author: BROWN, C.J.

text:
    Callie Danielle BLAKE, Plaintiff-Appellant v. Brandon Paul MORRIS, Defendant-Appellee
    No. 51,402-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 30, 2017
    WEEMS, SCHIMPF, HAINES, LANDRY, SHEMWELL & MOORE, By: Kenneth P. Haines, Counsel for Appellant
    GINA L. JONES, Counsel for Appellee
    Before BROWN, MOORE, and BLEICH (Pro Tempore), JJ.
   BROWN, C.J.

1 iPlaintiff, Callie Danielle Blake, has appealed from a judgment denying her request for authority to relocate her minor child, Noah, who was four years old at the time of trial, to the Pensacola area of Florida. For the following reasons, we reverse the trial court’s judgment and grant the motion to relocate.

FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant, Brandon Paul Morris, were never married. They had a short relationship and are the' biological parents of the child. Immediately after Noah’s birth, the couple and the baby lived •with Callie’s parents in Many, Louisiana, until Noah was approximately four months old. Brandon moved out and allegedly lived in Ruston, Louisiana, with his parents while the mother, Callie, and Noah continued living with her parents in Many, Louisiana. On May 17, 2012, the parties were granted joint custody of their child in a consent judgment for custody, visitation and child support in the 11th Judicial District Court in Sabine Parish.

The- consent judgment provided for Brandon’s visitation until Noah reached the age of one. After that, the parties were required to “work together, in a reasonable and concerted manner, on a progressive visitation schedule [which would allow defendant] overnight visitation and [provide] a schedule for [certain] holidays and for the minor child’s birthday.”

|aOn June 2, 2016, Callie filed a petition for rule nisi for authorization to relocate the child’s residence to Gulf Breeze, Florida. Plaintiff was about to graduate and earn a master’s degree in occupational therapy, and she had job offers in Gulf Breeze. Plaintiff was also engaged to be married to Roy Peterson, who resided and owned a business in Gulf Breeze.

Synopsis of Trial Testimony

A trial was held on the rule nisi on August 18, 2016. Plaintiff testified that she was primarily responsible for raising and seeing to Noah’s basic needs. Callie stated that she wanted to move to Gulf Breeze because she had a job opportunity there, and it was where Mr. Peterson lived and owned a business. Callie stated that she had not tried to find a job in the Shreveport area because she had heard from colleagues that the market was over-saturated and finding work in her particular field, pediatric occupational therapy, would be difficult.

Callie stated that Brandon had been present for few “events” in their son’s life, such as school plays, doctor’s visits, and Halloweens, having been provided with advance notice of the dates when those events were taking place. However, later on Callie stated that she had not informed Brandon of all of Noah’s school events “because we don’t get along, and he has consistently been verbally abusive and disrespectful to me.” She also asserted that Brandon was known to have attitude changes that “made me |3very uncomfortable and made me feel unsafe.” Callie, however, stated that Brandon had never been violent towards her.

Callie also testified that she had not informed Brandon of doctor’s visits because he stopped going to the appointments when Noah was an infant. She did state that she kept Brandon apprised of Noah’s medical status. Callie said that Brandon had been present when their son had surgery in 2016.

Plaintiff asserted that she and Brandon had established, via a verbal agreement around the time Noah turned one, that Brandon would have their son every other weekend. Brandon rebutted her claim that they had such an agreement. Callie also provided documentation showing that Brandon had exercised visitation and had seen Noah a total of 36 days in 2015 and 36 days as of the trial date in August 2016.

Callie attributed the few number of days that Brandon had exercised visitation to his unpredictable work schedule, which required him to be out of town for days and weeks at a time. She stated that Brandon would often miss times that they had scheduled for him to visit Noah because defendant would have to work instead. Callie added that Brandon would want to see their son on short notice, which would have required her to rearrange her plans to accommodate him. Callie stated that she had been willing on many occasions to change the visitation schedule, but there were times she refused to do so because Brandon did not give her sufficient notice.

Callie stated that she wants Noah to have his father in his life. She later went on to state, “[It’s] upon [Brandon] for him to spend time with his child. That’s not my job or [Mr. Peterson’s] job.” Callie proposed a | ¿visitation schedule which would allow Brandon to see Noah one week each June, July, and August, and part of Thanksgiving or part of Christmas depending on the year. Callie asserted that since Brandon had seen his son “irregularly and infrequently,” the proposed visitation schedule would “be more than what Brandon has seen him this past year.”

Callie testified that Brandon has always paid his support obligations and had, on occasion, provided additional money for Noah without a court order. Callie testified that when Brandon texted her and stated that they should get rid of the every other weekend visitation plan, they never discussed a new visitation schedule and that “Brandon just lets me know when he’s home, and if it works, it works.”

Callie stated that if she were allowed to move to Florida, she would want a visitation plan in place for Brandon, and would apprise him of any school events and doctors’ visits Noah would have. She testified that she wants Noah to have a relationship with his father.

Brandon testified that he works as a welder constructing refinery storage tanks, which requires that he work out of state and away from Ruston, where he allegedly lives. The amount of time defendant is out of town for his job varies from a few days to three or more weeks. Brandon acknowledged that Callie has been the primary caregiver for Noah. Brandon testified that he had not filed to have primary custody of Noah. Brandon said that if the trial judge denied relocation and Callie moved to Florida without Noah, then “my whole life would change, buddy.” Brandon emphatically stated he would not quit his job.

