author: EZELL, Judge.

text:
    STATE of Louisiana v. Michael James LaCOUR.
    No. KA 12-1255.
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2013.
    Rehearing Denied June 19, 2013.
    James C. Downs, District Attorney, Ninth Judicial District Court, Anthony L. Walker, Assistant District Attorney, Alexandria, LA, for Appellant, State of Louisiana.
    George Lewis Higgins, III, Pineville, LA, for Defendant/Appellee, Michael James Lacour.
    Brian D. Cespiva, Alexandria, LA, for Appellant, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

[,The Defendant, Michael James Lacour, was charged by indictment filed on January 19, 2012, with three counts of malfeasance in office, in violation of La.R.S. 14:134.1; malfeasance in office, in violation of La.R.S. 14:134; criminal conspiracy, in violation of La.R.S. 14:26; possession of methamphetamine, in violation of La.R.S. 40:967; and distribution of methamphetamine, in violation of La.R.S. 40:967. A plea of not guilty was entered on February 17, 2012.

The indictment was amended on June 1, 2012, and the Defendant entered a plea of not guilty. On the same date, a hearing on the motion to quash filed by the Defendant on May 7, 2012, was held. The trial court granted the Defendant’s motion and quashed counts 1, 2, and 3 of malfeasance in office.

The State filed a notice of appeal on June 7, 2012. The State is now before this court asserting one assignment of error. Therein, it contends the trial court erred in granting the Defendant’s motion to quash.

FACTS

The Defendant was charged with three counts of malfeasance in office for allegedly having sexual intercourse with a female who was on probation while he was employed by the Rapides Parish Sheriffs Department.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. In this case, no error patent review is necessary as the tidal court dismissed charges in counts one, two, and three and that dismissal is the basis for the appeal.

| .ASSIGNMENT OF ERROR

The State contends the trial court erred in granting the Defendant’s motion to quash counts 1, 2, and 3 of the grand jury indictment upon its erroneous conclusion that the Defendant did not commit the crime of malfeasance in office as set forth in La.R.S. 14:134.1.

Counts 1, 2, and 3 of the indictment read as follows:

COUNT #1:
IN THAT HE DID ON OR ABOUT AND BETWEEN THE 22ND DAY OF SEPTEMBER, 2009 AND THE 31ST DAY OF DECEMBER, 2009, while employed by the Rapides Parish Sheriffs Department, as a law enforcement officer, did engage in sexual intercourse with L.M., who was under the supervision of the Division of Probation and Parole, in violation of La. R.S. 14:134.1[.] COUNT #2:
IN THAT HE DID ON OR ABOUT AND BETWEEN THE 1st DAY OF JANUARY, 2010 AND THE 31st DAY OF DECEMBER, 2010, while employed by the Rapides Parish Sheriffs Department, as a law enforcement officer, did engage in sexual intercourse with L.M., who was under the supervision of the Division of Probation and Parole, in violation of La. R.S. 14:134.1 [.]
COUNT #3:
IN THAT HE DID ON OR ABOUT AND BETWEEN THE 1st DAY OF JANUARY, 2011 AND THE 21st DAY OF APRIL, 2011, while employed by the Rapides Parish Sheriffs Department, as a law enforcement officer, did engage in sexual intercourse with L.M., who was under the supervision of the Division of Probation and Parole, in violation of La. R.S. 14:134.1[.]

The Defendant filed a motion to quash counts 1, 2, and 3 on May 7, 2012, arguing the facts alleged in support thereof did not constitute a crime under La.R.S. 14:134.1. At the hearing on the Defendant’s motion to quash, he called Edwin Beckham, an investigator with the Rapides Parish District Attorney’s Office, to testify. Beck-ham testified that, at the time of the alleged offenses, the Defendant was the lieutenant supervisor with the Rapides Parish Metro Narcotics Office, and Lindsey McCann was on probation.

^Defense counsel subsequently argued that the Defendant’s acts were not covered by La.R.S. 14:134.1. The State argued that a law enforcement officer is prohibited from having sexual relations with a person who is under the supervision of the Division of Probation and Parole.

The trial court granted the Defendant’s motion to quash counts 1, 2, and 3, stating:

It has to be under their supervision, and then either two classes of people, either they have to be in jail, it has to be and who are either in jail, or under the supervision of Probation and Parole. And, the thing is, the statute, you have that conjunctive, with a person under supervision and the conjunctive is, that that person has to be confined to either a jail or under supervision. The problem is, the statute requires that it be with a person under their supervision. And so, Ms. L.M. has to be a person under his supervision. I understand what y’all are saying. And, I think that’s probably the way it should be written. I think that what the Legislature was intending was to prevent— And, I still can’t think of the word, whether or not — It’s not people subservient to police officers, it’s people who are at a disadvantage because of their position, I guess is what you’re trying to say.
And, they have, the Legislature has specifically defined those that they think or [sic] at a disadvantage. And, if it is a person on Probation and Parole, and the Police Officer is having a sexual relationship with that person, then I don’t think that that is a crime. It may be an ethics problem, but I don’t know if that would be a crime, that the Legislature was intending when they passed the statute, so — I’m going to go ahead and cut the cake. And say under — Let me look at Article 485 again.
... But, I believe that the offense charged, based upon the argument is not one that is punishable under a valid statute.

The State contends a plain reading of La.R.S. 14:134.1 clearly defines a sexual relationship between a law enforcement officer and a person who is under the supervision of the Division of Probation and Parole as prohibited conduct constituting malfeasance in office. The State asserts that, if this court examines the legislative intent of La.R.S. 14:134.1, this court should look no further than the | .[legislative history of the statute. The State asserts that law enforcement officers are prohibited not only from engaging in sexual intercourse or conduct with persons under their supervision but also those persons who are under the supervision of the Division of Probation and Parole. The State notes that the word supervision is used twice in subpart (A) of La.R.S 14:134.1 and is used on either side of the conjunctive “or.”

The State then cites subsection (C) of the current version of the statute and asks why the legislature would amend the statute to include wildlife enforcement agents and state park wardens, as these officers do not have anyone under their supervision who is confined to a work release facility or a correctional institution. The State asserts these officers were added so they could not exploit persons on probation with threats, real or perceived, if the susceptible person did not acquiesce in their sexual demands.

The Defendant asserts a law enforcement officer cannot engage in sexual conduct with anyone he/she supervises, whether they are “DOC or probation and parole.” The Defendant argues the State omits the word “and” from their analysis.

Therefore, this court must determine which interpretation of La.R.S. 14:134.1 is proper. In State v. Shaw, 06-2467, pp. 14-15 (La.11/27/07), 969 So.2d 1283, 1242, the supreme court stated:

[T]he starting point in the interpretation of any statute is the language of the statute itself. [State v.] Johnson, 03-2993 at 11 [(La.10/19/04)], 884 So.2d [568] at 575; Theriot v. Midland Risk Insurance Company, 95-2895 (La.5/20/97), 694 So.2d 184, 186; Touchard v. Williams, 617 So.2d 885, 888 (La. 1993). Our interpretation of the language of a criminal statute is governed by the rule that the articles of the criminal code “cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with preference to the purpose of the provision.” LSA-R.S. 14:3; State v. Skipper, 04-2137, p. 3 (La.6/29/05), 906 So.2d 399, 403. Further, although criminal statutes are subject to strict construction under the rule of lenity, State v. Carr, 99-2209, p. 4 (La.5/26/00), 761 So.2d 1271, 1274, the rule is not to be applied with “such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and enforce the true meaning and intent of the statute.”
State v. Everett, 00-2998, p. 12 (La.5/14/02), 816 So.2d 1272, 1279, quoting State v. Broussard, 213 La. 338, 342, 34 So.2d 883, 884 (La.1948). See State v. Brown, 03-2788, pp. 5-6 (La.7/6/04), 879 So.2d 1270 [1276], 1280, quoting Perrin v. United States, 444 U.S. 37, 49 n. 13, 100 S.Ct. 311, 317, 62 L.Ed.2d 199 (1979) (“The general rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity applies when the court is uncertain about the statute’s meaning and is ‘not to be used in complete disregard of the purpose of the legislature.’ ”). Consequently, a criminal statute, like all other statutes, should be interpreted so as to be in harmony with and to preserve and effectuate the manifest intent of the legislature; an interpretation should be avoided which would operate to defeat the object and purpose of the statute. Brown, 03-2788 at 6, 879 So.2d at 1280; Broussard, 34 So.2d at 884. What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. State v. Williams, 00-1725, p. 13 (La.11/28/01), 800 So.2d 790, 800. Therefore, where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit. LSA-R.S. 1:4; State v. Freeman, 411 So.2d 1068, 1073 (La.1982).

