author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Ramon V. JARRELL v. Jessie L. CONERLY
    NO. 2017-CA-0713
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 7, 2018
    BRIAN L. MCGULLOGH, 2252T Glasgow Avenue, Baton Rouge, Louisiana 70808, Counsel for plaintiff/appellee
    JOHN W. WATERS, JR., DAVID E. WALLE, BENJAMIN R. MCDONALD, BIENVENU FOSTER RYAN & O'BANNON, LLC, 1010 Common Street, Suite 2200, New Orleans, Louisiana 70112-2455, Counsel for defendant/appellant
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Tiffany G Chase,)
   JAMES F. MCKAY III, CHIEF JUDGE

Defendant, Jessie L. Conerly ("Conerly"), appeals the trial court's July 6, 2017 judgment, granting a motion for partial summary judgment in favor of plaintiff, Ramon V. Jarrell ("Jarrell"). For the reasons that follow, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 30, 2014, Conerly and Jarrell entered into a business venture as reflected in the following Letter of Intent:

This Letter of intent is between Ramon V. Jarrell of Country Club of Louisiana, 18019 East Augusta Drive, Baton Rouge, LA and Jessie Conerly of 7470 Cambereley Drive, New Orleans, LA 70128 for the sole purpose of the extraction and sale of the natural resources of sand, gravel, and clay present on the land which we expect will be bought by K & M, LLC from Marion Clay & Gravel, LLC.
The two parties desire to form a limited liability company, K & M, LLC, as a minority owned company located at 1957 Highway 43, Columbia, MS 39429. The land, from which the aggregate materials will be extracted, consists of 872 acres along the Pearl River.
It contains large amounts of the natural resources referenced above, and will be used as collateral, along with aggregate contracts provided by buyers of product, for any debt incurred on behalf of K & M, LLC. At the satisfaction of all LLC indebtedness and dissolution of the LLC, the land reverts to Conerly.
The following stipulations serve as operational underpinnings for this partnership that define the duties of the members, along with the distribution of profits generated by the operation.
1. Jarrell will own 48% of the company, K & M, LLC,
2. Jarrell will arrange for the securement of $6.8 million in start-up capital for the purpose of buying out four original members [of Marion Clay & Gravel, LLC] with ownership percentages as follows:
Harry Varnadoe, H. Varnadoe Enterprises, LLC-27.5%, William Myles-28.75 %,
Mark Denis, Denis-Bates Enterprises, LLC-5%, Stan Hutson, ES Services, LLC-10%.
Additional uses of funds include operational start-up, equipment.
3. Jarrell will receive 50% of the profits generated,
4. Jarrell will provide oversite [sic ] and have access to all records and aspects of the operation,
5. Conerly will own 52% of K & M, LLC for the purpose of acquiring Certification as a Minority owned business which leverages the marketing function,
6. Conerly will provide daily operational management and oversite [sic ] aspects of the operation,
7. Conerly will receive 50% of the profits generated.

Subsequent to the execution of the Letter of Intent, Jarrell began advancing capital to Conerly. In connection therewith, Conerly issued four promissory notes to Jarrell, as follows:

Note I dated July 11, 2014, in the principal amount of $40,000.00;

Note II dated August 4, 2014 in the principal amount of $20,000.00;

Note III dated August 19, 2014 in the principal amount of $22,000.00;

Note IV dated September 9, 2014 in the principal amount of $22,000.00.

Each note further provides for payment terms, interest, and attorney's fees.

In July 2016, Jarrell filed suit, alleging that Conerly failed to pay the balance due on the four notes. Jarrell maintains that the promissory notes represent funds "loaned" to Conerly for the business venture.

Conerly answered the petition, acknowledging that the notes had not been paid in full. He stated, however, that Jarrell advanced the funds with the understanding that the funds would be paid back from the profits of the business venture, not from Conerly personally. Conerly further asserts in his answer that Jarrell breached the Letter of Intent by failing to arrange for the securement of $6.8 million in start-up capital for the venture, as he agreed to do. In the alternative, Conerly claims that he is entitled to a set-off due to Jarrell's breach of contract.