IsWhen his son was born in December 2011, Brandon was working in North Louisiana. In 2012, he took a job with ML Smith that required him to travel and has worked for ML Smith ever since. Brandon has worked in Oklahoma, Michigan, Texas, Alabama and South Louisiana along the I-10 corridor. Brandon testified that he has worked jobs where he was closer to Pensacola than he was to Ruston. Brandon stated that he intended to continue in his current job with its indeterminate schedule regardless of whether he was awarded custody.

Brandon stated that his mother is terminally ill with ALS, and his father still works. He stated that he would not leave the child with them but “would line something up.” Further, Brandon has no home. Casey Walker, Brandon’s girlfriend, testified that he lived with her in West Monroe from November 2014 until August 2016, just two weeks before trial. During this time, whenever Brandon had Noah, they stayed with her in West Monroe or Brandon got a motel room in Shreveport. Brandon denied living with Walker, but admitted that he and Noah had stayed with her overnight.

Brandon acknowledged that Callie has been an excellent mother to their son. When asked whether there were times when he requested to see his son and Callie refused, Brandon responded, “Probably,” and “[T]here’s probably been some. I don’t remember.” When asked to provide specific months or dates where such a refusal occurred, Brandon was unable to do so.

Brandon answered in the affirmative when asked if his life since 2013 centered on his job. When asked what his schedule was for the next week, Brandon stated that he had a job in Corpus Christi, Texas, “if I opt to do it,” which he speculated would last for about one month. Brandon stated that |nusually he does not have the option of what jobs he can take; his ability to choose usually occurs when work gets slow within the company. Brandon stated that his job after the. one in Texas would be in Arkansas.,

Brandon testified that he had seen Noah in a motel. Brandon had texted Callie stating that he (Brandon)' was upset that “my son thinks we live in a hotel.” Brandon stated that staying in a motel provided him with more one-on-one time with Noah, and they were able to use the swimming pool at the motel.

Brandon testified that he worked hard because he wanted to take care of Noah financially. He stated that communication between himself and Callie had been “bad between us,” and that she was jealous, angry, and not cooperating with him regarding visitation with Noah. She would deny him visitation when he was in town, and she did not have plans. Brandon stated that Callie dictated visitation times to him. Brandon often had “face” time and phone conversations with Noah.

Brandon’s former girlfriend, Casey Walker, testified, as did Brandon’s friend, Michael Colley, that Callie “called the shots” with regard to when Brandon was able to see Noah. None .of Brandon’s family testified on his behalf.

Brandon stated that he felt like Callie made it more difficult for him to have a relationship with his son, which was a concern he had regarding the proposed move to Florida. Brandon testified he would not be able to participate in his . son’s life as much if he were .living in Florida.

Brandon stated that he would like to be more involved in his son’s life and attend every event that' Noah has. Brandon testified that he had seen RNoah for one Christmas, one Easter, two Halloweens, and his first birthday party. Brandon testified that he had never tried to acquire information about Noah’s preschool and did not know who Noah’s teachers were. Brandon testified that he was aware of Noah’s medical conditions, but he did not know the name of his doctor and had never taken Noah to a doctor’s appointment.

Brandon testified that he had taken his son to ride all-terrain vehicles at Muddy Bottoms ATV Park three times. He said that Callie had objected to him taking Noah there because there was drinking and inappropriate activity at Muddy Bottoms. Brandon stated that at certain hours such behavior would occur, but he would always protect his son.

Mr. Peterson testified about his business and home, both located in Gulf Breeze. He stated that his home has .four bedrooms, and Noah already has a room there and has met the neighborhood kids. Mr. Peterson stated, that his business generated more than $2.5 million in sales last year. Mr. Peterson testified that he loved Noah and wanted to be. a good stepfather. Mr. Peterson said that he had called Brandon to introduce himself and show Brandon respect as Noah’s father,

Mr, Peterson described Brandon as “aggressive” and said that “he tries to intimidate” Mr. Peterson. Mr. Peterson testified that Brandon- was not someone he would spend a lot of time with, and Brandon had not “earned his respect.” Mr. Peterson testified that he did not want to interfere in Noah’s relationship with his father.

Plaintiffs mother, Sharon Blake, testified that Callie is a wonderful mother to Noah and was primarily responsible for his care. Sharon testified | sthat she would care for Noah while Callie was in school, before and after Noah went to preschool, about four days a week. Sharon testified that it was hard to get Brandon to commit to a schedule regarding visitation with Noah, and he would wait until the last minute to notify Callie that he wanted to see Noah. She stated that Callie would try to accommodate Brandon as to visitation.

Sharon Blake stated that she had seen Callie encourage Noah to call his father, but not on a daily basis; she stated that she did not think it was her daughter’s job to encourage Noah to contact his father. Sharon stated that she did not believe her grandson living in Florida would impair their relationship, and Mr. Peterson would treat Noah with respect and love. John Blake’s, testimony was similar to that of his wife.

The trial court issued its judgment and oral reasons for judgment on August 31, 2016, denying plaintiffs request to relocate with the child.

DISCUSSION

A parent seeking to relocate the principal residence of the child is required to show: (1) the request for relocation is made in good faith; and (2) the move is in the best interest of the child. La. R.S. 9:355.10; Hernandez v. Jenkins, 12-2756 (La. 06/21/13), 122 So.3d 524. A reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Owens v. Owens, 14-165 (La. App 3 Cir 06/04/14), 140 So.3d 865.

La. R.S. 9:355.14(A) provides twelve factors which the court must consider in determining whether the proposed relocation is in the best |flinterest of the child as well as other relevant factors. There is nó requirement that the court give preferential consideration to any factor. Gray v. Gray, 11-0548 (La. 07/01/11), 65 So.3d 1247.