The Court has found no cases interpreting La.R.S. 14:134.1. Thus, this court must look at the wording of the statute and determine whether it is to be read in the manner asserted by the State or the Defendant. The State contends the statute should be read as follows:

It shall be unlawful and constitute malfeasance in office for a law enforcement officer to engage in sexual intercourse or any other sexual conduct with a person
1) who is under their supervision and who is confined in a prison, jail, work release facility or correctional institution,
or
2) who is under the supervision of the division of probation and parole.

The Defendant contends the statute should be read as follows:

|fiIt shall be unlawful and constitute malfeasance in office for a law enforcement officer to engage in sexual intercourse or any other sexual conduct with a person who is under their supervision
and
1) who is confined in a prison, jail, work release facility or correctional institution, or
2) who is under the supervision of the division of probation and parole.

When La.R.S. 14:134.1 was enacted in 1981, it read, in pertinent part, as follows:

A. It shall be unlawful and constitute malfeasance in office for any person who is a law enforcement officer, officer of the Department of Corrections, or employee of a prison, jail, or correctional institution, to engage in sexual intercourse or any other sexual conduct with a person confined in a prison, jail or correctional institution.

In State v. Hart, 96-599 (La.1/14/97), 687 So.2d 94, the supreme court was called upon to determine the meaning of “any other sexual conduct” in La.R.S. 14:134.1. In its discussion, the supreme court observed that due to “the nature of the relationship between prisoners and those who exercise direct authority over them while they are incarcerated, we think the legislature intended to make the statute as broad as possible to prohibit any and all conduct which might be interpreted as sexual.” Hart, 687 So.2d at 96.

Subsequent to the decision in Hart, La. R.S. 14:134.1 was amended twice. Each time the law was expanded. In 2008, the statute was amended to include persons employed by work-release facilities and the division of probation and parole. Louisiana Revised Statutes 14:134.1 was amended again in 2010 by House Bill 337 to read, in pertinent part:

|7A. It shall be unlawful and constitute malfeasance in office for any of the following persons to engage in sexual intercourse or any other sexual conduct with a person who is under their supervision and who is confined in a prison, jail, work release facility, or correctional institution, or who is under the supervision of the division of probation and parole:
(1) A law enforcement officer.
(2) An officer, employee, contract worker, or volunteer of the Department of Public Safety and Corrections or any prison, jail, work release facility, or correctional institution.
C. For purposes of this Section, “law enforcement officer” shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.

The Resume Digest of House Bill 377 provided, in pertinent part:

Prior law defined malfeasance in office to include any person who is a law enforcement officer, an employee of DPS & C, an employee of any prison, jail, or correctional institution, or any person employed by entities operating work release facilities of DPS & C, engaging in sexual conduct with persons under their supervision.
Hew law retains prior law and also prohibits volunteers and contract workers of DPS & C from engaging in sexual conduct with persons sentenced to their custody.
New law provides that “law enforcement officer” shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.

Over the years, the legislature has continued to amend La.R.S. 14:134.1 to expand its coverage to protect those persons who are not only incarcerated in a correctional facility but who are also subject to work-release programs or under the supervision of the Division of Probation and Parole. Obviously, people in authoritative positions could exercise control over these people just as well. As |sstated in Hart, 687 So.2d at 96, “the state has the right to protect a class of persons particularly vulnerable to authority by prohibiting all sexual conduct, thereby placing authority figures on notice that if they engage in any sexual conduct with a prisoner they may be subject to criminal prosecution.”

Therefore, we agree with the State that La.R.S. 14:134.1 prohibits all conduct of a sexual nature between those persons designated in La.R.S. 14:134.1 and a person under the supervision of the Division of Probation and Parole. The trial court erred in sustaining Defendant’s motion to quash.

DECREE

For these reasons, the judgment of the trial court granting the motion to quash is reversed. The case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: MOORE, J. BROWN, Chief Judge,

license: Public Domain

text:
    Thomas J. ANDERSON, Plaintiff-Appellant v. Angela Byrd ANDERSON, Defendant-Appellee.
    No. 48,027-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Susan D. Scott, Shreveport, LA, for Appellant.
    Tonya Courson, West Monroe, LA, for Appellee.
    Before BROWN, WILLLAMS and MOORE, JJ.
   MOORE, J.

| Thomas J. Anderson (“Jason”) appeals a judgment ordering him to pay his ex-wife, Angela Anderson, final periodic support of $1,035 a month, retroactive to the date of divorce. We amend and affirm.

Factual and Procedural Background

Jason and Angela got married in January 1991; they had one child, a daughter, who was 18 by the time of the divorce. The couple physically separated in October 2009, and Jason filed for an Art. 102 divorce; Angela reconvened, seeking an Art. 102 or 103 divorce and demanding interim and final periodic support. After a hearing on June 21, 2010, the district court granted an Art. 102 divorce.

Although the minutes do not reflect it, the parties testified that in December 2009, Jason was ordered to pay, as interim support, the house note on the former marital home, and he did so until they sold the house in March 2011. As a result of the sale, each received about $6,000 as a community share of the equity.

At a hearing in July 2011, the parties were unclear whether the issue before the court was interim or final support. Angela argued that she had asked the district court to maintain interim support equal to the house note, over $900 a month, until final support was fixed, but Jason argued that the interim support could not exceed 180 days. The court stated that it would rule only on final support.

\9Evidence at the Hearing

Both sides’ financial pictures were fairly intricate. Angela works as a human resources assistant for Gilley Enterprises, a McDonald’s franchisee in West Monroe, at $9.85 an hour, the same pay she has earned since 2007. She does not work a full 40-hour week because of depression. Her gross monthly pay is $1,154, and after withholdings she nets $770. During the marriage, she left work and attended a few quarters at Louisiana Tech to study nursing and become more self-sufficient, but had to drop out because it was too demanding; she still hopes to become a nurse.

After the parties sold the marital home, Angela moved into a house owned by her father, Sammy Byrd, and was living there rent-free with the parties’ adult daughter and with her sister. She claimed monthly expenses of $2,563.83, including rent of $600 a month, even though she was not paying rent; food and household supplies of $602, including groceries and eating out; clothing of $100, including “school uniforms”; transportation expenses of $770, even though she listed fuel and maintenance at $236.50 and testified that insurance ran about $56 a month; utilities of $203, or one-half (because she shares the house with her sister) of total utilities, including land line telephone; pet care of $53 a month; and cell phone charge of $50 a month. With monthly expenses totaling $2,563 and net income of $770, she con-eluded that she was $1,793 in the red each month.

Jason was always the primary provider for the household. His principal employment was with Regency Gas (now known as Energy Gas Transfer), at $23 an hour; his 2010 W-2 showed a salary of $63,117. In | ¡¡addition, he pursued side businesses. He had formed Superior Weed Control, an oilfield service contractor, using as startup capital a loan secured by a $30,000 certificate of deposit pledged by Angela’s father, Mr. Byrd. In 2009, Superior Weed showed gross sales of $79,617, gross income of $65,182, and a net profit of $19,697. Then, around the time of the divorce, Jason formed another company, Ash Oilfield Services, to perform contracting similar to Superior Weed. Ash Oilfield reported 2010 business income of $17,940. This, with his salary from Energy Gas Transfer, would yield a total annual income of $80,835; by affidavit, he claimed to net $4,296.28 a month.