Conerly also filed a reconventional demand, alleging that the venture fell through as a direct result of Jarrell's breach of contract. Conerly's reconventional demand seeks damages from Jarrell for loss of anticipated profits and income.

Jarrell filed a motion for partial summary judgment, asserting his holder in due course status. He alleges therein that Conerly did not set forth any of the available defenses allowed against a holder in due course as provided by La. R.S. 10:3-305. Accordingly, Jarrell sought to enforce the promissory notes.

Conerly opposed the motion for partial summary judgment, arguing that there are genuine issues of material fact as to whether the consideration for the notes (Jarrell's procurement of the start-up capital) failed. Conerly also denies that the funds represented a loan, asserting instead that the parties intended the notes to be simulations. Thus, he maintains that there are genuine issues of fact as to the parties' intent.

The matter was heard June 30, 2017. The trial court rendered judgment July 6, 2017, granting a partial summary judgment in favor of Jarrell, and awarding Jarrell damages in the amount of the principal of $104,000.00, plus interest, attorney's fees, and costs. Conerly's timely appeal followed.

STANDARD OF REVIEW

"Appellate courts review summary judgments de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Hogg v. Chevron USA, Inc. , 2009-2632, 2009-2632, p. 5 (La. 7/06/10), 45 So.3d 991, 996 (citing Schroeder v. Board of Supervisors of LouisianaState University , 591 So.2d 342, 345 (La. 1991) ). "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966A(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966A(3).

LAW AND ANALYSIS

In granting the motion for partial summary judgment from the bench, the trial court stated:

I believe that plaintiff [Jarrell] is considered a holder in due course and defendant [Conerly] is allowed to assert defenses to the holder in due course. I don't believe those defenses have been asserted. Now, you do claim that there are other defenses. You are still allowed to assert that, but those defenses do not preclude the partial motion for summary judgment here, which I am granting.

On appeal, Conerly asserts that the trial court erred in granting the motion for partial summary judgment because: 1) Jarrell was not a holder in due course of the notes, and thus, his claims were subject to Conerly's defenses of failure of consideration, simulation, and alternatively, set-off; 2) Conerly's countervailing summary judgment evidence sufficiently casts doubt on whether consideration for the notes failed and whether they were simulations; 3) There are material issues of fact as to whether the notes are unenforceable for failure of consideration and whether they are absolute simulations as to preclude summary judgment. Because Conerly's three assignments of error are intertwined, we will discuss them together herein below.

At the outset, Conerly argues that Jarrell is a holder, but not a holder in due course of the promissory notes in question. We find that assertion to have merit.

La. R.S. 10:1-201(21)(A) defines a holder as "the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession."

Pursuant to La. R.S. 10:3-302(a), a holder in due course is the holder of an instrument that does not have a question as to its authenticity, and the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any property or possessory claim to the instrument, and (vi) without notice that any party has a defense or claim in recoupment.

Against a holder in due course, the maker is limited to certain defenses set forth in La. R.S. 10:3-305, which provides, in pertinent part:

(a) Except as stated in Subsection (b), the right to enforce the obligation of a party to pay an instrument is subject to the following:
(1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;

Conerly does not raise any of the defenses allowed against a holder in due course. Rather, he asserts failure of consideration and simulation, which can only be asserted against a holder. Alternatively, Conerly claims set-off for the damage claim asserted in his reconventional demand.