Among the factors considered when examining the best interest of the child, the courts may look to La. C.C. art. 134. Where the trial court has 11(1considered the factors listed under La. R.S. 9:355.14 in determining whether relocation is in the best interest of the child or children, the court’s determination is reviewed for abuse of discretion. Hernandez, supra.

In the instant case, the trial court determined that the mother satisfied the first part of her burden under La. R.S. 9:355.10 by establishing that the request for relocation was made in good faith. We agree, moving to Florida to live with her future husband and work in her chosen field of employment puts Callie in good faith. See Hernandez, supra.

We now turn to the question of whether Callie proved that the relocation is in Noah’s best interest. Although it considered each factor as required by R.S. 9:355.14, the trial court failed to give sufficient weight to Noah’s relationship with his mother and the resulting benefits from relocation. The trial court gave disproportionate weight and misapplied two factors—numbers three and five. As such, the court abused its discretion and was clearly wrong and manifestly erroneous,

(3) La. R.S. 9:S55.U(A)(3): The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.

The trial court found that this was a central factor in this case, noting that if the child is allowed to relocate to Florida, he would be a considerable | n distance from his father. The court then reasoned that financially and logistically, preserving the relationship between Noah and Brandon would become difficult. It is noted that the trial court specifically expressed that Callie’s move to Florida would make it “more difficult” for Brandon to visit with the child. The trial court delineated this as the central reason in denying Callie’s request.

The very essence of the Relocation Statute, La. R.S. 9:355.1, et seq., is to address the predictable difficulties expected with a potential move. The trial court’s reliance on it being “difficult” on defendant is misplaced as that factor, if singularly relied upon, would in effect lead to a jurisprudential repeal of the relocation statute. All interstate visitations pose difficulties, but that factor cannot stand alone as the only consideration, especially in our mobile society.

The court did not take into consideration the fact that Brandon travels extensively for his work. In that vein, he should also be able to travel to visit his son. In fact, Brandon’s work along the 1-10 corridor and in Alabama is closer to Pensacola than Ruston. Brandon has no home and often sees his son at a motel. Additionally, Callie testified that she would assist in making sure Noah would be able to visit with his father and would transport Noah to a halfway meeting point between the parties’ respective locations.

The trial court was also concerned with testimony as to the wealth of Mr. Peterson, and the fact that there was no evidence submitted regarding the coverage of expenses if relocation were permitted. Mr. Peterson testified as to his wealth and personal finances, but the court noted that “no tangible | ^evidence was submitted” to show proof of income that would afford Noah a higher financial quality of life. However, nothing was offered in opposition to Mr. Peterson’s testimony; therefore, his testimony that he has a thriving business and a four-bedroom home remains uncontradicted and unrefuted.

The evidence showed without question that the relocation will have a positive impact economically and educationally for Noah. There will be a family unit with both husband and wife working. Noah is now starting school and needs a stable and caring environment, not an erratic, inconsistent and unpredictable situation.

In this respect the trial court clearly misread and disproportionally weighed the facts.

(5) La. R.S. 9:355.14(A)(5): Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.

The court stated that this was a significant factor in this case. The court referenced the approximately 250 pages of text messages submitted by the parties, which spanned nearly two years from August 16, 2014, to August 7, 2016. The court stated that those messages reflect that initially Callie was forthcoming in providing Brandon with information about the child, but the messages show that Callie became frustrated with Brandon’s work schedule and having to accommodate him in order for him to exercise any visitation with the child.

The messages do show Callie’s increasing level of frustration with Brandon. Nevertheless, the messages and Callie’s testimony show that Brandon often required Callie to accommodate him at the last minute so that he could visit with Noah.

| iaThe original consent custody judgment states that after Noah reached the age of one “the parents will work together, in a reasonable and concerted manner, on a progressive visitation schedule.” It appears from Callie’s and Brandon’s testimony and the text messages that Callie was the only parent trying to implement the court order regarding visitation. Brandon seems to have prioritized his work over trying to establish a regular schedule for shared custody and a consistent program of visitation.

The testimony of Callie and the text messages show that she would often go to extensive lengths to accommodate Brandon regarding visitation, meeting him halfway between her home and his location, as well as being flexible with his work schedule. Callie, Mr. Peterson, and both of Callie’s parents testified that it is important for Brandon to be involved in his son’s life. The text messages show that on multiple occasions, Brandon told Callie that he would withhold child support if he did not get the visitation he wanted. One example of such a communication is as follows:

Brandon: What r ur plans for the 4th .
Callie: I’m going out of town
Brandon: So if I’m in I can keep him
Callie:- You most def cam That is your weekend anyway •
Brandon: I ■ dnt even go by weekends anymore. I go by when I am home. We might as well throw that out the window. If that’s the case I have a bunch of weekends to catch up on.

The trial court was clearly wrong and abused its discretion in finding that Callie would not work with Brandon regarding visitation.

(lj La. R.S. 9;355.14(A)(1): The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating | ^person, siblings, and other significant persons in the child’s life.

Noah has primarily' resided with his mother, Callie, since birth and has received extensive support from her family; Brandon has not been the primary caregiver of the child and has seen Noah only 36 days in 2015 and 36 days as of the time of the trial in 2016. However, the text messages submitted as evidence indicated'that the child missed his father while he was away, and Callie would let Noah know that Brandon missed him in return. The maternal grandparents testified as to their relationship with Noah, both stating that they enjoyed the time the child lived with them and assisted their daughter in the child’s care, and they did not believe that their relationship with Noah would be diminished. ...