Jason testified that his monthly expenses totaled $4,959 a month, exceeding his available income by $662.72. On cross-examination, however, he admitted that his truck note and insurance were actually paid by Superior Weed, and that many daily charges to restaurants and fast-food places appeared on Superior Weed’s credit card; these items should not have been listed as personal charges. Even though he claimed to be running a deficit, he paid a caterer for his recent wedding, bought a $160,000 house and testified he was unsure how much his new house note would be. In addition, he had recently bought a self-storage facility, on which he owed a note of about $1,000 a month. He admitted giving his adult daughter $250 a month and paying her car note and auto expenses. Finally, he had sold Superior Weed, and liquidated its assets, without making any effort to repay Angela’s father, Mr. Byrd, the $30,000 he had received when Mr. Byrd Lpledged a CD to start up the company.

Mr. Byrd testified that he had helped the couple many times over the years, and confirmed that he pledged his CD to secure a loan for Jason to start Superior Weed, but Jason never repaid him. Mr. Byrd was living in a trailer while Angela and the other daughter were staying in his house rent-free, but this was only until Angela got back on her feet. He said he wanted to retire soon and move back into his house.

Action of the District Court

By written reasons, the court found that Angela was free from fault in the divorce, a finding not contested on appeal. The court then analyzed the parties’ finances in a random manner, first finding that Angela had received “abundant support” from her father, but this would not be considered in setting interim or final support, Shelton v. Shelton, 395 So.2d 899 (La.App. 2 Cir. 1981).

The court found that Jason was an aggressive worker with a good salary and strong business income totaling $127,272 in 2009. In 2010, his salary and business income totaled $80,835, but the court added Ash Oilfield’s claimed depreciation of $11,621 to yield a total of $92,456, or $7,704 a month gross. However, with his recent purchase of a house for $160,000 and a self-storage facility for $100,000, the court found that Jason “did not address the debt [to Mr. Byrd] in a reasonable manner.” The court accepted Jason’s claimed net monthly expenses of $4,959, but disallowed the following: car note, fuel and allowance paid to the couple’s major daughter, $765; payment into a 401(k) match plan, $106.96; and house note |sof $1,089, only to the extent that it exceeded Angela’s housing cost of $600, or $489. The court reasoned that these three adjustments freed up $1,360 a month in Jason’s budget.

As for Angela, the court found that even though she expressed a desire to become a nurse, there was no evidence of a “plan of education expense and forecast of greater earning capacity.” The court therefore took her hourly wage and imputed a 40-hour week ($9.85 x 40 = $394), or a monthly gross of $1,707.33. He reduced this by “about 15%” to reflect withhold-ings, for a monthly net of $1,450. Of her claimed expenses of $2,563.83, the court disallowed the following: dog care, $53; cell phone in addition to land line, $50; and school uniforms, $50. The court added an “appropriate adjustment” for her health care premium, $74.36. This brought her necessary expenses to $2,485.09. Because her necessary expenses exceeded her monthly net income by $1,035, the court found her in need of support under La. C.C. art. 111.

Finally, the court found that Angela’s proven need, $1,035, was within the statutory cap of one-third of Jason’s claimed net income (1/3 x $4,296.28 = $1,432.09), La. C.C. art. 112 C. The court therefore awarded final periodic support of $1,035, adding that this could be modified or extinguished on the appropriate showing, La. C.C. arts. 114, 115.

The court rendered judgment ordering Jason to pay Angela final periodic support of $1,035 a month beginning the day after the rendition of divorce, June 22, 2010, and payable each successive month on the 22nd, and that any arrearage created by this retroactive date would be satisfied by | f,paying an additional $500 a month.

Jason has appealed, raising five assignments of error.

Discussion: Award of Final Periodic Support

By his first three assignments of error, Jason urges the court erred in finding that Angela was in need of final periodic support, in assessing her means and expenses, and in assessing Jason’s ability to pay support. He argues that the claimant spouse has the burden of proving necessitous circumstances or insufficient means for his or her maintenance. Carr v. Carr, 33,167 (La.App. 2 Cir. 4/5/00), 756 So.2d 639, and citations therein; Lawhon v. Lawhon, 2007-42679 (La.App. 2 Cir. 10/24/07), 966 So.2d 170. He contends that Angela did not prove she was in necessitous circumstances, and thus was not entitled to any final periodic support; alternatively, he urges the district court improperly applied the factors of La. C.C. art. 112 B and awarded an excessive amount.

A spouse may be awarded final periodic support when he or she “has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay[.]” La. C.C. art. 112 A. The claimant spouse does not need to prove “necessitous circumstances.” Jones v. Jones, 35,502 (La.App. 2 Cir. 12/5/01), 804 So.2d 161. Final periodic support, formerly known as “permanent alimony,” is limited to an amount sufficient for maintenance as opposed to continuing an accustomed style of living. Mizell v. Mizell, 40,601 (La.App. 2 Cir. 1/25/06), 920 So.2d 927. The court shall consider all relevant factors in determining the amount and 17duration of final support. La. C.C. art. 112 B. A spouse who is working full-time for a respectable salary and has no unusual expenses or obligations is not in necessitous circumstances so as to justify an award of final periodic support. Carr v. Carr, supra, and citations therein. Nevertheless, the trial court has great discretion in awarding final periodic support to a party not at fault. Ducote v. Ducote, 339 So.2d 835 (La.1976); Carr v. Carr, supra.

By his first assignment of error, Jason argues that Angela failed to prove she was “in necessitous circumstances” that would warrant any award of final periodic support. Citing Carr v. Carr, supra, and Harlow v. Harlow, 471 So.2d 895 (La.App. 2 Cir.1985), he urges she is capable of working full-time, makes a respectable salary, has no unusual obligations, and recently received $6,000 from the sale of the former community house. As noted, however, Art. 112 no longer requires proof of “necessitous circumstances,” but only proof of need. Jones v. Jones, supra, and citations therein.

The operative question is whether the district court abused its discretion in finding need. In Carr v. Carr, Ms. Carr earned $1,400 a month as a teacher and had supplemental income bringing her annual earnings to $20,000; this court affirmed the finding that she lacked sufficient means of |ssupport. Notably, Angela’s current earnings are comparable to Ms. Carr’s, although the latter were in 1995 dollars. In Harlow v. Harlow, Ms. Harlow earned $1,500 as a teacher and was receiving $1,200 a month in child support; this court reversed the finding that she was in necessitous circumstances. The $1,500 a month salary that we deemed “respectable” in 1985 may, today, leave a spouse in need of support.

There is no exact formula or rule for deciding whether and to what extent a spouse claiming final periodic support must deplete her assets. Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Patton v. Patton, 37,401 (La.App. 2 Cir. 9/24/03), 856 So.2d 56. Angela’s $6,000 settlement is probably not large enough to generate income and the principal would be depleted in two years if used in the manner Jason has suggested. The district court did not abuse its discretion in finding that with her earning potential and her property settlement, Angela is in need of final periodic support.

By his third assignment of error, Jason contests the district court’s assessment of his ability to pay. His main argument is that he works two jobs, putting in extraordinary hours to generate a handsome income, and should not be penalized for his industry. The statute expressly authorizes the court to consider the earning capacity of the parties. La. C.C. art. 112 B(3). Jason’s financial records and tax returns prove his actual earnings and support the district court’s finding as to his earning capacity.

Jason specifically contests the court’s decision to disallow $4,100 he spent to buy a work truck for Ash Oilfield. The record shows that this was |9an expense of Ash Oilfield, and not of Jason personally, so we perceive no abuse of discretion.

Jason also argues that the district court erred in disallowing, as a claimed expense, the $415 he pays for the parties’ adult daughter’s car note. He asserts that this is a community obligation. However, the jurisprudence clearly does not allow the support of major children to be considered a living expense of one of the spouses. Mizell v. Mizell, supra, and citations therein. The district court did not abuse its discretion in disallowing the daughter’s car note, fuel and allowance.

