spousal support in the amount of $6,350.71.

On April 21, 2009, Kathleen filed An Amended and Supplemental Rule for Final Spousal Support, seeking the final periodic spousal support, which is the subject of this dispute and appeal. Her pleading purported to be a reassertion of her earlier 1996 claim for final spousal support.

On May 12, 2009, Lewis filed an Exception of Peremption arguing that Kathleen’s claims for final alimony were untimely under La. C.C. art. 117, which reads as follows:

The right to claim after divorce the obligation of spousal support is subject to a peremption of three years. Peremption begins to run from the latest of the following events:
la(l) The day the judgment of divorce is signed.
(2) The day a judgment terminating a previous judgment of spousal support is signed, if the previous judgment was signed in an action commenced either before the signing of the judgment of divorce or within three years thereafter.
(3) The day of the last payment made, when the spousal support obligation is initially performed by voluntary payment within the periods described in Paragraph (1) or (2) and no more than three years has elapsed between payments.

After hearing argument on the exception and considering the record and exhibits, the trial court specifically determined that Kathleen’s claim for final periodic support was untimely under Article 117. Thus, the court granted the peremption exception and dismissed Kathleen’s claim with prejudice. This appeal by Kathleen ensued.

Discussion

On appeal, Kathleen argues that her claim for final spousal support was timely under either subpart (2) or (3) of Article 117. She contends that Lewis’s alimony payments were voluntary as contemplated by subpart (3), and thus she had three years from his last payment of August 2009 to file a claim for final support. Kathleen also argues that under subpart (2) of Article 117, she had three years from the December 2, 2008 judgment, which she describes as the last judgment of spousal support, to file her claim. Additionally, Kathleen argues for the first time to this court that Article 117, which was enacted in 1997, should not be applied retroactively to her claims for spousal support, which arose before 1997.

|4The issue on appeal concerns the interpretation of Article 117 and the peremptive period provided therein. Per-emption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458.

The right to claim after divorce the obligation of final periodic support is afforded the spouse who “has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay.” La. C.C. art. 112. The right to claim final periodic support is asserted in a summary proceeding by the filing of a contradictory motion or by a rule to show cause. La. C.C.P. arts. 2592(8) and 2593.

Although not specifically argued by Kathleen to this court, we will first address the effect of her 1996 pleading in which she initially asserted the incidental action for final support. The 100-day extension of Kathleen’s interim support in the October 26, 2004 judgment of divorce was only authorized under Civil Code Article 113 “if a claim for final support [was] pending.” La. C.C. art. 113. The judgment of divorce awkwardly granted such extension of interim support “as if there were pending a requirement ... for final spousal support.” Thus, as indicated in the divorce judgment, Kathleen’s 1996 claim remained pending as an incidental summary action within the divorce proceeding. La. C.C. art. 105; La. C.C.P. art. 2592(8).

Louisiana Civil Code Article 3461 provides that “[p]eremption may not be renounced, interrupted or suspended.” La. C.C. art. 3461. ^Nevertheless, the “timely exercise” of a right subject to peremption occurs by an action asserting the right. La. C.C. arts. 3458 and 3462. Therefore, “so long as the action is pending the lapse of the period of peremption does not extinguish the right.” Revision Comment (c), La. C.C. art. 3461.

Like any civil action, however, the pendency of Kathleen’s action for final periodic support was subject to the procedural rule of abandonment of an action. La. C.C.P. art. 561. Abandonment has been recognized as applicable to a summary proceeding. Barton v. Barton, 06-2032 (La.App.lst Cir.8/8/07), 965 So.2d 939; La.C.C.P. art. 2596.

Although Kathleen’s claim for final periodic support remained pending post-divorce due to her assertion of the claim in 1996, we recognize that the claim was abandoned. An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561(A)(1). A “step” is defined as a formal action before the court that is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.05/15/01), 785 So.2d 779. Abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party. La. C.C.P. art. 561(A)(3); Clark, supra. It is effective without court order. Clark, supra.

Abandonment balances two equally sound, competing policy considerations: (1) the desire to see every litigant have his day in court, and not to lose it by some technical carelessness or unavoidable delay; and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from normal extinguishing operation of prescription. | ePlark, supra. The latter policy consideration parallels those served by prescriptive statutes — promoting legal finality, barring stale claims, and preventing prejudice to defendants. Clark, supra.

Abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim. Clark, supra. Abandonment was once provided for in the Civil Code articles on prescription. See Clark, supra. Under the old law, if the plaintiff, after having made his demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the interruption of prescription occurring due to filing suit is considered as having never occurred. Clark, supra, citing La. C.C. art. 3519 (1870).

In this case, no facts concerning Kathleen’s need for support after 2004 were ever asserted by summary proceeding for over four years after the divorce judgment and the extension of interim support. No order of the court assigning the date of trial of the summary proceeding was obtained. Kathleen presented no evidence that any step in the prosecution of her claim for final periodic support was made. Accordingly, abandonment occurred regarding her 1996 claim, and its filing is considered as having never occurred. It therefore follows that the timely exercise of Kathleen’s right to claim support did not occur in the three years following the 2004 divorce, and the peremption of Article 117 ran.

Turning to Kathleen’s assertions under subparts 2 and 3 of Article 117, we also find no merit in her argument. From the record, the only order for spousal support fixing Lewis’s obligation concerned the $700 monthly interim support. That obligation was specifically addressed and extended in 17the divorce judgment to continue until February 3, 2005. The evidence further shows that the December 5, 2008 judgment identified a $6,350.71 arrearage that had arisen because of Lewis’s delinquency in paying the interim spousal support. Lewis’s payments of $700 per month after the December 5, 2008 judgment were not voluntary payments for permanent support, the event contemplated under subpart 3 of Article 117. Such payments were shown to have pertained only to the payment of the $6,350.71 arrearage. Finally, the December 5, 2008 judgment, which itself was rendered over three years after the judgment of divorce, was not a judgment terminating an obligation for spousal support and therefore was not an event addressed in subpart 2 of Article 117.

Accordingly, the record demonstrates that the peremptive period of Article 117 did in fact run, and the trial court’s ruling is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . Stephens v. Stephens, 30,498 (La.App.2d Cir.5/13/98), 714 So.2d 115.

      . Documentation sent from Lewis to his counsel showed that as of December 1, 2008, he owed Kathleen the sum of $6,350.71 in back due alimony. This documentation also shows that after the December 2008 judgment, Lewis paid Kathleen $700/month until August 14, 2009, when he claimed to have satisfied that remaining obligation. In argument at the peremption hearing, Lewis’s counsel indicated that the arrearage judgment was made part of the community property claims "to offset the credits and the balances so that he could pay her.” At that time, Kathleen's counsel conceded that the judgment was for "past-due” support.

      . Appellate courts generally will not consider issues raised for the first time on appeal. Mosing v. Domas, 02-0012 (La.10/15/02), 830 So.2d 967; Segura v. Frank, 93-1271, 93-1401 (La.1/14/94), 630 So.2d 714. Accordingly, Kathleen is precluded from now raising this issue. At the hearing before the trial court, all parties conceded the applicability of Article 117 to the case.

      . At the hearing on peremption, the trial court framed the issue as follows: "So now the key would be: Does the request in '96 continue, or is 117 operative because she, in essence, abandoned the '96 request because nothing was ever done?”


source: Caselaw Access Project

author: COOKS, Judge. PICKETT, J.,

license: Public Domain

text:
    Chris ATHERTON v. ROSTEET LAW FIRM.
    No. 13-864.
    Court of Appeal of Louisiana, Third Circuit.
    April 16, 2014.

      William J. Cutrera, Lake Charles, LA, for Plaintiffs/Appellants, Chris Atherton d/b/a Atherton Intercontinental Concerts, Charles Atherton and International Concerts.
    Emmett C. Sole, H. Alan McCall, Justin C. Ward, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appellees, Rosteet Law Firm and Sidney Rosteet.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

12This is an appeal filed by Appellants, Chris Atherton d/b/a Atherton Intercontinental Concerts, Charles Atherton and International Concerts, LLC, (hereafter Ath-erton) from two rulings by the trial court granting an Exception of No Cause of Action and an Exception of Res Judicata filed by Appellees, Rosteet Law Firm and Sidney Rosteet (hereafter Rosteet). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This legal malpractice action arose from Rosteet’s legal representation of Atherton in two separate proceedings. On November 15, 2002, Atherton through his attorneys (then Seth Hopkins and James Hopkins) filed a lawsuit against Deep South Productions (hereafter “Deep South suit”) for damages to rental property, failure to pay for rental property, conversion, theft and slander. On July 6, 2005, Sidney Ros-teet was substituted as counsel of record in the Deep South suit. In May of 2007, Rosteet informed Atherton that the suit had been abandoned under La.Code Civ.P. art. 561 for failure to take any steps in the prosecution in the trial court for a period of three years.