Jarrell is the original payee on the four notes. However, it is well settled in our jurisprudence that a payee on a note is not automatically a holder in due course. As explained in Watson v. Matranga , 613 So.2d 711, 713 (La. App. 5 Cir. 1993),

Prior to the enactment of Title 10 of the Louisiana Revised Statutes in 1975, a payee could not be a holder in due course. Now, a payee may be a holder in due course. See LSA-R.S. 10:3-302(2), also Courtesy Financial Services v. Hughes , 424 So.2d 1172 (La. App. 1 Cir.1982), wherein the court said Id. , at 1175 :
"Although a payee may be a holder in due course, said status is not automatic. When the payee deals with the maker through an intermediary (remitter) and does not have notices of defenses, such an isolated payee may take as a holder in due course. In most instances, however, a payee will not be a holder in due course because said payee will usually have notices of defenses and claims by virtue of the fact that he has dealt directly with the maker."
* * *
We are unaware of any Louisiana case, and none has been cited by appellant, holding that a payee on a promissory note who had constant, direct and meaningful contact with the maker can somehow assume holder in due course status, particularly if the payee had sold an interest in a company he helped found, worked for and partially owned. Such a payee cannot be a holder in due course.

Here, the record reflects that Jarrell was closely involved in the original business venture. The Letter of Intent, which Jarrell signed, provides that: 1) Jarrell and Conerly agreed to form an LLC in order to acquire the Marion property and extract materials from the land; 2) Jarrell would be responsible to secure the $6.8 million in start-up capital; 3) Jarrell would own 48% of the LLC; 4) Jarrell would receive 50% of the profits from the venture; and 5) Jarrell would oversee the operation and have access to all records in connection with the operation.

Given Jarrell's status as a payee, and his personal involvement in the formation and operation of the business venture, Jarrell is not a holder in due course. At the very least, there are questions of material fact on this issue. Moreover, because Jarrell is not a holder in due course, the notes are subject to the defenses advanced by Conerly, such as failure of consideration and simulation.

It is well established that "summary judgment is the appropriate procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement." Pannagl v. Kelly , 2013-0823, p. 6 (La. App. 5 Cir. 5/14/14), 142 So.3d 70, 74 (citing American Bank v. Saxena , 553 So.2d 836 (La. 1989) ).

"In a suit on a promissory note, the payee who produces the note sued upon makes out a prima facie case and will be given the presumption that the instrument was given for value received unless the maker casts doubt upon the reality of the consideration." Lilly Lyd, L.L.C. v. Graham , 2014-0594, p. 5 (La. App. 5 Cir. 12/30/14), 167 So.3d 829, 831-32 (citing Graves v. Porterfield , 555 So.2d 595, 598 (La. App. 1 Cir.1989) ). "Once the maker casts doubt upon the consideration, the ultimate burden shifts to the payee to prove consideration by a preponderance of the evidence." Id. ; See also Sonnier v. Gordon , 50,513, pp. 11-12 (La. App. 2 Cir. 4/13/16), 194 So.3d 47, 54 ; Williamson v. Guice , 613 So.2d 797, 800 (La. App. 4 Cir. 1993). Such proof can be established through parol evidence. Scafidi v. Johnson , 420 So.2d 1113, 1115 (La. 1982) ; Johnson v. Drury , 99-1071, p. 10 (La. App. 5 Cir. 6/2/00), 763 So.2d 103, 109, 110.

In the present case, Conerly presented his sworn affidavit in support of his defenses to the notes. In his affidavit, Conerly refers to the agreement set forth in the attached Letter of Intent. Additionally, he states:

• Conerly informed Jarrell that the mortgage on the Marion Property was in danger of default;
• Conerly previously spent significant sums to prevent foreclosure;
• Conerly and Jarrell verbally agreed that in order to secure the Marion Property, the venture would have to prevent a foreclosure;
• Jarrell would provide Conerly with funds to pay the mortgage until Jarrell fulfilled his obligation to obtain financing for the venture;
• Jarrell asked Conerly to sign promissory notes as a formal means of recording and accounting for each of the mortgage payments, and that such recording would reflect Jarrell's personal investment in the business;
• Jarrell stated that the money provided to Conerly was an advancement of funds made in anticipation of the venture, and that it was understood that the funds would be paid back to Jarrell through the financing or from the profits of the venture, but not from Conerly personally;
• Conerly accepted funds from Jarrell on behalf of K & M, LLC, and made payments on the Marion Property mortgage; and
• Jarrell was refused financing by at least one institution because he refused to provide a personal guaranty. Jarrell failed to secure any start-up capital after that point. As a result, the business venture failed.