By his second assignment of error, Jason urges the court erred in assessing Angela’s means and expenses. He contends that Angela should be held to the same standard of industry as himself, aggressively working two jobs. Admittedly, Angela appears content with a job paying little and offering no prospects of advancement. However, the court imputed to her the wages of a 40-hour week even though her pay stub showed only about 36 hours’ actual work. Moreover, a spouse is not required to take employment of any nature immediately following divorce; difficulty in finding employment suitable for the spouse’s age, training and ability is a proper consideration. Patton v. Patton, supra; Faltynowicz v. Faltynowicz, 30,605 (La.App. 2 Cir. 6/24/98), 715 So.2d 90. On this record, we cannot say the district court abused its discretion in failing to assign Angela a greater earning capacity.

Jason urges the court erred in accepting several of Angela’s claimed expenses. He contends that $600 a month rent is improper because she is | innot actually paying any rent and, at any rate, there was no proof that her rent (if she had any) would be $600. Angela’s father was allowing her to stay in his house rent-free, as he said, for the time being. The district court was entitled to treat this as financial assistance provided by a parent for food, shelter or clothing; such gratuity does not relieve the paying spouse of the duty to pay periodic final support to his ex-wife. Shelton v. Shelton, supra; Jeansonne v. Jeansonne, 550 So.2d 973 (La.App. 5 Cir. 1989). In Shelton v. Shelton, supra, this court approved the trial court’s resort to “equitable means” to fix a fair value for housing provided by the parent to the claimant spouse. Although hard proof would have been preferable, we find no abuse of discretion in allowing Angela a modest $600 a month for rent.

Jason also argues that any part of Angela’s utilities expense of $203 attributable to Internet and cable fees is unnecessary for her maintenance. In Patton v. Patton, supra, the district court found the ex-wife’s claimed Internet fee was unnecessary; however, this court reversed the judgment denying periodic support, and did not hold that Internet access was inappropriate for final period support. On this record, the district court did not abuse its discretion in treating Internet and cable access as an item of maintenance for Angela. Jason further contends .that Angela’s claimed expenses of $65 a month for hair coloring and $107.50 for weekend dining out were inappropriate. In Nowlin v. Nowlin, 482 So.2d 882 (La.App. 2 Cir. 1986), this court disallowed the ex-wife’s claim for vacation and recreation expenses. Although coiffeur and dining out stretch the limits of “need of support” under Art. 112 A, we find no manifest abuse of | n discretion, given Angela’s depression and anxiety.

Finally, Jason contends the court erred in granting Angela a transportation expense of $770 a month, when she proved expenses of only $292.50. This argument has merit. Angela claimed $770 a month on her affidavit, but testified that fuel for her commute from Ruston to West Monroe cost $236.50 a month, and the insurance on the 2005 Chevy Z71 truck (received in the property settlement) was $56 a month. This yields a total of $292.50. She testified that she was actually using her father’s car to commute because she considered the Chevy truck “unreliable,” but offered no proof of this, or that she was paying her father, or paying anyone, for the truck. In short, the record does not support the district court’s finding that $770 a month is a necessary transportation expense for Angela. The judgment will be amended to reduce this item to the amount proved at trial, $292.50. This assignment of error has merit.

Duration of Periodic Support

By his fourth assignment of error, Jason urges the district court erred in not setting a duration for the periodic support. He concedes that Art. 112 does not require the court to set a duration for final periodic support, Harmon v. Harmon, 12-580 (La.App. 3 Cir. 11/7/12), 101 So.3d 1122, but argues that the court must determine the “amount and duration” of final support, considering the “time necessary for the claimant to acquire appropriate education, training, or employment,” La. C.C. art. 112 B(5). He cites Angela’s testimony that she still wants to go to nursing school, and argues that setting a duration would encourage her to seek self-sufficiency. |12He concludes that the court’s failure to do so was an abuse of discretion.

The court is to consider all relevant factors in determining the amount and duration of final support. La. C.C. art. 112 B. The article permits, but does not require, the court to set a period of time for the award. La. C.C. art. 112, Rev. Comm. (c); Harmon v. Harmon, supra; Voyles v. Voyles, 2004-1667 (La.App. 3 Cir. 5/4/05), 901 So.2d 1204. A time limit is appropriate if it is rehabilitative. La. C.C. art. 112, Rev. Comm. (c); Arnold v. Arnold, 2002-0819 (La.App. 1 Cir. 4/2/03), 843 So.2d 1167. An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. La. C.C. art. 114.

Angela’s work history consisted of low-paying jobs that allowed her to leave and pick up her child from school and dedicate herself to the family home. Although she expressed a desire to study nursing, her academic track record was poor, and neither she nor Jason offered any evidence about how long it would take to earn a nursing degree. The district court aptly noted, “no evidence of a plan of education expense and forecast of greater earning capacity was presented,” but stated that the evidence “might establish a future modification of the support award.” On this record, the court did not abuse its discretion in setting no time limit for periodic support but leaving any modification to the procedure set by Art. 114. This assignment of error lacks merit.

1 iaRetroactivity of Award

By his fifth assignment of error, Jason urges the district court committed manifest error in making the award of final periodic support retroactive to the date of divorce rather than the date of rendition of judgment. Under La. C.C. art. 113, if a claim for final spousal support is pending when the divorce is rendered, the interim spousal support award shall terminate upon rendition of judgment awarding or denying final spousal support or 180 days from the date of the divorce judgment, whichever occurs first, unless extended for good cause shown. He concedes that on this record, the status of the interim award is “murky,” in that the parties agreed to an intei’im award in December 2009, but this was not filed in the record; under Art. 113, this would expire in June 2010; in June 2010, Angela asked the court to extend the interim award, and a hearing was scheduled for November 8, 2010, but continued; there appears to be no express ruling extending the interim award. Jason contends that the pro tem judge’s ruling, making final support retroactive to June 22, 2010, effectively terminated interim support as of that date, contrary to the parties’ agreement that the pro tem judge would decide only final support. He concludes that under the circumstances, final support should take effect only from the date of judgment, November 9, 2011, and the parties should litigate the duration of interim support separately.

114Angela responds that no interim award was in effect at the time of the judgment awarding her final periodic support. She cites La. R.S. 9:321 B(2), Retro-activity of judgment concerning spousal support:

If an interim spousal support allowance award is not in effect on the date of the judgment awarding final spousal support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown.

She concludes that under this statute, the final award is presumptively retroactive to date of judicial demand, and suggests that the district court was entitled to find no good cause to set a later effective date.

While we agree with Jason’s assessment that the procedural history is “murky,” the record supports a finding that the interim support award was not in effect by the time of the instant judgment. Both sides testified that the interim support, ordering Jason to pay the house note on the marital home, was entered in December 2009; this would expire by June 2010, La. C.C. art. 113. They also testified that they sold the house in March 2011; this, presumably, extinguished the obligation to pay the note, if it still existed. At the instant hearing, counsel for Jason argued, “We maintain there’s no interim periodic spousal support due.” On this record, the court was not plainly wrong to find that the interim award was not in effect at the time of judgment. Under R.S. 9:321 B(2), the final award had to be retroactive to date of judicial demand. Loftin v. Loftin, 2009-0795 (La.App. 3 Cir. 2/3/10), 28 So.3d 1274. The record also supports the court’s implicit finding of no good cause to set a later effective date. This assignment of error lacks merit.

11SConclusion

For the reasons expressed, the judgment is affirmed insofar as it found Angela Byrd Anderson to be in need and entitled to final periodic support, effective June 22, 2010. The judgment is amended, however, to order Thomas Jason Anderson to pay the sum of $557.50 in final periodic support. The remaining incidental provisions of the judgment are affirmed.

Each party is to pay one-half of appellate costs.

AMENDED AND AFFIRMED.

BROWN, Chief Judge, concurs with written reasons.

BROWN, Chief Judge,

concurs.

hThe reality is that Mrs. Anderson pays no rent and will continue to live in her father’s house. The daughter, who is a major attending La. Tech, also lives in the house along with Mrs. Anderson’s sister. Mr. Anderson continues to furnish the daughter with an automobile and money. Even so, I accept the majority’s opinion on this point. I do not agree that the payment of interim support from December 2009 through March 2011 is “murky.” Mr. Anderson paid more than $900 per month. This court now affirms the retroactive payment of final support back to June 2010. Thus, he will end up paying both the final and interim support from June 2010 thru March 2011. Obviously and implicitly from the testimony of both Mr. and Mrs. Anderson, this interim payment was extended past the date of the judgment of divorce by the agreement of the parties.