On September 15, 2006, Rosteet, on behalf of Atherton, filed a lawsuit against Kelsey Richard seeking injunctive relief and a temporary restraining order. On July 15, 2009, Rosteet filed a Motion to Withdraw from the suit against Kelsey Richard so Atherton could retain new counsel..

In September of 2007, Atherton, through counsel Brian J. Houghtaling, filed a suit against Rosteet asserting Ros-teet committed legal malpractice in the handling of the Deep South suit. On February 6, 2008, Atherton, again through his counsel Houghtaling, filed a motion to dismiss the suit with prejudice.

On January 30, 2008, while the above September 2007 legal malpractice suit was still pending, Atherton filed another legal malpractice suit against Rosteet |salleging nearly identical claims as alleged in the September 2007 action. The 2008 lawsuit initially alleged only allegations pertaining to the Deep South suit, but was amended on September 19, 2008 to include claims arising from Rosteet’s representation of Atherton in the Kelsey Richard suit. It was alleged Rosteet was instructed to file suit for damages arising in tort and for breach of contract, but failed to take timely action and thereby allowed the claims to prescribe. At the time of the amendment, Atherton’s suit against Kelsey Richard was still pending.

On February 12, 2009, Rosteet filed an Exception of Res Judicata contending that Atherton’s dismissal of the 2007 action with prejudice barred any further assertion of claims related to the Deep South matter. On June 1, 2009, the trial court issued a judgment in Rosteet’s favor, granting the Exception of Res Judicata. Atherton then moved the trial court to certify its judgment on the Exception of Res Judicata as final and appealable. After a hearing, the trial court granted the motion to certify the judgment as final for purposes of appeal.

On June 26, 2009, Atherton filed another legal malpractice claim against Brian Houghtaling, alleging Houghtaling committed legal malpractice when he dismissed the September 2007 legal malpractice lawsuit against Rosteet with prejudice.

In response to the additional claims asserted by Atherton, Rosteet filed an Exception of No Cause of Action on the basis that the underlying suit against Kelsey Richard was still pending. Thus, it was argued because Atherton was still able to pursue the underlying cause of action, there was no claim for legal malpractice because Atherton would be unable to prove an essential element of the claim, i.e., injury suffered as a result of the attorney’s alleged negligence. The trial court agreed and granted Rosteet’s Exception of No Cause of Action by order dated May 6, 2013.

1 ¿Atherton has timely lodged this appeal, asserting the trial court erred in granting the Exceptions of Res Judicata and No Cause of Action. For the following reasons, we affirm.

ANALYSIS

I. Exception of Res Judicata.

The doctrine of Res Judicata is governed by La.R.S. 13:4231 et seq. Louisiana Revised Statute 13:4231 provides:

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

The doctrine of res judicata bars the re-litigation of any claims that have been processed to a final judgment in a prior action between the same parties. Atherton argues the Exception of Res Ju-dicata should have been denied by the trial court on the grounds that the judgment in the 2007 action is an absolute nullity. Specifically, Atherton argues the trial court lacked personal jurisdiction over Rosteet to render a valid judgment in the 2007 action because Rosteet was never served. In support of this argument, Atherton points to La.Code Civ.P. art. 1672(C), which requires that in a situation where a party has been named as a defendant, but service has not been requested, the dismissal shall be without prejudice.

|fiRosteet counters that Atherton’s reliance on La.Code Civ.P. art. 1672(C) is misplaced. He notes Article 1672 applies to involuntary dismissals and provides: “A judgment dismissing an action without prejudice shall be rendered to a person named as a defendant for whom service has not been requested within the time” prescribed by law. La.Code Civ.P. art 1672(C) (emphasis added). Rosteet notes Atherton was the plaintiff when he moved to dismiss the 2007 suit with prejudice. Therefore, he was not prevented from doing so by Article 1672, which merely limits the remedy for a defendant, who was not timely served, to seek a dismissal without prejudice. Atherton was the plaintiff in the 2007 suit, thus the limitation of Article 1672 did not apply. We agree with Ros-teet’s argument, and find the trial court was not limited to granting a dismissal without prejudice.

It is clear pursuant to the res judi-cata doctrine and Louisiana case law, a dismissal with prejudice has the effect of a final judgment of absolute dismissal and constitutes a bar for the reassertion of the same claims in a subsequent action. La. Code. Civ.P. art. 1673; Dean v. The City of New Orleans, 05-1347 (La.App. 4 Cir. 7/12/06), 936 So.2d 851. As Rosteet notes, Atherton cannot dispute the fact that the 2007 legal malpractice suit against Rosteet was dismissed with prejudice. As such, the trial court did not err in granting the Exception of Res Judicata, finding the dismissal with prejudice was valid and constituted a final judgment between the parties.

II. Exception of No Cause of Action.

As the grounds for his legal malpractice suit against Rosteet, Atherton claims that Rosteet’s alleged malpractice terminated his claims against Kelsey Richard. The trial court, however, found Ath-erton was still pursuing his claims against Richard. Thus, it found no cause of action for legal malpractice was stated by Ather-ton and granted Rosteet’s exception.

^Atherton contends the trial court committed reversible error by considering exhibits attached to Rosteet’s Exception of No Cause of Action and by taking judicial notice of the underlying suit filed by Ath-erton against Richard. Rosteet offered documents from the underlying suit to support his contention that he had withdrawn from the action while the suit was still active and pending. Under La.Code Civ.P. art. 931, the general rule is that “no evidence may be introduced at any time to support or controvert the exception that the petition fails to state a cause of action.” However, as Rosteet notes, the jurisprudence has recognized a limited exception to that rule when the evidence sought to be offered is part of an official record of the trial court before which the evidence is being offered. Matassa v. Bel, 156 So.2d 250, 253 (La.App. 4 Cir.1963), rev’d on other grounds, 246 La. 294, 164 So.2d 332 (1964), citing McDonald v. Union Indemnity Co., 149 So. 143 (La.App. 2 Cir.1933). Thus, we find the trial court did not commit reversible error in taking judicial notice of and considering Atherton’s suit against Richard, which was inextricably linked to the legal malpractice suit against Rosteet.

Atherton next argues the trial court erred when it considered and ruled on the Exception of No Cause of Action as a Motion for Summary Judgment. This argument is based on the following statement made by the trial court during the hearing on the exception, after informing the parties it would take judicial notice of the underlying suit Atherton filed against Kelsey Richard:

So, I will grant the exception of no cause of action. And also, even though it’s styled “Exception of No Cause of Action,” if I’m incorrect on that because I considered the other suit record ..., I will receive it as a motion for summary judgment....

We find this argument is without merit, because, as set forth above, we found no error in the trial court considering Ather-ton’s suit against Richard and in granting the exception of no cause of action on that basis.

LDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

PICKETT, J.,

concurring.

U agree with the majority’s reasoning insofar as it finds the trial court properly granted the exception of res judicata.

As to the exception of no cause of action, I find the trial court erred in considering evidence in violation of La.Code Civ.P. art. 931. I am not persuaded that the cases cited in the majority opinion support the consideration of the records in a different suit before the same court. The trial court recognized this error when it stated on the record that it would treat the filing as a motion for summary judgment.

“In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court ... should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition.” Fink v. Bryant, 01-987, p. 4 (La.11/28/01), 801 So.2d 346, 349. In this case, Mr. Atherton’s petition does not contain sufficient facts to support a cause of action. To support a claim for legal malpractice, the plaintiff must show: the existence of an attorney-client relationship, negligent representation by the attorney, and loss to the client caused by that negligence. Leger v. Weinstein, 03-1497 (La.App. 3 Cir. 10/27/04), 885 So.2d 701, writs denied, 04-2899, 04-2903 (La.2/4/05), 893 So.2d 882, 873.

12Here, Mr. Atherton’s petition fails to allege that he has suffered any actual loss. He only speculates that he may suffer certain losses. “The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a delictual action.” Braud v. New England Ins. Co., 576 So.2d 466, 468 (La.1991).

For these reasons, I concur in the judgment of the majority that Rosteet’s exception of no cause of action was properly sustained.

      . We note, as set forth earlier, that Atherton filed a separate, still pending, legal malpractice action against Brian J. Houghtaling, the attorney who filed the motion to dismiss the 2007 action with prejudice.


author: KEATY, Judge.

text:
    LAFAYETTE STEEL ERECTOR, INC., et al. v. James CONSTANCE.
    No. 13-1367.
    Court of Appeal of Louisiana, Third Circuit.
    April 16, 2014.

      Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Appellee James Constance.
    Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Appellants Lafayette Steel Erector, Inc. The Gray Insurance Company.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

Iiln this workers’ compensation case, Appellants, the employer and its insurer, appeal from a judgment rendered by the workers’ compensation judge (WCJ) in favor of claimant. For the following reasons, we affirm the judgment and award claimant additional attorney fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY

Claimant, James Constance, began working as a welding tacker for Lafayette Steel Erector, Inc. on September 21, 2009. He allegedly injured his left ankle and foot in an unwitnessed accident that occurred on October 27, 2009. He was sixty years of age at the time. Constance returned to work in a modified capacity until he was laid off on November 6, 2009. Thereafter, Lafayette Steel and its workers’ compensation insurer, The Gray Insurance Company, (hereafter sometimes referred to collectively as Appellants) paid medical benefits and indemnity benefits to Constance based upon the maximum level allowed at the time of the accident, $577.00 per week. On March 23, 2010, orthopedic surgeon, Dr. Christopher Hebert, performed surgery on Constance’s left foot, which consisted of a tendon transfer and reconstruction. Constance also claimed that he later injured his right shoulder in December 2010, when his left foot gave out while he was walking down stairs and had to grab the handrail to stop himself from falling. On December 2, 2012, Appellants reduced Constance’s indemnity to $416.00 per week in supplemental earnings benefits (SEBs).

The matter proceeded to trial on January 15 and 31, 2013. In oral reasons for judgment rendered on May 1, 2013, the WCJ found that Constance injured his left foot and ankle in a work-related accident on October 27, 2009. Appellants’ |gLa.R.S. 23:1208 defense was denied. Constance was awarded SEBs based on a zero earnings capacity from December 2, 2012, the date of the benefit reduction, forward, along with a $2,000.00 penalty for Appellants’ improper reduction of benefits. The WCJ found that Constance’s right shoulder injury was compensable and not prescribed and awarded him a $2,000.00 penalty for Appellants’ failure to reasonably controvert that claim. Because it determined that the initial indemnity payment to Constance was untimely and not reasonably controverted, he was awarded a $1,600.00 penalty and a $500.00 attorney fee, both to be paid solely by Lafayette Steel. Additional attorney fees of $13,900.00 were assessed against Appellants, and they were ordered to pay litigation expenses totaling $1,173.62. Finally, Appellants were ordered to pay legal interest on all amounts awarded in the judgment.

Appellants now appeal, asserting that the WCJ committed legal or manifest error: 1) in denying their fraud defense; 2) in finding Constance credible; 3) in finding an accident and injury; 4) in not finding Constance’s shoulder injury prescribed; 5) in finding that Constance had no wage earning capacity; 6) in holding that Constance’s layoff did not eliminate his right to SEBs; 7) in assessing penalties and attorney fees against them regarding the reduction of benefits; 8) in assessing penalties and attorney fees given the significant evidence calling into question the compensability; and 9) in the quantum of attorney fees awarded. Constance answered the appeal requesting that this court uphold the judgment of the WCJ and award him additional attorney fees on appeal.

| ¡¡DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [fact-finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162 (alteration in original), writ denied, 02-1164 (La.6/14/02), 818 So.2d 784.

The workers’ compensation judge has ' great discretion to assign whatever weight he deems appropriate to evidence that has been admitted. La. Workers’ Comp. Corp. v. Gray, 34,731 (La.App. 2 Cir. 5/9/01), 786 So.2d 310. 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.

Vidrine v. La-Tex Rubber & Specialties, Inc., 07-157, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 146, 149.

The Fraud Defense

Louisiana Revised Statutes 23:1208(A) provides that it is “unlawful for any person, for the purpose of obtaining ... any benefit or payment ... to willfully make a false statement or representation.” “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.” La.R.S. 23:1208(E).

In order for there to be a forfeiture of workers’ compensation benefits under La.R.S. 23:1208, the employer must prove (1) the Rclaimant made a false statement or representation, (2) that the statement was willfully made, and (3) the statement was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7; Babineaux v. Moss Motors, 06-749 (La.App. 3 Cir. 12/6/06), 944 So.2d 882. However, the mere making of inadvertent or inconsequential false statements will not result in forfeiture.

Rougeou v. St. Francis Cabrini Hosp., 12-854, p. 5 (La.App. 3 Cir. 2/6/13), 107 So.3d 851, 856.

Appellants assert that Constance violated the fraud statute by denying prior right-foot-nerve injuries to his doctors, by misstating his inability to drive, by exaggerating his symptoms when visiting medical providers, and by misrepresenting his involvement in prior automobile accidents. Constance counters that he did not know if he had suffered injury to the nerves in his right foot as a result of motorcycle accident that occurred in the 1990s. There is evidence, however,, that he disclosed the occurrence of that accident and injury to his orthopedist, Dr. Hebert. Constance submits that it was Dr. Hebert who opined that such prior accident could have left Constance with a residual nerve problem in his right foot and possible susceptibility to nerve problems in his feet. Constance submits that he was mistaken when he stated in deposition that he had not driven before April 2012 and that he testified truthfully at trial regarding his driving habits/ability. He also admits that after viewing surveillance video showing inconsistencies between how he ambulated when attending doctors’ appointments, Dr. Hebert expressed some concerns about the veracity of his complaints. Nevertheless, Constance contends that Dr. Hebert maintained his opinion that Constance suffered a work accident that left him disabled. Finally, Constance submits that he clarified at trial that he was involved in prior automobile accidents in which he was not driving at the time. In sum, Constance | scontends that any of the inaccuracies pointed out by Appellants was either inconsequential or inadvertent and, thus, did not mandate a conclusion that he violated the fraud statute.

In denying Appellants’ fraud defense, the WCJ stated the following in its oral reasons for judgment:

There are, as could be expected, some minor discrepancies in parts of his testimony, but the law makes allowances for that if it appears that a claimant is more confused and forgetful than conniving. Granted, Mr. Constance is not the best historian, but there is very little daylight between the essentials of his testimony and the substance of the medical records.

With regard to the surveillance, the WCJ stated that Constance “presented reasonable, and I think truthful, explanations for all of the activities caught on the video” and that, after being shown the video, Dr. Hebert “did not seem impressed, certainly not enough to consider changing his work status restriction from ‘sedentary.’ ”

After review of the conflicting testimony and evidence presented at trial, we find no manifest error in the WCJ’s finding that Appellants did not carry their burden of proof regarding Constance’s violation of La.R.S. 28:1208, especially in light of the WCJ’s finding that Constance was a credible witness, as will be discussed more fully in the following section.

Constance’s Credibility

“In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard.” Hebert v. C.G. Logan Constr., Inc., 06-612, p. 2 (La.App. 3 Cir. 11/2/06), 942 So.2d 77, 79. “Whether a claimant has carried his burden of proof |fiand whether testimony is credible are questions of fact to be determined by the workers’ compensation judge.” Id.

Appellants contend that they pointed out a myriad of inconsistencies and discrepancies between Constance’s testimony and the evidence which shows that Constance is not credible. For example, Appellants refer to evidence showing that Constance was getting hydrocodone from the Veteran’s Administration Medical Center in Alexandria, Louisiana, (VA) while treating with Dr. Hebert and Dr. Steven Staires, his pain management physician, and in violation of narcotic medication agreements that he had signed with them. Appellants also point to testimony from Drs. Hebert and Staires that Constance’s reports of pain did not always follow the ordinary course of recovery. In addition, Appellants submit that the results of Functional Capacity Evaluations (FCEs) conducted in December 2011 and June 2012 showed discrepancies, such as his ability to descend stairs despite his complaints of left foot/ankle pain. Finally, Appellants submit that when showed a photograph purportedly showing Constance’s foot on June 19, 2012, both Dr. Hebert and Dr. Staires testified that they never observed Constance’s foot appearing as it did in the photograph.

Constance counters that the contemporaneous medical evidence from just two days after his initial accident, the physical therapy records, Dr. Hebert’s records, and the testimony of Constance’s wife corroborate his testimony regarding the occurrence of a workplace accident and resulting injury to his left foot. In addition, Constance submits that any breaches caused by his obtaining duplicate medications from the VA were relatively minor, especially given the fact that Dr. Staires is still treating him. Constance further submits that while the extent of his pain may not be within the norm, his doctors nevertheless agree that 17his work accident caused his current left-foot neuritis that leaves him disabled and only able to do sedentary work. Finally, Constance argues that the aforementioned opinions of his doctors remained the same despite their having acknowledged some inconsistencies in the photograph and in his FCE results.

All of the discrepancies noted by Appellants were made known to the WCJ at trial, and, despite those discrepancies, the WCJ found Constance to be truthful. Given the “great deference” owed to the trier of fact, who was able to observe Constance’s demeanor on the witness stand, we find no manifest error in the WCJ’s determination that Constance was a credible witness. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Accident and Injury

A workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381 (La.1987). A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id. Barring circumstances that cast suspicion on the reliability of the worker’s uncontradicted testimony, the fact finder should accept the testimony as true when determining whether the worker has discharged his burden. Brown v. Kwok Wong, 01-2525 (La.App. 1 Cir. 12/20/02), 836 So.2d 315.