(2) La. R.S. 9:355.U(A)(2): The age, developmental stage, needs of the child, and the likely impact the relocation will have oh the child’s physical, educational, and emotional development.

The court stated that the child was 4 years old (at the time judgment was rendered) and needed to have a relationship with both parents. Callie testified that Noah completed a preschool program in Shreveport and had done well there. The court stated that the child had more of a relationship with his mother, but that it was important for his emotional development for him to have a relationship with his father as well.

(4) La. R.S. 9:355.U(A)(4): The child’s views about the proposed reloca-tio% taking into consideration the age and maturity of the child.

The court-said that because Noah was 4 years old at the time judgment was rendered, he was too young to express a preference regarding relocation. We agree.

Iib(6) La. R.S. 9:355.14(A)(6): How the relocation of the child will affect the general quality of life for the child, including ■ but not limited to financial or emotional benefit and educational opportunity.

It was proposed to the court that the child’s life would be positively impacted financially via education benefits, and if the child were allowed to ■ relocate, he would live in a tworparent home after the marriage. Callie testified that,she will be working part-time in order to help Noah adjust to his life in Florida. Mr. Peterson and Callie testified that Noah already has a bedroom in Mr. Peterson’s home in Florida, and that the home is near Mr. Peterson’s work and within minutes of Noah’s prospective school.

(7) La. R.S. 9:355,14(A)(7): The reasons of each person for seeking' or opposing the relocation.

The court found that Callie was in good faith in terms of pursuing employment and wanting to be with her spouse. The court stated that Brandon opposed relocation because he believes that his relationship with the child will be diminished. However, it also appears that Brandon wants Callie to remain in Louisiana.

(8) La. R.S. 9:355.14(A)(8): The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.

The court found that Callie has completed her education, obtaining undergraduate and graduate degrees, and has a job that she has .conditionally accepted if she is allowed to relocate. The court also stated that Brandon has had the same type of employment his entire life and has indicated that he is a hard worker, works long hours, and has the type of job that requires him to constantly be on the road. Brandon stated that he would not leave his work under any circumstances.

(9) La. R.S. 9:855.14(A)(9): The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.

The testimony of Callie and Brandon shows that he has consistently paid child support and at times voluntarily provided more for .his son. Various text communications show that when Callie would request things on behalf of the child, Brandon would respond in assisting her to deal with the cost of tuition and other needs the child has had.

(10) La. R.S. 9:855.14(A)(10): The feasibility of a relocation by the objecting person.

The court stated that Brandon could not easily relocate or move closer to Florida. Brandon testified about his desire to live in the North Louisiana area due to his mother being ill, his own family ties to the area, and his residing back and forth between Huston and Monroe. The evidence shows that Brandon does not own or rent a home; he lives “on the road” and at times, is closer to Pensacola than he is to Ruston.

(11) La. R.S. 9:355.14(A)(11): Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.

The court found this factor to be inapplicable in this case.

(12) La. R.S. 9:355.14(A)(12): Any other factors affecting the best interest of the child.

As Noah approaches school age, it is imperative that he have predictability and consistency in his life. Additionally, Callie also needs some measure of ability to make plans for her family and herself. Since Noah will be starting kindergarten, his schedule will be much more regimented, and visitation will have to revolve around weekends, holidays, 117and summer vacation. Brandon will have to accommodate Noah’s school schedule anyway. Brandon is able to travel to jobs at a considerable distance from Louisiana; therefore, he should be able to travel to see his son. There is little evidence in the record to bolster the trial court’s assertion that Callie has attempted to thwart Brandon’s relationship with Noah or that she will do so upon relocation. The trial court was clearly wrong and abused its discretion in making this determination.

Plaintiffs counsel submitted a proposed visitation schedule to the trial court. However, the trial court did not consider the schedule in light of its denial of plaintiffs request for relocation. We will remand this matter to the trial court to determine a custody and visitation schedule that is reasonable and fair to both parties.

CONCLUSION

The judgment of the trial court is REVERSED and the relief requested in the petition for authorization to relocate the child to Florida is granted. The case is REMANDED to the trial court for determination of a custody and visitation schedule. Costs of the appeal are assessed to defendant, Brandon Morris.

REVERSED AND REMANDED.

      . The petition for rule nisi for authorization to relocate child’s residence states - that the child’s birthdate is 12/07/11,

      . Gulf Breeze is a suburb of Pensacola.

      . In brief, the parties refer to him as "Peder-sen.”

      . La. R.S. 9:355.14(A) provides:
      In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
      (1) The nature, quality, extent of involve■ment, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
      (3) The feasibility of preserving a good relationship between the non-relocating .person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
      (4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
      (5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
      (6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
      (7) The reasons of each person for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
      (9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal ‘support, and community property, and alimentary obligations.
      (10) The feasibility of a relocation by the objecting person.
      (11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.

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


source: Caselaw Access Project

author: WILLIAMS, J. BROWN, C.J.,

license: Public Domain

text:
    Rupert Gary MADDEN, M.D., Plaintiff-Appellee v. L.L. GOLSON, INC., Defendant-Appellant
    No. 51,366-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered July 5, 2017
    Rehearing Denied August 3, 2017

      WIENER, WEISS & MADISON, By: Frank Spruiell, Jr., Counsel for Appellant
    DOWNER & WILHITE, LLC, By: Rebecca D. Barham, Philip E. Downer, III, Counsel for Appellee .
    Before BROWN, WILLIAMS, and STONE, JJ.
   WILLIAMS, J.