      . The hearing was before a pro tem judge.

      . His affidavit listed housing as $1,089 a month.

      . Under C.C. art. 112 B, the factors may include:
      (1) The income and means of the parties, including the liquidity of such means.
      (2) The financial obligations of the parties.
      (3) The earning capacity of the parties.
      (4) The effect of custody of children upon a party’s earning capacity.
      (5) The time necessary for the claimant to acquire appropriate education, training, or employment.
      (6) The health and age of the parties.
      (7) The duration of the marriage.
      (8) The tax consequences to either or both parties.

      . Article 113, enacted in 1997 and last amended in 2003, uses the term final "spousal support," while Art. 112, also enacted in 1997 but last amended in 2006, calls it "final periodic support."


author: ROSEMARY LEDET, Judge.

text:
    FMC ENTERPRISES, L.L.C. v. PRYTANIA-ST. MARY CONDOMINIUMS ASSOCIATION, INC.
    No. 2012-CA-1634.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 2013.

      John H. Musser, V, Michael D. Letour-neau, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Plaintiff/Appellant.
    Elizabeth A. Roussel, Janis van Meer-veld, Raymond P. Ward, Adams and Reese, LLP, New Orleans, LA, for Defendant/Appellee.
    Charles L. Stern, Jr., Danielle C. Ba-bashoff, Margaret V. Glass, Steeg Law Firm, LLC, New Orleans, LA, for Appel-lee/Intervenors.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

| plaintiff, FMC Enterprises, L.L.C. (“FMC”), appeals the trial court’s final judgment rendered on August 8, 2012, including the interlocutory judgments rendered in this action on August 15, 2011 and February 28, 2012, which all were found in favor of defendant, Prytania-St. Mary Condominiums Association, Inc. (“PSMCA”). For the following reasons, we affirm.

FACTUAL BACKGROUND

On June 6, 2006, FMC, represented by its members Jacob Garofalo and F. Thomas Crowley, Jr., agreed to purchase an apartment building containing four apartments located at 1916-1922 Prytania Street, New Orleans, Louisiana (the “Pry-tania Street Building”) from Prytania Historic Properties, LLC (“PHP”), represented by its members Christian Amedee and Ian Hardcastle. At the time, PHP owned the Prytania Street Building and two other adjacent apartment buildings on St. Mary Street. The three buildings contained a total of 23 apartments.

| ¡.Before the sale of the Prytania Street Building to FMC, PHP decided to turn the three buildings it owned into a condominium regime. On July 24, 2006, the PSMCA was created by the condominium regime’s Act of Declaration (“the PSMCA Declaration”). The PSMCA consisted of 23 units; the 23 apartments, contained in the three buildings. On September 1, 2006, instead of purchasing the entire Prytania Street Building as originally agreed, FMC purchased only the four condominium units in the building.

Following the sale, FMC began to renovate its four units. FMC asserts that they also performed significant work to the common elements of the Prytania Street Building, including rewiring 90% of the electrical system; replacing the plumbing; building exterior stairways, porches and roofs over the porches; repairing the roof of the main building; and removing and replacing approximately 20% of the exteri- or siding.

Shortly after renovations began, FMC discovered a small access panel in the ceiling of Unit 1918 of the Prytania Street Building. The access panel led to an unframed, floorless attic space. FMC determined that there was sufficient space in the attic for it to be converted into an additional condominium unit if a permanent means of access to the space was created, the space was framed, floors were laid, and electricity and plumbing were installed.

Mr. Garofalo approached Mr. Amedee, the then-president of the PSMCA, about the possibility of adding a fifth unit to the Prytania Street Building, which would make the PSMCA a 24-unit condominium regime. FMC proposed creating |sa fifth unit by converting and renovating the newly found attic space and constructing a set of stairs to be built for the purpose of accessing the unit.

At that time, PHP and FMC owned all 23 units; they represented 100% of the unit owners of PSMCA. PHP and FMC orally agreed that in exchange for the work FMC was doing to renovate PSMCA’s common elements, PSMCA would transfer ownership of the attic space, the fifth unit, to FMC and amend the condominium documents to reflect this agreement and provide for an additional 24th unit to the condominium regime. Following the agreement between PHP and FMC, FMC asserts that it took possession of the attic space and began to convert it into a condominium unit. However, the amendment to the PSMCA Declaration was never filed. FMC asserts that they became aware that the declaration was never amended in 2009 when it neared completion of conversion of the attic space into a unit, and began marketing it for sale.

Since June 2010, FMC has been leasing the attic space as Unit 1918-A. However, PSMCA told FMC that the PSMCA Declaration will not be amended. Further, PSMCA has attempted to evict FMC and its tenant from the unit, cancel the insurance on the unit, and has indicated that it has no intent of transferring title of the unit to FMC.

PROCEDURAL BACKGROUND

On October 12, 2010, FMC filed a Petition for Damages or Alternatively Transfer of Ownership. FMC asserted in its petition causes of action for reimbursement for construction by a good faith possessor, failure to pay for 1,(improvements to the common elements of the PSMCA, breach of contract to create a unit and transfer of ownership, and defamation. On April 28, 2011, PSMCA filed its answer and a recon-ventional demand against FMC.

FMC seeks review of the trial court’s ruling on several summary judgments that were filed in this case. First, on June 15, 2011, PSMCA filed a Motion for Partial Summary Judgment seeking to have FMC declared a bad faith possessor of the attic space. PSMCA’s motion argued that FMC does not possess the attic space pursuant to an act translative of ownership and that FMC knew or should have known the defects of its alleged ownership in the attic space. Following oral argument on the matter, the trial court, on August 15, 2011, granted PSMCA’s motion and declared FMC a possessor in bad faith of the attic space.

Second, on December 5, 2011, PSMCA filed a Motion for Partial Summary Judgment seeking dismissal of FMC’s claim for the cost or value of any improvements it allegedly made to the common elements of the Prytania Street Building and dismissal of FMC’s claim for breach of contract or under any theory by which it is asserting title to the attic space. In response, FMC filed a Motion for Partial Summary Judg-merit and Motion for New Trial and/or Reconsideration of the trial court’s August 15, 2011 judgment.

On January 6, 2012, Judith Hembling, John Hembling, Judith Law, and David Turgeon (collectively referred to as “the Intervenors”) intervened in the proceeding to defend their ownership in the attic space as a common element of the 1 fiPSMCA. Subsequently, the Intervenors filed a motion in opposition to FMC’s Motion for Partial Summary Judgment setting forth an argument under the Public Records Doctrine.

On February 9, 2012, the trial court heard both PSMCA’s and FMC’s motions. On February 28, 2012, the trial court granted PSMCA’s Second Motion for Partial Summary Judgment and denied FMC’s Motion for Partial Summary Judgment and Motion for New Trial and/or Reconsideration of the trial court’s August 15, 2011 order.

Third, on April 25, 2012, PSMCA filed its third and last Motion for Summary Judgment seeking a dismissal of the suit and requesting FMC to be ordered to remove any tenant it has in the attic space and to demolish the improvements made to the attic space. Following a hearing on PSMCA’s third summary judgment, the trial court rendered a final judgment on August 8, 2012 dismissing FMC’s suit against PSMCA in its entirety with prejudice. The trial court further ordered FMC to remove its tenant; however, the judgment indicates that PSMCA agreed to refrain from demolishing or demanding demolition of improvements made to the attic space by FMC pending resolution of the instant appeal.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Roach v. Kamath, 02-1309, p. 4 (La.App.6 4 Cir. 12/30/02), 837 So.2d 118, 120. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Harvey v. Francis, 00-1268, p. 1 (La.App. 4 Cir. 3/21/01), 785 So.2d 893, 895. The procedure is favored and shall be construed to accomplish these ends. Id.; La. C.C.P. art. 966 A(2). A summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Id.; La. C.C.P. art. 966 B(2).