Hebert, 942 So.2d at 79-80.

Appellants contend that Constance failed to satisfy the Bruno criteria relative to unwitnessed accidents, and, thus, the WCJ erred in finding that he proved the occurrence of work-related accidents to his left foot and right shoulder. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). They insist that because IsConstance knew that his job was temporary, he had “an incentive to feign an accident” and, thereby, extend his employment. On the other hand, Constance submits that the evidence reveals that his supervisor was made aware of the injury to his left foot on the day it occurred and that an accident report was prepared, and Constance sought medical treatment with the employer’s provider of choice within two days of the October 27, 2009 accident. Constance further submits that the evidence shows that he reported to both the VA and to Dr. Hebert that he had injured his right shoulder in December 2010, when he was descending stairs outside his home and had to catch himself to prevent himself from falling when his left foot gave out.

The WCJ concluded that Constance sustained a work-related accident that injured his left foot in October 2009 and that he suffered another accident in December 2010 that was related to his earlier accident, resulting in an injury to his right shoulder. His reasons for judgment provide:

Not a single witness came forward to cast any suspicion on Mr. Constance’s version of events on the rainy day when he says he slipped in the mud at a construction site, jamming his left foot into a hole, causing the injuries for which Dr. Hebert attempted to repair surgically. The accident seems to have been reported promptly and correctly. There was certainly nothing in the medical reports to suggest exaggeration of symptoms.

The WCJ further noted that Dr. Hebert’s records revealed that Constance had “post operatively wrenched his shoulder” and that Dr. Hebert “directly related the shoulder experience with the failure of the injured foot to properly support the claimant’s body.” After noting that Appellants investigated the initial accident, verified its occurrence, and found Constance entitled to both medical and indemnity benefits, the WCJ found that Appellants “did absolutely no investigation of the shoulder injury,” decided that it was not related to the original 19compensable work accident, and became “convinced that Mr. Constance was actively involved in the commission of fraud.”

There is no merit to Appellants’ argument that Constance’s testimony regarding the two accidents was not “corroborated by the circumstances following” their occurrence or that “other evidence discredits or casts serious doubt upon [Constance’s] version of the incident.” Bruno, 593 So.2d at 361. Moreover, Appellants’ reliance on Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La.1/19/11), 56 So.3d 215, wherein the claimant did not report his accident to his employer until eighteen months after its occurrence is readily distinguishable from the instant matter. Here, the circumstances following both of Constance’s accidents corroborated their occurrence, and Appellants’ accusation that Constance manufactured those accidents is simply not supported by the evidence. The WCJ did not err in finding that Constance suffered from an injury-producing accident at work in October 2009, which led to an additional injury in December 2010.

Shoulder Injury

Appellants argue that Constance’s claim for the injury to his right shoulder is prescribed under La.R.S. 23:1209 because he did not make a claim for that injury until the second date of trial of this matter on January 31, 2013. Constance disputes that assertion and refers our attention to a YA progress note dated December 21, 2010, that contains a reference to a right-shoulder injury, a January 11, 2011 demand letter to the insurance adjuster seeking approval of an evaluation of his shoulder after a recent incident where his left foot gave out, a January 12, 2011 note from Dr. Hebert stating that he was going to refer Constance to a Dr. Williams for his shoulder pain, and an answer that he filed into the record on |inDecember 6, 2011, wherein he listed a right-shoulder injury as one of the matters in dispute.

Brenda Guillot, the insurance adjuster who handled Constance’s file, admitted at trial that she had received Dr. Hebert’s note that he was going to seek a referral to address Constance’s shoulder injury. In light of that admission, coupled with the other record evidence showing that Appellants were put on notice of Constance’s shoulder injury well within one year of its occurrence and within the context of this pending claim, we cannot say that the WCJ erred in concluding that Constance’s right-shoulder injury was not prescribed.

Wage Earning Capacity

“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 [employer’s] community or reasonable geographic location. La. R.S. 2S:1221(3)(e)(i); Banks, supra at 556; Daigle, supra at 1009.

|, iPoissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, pp. 4-5 (La.1/9/11), 56 So.3d 170, 174 (alteration in original) (last alteration ours) (footnote omitted). In Banks, the supreme court stated that to “discharge its burden of proving job availability,” an employer has to show, amongst other things, “the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region.” Banks, 696 So.2d at 557 (emphasis added). “By ‘suitable job,’ we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.” Id.

Here, Appellants claim that the WCJ committed manifest error in finding that they failed to prove that Constance had a wage earning capacity of $9.25 per hour and was, thus, entitled to a reduced compensation rate based upon that figure. Appellants base their claim on the testimony of Dawn Marroquin, the vocational rehabilitation counselor, who after evaluating Constance, located four available jobs which Constance’s doctors approved and which Appellants believed established Constance’s wage earning capacity.

Constance vehemently disagrees with Appellants’ argument in this regard, insisting that the jobs identified by Ms. Marro-quin were not suitable in light of the disability he suffers as a result of his work accident, the strong medicine he takes for his pain resulting therefrom, and taking into consideration his hearing loss which is thoroughly documented in the VA records. Constance further submits 112that he is not qualified for the jobs offered given his advanced age, his lack of office and computer skills, and his educational level.

The WCJ determined that Appellants’ improperly converted Constance’s benefits to SEBs because none of the jobs offered by Appellants “came close to providing what the law calls, ‘suitable employment.’ ” He questioned how Ms. Marroquin “could overlook the fact that Mr. Constance is profoundly hearing impaired,” and he determined that the one-day computer course that Ms. Marroquin had Constance complete “did very little to bring this man who reads and writes at scarcely grade-school level to the technical requirements of some of the jobs for which he was sent to apply.”

Conflicting evidence was offered at trial regarding Constance’s ability to perform the four jobs offered to him by Ms. Marro-quin. After being presented with that evidence and having' observed Constance during the two-day trial of this matter, the WCJ determined that none of those jobs were suitable. Considering all of the evidence and testimony, we conclude that the WCJ was not manifestly erroneous or clearly wrong in finding that Appellants failed to prove that Constance had a wage earning capacity of $9.25 per hour.

Right to SEBs after Layoff

Gregory Mouton, Constance’s supervisor at Lafayette Steel, testified that Constance and most of his co-workers were laid off between November 6 and 7, 2009, when the Acadian Center for the Arts job for which they were hired was completed. Appellants assert that the WCJ erred in finding that Constance was entitled to SEBs after the date he was laid off, citing Dufrene v. Southern |12 Industrial Contractors, Inc., 95-759 (La.App. 3 Cir. 1/31/96), 670 So.2d 290, for the proposition that when an employee is laid off as a result of economic circumstances, the employer’s exposure for indemnity benefits ceases. Constance counters that Dufrene is distinguishable from the instant matter because the claimant therein was able to resume his work as a pipefitter after his work accident.

We agree that Dufrene is not controlling in this matter. In that case, we noted that “[plaintiff offered no evidence to show that he could not earn ninety percent or more of his pre-accident wages.” Id. at 293. Here, on the other hand, Constance presented ample evidence of his inability to do so. The WCJ did not err in finding Constance entitled to receive SEBs after the date of his layoff.

Penalties and Attorney Fees

“The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review.” Weaver v. S. Erectors, Inc. of Fla., 10-783, p. 13 (La.App. 3 Cir. 12/8/10), 53 So.3d 547, 555. If an employer discontinues the payment of benefits and “such discontinuation is found to be arbitrary, capricious, or without probable cause, [the employer] shall be subject to the payment of a penalty ... and a reasonable attorney fee for the prosecution and collection of such claims.” La. R.S. 23:1201(1).

A claim for benefits has been reasonably controverted when the employer “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.”

Weaver, 53 So.3d at 555 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890). “An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, disassemble, and assess factual information prior to it denying benefits.” Odom v. Kinder Nursing Home, 06-1442, p. 24 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 141.

Appellants argue that because their vocational rehabilitation counselor identified four jobs that were approved by Constance’s doctors, the WCJ committed manifest error in finding that its reduction of Constance’s benefits was arbitrary and capricious so as to subject it to a penalty and attorney fees. Constance disagrees and submits that, rather than realistically taking into consideration his lack of trans-ferrable job skills and his obvious hearing problems, Appellants improperly used the vocational rehabilitation process to lower his SEBs and to beef up its claim that he was guilty of fraud. As such, Constance submits that this court should affirm the WCJ’s decision to award him a penalty for Appellants’ improper reduction of his benefits.

In its oral reasons for judgment, the WCJ found that “[t]he reduction of his benefits and conversion to S.E.B. status fell short in all aspects of meeting the minimum requirements for doing so as set forth in [Banks, 696 So.2d 551.]” Given our affirmation of that finding, we cannot say that the WCJ committed manifest error in awarding Constance a penalty and attorney fees for Appellants’ improper reduction of his indemnity benefits.