It The defendant, L.L. Golson, Inc., appeals a judgment in favor of the plaintiffs, Rupert Madden and Judith Madden, recognizing their possession of land up to a fence that existed in November 2014, For the following reasons, we affirm.

FACTS

In January 1991, Rupert Madden, M.D., and his wife, Judith Madden (“Madden”), acquired tracts of land located in Sections 17,19 and 20, Township 14 North, Range 9 West, Red River Parish. L.L. Golson, Inc. (“Golson”), is the owner of a 348.57-acre tract of land in Sections 19 and 20, immediately south of the Madden property. At the time Madden acquired the land, there was an existing fence which had been in place for more than 30 years. The wire and post fence ran from east to west between the Madden and Golson tracts. In 2014, Golson commissioned a survey of its tract prior to the installation of new fencing. The survey showed that under the deeds the property line was the section line between Sections 17 and 20, north of the old fence. Golson then removed the original fence and bulldozed the vegetation between the fence line and the Section 17/20 section line to the north.

In December 2014, the plaintiff, Rupert Madden, filed a petition for possession, temporary restraining order, permanent injunction and damages against the defendant, Golson. The plaintiff alleged that the boundary between the parties’ tracts of land was established by the existing fence that had been in place for more than 30 years before it was removed by defendant. The original fence did not follow the section line as surveyed. Defendant’s peremptory exception of non-joinder of a party was granted and [ 2Judith Madden was added as a party plaintiff. The district court denied plaintiffs’ motion for partial summary judgment on the issue of possession. At trial, the issue was whether the activities of plaintiffs and their ancestor in title were sufficient to establish possession of the disputed area prior to the removal of the existing fence.

Following presentation of the evidence, the trial court conducted a visual- inspection of the property. In written reasons for judgment, the trial court found that the fence line between the parties’ tracts of land had remained in the same location in excess of 50 years at the time of defendant’s removal of the fence in 2014 and that there was insufficient evidence to support the defendant’s contention that a wagon road created a boundary or provided evidence of fencing sufficient to interrupt plaintiffs’ possession or use of the property up to the existing fence. The court further found that plaintiffs exercised • corporeal possession of the disputed strip of land based on activities including maintaining the fence line, cutting hay and hunting. The trial court rendered judgment recognizing the plaintiffs’ possession of the property and establishing the original fence line as the boundary between the parties’ tracts of land. Defendant appeals the partial final judgment.

DISCUSSION

The defendant contends the trial court erred in finding that plaintiffs exercised possession of the strip of land at issue and that defendant treated the old fence as the boundary between the parties’ tracts. Defendant argues that plaintiffs failed to satisfy their burden of proving corporeal possession up to the fence because they did not present evidence of public and unequivocal possession of the disputed strip of land.

¡¡¡Possession is the detention or enjoyment of a corporeal thing either movable or immovable. La. C.C. art. 3421. Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess. La. C.C. art. 3422. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424. Corporeal possession is the exercise of physical acts of use, detention or enjoyment over a thing. La. C.C. art. 3425. One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area that he actually possesses. La. C.C. art. 3426.

The plaintiff has the burden of proving the essential elements necessary to maintain a possessory action. The requisite possession to support a possessory action is identical to the possession required to commence the running of acquisitive prescription. Strain v. Aaron, 49,647 (La. App. 2 Cir. 2/27/15), 162 So.3d 553. The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public and unequivocal. La. C.C. art. 3476. The question of whether acts constitute possession is a factual determination that will not be disturbed on appeal absent manifest error. Strain, supra.

In the present case, Carlton Corbin testified that in 2009, he was a landman with a pipeline company and was involved in obtaining a right of way on the Golson property. Corbin stated that a survey prepared for the pipeline company showed the section line between Sections 17 and 20 as the property boundary in the title description and indicated the location of the old fence south of the Section Í7/20 line. Cor-bin testified that part of the Uinitial agreement was for the pipeline company to remove the old fence and build a new fence along that section line. Corbin stated that the plaintiff objected to moving the location of the fence when he-was informed about the proposed work. Corbin stated that he reported plaintiff’s objection to Golson’s president, Harry Lawson, who said to install the pipeline south of the old fence. Corbin testified that the pipeline was then installed in conformity with the location of the old fence as the boundary between the tracts of land. Corbin stated that he personally saw the old wire and post fence that was indicated on the survey and that a lot of brush had grown around the fence. Corbin testified that he saw cows on the Golson tract to the south and that the fence was keeping the cows from entering the plaintiffs’ land.

Robert Davis, a professional land surveyor, testified that in November 2014, he was hired by defendant to perform a survey of the defendant’s property. Davis stated that under the deed description the boundary between the. Madden and Golson tracts was the Section 17/20 section line. Davis testified that when doing his preliminary survey work, he noticed that the location of the old fence- did not match the survey boundary. Davis explained that the survey did not indicate the location of the old fence because it had been removed prior to his completion of the survey. Davis testified that approximately one year later he met with Berley Lawson, an officer of Golson, at the property in question. Davis stated that they began at the “pine knot,” the place where four section corners meet, and walked east along the Section 17/20 section line. Davis testified that he saw evidence of a roadbed starting approximately 200 feet east of the pine knot and continuing along the section line. He described the roadbed as a “slight | ^depression” on the ground with brush growing up in the roadbed. Davis testified that he saw remnants of deteriorated fencing at several places to the north of the roadbed.