For purposes of summary judgment, a “genuine issue” is a triable issue, or one as to which reasonable persons could disagree. 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 11-1055, p. 5 (La.App. 4 Cir. 2/8/12), 84 So.3d 778, 781. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (citing W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983)).

A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Id. Material facts may insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id. (citing South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991)). Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and |7in favor of a trial on the merits. Windham v. Murray, 06-1275, p. 3 (La.App. 4 Cir. 5/30/07), 960 So.2d 328, 331.

DISCUSSION

FMC asserts five assignments of error on appeal.

First we will address FMC’s assignment of error that the trial court committed legal error by granting PSMCA’s first Motion for Partial Summary Judgment and finding that FMC was a bad faith possessor of the attic space.

To be a possessor in good faith of the attic space, FMC would have to meet the two requirements set forth in La. C.C. art. 487, which provides that a possessor is in good faith when he: 1) possesses by virtue of an act translative of ownership, and 2) he does not know of any defects in his ownership. Further, La. C.C. art. 487 explains that a possessor ceases to be in good faith when these defects are made |sknown to him or an action is instituted against him by the owner for the recovery of the thing.

Regarding the first requirement of good faith possession under La. C.C. art. 487, FMC asserts that the act translative of ownership that they possess is a sale through oral transfer of the attic space. PSMCA counters that FMC does not possess the attic space pursuant to an act translative of ownership because there is no written acts of sale or title whose terms purport to transfer ownership of the attic space to FMC. It notes that FMC has admitted this fact.

Examples of acts translative of ownership are sales, donations, or exchanges of property. La. C.C. art. 487 cmt. b.; La. C.C. art. 517 cmt. c. FMC asserts that a written contract is not always a prerequisite to the transfer of ownership of an immovable. FMC cites to La. C.C. art. 1893, which provides that:

A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.
An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.

(Emphasis supplied). Further, La. C.C. art. 2440 states that a sale of an immovable must be made by authentic act or by an act under private signature, except as provided in La. C.C art. 1893.

The first requirement of a valid oral transfer of immovable property, actual delivery, means that the immovable which is the object of the verbal sale has in fact been transferred or placed into the possession of the buyer. Martin v. Brister, 937,011, p. 3 (La.App. 2 Cir. 7/23/03), 850 So.2d 1106, 1110. A determination of whether actual delivery of an immovable has been made depends on the circumstances of each individual case. Id., 37,011 at pp. 3-4, 850 So.2d at 1110. FMC assets that the attic space was delivered pursuant to La. C.C. art. 1839 because they took possession of the space and began the conversion process following the agreement of all unit owners of PSMCA at that time.

Even assuming there was actual delivery of the attic space, FMC must also show acknowledgment of the oral sale by the contesting parties under oath. Mitchell v. Clark, 448 So.2d 681, 685 (La.1984). The answers of a party when interrogated under oath supply the place of written proof. Id. FMC argues that PSMCA filed this motion for partial summary judgment during the initial stages of discovery, before any depositions were taken or affidavits obtained. FMC notes that the only evidence PSMCA cited to in support of its motion was FMC’s Petition and FMC’s response to PSMCA’s Requests for Admission, in which FMC states that it believed it was the owner of the attic space and was therefore a good faith possessor. FMC further notes that at the time the summary judgment was filed, the parties were attempting to schedule depositions of members of FMC and PHP. Thus, FMC argues that the trial court’s ruling granting summary judgment was premature.

Pursuant to La. C.C.P. art. 966, a defendant may move for summary judgment “at any time.” Gunter v. Jefferson Davis Parish, 11-1018, p. 4 (La.App. 3 Cir. 2/1/12), 84 So.3d 705, 708 (quoting La. C.C.P. art. 966 A(1)). Article 966 hnfui-ther provides that either the plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. Thus, summary judgment may be considered even before the parties have completed discovery. Jeanmarie v. Peoples, 09-1059, p. 8 (La.App. 4 Cir. 3/16/10), 34 So.3d 945, 951. While parties should be given a fair opportunity to present their claim, there is no absolute right to delay a motion for summary judgment until discovery is completed. Id., 09-1059 at pp. 8-9, 34 So.3d at 951. Whether to grant a continuance to allow for further discovery is within the trial court’s “wide” discretion and should only be reversed upon a showing of an abuse of that discretion. Id., 09-1059 at p. 9, 34 So.3d at 951 (quoting Chatman v. Thor Offshore Boat Service, Inc., 410 So.2d 784, 786 (La.App. 4th Cir.1982)).

Based on FMC’s foregoing arguments, we agree that there is an absence of discovery regarding the first requirement of good faith possession and whether FMC possesses in good faith by virtue of an act translative of ownership. However, the trial court’s ruling granting summary judgment was based on the second requirement of good faith possession— whether FMC knew of any defects in its ownership of the attic space. In open court, the trial judge explained that “it seems to me that FMC knew, or should have known, that PHP did not have the authority to transfer ownership.”

On this motion for summary judgment, PSMCA’s burden of proof does not require it to negate all essential elements of FMC’s claim but rather to point out to Lithe court that there is an absence of factual support for one or more elements essential to FMC’s claim. Huber v. Liberty Mut. Ins. Co., 00-0679, p. 5 (La.App. 4 Cir. 2/7/01), 780 So.2d 551, 554. Thereafter, if FMC fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

PSMCA argues that FMC knew or should have known of defects in its alleged ownership of the attic space. First, PSMCA argues that FMC should have known that PHP did not have the authority to transfer ownership of the attic space based on the PSMCA’s Declaration.

The Louisiana Condominium Act provides that absent certain exceptions, which do not apply to the instant case:

[T]he percentage of undivided interest of such unit owner in the common elements of the condominium as expressed in the condominium declaration shall be an inseparable component of the ownership of the unit and shall not be altered without the consent of all the unit owners expressed in an amended condominium declaration duly filed for registry.
The common elements shall remain undivided and shall not be subject to partition, except with respect to that part or all of the condominium property that has been withdrawn from the provisions of this Part.

La. R.S. 9:1122.108. Thus, common elements must remain undivided unless there is consent from all condominium unit owners expressed in an amended condominium declaration duly filed for registry, or the common element is withdrawn from the condominium regime. Further, the Louisiana Condominium Act provides that the condominium declaration and by-laws have the force and effect of law between the individual unit owners. Person v. 2434 St. Charles Ave. 12Condominium Ass’n, 11-1097, p. 3 (La.App. 4 Cir. 3/7/12), 88 So.3d 679, 681 (quoting La. R.S. 9:1124.115(A)).

PSMCA Declaration establishes 23 units. It states that ownership of a residential unit shall include an undivided percentage interest in the common elements. Common elements, as defined in the PSMCA Declaration, are all portions of the condominium property, whether movable or immovable, that is not contained within the boundaries of any of the individual units.

PSMCA argues that there is no authorization pursuant to the PSMCA Declaration to create a new unit out of a common element and transfer ownership of that new unit by an oral agreement. PSMCA notes that to perform an action outside of what is specifically authorized in the PSMCA Declaration, certain procedures must be followed to amend the PSMCA Declaration. This never occurred in this case. However, FMC argues that Mr. Amedee was specifically granted all of the power and authority to do any and all acts described in the PSMCA Declaration. FMC relies on Article III(iv)(d) of the PSMCA Declaration as the authority that granted PHP the power to transfer its ownership interest in the attic to FMC. Article III(iv)(d) of the PSMCA Declaration provides that:

Notwithstanding any other provision of this Declaration to the contrary, the De-clarant reserves the right, without the consent of the Association or any other Unit Owner, to construct and create, subdivide, or change the interior design and arrangement of and create additional Limited Common Elements or Common Elements out of, any of the Units described on the Building Plan (including, without limitation, the alteration of walls between Units) so long as the Declarant owns the affected Unit or Units at the time such creation, construction or alteration occurs.

|,3Article III(iv)(d) of the PSMCA Declaration authorizes the re-designation of a unit into limited common elements or common elements; it does not authorize the re-designation of a common element into a unit, which is what the alleged oral agreement between FMC and PHP was intended to do. Further, there are no provisions in the PSMCA Declaration or By-laws that specifically authorize the re-designation of a common element into a unit.