Appellants next argue that even if this court finds no error in the WCJ’s finding that Constance suffered compensable accidents and did not violate the fraud statute, we should, nevertheless, find that the WCJ erred in awarding Constance any penalties and attorney fees because of what it terms “significant evidence calling into question” those findings. Constance disagrees, alleging that | Appellants ignored the evidence and unreasonably maintained that he fabricated his shoulder injury to bolster his claim for benefits.

With regard to Constance’s right shoulder injury, the WCJ found:

Undeterred by Dr. Hebert’s request that his patient be evaluated by Dr. Williams, the insurer decided that the shoulder incident was not due in any fashion to the job ankle injury.
I am still unclear as to precisely how the adjuster reached that conclusion. It certainly was not the result of any investigation because the record shows that there was none.
From all accounts, it looks as if the insurer did a very thorough investigation of the initial work accident and then two years later decided it was all wrong. Then, she did absolutely no investigation of the shoulder injury and promptly decided her decision was totally correct.
It appears that at some point, for some reason, the insurer became convinced that Mr. Constance was actively involved in the commission of fraud, and then spent a great deal of time, effort, and resources in proving it.

The record provides ample support for the WCJ’s conclusion that Appellants did not reasonably controvert the compensa-bility of Constance’s right shoulder injury. Accordingly, we find no manifest error in the WCJ’s award of a penalty and attorney fees on that basis.

Quantum of Attorney Fees

An appellate court reviews the amount of attorney fees that a WCJ awards a claimant under the abuse of discretion standard. Duplechain v. Town of Church Point, 12-75, 12-476 (La.App. 3 Cir. 12/19/12), 107 So.3d 800.

Appellants argue that the amount of attorney fees awarded to Constance should be significantly reduced. Their argument focuses on the fact that Constance originally asserted that he was due penalties on several bases and that, over the course of trial, more bases were added while others were withdrawn. Inciting Magbee v. Federal Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048, Constance counters that an attorney fee award should be based on his attorney’s efforts in regard to the entire litigation rather than on only the time spent on penalty-related issues. In addition, Constance points out that not only did he prevail on all of the issues which he presented to the WCJ, but he was also successful in defending Appellants’ claims that he was guilty of committing fraud and that he was never injured at all.

In its oral reasons for judgment, the WCJ remarked that Appellants insisted that Constance “was little more than a clever, conniving malingerer who staged and faked his 2009 injury in the first place” and that he “committed] fraud in exaggerating his symptoms and by making material misrepresentations for the sole purpose of getting tax-free workers’ compensation payments.” After reviewing the evidence, however, the WCJ determined that “[t]here was virtually no good reason to have questioned the occurrence of this accident in 2009, and there appears to be no better reason to bring the issue up some three of four years later.” The WCJ further found that there was “nothing in the medical reports to suggest exaggeration of symptoms.”

Given the extremely contentious nature of this dispute, the amount of work that Constance’s attorney devoted to this matter, and the success that Constance’s attorney achieved on behalf of his client, we find no abuse of discretion in the amount of the attorney fees award.

117Constance’s Answer to Appeal

Constance answered Defendant’s appeal seeking additional attorney fees for the work done on appeal. “Awards of attorney fees in workers’ compensation cases are essentially penal in nature, and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees.” Smith v. Quarles Drilling Co., 04-0179, p. 6 (La.10/29/04), 885 So.2d 562, 566. In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” Accordingly, we award Constance additional attorney fees of $4,000.00 for the work done on this appeal.

DECREE

For the forgoing reasons, the judgment in favor of James Constance and against Lafayette Steel Erector, Inc. and The Gray Insurance Company is affirmed. We award Constance additional attorney fees in the amount of $4,000.00 for work done on this appeal. Costs of this appeal are assessed against Lafayette Steel Erector, Inc. and The Gray Insurance Company.

AFFIRMED.

      . Hereafter, this opinion will refer to La.R.S. 23:1208 as the fraud statute.

      . Claimant acknowledges that the answer references an October 3, 2011, rather than a mid-December 2010 shoulder injury, attributing the discrepancy to the fact that he fell several times due to his left foot giving out.

      . Although Constance testified that he completed the eighth grade, Ms. Marroquin stated that his reading, spelling, and math abilities measured at the fourth grade level.

      . Constance’s attorney, Mark Zimmerman, filed a Fee Petition as an exhibit at trial wherein he detailed the seventy-two hours he spent on this matter.


text:
    In re Jeremy L. PUCKETT, Applying for Intra Family Adoption.
    No. 49,046-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 17, 2014.

      Ronald J. Miciotto, Shreveport, for Appellant, Jonathan G. Brown.
    David L. White, Bossier City, for Appel-lees, Jeremy L. Puckett and Alexis B. Puckett.
    Cary A. Hilburn, Shreveport, for the child.

      Before CARAWAY, PITMAN and GARRETT, JJ.
   CARAWAY, J.

|Jn this intrafamily adoption case, the unwed biological father enlisted in the Navy when the child was one year old and remained in military service for five years. The child’s mother married the petitioner/stepparent, who later brought this action to adopt the child without the consent of the father. The child was four when the suit was filed. Petitioner asserted that the father refused or failed to visit, communicate or attempt to communicate with the child for a period of six months before the action. The father opposed the adoption and the termination of his parental rights, claiming that petitioner and the child’s mother prevented him from fostering a relationship with the child. He also asserts that the Servicemembers Civil Relief Act provides him protection from this action during the time of his military service. The trial court rendered judgment in favor of petitioner finding no just cause for the father’s lack of communication with the child and authorizing the adoption. Finding manifest error concerning the determination of just cause, we reverse.

Facts

On May 11, 2007, the child K.B. was born out of wedlock to Alexis Brianne Puckett (“Brianne”) and Jonathan Brown (“Jon”), who were both teenagers. Jon and Brianne never subsequently married, but Jon’s name appears on the child’s birth certificate. For the first year after the child’s birth, the child lived with Brianne at Brianne’s mother’s house. During the first three months of KB.’s life, Jon consistently visited the child, with visits the next three months becoming less frequent.

| ¡Around March or April 2008, Jon began considering his options for joining a branch of the United States military. He claimed that he was seeking to provide a better life for K.B. At the time, he was in his first year in college. He was attempting to help provide a few things for K.B., and would drive to the Shreveport area to visit K.B. and Brianne. Jon thought he was not making enough money to stay in school and to help provide for K.B. During that time, he worked delivering pizza, and at one point, worked at a casino.

When Jon initially brought up the idea of joining the military, Brianne was unsup-portive. Nevertheless, on May 27, 2008, Jon enlisted in the Navy and was stationed in Connecticut after boot camp. Jon did not tell Brianne that he had enlisted. Before he left for Connecticut, Jon had a paternity test done, which concluded he was the biological father and subsequently had child support payments set up through the state. The support obligation was slightly over $200 per month and has been regularly paid out of his Navy pay.

Jon’s service in the Navy lasted until his discharge on May 27, 2013. During that time, Jon was a crewman on a nuclear submarine. He spent roughly 70% of his time during any given year underwater. Parts of Jon’s deployment included actual voyages and fast cruises, when the crew of the submarine board the vessel and simulate a voyage without ever leaving port. At other times he had dry dock duties, which included watches and other dry land duties. Jon claims that while on land, he worked long hours, but he did have occasional computer access. Jon had a maximum of 30 and a minimum of 21 days of leave per year. Throughout his service, he would 13have leave roughly every six months around Christmas and the end of May or early June. These leave periods typically lasted about one and a half weeks each. When on leave, Jon would come to the Shreveport area.

Jon’s visitation of K.B. began to taper off in the fall of 2007. Jon attributes this diminished visitation to Brianne’s finding out that Jon was dating Mary Timmons. However, Jon did visit K.B. in December 2007. Between December 2007 and when he joined the military in late May 2008, he saw the child one or two more times, including a visit at a duck pond in February 2008.

In September 2008, Brianne married Jeremy Puckett (“Jeremy”). Over time, Jeremy began to become more of a father figure to K.B., and K.B. began referring to Jeremy as “Daddy.” Also, over time, Jeremy began to see himself as KB.’s father, and went to father-daughter type events. Jeremy considers himself as the person who provides for both K.B. and Brianne and who has over time asserted more control over major decisions involving K.B.

During Jon’s military service, his visits, communication, and attempts to communicate with K.B. were sparse. Jon’s first leave was in December 2008, when he came back to the Shreveport area. Jon sent a letter to Brianne, through his sister, because he did not know Brianne’s address. His prior experiences with Brianne were that she often moved with her mother, Tammie Hill, when she still lived with her. Although he knew the physical location of Tammie’s home, he did not know the address. Once Jon’s sister learned where to send the letter, she sent it by certified mail. In the letter, Jon states that he is writing “because [he] would like to see [K.B.] at least one time when [he] comes home.” He goes on to state: “I can pick [K.B.] up |4anytime at your convenience between Saturday, December 27th and the following Thursday. Any of those days will be good[,] just let me know. I do not have a return address right now[,] so you can mail or email my sister Shannon your reply.”