George McLemore testified that he was familiar with plaintiffs’ land because from 2003 to 2008 he had cut hay on the property. McLemore stated that he cut hay in the areas behind the house and the south side of the property. He testified that he cut as close to the old fence as possible, but could not cut right up against the fence because his equipment could not run over the thicket around the fence.

The plaintiff, Rupert Gary Madden, M.D., who was 61 years old at the time of trial, testified that he bought the land at issue from Pluma Madden, who was his grandmother. Madden stated that the, land was mostly pasture with some timber and was bordered by Golson’s land to the south and east. Madden testified that at the time of his purchase, the land was enclosed by a continuous fence made of wire and posts that had remained in the same location since he began visiting his grandmother on the property as a child. Madden stated that since buying the land, he had bush hogged and cut hay in the area near the old fence. He testified that his recreational uses of the property included hunting squirrel along the old fence and riding ATVs on the land near the fence. Madden stated that he annually walks the fence line around the tract checking the condition of the old fence and making repairs where necessary. Madden testified that in 2009, he spoke with Corbin about the pipeline installation and told him he did not have authorization to move the location of the existing fence. Madden stated that when he next spoke with Corbin he said that Golson would install the pipeline in accordance with the existing fence and the issue seemed settled. Madden testified thatlfihe did not know if there was ever a wagon road running along the Section 17/20 line, but “some humps and bumps” are visible on the ground in that area.

Greg Madden, the plaintiffs brother, testified that he had visited his grandmother’s property as a child and that he has consistently spent time on the land during the last 50 years. Madden stated that as long as he can remember, a wire and post fence running along the south side of the Madden land has separated the Madden and Golson tracts. Madden testified that his main activity on the property was squirrel hunting in the wooded area along that old fence.

Yvonne Snead, who was 84 years old at the time of trial, testified that her parents had sold a house to Pluma Madden. Snead stated that north of the house there was a road that ran generally east from Highway 783. Snead testified that as a child, she had rode in a wagon or walked along that road many times. She did not recall any fences along the side of the road and did not know who built the road or when. Snead testified that she last walked on the road approximately 50 years ago.

Ollie Madden, who was 89 years old, testified that Pluma Madden was his aunt and he had visited her house many times. Madden stated that near his aunt’s house a road ran east from Highway 783. Madden testified that in 1948 to 1949, he traveled that road frequently hauling hay and grain. He stated that the road was clay and rough with fences along each side. Madden testified that he had last used the road in approximately 1955.

Wiley Garrett, who was 81 years old, testified that he recalled a road that ran east from Highway 783 that he called a “section road.” Garrett stated that he had last walked on that road in approximately 1970 looking for |7old glass bottles and he could not say if there were fences along the roadside. Garrett testified that in 1970 there were no vehicles using the road, which was grown over with brush and had not been in use for a number of years.

Berley Lawson, who was 42 years old at the time of trial, testified that he is an officer of Golson and the son of Harry Lawson, the president of Golson. Lawson stated that he manages the cattle operation for Golson on land adjacent to the Madden tract. Lawson testified that his understanding was that there had been an old wagon road running generally along the section line with a fence on either side of the road. Lawson stated that the existence of the old road was indicated by a depression in the ground approximately 8 to 12 feet wide running east from the pine knot. He stated that the road meandered in certain places based on the terrain and deviated south around a small pond before turning back toward the north. Lawson testified that the old fence at issue ran approximately 6 to 12 feet from the south side of the road and that the Golson pasture was south of that fence. Lawson acknowledged that he had never used the wagon road during his lifetime and did not know who built the road or when. He stated that he had never seen a deer stand or timber cutting in the area north of the fence to the section line. Lawson testified that the land in that area south of the section line was thickly wooded except for the “pin oak flat” that is wet and “boggy.” Lawson stated that in 2009, he thought the pipeline company was going to build a new fence, but after Rupert Madden objected to changing the location of the fence the pipeline was then installed leaving the old fence in place. Lawson testified that before the survey was done in 2014, he did not know where the property line was located according to the deed descriptions. He agreed that prior to 2014, the old fence represented the | Rnorth boundary of the Golson tract and had remained in the same location during his lifetime. Lawson .stated that the old fence kept the Golson cattle out of the Madden tract. Lawson testified that near the section line he had found remnants of the fencing that he believed had run along the north side of the wagon road.

Harry Lawson, who was 72 years old at trial, testified that his grandfather had said the wagon road had basically followed along the 17/20 section line. Lawson stated that he had previously walked and ridden a horse on the wagon road. He testified that wagon ruts are still visible on the ground indicating the location of the road, but he did not know who had built the road or when. Lawson stated that in 2009, as president of Golson, he had spoken with Corbin about installing a pipeline and they had agreed that the pipeline company would build a new fence along the 17/20 section line, which the company’s survey showed was the boundary between the Madden and Golson tracts. Lawson testified that he heard from Corbin that Madden did not want the old fence moved and the pipeline was then installed with the old fence remaining in the same location. Lawson stated that the old fence separated the Golson cattle from the Madden tract. Lawson agreed that the old fence made of wire and posts was visible and remained in the same location separating the Madden and Golson tracts for a long period of time. Lawson acknowledged that the Maddens used their land up to the old fence line until 2014.