The Fifth Circuit addressed a similar issue in Western v. Chardonnay Village Condominium Ass’n, Inc., 519 So.2d 243 (La.App. 5th Cir.1988). The plaintiff, a condominium owner, filed suit to enjoin the condominium association from shutting off its unit’s water supply for failure to pay past due assessments for common expenses. The trial court granted the owner’s preliminary injunction restraining the association from discontinuing water service. Id. at 244. On appeal, the Fifth Circuit found that there was nothing in the Revised Statutes, Condominium Declaration, By-laws, Regulations, or Articles of Incorporation which, on its face, authorizes the condominium association to take such action. Id. at 245. The court found that if the association was to take some action beyond the scope of those specifically authorized, it was obliged to do so by proper proceedings, such as, amending the Declaration or By-laws. Id.

In the instant case, FMC asserts that the then-unit owners of PSMCA orally agreed to convert the attic space, a common element, into a unit and to transfer ownership of the attic space to FMC. However, PSMCA argues that those actions are not authorized in the PSMCA Declaration or By-laws. PSMCA notes that its | ^Declaration establishes the number and dimensions of each unit in the condominium. It argues that to create a new unit out of a common element, which is beyond the scope of what is authorized in the PSMCA Declaration, similar to the issue in the Western case, requires amendment to the PSMCA Declaration. We agree.

PSMCA Declaration Article XIV(3) provides the procedure to amend the Declaration in this case. It states that:

(a) Notice of the subject matter of the proposed amendment in reasonably detailed form shall be included in the Notice of any meeting of the membership of the Association at which a proposed amendment is to be considered.
(b) A resolution for adoption of a proposed amendment may be proposed by either the Board or by Unit Owners holding at least ten percent (10%) percent of the voting power of the Association. Directors and Owners not present at the meeting considering such amendment may express their approval by written consent or by proxy and no meeting need be held if a written consent to an amendment is signed by all members, all as provided in the Association By-Laws. Approval by at least sixty-seven (67%) percent of the votes of the Association shall be required for any such amendment.
(c) The amendment shall be effective when registered in the Conveyance Office of Orleans Parish, Louisiana. Copies of the amendment shall be delivered to each Owner but such delivery shall not be a condition precedent to the effectiveness of such amendment.

None of the formalities required to amend the PSMCA Declaration are alleged to have occurred in this case, such as, notice of the proposed amendment, a membership meeting, or registration of the amendment in the Conveyance Office of Orleans Parish. The PSMCA Declaration also states that even if the formalities of a meeting are not needed, there must be consent in writing to an amendment that |1Bis signed by all members, all as provided in the PSMCA By-laws Article 11(11), which state:

Whenever, by any provision of law, the Condominium Declaration, the Articles of Incorporation, or these By-laws, the affirmative vote of members is required to authorize or constitute action by the Association on behalf of the condominium regime, the consent in writing to such action, signed by all of the members having voting power in the particular question, shall be sufficient for the purpose, without necessity for a meeting of the members. The consent, together with a certificate by the Secretary of the Association to the effect that the subscribers to the consent constitute all of the members entitled to vote on the particular question, shall be filed with the records of the proceeding of the members.

Action by the PSMCA, absent a meeting of the members, requires written consent signed by all members, filed with the records of the proceeding of the members, along with a certificate by the secretary of PSMCA, which was not done in this case.

The rules of contract interpretation apply to the interpretation of a condominium declaration. Cusimano v. Port Esplanade Condo. Ass’n, Inc., 10-0477, p. 8 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 936. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Id. (quoting La. C.C. art.2046).

The Declaration and By-laws are the governing documents for PSMCA, which clearly provide the procedure to amendment its terms. As stated, the Declaration and By-laws have the force and effect of law between the individual unit owners. Based on the foregoing, FMC knew or should have known that the proper procedure was not followed to create a new unit out of a common element |1fiand transfer ownership of that new unit. Therefore, FMC knew or should have known of defects in its alleged ownership of the attic space. We find no error in the trial court’s judgment granting PSMCA’s Motion for Partial Summary Judgment and declaring FMC a possessor in bad faith of the attic space.

In FMC’s next assignment of error, it contends that the trial court committed legal error by granting PSMCA’s first Motion for Partial Summary Judgment and finding that FMC was a bad faith possessor of the attic space because summary judgment is inappropriate for the determination of subjective facts such as knowledge, intent, and good faith, which are questions of fact for determination by the jury after a trial on the merits.

Summary judgment is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith. Quinn v. RISO Investments, Inc., 03-0903, p. 6 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 927. One reason summary judgment is seldom used for the determination of subjective facts is because it calls for credibility evaluations and the weighing of testimony. Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072, p. 12 (La.App. 2 Cir. 4/4/07), 954 So.2d 883, 891. Additionally, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Id.

Nevertheless, Louisiana jurisprudence has held that a motion for summary judgment based on knowledge or good faith is appropriate when there is no issueJjjof material fact concerning the pertinent intent. Haney v. Delta Petroleum Co., Inc., 01-0636, p. 5 (La.App. 4 Cir. 3/6/02), 811 So.2d 1200, 1203; Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006 (quoting Smith, 93-2512 at p. 28, 639 So.2d at 751). Summary judgment is not precluded as a matter of law when the issue is one concerning knowledge or intent; rather it depends on the particular facts presented in the documentary evidence accompanying the motion. Id. Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation. Id.

PSMCA citied to provisions in the PSMCA Declaration to support its first Motion for Partial Summary Judgment to show knowledge of the unit owners. The PSMCA Declaration has the force and effect of law between the unit owners, and it is clear as to the procedure to amend to its terms. FMC, however, provided no evidence in support to its claim of good faith other than conclusory allegations in its petition. Additionally, the trial court did not have to make credibility evaluations or weigh testimony, which would have been inappropriate on summary judgment. Thus, we find FMC’s assignment of error unpersuasive.

In FMC’s next assignment of error, it contends that the trial court committed legal error by denying its Motion for Partial Summary Judgment and Motion for New Trial and/or Reconsideration of the trial court’s August 15, 2011 judgment, which held that FMC is a possessor in bad faith of the attic space. FMC’s Motion 118for Partial Summary Judgment sought a declaration that it was either a lawful owner or a good faith possessor of the attic space.

FMC again notes that when the trial court heard PSMCA’s first Motion for Partial Summary Judgment and held that FMC is a possessor in bad faith of the attic space, the case was in its initial stages of discovery and no depositions had been taken. When FMC filed the instant motion, further discovery had been taken. FMC attached as exhibits affidavits from Mr. Amedee, Mr. Garofalo, and Mr. Hard-castle, who attested that PHP and FMC agreed to the transfer of ownership of the attic space to FMC and to the conversion of the attic space into a fifth condominium unit of the Prytania Street Building. Additionally, FMC provided excerpts from depositions of Mr. Garofalo, Mr. Crowley, and Mr. Amedee, in which they testified to the same oral agreement.

FMC argues that affidavits and deposition testimony reflect that it was 100% of the PSMCA unit owners that agreed to create a fifth unit in the Prytania Street Building from the attic space and to transfer ownership of that space to FMC. FMC notes that Article XIV(3) of the PSMCA Declaration permits unit owners to make any amendments to the Declaration upon agreement or approval by at least 67% percent of the owners. However, the percentage of unit owner approval to amend the Declaration is not the only requirement proved in Article XIV(3) of the PSMCA Declaration.- As discussed, FMC has not made a showing that the other requirements were met, including: 1) notice of the proposed amendment; 2) a resolution of the proposed amendment considered at a membership meeting; 3) if 11sno meeting is needed, written consent of the amendment in writing as provided in the PSMCA By-Laws; and 4) registration of the amendment in the Conveyance Office of Orleans Parish.