Shortly before the letter was sent, Jon’s sister Shannon contacted Brianne through social media about having lunch and visiting K.B. Brianne declined, stating,

[S]he has everyone she’ll ever need and she has an amazing father [Jeremy] who will and has done everything he could ever do her and also two set grandparents and uncles & aunts that love her more than anything.... so no I don’t think it would be right to confuse her on whos family and whos not.... thanks for the invite anyways sorry things couldnt of been different.... I don’t only blame you I blame your entire family [sic, generally]! (ellipses in original)

Shannon never visited with K.B. after this response.

Further, that December, Brianne and her mother contacted the police to pursue misdemeanor carnal knowledge of a juvenile charges. Jon was a little over three years older than Brianne when she became pregnant. He was also over 18 years old at that time. The investigating detective, Angie Wilhite, testified that Brianne and her mother specifically told her that they would drop the charges if Jon surrendered his parental rights to K.B. Jon also testified that Brianne made this quid pro quo offer. Nothing ever came of the charges.

Jon’s next leave period was in May 2009. In the months prior to that, Jon claims he did not have Brianne’s address. However, he did have access to a computer during that time. He states he had attempted to find Brianne by social media, but was unable to locate her. He claims he attempted to view her pages so that he might see pictures of K.B. When he was home for Isthis leave, he had a chance meeting with Brianne in a Shreveport store. Jon was with his fiancee, Mary Timmons, to buy a few items; Brianne was with Jeremy’s sister and K.B. At first, Jon and K.B. made eye contact and continued on their way; K.B. was not with Brianne at that moment. Jon claims that his relationship with Brianne at that point was strained. After the chance encounter, Brianne told Jeremy’s sister that she had seen Jon. Thereafter, Brianne returned to Jon with K.B. in tow. An argument ensued because Brianne was angry that Jon had not made contact on K.B.’s birthday, which was a few days prior. During the heated encounter, Jon attempted to give Brianne his contact information, including his cellphone number, so that Brianne might contact him, but Brianne refused to accept it. Brianne also did not provide her contact information to Jon.

On August 5, 2009, Jon sent a conciliatory email to Brianne that stated:

Okay, so I know it has been an interesting last two years (if that’s what you want to call it). We have both said and done a lot of things that at least I know Im not proud of, and looking back on several situations I can see different (and better) ways I could have went about every single one of them. We have let our personal feelings for each other become so horrible that we haven’t even been on speaking terms and the only person it has hurt is our [child]. I know I haven’t told you this near enough, but I want to be part of [K.B.’s] life. I want to be the father for her that mine never was, and the whole not telling you when I came in last time didn’t help things any ...; but this Navy thing isn’t forever. I’m doing what I have to do now to get back in school while still trying! to support [K.B.] [sic, generally].

Jon went on to say that it “kills [him] knowing that [K.B.] is growing up not knowing [him].”

Brianne responded to this email on October 19, 2009, with her phone number in the subject line. In her response, Brianne stated that she and |r, Jeremy had gone “back and forth over [Jon’s] email for the last 3 months.” She asked Jon to call when he came home in December because she felt computer communication on the subject was inappropriate. She said she “would like [Jon] to understand that just because [she] [was] talking to [Jon] [did] not mean [he] would get to see [K.B.].” She concluded: “[A]lso there is an important fact that needs to be understood, Jeremy is her father and Daddy and this WILL NOT CHANGE. Whether you are involved in [KB.’s] life has still not been decided.”

Shortly before Brianne’s response, Jeremy wrote a computer blog clearly referencing statements in Jon’s email to Brianne. In the blog post, Jeremy stated that it was to “someone I hate,” and that such person had no right even to contact Brianne. He concluded the message with a veiled threat directed at Jon or his family. Nevertheless, Jeremy claims this blog was directed to “deadbeat” dads in general, and more specifically, to his friend Raymond, who he says was complaining about paying child support.

Jon never called after Brianne’s email response and before his next scheduled leave in December 2009. He again returned to the Shreveport area for this leave period, but Jon did not visit K.B. or call Brianne. Jon states that this was due to the threatening blogs from Jeremy. On December 14, Jeremy again took to social media to vent after Brianne’s mother, Tammie Hill (“Tammie”), apparently added Jon as a friend on Facebook. Jeremy was perturbed by Tammie’s Facebook friendship with Jon. He concluded the blog with a sentence seemingly directed at Jon stating that he and Brianne would fight anyone when it came to “[their] daughter.”

|7Next, on January 25, 2010, Jon’s sister Shannon sent Brianne’s mother, Tammie, a Facebook message. In the message, she stated that she had Christmas gifts from the family to K.B. and asked how and when she could bring them to her. Tammie responded that she would love for Shannon to see K.B., and offered to try to arrange it. The next Facebook message between the two occurred on May 18, 2010. Shannon told Tammie that she had a few things for K.B. that she would drop by her house. Tammie responded by telling Shannon when she would be home.

About that same time, starting on April 3, 2010, Mary Timmons, Jon’s fiancee, began a Facebook exchange with Tammie Hill. In the message, Mary stated that she saw some pictures of K.B. that Tammie had posted on Facebook, and she asked if it was okay for Jon to send anything that K.B. might need or want to K.B. for her birthday. Tammie responded that it would be okay, and gave Mary her address. Mary asked for Tammie’s address because Jon did not want Jeremy to know he had sent the gifts. Tammie sent a message on April 6 stating that she received K.B.’s gifts from Jon.

Jon’s next leave period was June 2010. He came back to the Shreveport area for that visit. Brianne contacted Jon shortly before he came back about allowing Jon to visit K.B. At the time of these amicable email exchanges between Brianne and Jon, Brianne and Jeremy were separated. On May 30, 2010, Brianne sent Jon an email in which she stated that she | Swas “sorry for all the wrong choices [she’d] made and how [she’d] handled [the] situation with [their] [child].” She revealed that she had told K.B. about Jon for the first time that night and that she handled it well for a three-year-old. She told Jon that K.B. also wanted to meet Jon. Brianne apologized for being rude in the past, but stated that she had not wanted the child to be hurt. Jon responded on June 2, 2010, stating:

I wanted you to know that the email you sent me made my day. I would like nothing more than to be helpful and be a part of [K.B.’s] life. I’m going to be coming home at the end of this month and I would really like to see her. Maybe we could go do something or I can stop by if that’s okay with you. I’m willing to go where ever [sic] to meet you. I’m sorry the email is so short, I’m at work and I’m about to have to go on watch, but this is my other email address. You’re welcome to email me on either of them anytime. Let me know what you think because I would love to work something out.

Brianne then responded by stating that she was “happy that [Jon] want[ed] to see [the] [child].” Brianne was separated from Jeremy at the time, and she told Jon that she was staying at her grandmother’s house with K.B. She stated that she wanted Jon to have a good relationship with K.B. and that she would do anything it took to make it work “as long as [Jon] [was] willing to work for it as well.” Jon then responded that he would love to meet Brianne and K.B. somewhere. He told her that he would be in town from June 22 until June 29, 2010. Brianne then sent an email back stating that her mother told her that some of the birthday presents from Tammie were actually from Jon. She thanked him for the gifts and apologized that he had to go about sending the gifts anonymously through Tammie.

| ^¡Following this email exchange, Jon did meet up with K.B. and Brianne, and visited with them for about two hours at her apartment. The next day, he went shopping at the mall with K.B. and Brianne. On June 30, 2010, Tammie Hill again sent Mary Timmons a Facebook message asking if Jon had made it home safe. She also told Mary that K.B. really enjoyed the visit with Jon and all the child would talk about was “daddy Jon and being on the boat.”

Next, on July 24, 2010, Jon sent Brianne a Facebook message. In it he stated:

Its [sic ] going to be fall pretty soon and I want to buy [K.B.] some new fall clothes but I don’t have your new [phone] number or address. You should still have mine so you can message me on here or text me, it’s either way and maybe sometime soon I would like to talk to [K.B.] on the phone if thats [sic ] okay with you.

Brianne responded by telling Jon that Jeremy would be messaging Jon about K.B. She said she hoped they would be able to discuss the matter like adults and that she would not put up with Jon and Jeremy fighting over “who is what to [K.B.].” Jon responded by stating he did not think it should be discussed on Facebook, and he agreed that it should be handled in an adult manner. He stated that he just wanted what is best for “[his] little girl.” Brianne then responded that Jon needs to understand boundaries like not referring to K.B. as “[his] little girl.” Then, Brianne messaged Jon asking what sort of clothes he was planning on buying K.B., and she told him that K.B. needed jeans. Jon replied that he could get some jeans, but still |lflmentioned he needed her address. Brianne then gave Jon her address and thanked Jon for his help.