On appeal, defendant argues that because the old fence was part of a wagon road in the past the fence was not meant to be the boundary between the parties’ tracts of land. Initially, we note that even the witnesses who remembered a road gave conflicting testimony regarding whether that |9roadway was actually fenced on either side. In addition, the evidence demonstrates that whatever road existed had fallen into disuse for a period exceeding 40 years, whereas the old fence remained in the same location during that time period and functioned as the visible boundary between the parties’ tracts of land. The trial court weighed the testimony of the witnesses and visited the location of the land involved. In the reasons for judgment the court noted that the visible indication of the roadway did not follow the section line and that the surveyor could not correlate the path of the road to the location of the old fence to the south. Thus, the record supports the trial court’s finding that the evidence was insufficient to show that the overgrown roadbed had served as a boundary or restricted the plaintiffs’ access to and use of the strip of land up to the old fence.

The defendant also contends the trial court erred in finding that the plaintiffs exercised corporeal possession of the land at issue. Defendant argues that the plaintiffs did not prove actual possession of the disputed strip of land because their activities did not give defendant notice of their claim of possession up to the fence.

Actual possession must be either inch by inch possession or possession -within enclosures. An enclosure is any natural or artificial boundary. Article 3426, comment (d). For the purposes of acquisitive prescription, actual possession is determined according to the nature of the property. La. C.C. art. 3487, revision comment (c), The corporeal possession requisite in the situation of agricultural land is not the same as that in the case of woodland or swamp land. Ryan v. Lee, 38,352 (La. App. 2 Cir. 4/14/04), 870 So.2d 1137, writ denied, 2004-1531 (La. 10/1/04), 883 So.2d 991.

|, pH ere, the plaintiffs presented evidence that they used the property up to the fence in ways that are consistent with a wooded, wetland area, including hunting and walking along the fence line to maintain the fence. The authority cited by defendant does not support its contention that plaintiffs were required to mow, cut timber or plant crops in the disputed area to demonstrate possession. The testimony of McLe-more indicates that he cut hay for plaintiffs as close to the fence as possible given the wooded condition of the land.

Further, the testimony established that plaintiffs repaired the old fence as needed and the fence prevented the defendant’s cattle from entering plaintiffs’ land. The Lawsons testified that they were aware that the old fence had remained in the same location and functioned as the boundary between the adjacent tracts of land for more than 30 years. In addition, plaintiffs’ maintenance of the fence served as an act of possession by keeping the Golson cattle off of plaintiffs’ land.

The trial court heard the testimony and weighed, the evidence. Based upon this record, we cannot say the trial court was clearly wrong in finding that the plaintiffs exercised corporeal possession as owner of the disputed strip ,of land up to the old fence that existed in November 2014. Consequently, the plaintiffs are entitled- to be restored to possession of that land up to the original fence line. The assignments of error lack merit. In reaching this conclusion, we pretermit discussion of the defendant’s remaining assignment as to costs in the district court.

^CONCLUSION

For the foregoing reasons, the trial court’s -judgment as to possession is affirmed and this matter is remanded for further proceedings. Costs of this appeal are assessed to the appellant, L.L. Golson, Inc,

AFFIRMED.

BROWN, C. J., dissents'with written reasons.

BROWN, C.J.,

dissents

| ¶ Seventy-three-year-old Harry B. Lawson, Jr. has lived on a 348-acre tract in sections 19 and 20 all of his life. Lawson is the owner of defendant, L.L. Golson, Inc, Golson was his grandfather. The titled boundary with' plaintiffs property is the section line. The property at issue in this appeal is in section 20, A long time ago, there was a wagon road that was fenced on both sides. Plaintiff now owns the north side (his grandmother had' this property before him), The north side fence on the wagon road has disappeared into the thicket. Lawson has kept up the south side fence—it is called the livestock fence.

' In November 2014, Lawson took down the south' side fence and cleared the land that was the wagon road and built a new (north side) fence on the section line. Plaintiff claims that he now owns all of the old wagon road up to the south, side fence by more than 30 year’s prescription. The only issue .is whether plaintiff ever sufficiently possessed the land. One who possesses by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area that he actually possesses. La. C.C. art. 3426.

There was testimony from Harry Lawson, 89-year-old O.D. Madden, and 81-year-old Wiley Garrett that the wagon road did exist. O.D Madden, who is plaintiffs cousin, specifically remembered fences on both sides of the road. An expert (surveyor Robert Davis) testified that he found some evidence that there was a north side fence and road. The trial court found that the wagon road and north fence have been gone for more than 30 years.

The court went out to the property and specifically observed that the fence and road were mostly gone but there were some signs to show where |2they had been. Thus, did plaintiff possess this strip? Plaintiff testified that he walked the fence line once a year and hunted squirrels in the area which included this strip. Plaintiff obviously ranched and farmed his property further north of this strip,

This is an unusual prescription issue. I do not believe that Dr. Madden sufficiently possessed this small strip of property and would reverse.

APPLICATION FOR REHEARING

Before WILLIAMS, DREW, STONE and BLEICH, JJ.

Rehearing denied.


author: HIGGINBOTHAM, J.

text:
    Travis WARE and Janis Ware v. FOREMOST INSURANCE COMPANY
    NO. 2016 CA 1481
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      Willis J. Ray, Hammond, LA, Attorney for Plaintiffs-Appellees, Travis Ware and Janis Ware
    Valerie Briggs Bargas, Baton Rouge, LA, Attorney for Defendant-Appellant, Foremost Insurance Company
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

Lin this case, the trial court rendered a default judgment in favor of plaintiffs, Travis and Janis Ware, and against defendant, Foremost Insurance Company, in the amount of $30,821,80. Foremost appeals arguing that the default judgment should be declared a nullity because no proof of service exists. In the alternative, Foremost argues that the trial court erred in confirming the default judgment because the Wares did not present evidence sufficient to establish their prima fade case under Louisiana Code of Civil Procedure article 1702.