There is neither statutory authority nor authority under the PSMCA Declaration and By-laws that authorizes unit owners to orally agree to create a new unit out of a common element or to orally agree to transfer ownership of a common element. As stated, if a unit owners’ association wishes to take some action beyond the scope specifically authorized by the condominium declaration or by-laws, it either must amend the declaration or amend the by-laws to that effect. Western, 519 So.2d at 245. The steps necessary to amend the PSMCA Declaration or By-laws were not taken in this case. Although the then-unit owners orally agreed to create a fifth unit out of the attic space and to transfer ownership to FMC, they did not take the proper actions required to accomplish that result. Thus, the attic space was never legally re-designated as a fifth unit in the condominium regime, and ownership of the attic space was not transferred to FMC.

Additionally, in opposing to FMC’s motion, the Intervenors asserted that because the alleged oral transfer of the attic space was not recorded in the public records, it could not affect the Intervenors’ interest in the common element space they obtained through a recorded sale, which granted them ownership of their individual units and a percentage interest in the common elements of the PSMCA pursuant to the Public Records Doctrine.

12pMr. Crowley testified that the PSMCA Declaration had been provided to the purchasers- of the four units of the Prytania Street Building and that the PSMCA Declaration, which was registered in the Conveyance Office of Orleans, stated that there were 23 units in the condominium regime. -

The Louisiana Public Records Doctrine, codified in La. C.C. art. 3338, expresses a public policy that interest in immovable property must be recorded in order to affect third persons. Cimarex Energy Co. v. Mauboules, 09-1170, 09-1180, 09-1194, pp. 18-19 (La.4/9/10), 40 So.3d 931, 943-44. The Intervenors note that FMC’s claim to ownership of the common attic space is based on an alleged oral agreement between FMC and PHP pursuant to La. C.C. art. 1893. However, the Intervenors point out that comment (b) to La. C.C. art. 1893 states that the article does not change the scheme contained in the statutes governing recordation, or the jurisprudence thereunder. Therefore, the Intervenors argue that even if this court were to find that there was a valid oral -transfer between FMC and PHP, the transfer would only be valid between the parties to the agreement. We agree. However, we also hold that there was not a valid transfer of ownership of the attic space to FMC, or a re-designation of the attic space as a fifth unit in the condominium regime because the proper steps to conduct such actions were not taken in the instant case. For the foregoing reasons, we conclude that the trial court correctly denied FMC’s Motion for Partial Summary Judgment, which sought to declare it as the owner of the attic space.

|2iln the alternative FMC request a new trial and/or reconsideration of the trial court’s August 15, 2011 judgment, which held that FMC is a possessor in bad faith of the attic space. FMC asserts that it is entitled to summary judgment declaring it to be a possessor in good faith. As stated, La. C.C. art. 487 states that a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership.

FMC notes that testimony from the members of FMC and PHP indicates that they orally agreed to transfer ownership of the attic space to FMC and to convert the attic space to a fifth condominium unit in the Prytania Street Building. However, as discussed earlier, this court has determined that although the then-unit owners orally agreed to create a fifth unit out of the attic space and to transfer ownership to FMC, they did not take the appropriate steps by properly amending the PSMCA Declaration or By-laws. Thus, there was no valid oral agreement.

Even if FMC could have proven that there was a valid oral agreement, it has not made a showing that it was not aware of any defects in its ownership of the attic space. FMC asserts that it was not aware of any defects in its ownership of the attic space until it tried to sell it as a unit in the PSMCA. FMC also asserts that it believed that the new unit owners of the PSMCA were aware of, and consented to, the building of the fifth unit in the Prytania Street Building.

First, FMC does not address the fact that the steps necessary to transfer ownership of the attic space and to convert it into a unit were not actually taken. Those steps are outlined in the PSMCA Declaration and the By-Laws, which ^constitute the law between FMC and PHP. There is no authorization to orally agree to transfer ownership of a common element or authorization to orally agree to convert a common element into a unit. PSMCA provided excerpts of Mr. Crowley’s deposition, in which he testified that he read and had a copy of the PSMCA Declaration. He also testified that he knew he was bound by the PSMCA Declaration. Thus, FMC had full knowledge of the terms of the PSMCA Declaration and the procedure to amend its terms, which was not fulfilled in this case. Therefore, we conclude that the trial court correctly denied FMC’s Motion for New Trial and/or Reconsideration of the trial court’s August 14, 2011 order, which held that FMC is a possessor in bad faith of the attic space.

In FMC’s next assignment of error, it contends that the trial court committed legal error by granting PSMCA’s Second Motion for Partial Summary Judgment. PSMCA’s Second Motion for Partial Summary Judgment sought a dismissal of FMC’s claim for the cost or value of any improvements it allegedly made to the common elements of the Prytania Street Building. However, in FMC’s brief, it fails to explain why the trial court erred in its decision to dismiss those claims. All specifications of error must be briefed, and the court may consider as abandoned any assignment of error which has not been briefed. Martin v. Martin, 39,631, p. 10 (La.App. 2 Cir. 5/18/05), 903 So.2d 619, 628 (citing Uniform Rules, Courts of Appeal, Rule 2-12.4). Therefore, we find that any assignment of error as to the court’s dismissal of FMC’s claim for the cost or value of any improvements it | ^allegedly made to the common elements of the Prytania Street Building is abandoned.

PSMCA’s Second Motion for Partial Summary Judgment also sought a dismissal of FMC’s claim for breach of contract or under any theory by which it is asserting title to the attic space. FMC does not brief any arguments as to its claims for breach of contract. Therefore, we will not address that portion of the trial court’s judgment. FMC does assert that it possessed the attic space by an act translative of ownership, through the oral agreement it made with PHP, or, at a minimum, it claims that it is a good faith possessor of the attic space. As discussed earlier in this opinion, we have already determined that the PSMCA unit owners did not have the authority orally to create a new unit out of a common element and to transfer ownership of the attic space by an oral agreement absent an amendment to the PSMCA Declaration or By-Laws. We have also already determined that the trial court is correct in its determination that FMC was not a possessor in good faith. Therefore, we find that the trial court was legally correct in dismissing FMC’s claim for breach of contract or any other theory by which it is attempting to assert ownership of the attic space.

In FMC’s final assignment of error, it contends that trial court committed legal error by granting PSMCA’s Third Motion for Summary Judgment and dismissing its suit, which also ordered that FMC remove its tenant from the attic space. However, in FMC’s brief it does not explain how the trial court erred in its ruling. The only reference FMC makes to this trial court ruling, other than in its | ^procedural history of the case, is that “the parties did not object to the lower court’s dismissal of FMC’s suit with prejudice as a means to obtain a final judgment in the matter so as to allow FMC to file its suspensive appeal regarding the lower court’s rulings in the matter.” Therefore, we find that this assignment of error has been abandoned by FMC and will not be considered on appeal.

DECREE

For the foregoing reasons, the judgments of the trial court are affirmed.

AFFIRMED

      . PSMCA reached a settlement with FMC on the defamation claim, and on April 10, 2012, the trial court dismissed this claim with prejudice.

      .FMC asserts the following assignments of error:
      1. The lower court committed legal error by granting PSMCA's first Motion for Partial Summary Judgment and finding, as a matter of law, that FMC was a bad faith possessor of Unit 1918-A, despite the fact that no depositions had been taken and discovery was in its initial stages.
      2. The lower court committed legal error by granting PSMCA's first Motion for Partial Summary Judgment and finding, as a matter of law, that FMC was a bad faith possessor of Unit 1918-A because summary judgment is inappropriate for the determination of subjective facts such as knowledge, intent, and good faith, which are questions of fact for determination by the jury after a trial on the merits.
      3. The lower court committed legal error by denying FMC’s Motion for Partial Summary Judgment seeking declaration that FMC was either the lawful owner of the attic space or, at a minimum, a good faith possessor of Unit 1918-A.
      4. The lower court committed legal error by granting PSMCA's Second Motion for Partial Summary Judgment and finding, as a matter of law, that FMC was not the owner of the attic space, after considering the evidence presented in the light most favorable to FMC
      5. The lower court committed legal error by granting PSMCA’s Third Motion for Summary Judgment and dismissing FMC’s suit with prejudice and ordering that any tenant of the attic space be evicted, when there were genuine issues of material fact.