On August 1, 2010, Jeremy sent Jon a Facebook message. He said he was writing to “get a few things straight,” and apologized if Jon took some of the things he says as “rude” but that was just “the way [he] [is].” He went on to state:

Me and Brianne will say what goes on with [K.B.] weather [sic] she has time with you or you come to our house or anything. Iam [sic] not saying that in the future you wont [sic] have say in things in her life but calling her your little girl and the pictures ... [sic ] I don’t [sic ] agree with that was one day and you know nothing about her.

He went on to say, regarding the gifts that Jon sends, he and Brianne will determine what K.B. gets and what she does not. He said, “I know you don’t [sic ] want to do this over a computer but I [sic ] really don’t [sic ] care to talk to you and its [sic ] not up to you to just talk to Brianne.” Jon responded by “blocking” Jeremy on Face-book.

Brianne was not pleased with Jon for this course of action. On August 6, 2010, she stated that Jon could “keep [his] clothes and [his] money” and whatever “wanna be father ideas [he] [had].” She concluded the message by ordering Jon to “Not Contact [her] Family Again.” Further, in retaliation, Brianne blocked Jon on Facebook.

After this breakdown in the parties’ communications, Jon went to see a Judge Advocate General (“JAG”) officer about what he needed to do to establish visitation rights. The JAG officer told him it was best to wait until his military service concluded to pursue those rights.

Sometime in February 2011, KB. came down with pneumonia. Jon saw posts about K.B. and her sickness on Tammie Hill’s Facebook page. He |nsent Tammie a message stating that he was worried about K.B. He said, “Brianne has made it pretty clear that she’s not going to give me any updates or accept any help, so I’m asking you please Tammy [sic] if there is anything I can do to help (medical bills, medicine, anything).” Brianne responded to Jon directly through her mother’s Face-book profile. She told Jon the details of K.B.’s condition, and she did not ask for any help from him. On February 24, Brianne, who had apparently unblocked Jon, sent him a Facebook message telling Jon that K.B. was doing better. She stated that KB. was asking more about Jon lately, and Brianne stated that she told K.B. that Jon was in the Navy and tried to explain the best she could. Jon responded by stating “if [KB.] ever wants to talk I always have my phone on me.” Jon then gave Brianne his phone number so that K.B. could call him. He stated:

I would really like to hear from her. Due to where I work, there are times when I might not receive a call or might not be able to answer it at that time but that doesn’t mean that I don’t want to talk. Have her call me when you get a chance.

Jon never got a response, and Brianne’s Facebook page was deactivated shortly thereafter.

Jon’s next leave period was in June 2011, but he did not visit with K.B. at that time. During Jon’s next leave in December 2011, he did not visit with K.B. Jon states that he had his sister Callie contact Brianne about visitation because his sisters had a better relationship with Brianne at that time. Additionally, Callie sent Tammie Hill a Facebook message on December 23, 2011. She told Tammie that her family had some Christmas gifts for K.B. She offered to meet Brianne alone to give her the gifts if she was uncomfortable with K.B. being present. Tammie responded by stating it | iawould be difficult for her to pick up the gifts because she now lived in Dallas. Callie then gave Tammie her phone number and asked Tammie to give Brianne the number so that she could just call or text message her when she was not busy. Brianne never responded because she was pregnant during that time. Jon’s next scheduled leave period between the December 2011 leave and the beginning of the adoption proceedings was September 2012.

On June 6, 2012, Jeremy Puckett filed a petition to adopt KB. A curator was appointed to answer the petition on Jon’s behalf and to locate him to notify him of the adoption proceedings. After locating Jon, the curator filed a motion to continue the proceedings on July 13, 2012, due to Jon’s military service. The motion was granted and the proceedings continued to September 10, 2012, when Jon would be on his next leave. At the hearing, the date for a trial on the petition was set to begin on November 26, 2012. The trial took place November 26-28, 2012, January 28, 2013, March 14, 2013, and April 19, 2013. The trial dates were set to coincide with when Jon would be able to attend the trial.

During the proceedings, an informal arrangement was established so that Jon might have weekly visitation with K.B. Jeremy and Brianne ultimately decided that they would allow Jon to talk to K.B. on the phone for five minutes every Thursday night, unless K.B. wanted to talk more. However, after initially allowing the phone calls, the arrangement between the parties broke down during the course of the litigation.

Following trial, the trial court decreed that Jon’s consent was unnecessary for the adoption because he failed to visit, communicate, or | ^attempt to communicate without just cause with K.B. for at least six months. The court noted that Brianne and Jon never fashioned a voluntary visitation arrangement and placed emphasis on Jon’s failure to seek legal advice to establish his visitation rights with the child. Therefore, the judge ordered the adoption be granted.

Following this ruling, Jon moved for a new trial and for the first time asserted the Servicemembers Civil Relief Act’s (“SCRA”), 50 App. U.S.C.A. § 526, provision tolling statutes of limitation in any legal proceeding, arguing that it suspended the six-month no-contact period during the time of his active duty military service. The trial judge found that the tolling provision did not apply to the case and denied the motion for new trial. Following this ruling, Jon appealed the decree of adoption and the denial of his motion for new trial.

Discussion

Jon’s arguments to this court emphasize that the burden of proof of the stepparent in this intrafamily adoption is to show by clear and convincing evidence that Jon has neglected his parental rights. The test under Louisiana Children’s Code Article 1245 (“Article 1245”) as set forth below centers on Jon’s alleged refusal or failure to visit, communicate or attempt to communicate with the child “without just cause” for a period of six months. Jon argues that he did maintain contact with K.B. since 2010 and before, but that his many other attempts to communicate with the child were “constantly thwarted” by Brianne and Jeremy. Additionally, Jon asserts the SCRA for its tolling period during his Navy service and additionally claims that his |umilitary service established “just cause” for any lack of attention to the fostering of this parent/child relationship.

Intrafamily adoptions are authorized by La. Ch.C. arts. 1170 and 1243 when the adoption petition is filed by the stepparent and spouse of a custodial parent of the child. In re Intrafamily Adoption of L.M.C., 09-885, (La.App. 5th Cir.8/23/10), 39 So.3d 643. As a general rule, the consent of the biological father is required for an intrafamily adoption by the stepfather. Id.; La. Ch.C. art. 1193. However, under Article 1245 the consent of the biological father may be dispensed with upon proof by clear and convincing evidence that the father has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months. La. Ch.C. art. 1245(C)(2). Such failure by a parent in fostering the parent/child relationship allows a stepparent, the spouse of the other parent exercising lawful custody of the child, to adopt the child. Id. Such intra-family adoption terminates parental rights of the biological parent failing to contact the child. See La. Ch.C. art. 1256.

To find “just cause,” a parent’s failure to visit or communicate with his child must be due to factors beyond his control. In re Morris, 39,523 (La.App.2d Cir.1/26/05), 892 So.2d 739. Louisiana courts have found that when a stepparent and the parent with custody have hindered the [ 1fiattempts of the natural father from visiting or communicating with his child, the father may be excused for otherwise failing to do so. In In re PS, 535 So.2d 1052 (La.App. 2d Cir.1988); Knapp v. Adoption of Cotten, 577 So.2d 241 (La.App. 1st Cir.1991); In re Mulvihill, 10-0826 (La.App. 4th Cir.1/19/11), 56 So.3d 418.

This court found in In re PS, supra, that the relationship between the parties had become contentious. This was due in part to the actions of the spouse of the man seeking adoption. The mother did not provide the natural father with her address. The natural father was prevented generally from visiting with the child. The few visits with the child by the natural father were limited due to the presence of the mother and stepfather. The father had persisted with futile attempts to visit the child during the holidays despite a distance between the parties. Although the father’s visits became sporadic, the court found his actions were not unreasonable under the circumstances and the adoption decree was overturned. Id. at 1056.

The jurisprudence illustrates the principle that when a stepparent or parent with custody fails to cooperate with the natural father’s attempts to visit and communicate with the child, then the father may demonstrate “just cause” under Article 1245 for failing to visit or communicate with the child.

Before considering the SCRA, we first note that the Louisiana legislature in another context has recognized the effect of military service upon the normal lines of communication between parent and child. For the |1fiissue of disinherison, the legislature has recognized that active duty of the child is a type of just cause excusing the child’s failure of communication with the parent that could allow for disinherison. La. C.C. art. 1621(A)(8); Katherine Spaht, Successions and Donations, Developments in Business Law, 1981-85, 46 La. L.Rev. 707, 710-11 (1986).