FACTS AND PROCEDURAL HISTORY

The Wares contend that in April 2015, during a spring thunderstorm, wind and hail caused significant damage to their home in Denham Springs, Louisiana. After the thunderstorm, the Wares contacted Foremost, their alleged homeowner’s insurer, to. request that the damage to their home be inspected. Foremost, on more than one occasion, inspected the Wares’ home but denied coverage for their damages. Subsequently, the Wares retained an adjuster who inspected their home and determined that the cause of the damage to their home was wind and/or hail. The Wares forwarded the report of the independent adjuster to Foremost and again requested coverage, which Foremost denied. Thereafter, on April 7, 2016, the Wares filed a petition for damages against Foremost, seeking payment for damages their home sustained during the thunderstorm. Additionally, the Wares contended that Foremost’s denial of coverage was a breach of good faith and fair dealing in contravention of La. R.S. 22:1973, and they sought statutory penalties as provided by the statute.

On May 19, 2016, the trial court noted that all legal delays had elapsed since service of citation and the petition on Foremost, and ordered a minute entry reflecting a preliminary default. On May 26, 2016, the matter came before the trial court, and after a hearing, the trial court signed a final default judgment in favor of lathe Wares and against Foremost in the amount of $30,821.80 in damages and penalties. It is from this judgment that Foremost appeals, contending that the default judgment should be declared a nullity because no proof of service exists. In the alternative, Foremost argues that the trial court erred in confirming the default judgment because the Wares did not present evidence sufficient to establish their prima fade case under La. Code Civ. P. art. 1702.

STANDARD OF REVIEW

When reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, 818. This determination is. governed by the manifest error standard of review. Id.

LAW AND ANALYSIS Proof of Service

Initially, Foremost contends that the default judgment should be declared a nullity because no proof of service exists in the record. It is well settled that a default judgment may not be taken against a person who has not received citation and service thereof. Clay v. Clay, 389 So.2d 31, 35-36 (La. 1979). Our review of the record reveals that the minute entry of May 19, 2016, indicates that Foremost was served with the petition. Additionally, in the transcript of the default confirmation hearing, the Wares’ attorney stated that Foremost was served on April 20, 2016, at its registered address for service of process through the Secretary of State, and the trial court’s clerk verified that no answer or opposition had been filed. Initially, the service return was not in the record, but because Rule 2-1.11 of the Uniform Rules of the Courts of Appeal provides that “[sjubpoenas, notices, and returns may be omitted from the record, unless they are at issue[,]” this Court ordered that the Clerk of Court for the 21st Judicial District Court supplement the record with any service returns. On the same day, this Court received a copy of the service return indicating 14that personal service was made on Foremost on April 20, 2016 by a sheriffs deputy for the Parish of East Baton Rouge. Thus, we find that Foremost’s contention that no evidence of service exists is meritless.

Requirements for a Default Judgment

In an alternative argument, Foremost maintains that the trial court erred in confirming the default judgment against it because the Wares failed to introduce the alleged insurance policy between the Wares and Foremost into evidence. Louisiana Code of Civil Procedure Article 1701(A) provides that “[i]f a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him.” Thereafter, the default judgment may be confirmed according to the requirements provided, in pertinent part, by La. Code Civ, P. art. 1702:

A. A judgment of default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirmation.... If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. ...
B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(Emphasis and italics added.)

Confirmation of the default is similar to a trial at which the defendant is absent. The plaintiff must present admissible and competent evidence that establishes a prima facie case, proving both the existence and the validity of the claim. Arias, 9 So.3d at 820; Frank L. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 12.3, at 452-453 (2d ed. 2008). Inadmissible evidence may not support a default judgment even though it was not objected to because the defendant was not present. Arias, 9 So.3d at 820. There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted | Bby the record upon which the judgment is rendered. Id. Therefore, our review is limited to determining whether the Wares offered sufficient and competent evidence that Foremost was responsible for the damages sustained to their home, as well as statutory penalties under La. R.S. 22:1973.

To prevail in a suit based on coverage under an insurance policy, the prima, facie proof required includes introduction of the insurance policy into evidence, See Arias, 9 So.3d at 823-25. The insurance contract is an essential element of a plaintiffs prima facie case against an insurance company for purposes of confirming a default judgment. Arias, 9 So.3d at 822; Nelson v. Merrick, 2006-2381 (La. App. 1 Cir. 9/19/07), 970 So.2d 1019, 1021. A jurisprudential exception to this rule is that when the plaintiff requests admissions of contractual coverage or production of the policy and the defendant fails to comply, the defendant’s failure to comply may be construed as supplying the missing proof. Nelson, 970 So.2d at 1021.

The Wares’ suit was based on coverage under an insurance policy, thus the prima facie proof required in this case includes introduction of the insurance policy into evidence. While the Wares testified regarding the insurance policy and stated the policy number, the Wares did not introduce the insurance policy into evidence, nor did they file a request for admissions. Because the Wares did not provide an essential element of their prima facie case against Foremost, the trial court erred in granting a default judgment in favor of the Wares against Foremost.

CONCLUSION

For the foregoing reasons, we vacate the May 26, 2016 default judgment rendered and confirmed by the trial court against defendant-appellant, Foremost Insurance Company. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed against, plaintiffs-ap-pellees, Travis and Janis Ware.

MAY 26, 2016 FINAL JUDGMENT OF DEFAULT VACATED; CASE REMANDED.