The SCRA is a federal statute that provides general temporary relief to active duty military servicemembers from civil suit. 50 App. U.S.C.A. § 501, et seq. The purpose of the SCRA is (1) to provide for, strengthen, and expedite the national defense through protection extended by the SCRA to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and (2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service. 50 App. U.S.C.A. § 502. The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the ser-vicemember or the servicemember’s heirs, executors, administrators, or assigns. 50 App. U.S.C.A. § 526(a).

The statute contains no exceptions and is drafted in extraordinarily broad terms, using the word “any” in different, and crucial, places. In re A.H. Robins Co., 996 F.2d 716, 718 (4th Cir.1993). The broad, unqualified, and mandatory language of section 526(a) leaves little room for judicial interpretation or oversight in its application; indeed, quite plainly, |17the tolling statute is unconditional. A.H. Robins Co., 996 F.2d at 718 (internal quotations omitted); see also Bickford v. U.S., 228 Ct.Cl. 321, 656 F.2d 636, 639 (1981). The only critical factor is military service; once that circumstance is shown, the period of limitations is automatically tolled for the duration of the service. Id.; see also Conroy v. Aniskoff, 507 U.S. 511, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993).

Courts across the country and in this state have reached different conclusions regarding the SCRA’s application in adoption cases and other cases regarding the legal relations between people. Ohio and Oklahoma have applied the SCRA to their statutes equivalent to La. Ch.C. art. 1245 to prevent their no-contact periods from running. See In re Adoption of W.C., n.k.a. W.B., 189 Ohio App.3d 386, 938 N.E.2d 1052 (Ohio App.3d 2010); See In the Matter of the Adoption of J.D.P., a Minor Child, 198 P.3d 905 (Okla.Civ.App.2008). However, New York declined to do the same because the SCRA only tolls the period for bringing an action in a tribunal. See Matter of Baby Girl, 206 A.D.2d 932, 615 N.Y.S.2d 800 (N.Y.App.Div.1994). The Louisiana Third Circuit declined to apply the SCRA to prevent an adoption without the consent of a military serviceman who failed to contact his child. The court determined the servicemember had ample opportunity to contact the child and the mother never tried to keep the child from the servicemember. See Kirby v. Albert T.J., 517 So.2d 974 (La.App. 3d Cir.1987), writ denied, 519 So.2d 107 (1987).

Furthermore, in Rebar v. Rebar, 165 Pa.Super. 341, 67 A.2d 598 (1949), the Pennsylvania Supreme Court declined to apply the former version of the |1SSCRA to a divorce where the husband argued his time in the military could not be included in determining whether he had deserted his wife. However, the court noted that principles of policy required that under certain circumstances, time in military service should be excluded. Id.

Finally, Louisiana courts have determined that periods of military service will not prevent a divorce decree for living separate and apart where the separation is independent of the military service. See Davis v. Watts, 208 La. 290, 23 So.2d 97 (1945); Pierce v. Gervais, 425 So.2d 922 (La.App. 4th Cir.1983); Gardner v. Gardner, 125. So.2d 463 (La.App. 2d Cir.1960). The application and effect of the SCRA regarding periods of time affecting legal relations is unclear.

The court, after hearing and after taking into consideration information from all sources concerning the intrafamily adoption, may enter a final decree of adoption, or it may deny the adoption. La. Ch.C. art. 1255(A). Upon a final decree of adoption, a parent, like Jon, is divested of all his legal rights with regard to the adopted child, thus severing the parent/child relationship. See La. Ch.C. art. 1256.

The basic consideration shall be the best interests of the child. Id. Because the trial court judge is in a better position to make the best-interests determination, this court will ordinarily not second-guess such sensitive decisions. Morris, supra. However, the trial judge’s discretion is not absolute, as the court’s decision is subject to reversal if found to be manifestly erroneous or clearly wrong. Id.

To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, |19much more probable than its nonexistence. In re Bourgeois, 04-1466 (La.App. 5th Cir.4/26/05), 902 So.2d 1104.

The considerations to be taken into account when determining whether adoption is in the child’s best interests have been explained by this court as follows:

In determining the best interest, the court needs to take into consideration that the legal consequences of adoption are abrupt, severe, and irrevocable: the relationship between the child and natural parent is severed. In making the determination, it is not enough to look at the love and home environment provided by the stepparent. The court should also consider the depth and closeness of the child’s ties with the non-custodial natural parent and the effect the loss of this relationship would have on the child. Children have a right to know and love their parents, and should not be denied this right except when the parent has proven himself unworthy of their love. Morris, supra, quoting In re Leitch, 32,021 (La.App.2d Cir.3/31/99), 732 So.2d 632, 635 (citations omitted).

From our review of the facts, we find most relevant the two-year period preceding Jeremy’s institution of this suit in June 2012. There were two broad and undisputed factors during that time that might be expected to impede the formation and development of the parent/child relationship. First, K.B. was three to five years of age during this time. She had only begun to comprehend the notion of Jon as a family member in the summer of 2010. As a three and four-year-old, her ability to receive and understand communications from Jon was within the control of Brianne and Jeremy. Second, while Jon’s military service did afford him leave and other occasions for communications with K.B., he was in the active duty military service, stationed in Connecticut, and for extended periods, serving on naval vessels. The combination of these factors meant that long-distance ^^communications would be required but also that adult facilitation by Brianne of such communications between K.B. and Jon was essential for the fostering of a relationship.

Within this setting, Jon argues that he did not communicate or visit with KB. immediately prior to this action because of “just cause.” We agree that just cause was established by the evidence. The evidence concerning the events of the summer of 2010, and in particular, Jeremy and Jon’s exchange over Facebook in August of that year, reveal that Jeremy and Brianne effectively prevented any further development of Jon’s relationship with the child. Without any parental legal status over K.B., Jeremy indicated to Jon that he was required to be consulted over matters pertaining to K.B. Regardless of Jon’s objection, Brianne was not justified in ending Jon’s “wanna be father ideas” at that time. Such impediment to Jon’s actual visitation with the child might in many instances prompt judicial custody proceedings by Jon against Brianne. Nevertheless, any pursuit’ of such civil action was hampered by Jon’s status in the military and the difficulties of bringing such action, thus implicating at least the policy concerns of the SCRA.

While Jon was in the Shreveport area for two subsequent military leaves in the year preceding this suit, there was certainly no clear and convincing evidence that Brianne and Jeremy had ended their previously expressed hostility toward Jon’s direct involvement and communication with ijnKB. In fact, prior to the institution of the adoption action, Brianne and Jeremy continued to withhold any recognition of Jon’s rights as father, and they refused to begin any cultivation of KB.’s understanding of Jon.

Accordingly, the trial court’s failure to recognize Jon’s just cause defense in this matter was clearly wrong and manifestly erroneous. While we recognize that Jon’s military service made it difficult for him to institute a civil custody action to deal with the visitation barriers raised against him, we pretermit the question of the application SCRA. It suffices in this case that Jon’s military service amounts to an additional factor for our determination of just cause.

Conclusion

For the foregoing reasons, the judgment is reversed. Costs of this appeal are assessed to appellees, Jeremy L. Puckett and Alexis B. Puckett.

REVERSED.

      . Jeremy and Brianne have split up several times during their marriage. Most of the separations were brief, usually amounting simply to cooling off periods. This separation, however, was a longer separation. One of the previous separations in 2009 had even resulted in an attempt by Brianne to obtain a protective order. During trial, Brianne stated that the allegations in the protective order were "exaggerations.”

      . Jeremy took it upon himself in this time period to contact Jon through Brianne’s email address to tell him that he is generally quick to anger about things concerning Brianne and K.B. He expressed a desire to try allowing Jon to have some sort of a relationship with K.B. Brianne saw that this had occurred, and she told Jon in an email to ignore Jeremy. She told him that she was separated from Jeremy and that he did not seem to understand what that meant. She said the contacts being arranged between K.B. and Jon were "none of his business.”

      . Brianne claimed at trial that during this shopping activity, Jon was acting distant and walking ahead of everyone.

      . Jon raised the SCRA tolling statute to the trial court only in his motion for new trial. The trial court found that the SCRA did not toll the no-contact period.

      . La. Ch.C. art. 1193 provides in pertinent part:
      Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:

      (4) The biological father of the child whose paternity has been determined by a judgment of filiation and who has established his parental rights in accordance with Chapter 10 of Title XI.

      . We also note that "the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party,” La. C.C. art. 134(10), is an important consideration in the context of determining a child's best interest in the typical custody or visitation setting.

      . While Jon’s claims of just cause may be viewed as an affirmative defense, a reading of Article 1245 reveals "just cause” as a part of the clear and convincing burden of proof placed on the stepparent/petitioner. This is more than the perplexing task of proving a negative. The facts within petitioner’s knowledge that suggest a lack of just cause should be proven, and in particular those facts demonstrating the stepparent’s and his custodial spousé's facilitation of the defendant’s communications and contact with the child.