Jarrell maintains that he is a holder in due course of the four promissory notes, having no knowledge of any defenses claimed by Conerly at the time the notes were prepared. In support of his motion for partial summary judgment, Jarrell presented the promissory notes and the affidavit of his daughter, Terri J. Hornsby. Aside from confirming the existence of the notes in question, Ms. Hornsby's affidavit states:

• She was granted a power of attorney for her father on June 26, 2013, which was prior to the Letter of Intent; and
• Her father has been diagnosed with cognitive impairment and memory loss, and has been prescribed medication utilized for the treatment of Alzheimer's disease.

Based on our review of the evidence presented, we find that Conerly's affidavit raises legitimate questions regarding the failure of consideration and whether the notes were simulations. On the other hand, Ms. Hornsby's affidavit does not indicate that she had any personal or first-hand knowledge of the agreement reached between Conerly and Jarrell. Moreover, it must be noted that the record does not contain the power of attorney referenced in her affidavit, nor does it include any evidence concerning Jarrell's medical diagnosis and treatment for a mental impairment. Thus, the judgment granting Jarrell's motion for partial summary judgment is reversed.

CONCLUSION

After our de novo review of the record, we conclude that the trial court erred in finding Jarrell to be a holder in due course on the four promissory notes. At the very least, there are material questions of fact on that issue. Additionally, we find that the evidence presented by Conerly in opposition to the motion for partial summary judgment casts doubt on the consideration for the notes and/or whether the notes were simulations. Accordingly, we find that the trial court erred in granting the motion for partial summary judgment in favor of Jarrell. The judgment is reversed, and the matter is remanded for further proceedings.

REVERSED AND REMANDED

      The Letter of Intent is dated June 27, 2013 at the top of the document, but is signed on June 30, 2014.

      It is undisputed that Conerly made some interest payments.

      Conerly's reconventional demand is pending in the trial court.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    IN RE: ALR and BAR
    17-916
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018 Rehearing Denied May 9, 2018
    Edward Moses, Jr., Attorney at Law, P.O. Box 83232, Baton Rouge, LA 70884, (225) 295-5632, COUNSEL FOR DEFENDANT-APPELLANT: S.R.
    Shane Errol Romero, Jr., Attorney at Law, 110 E. Pershing St., New Iberia, LA 70560, (337) 321-6945, COUNSEL FOR PLAINTIFFS-APPELLEES: C.R. M.R.
    David Y. Lamm, Attorney at Law, P.O. Box 9710, New Iberia, LA 70562, (337) 321-6535, COUNSEL FOR APPELLEES: A.L.R. B.A.R.
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   PERRET, Judge.

In this intrafamily adoption case, the trial court granted the petition for adoption filed by the biological father, C.R., and his wife, M.R. In granting the adoption, the trial court terminated the parental rights of S.R., the natural mother, finding that she failed to make child support payments for at least six months and that the adoption by the stepmother was in the best interest of the two minor children. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

The mother of the children, S.R., and their natural father, C.R., were married to each other in September 2001, and divorced on October 16, 2006. From their marriage, two girls were born: A.L.R. was born on March 13, 2000, and B.A.R. was born on March 31, 2004. On November 16, 2009, S.R. was ordered to pay child support to C.R. in the amount of $305.00 per month, effective November 1, 2009. On March 17, 2010, C.R. was awarded sole custody of the two minor children. At that time, S.R. was involved in a criminal proceeding, which resulted in her incarceration in the Lafayette and Vermillion parish jails from March 11, 2010 until November 15, 2010.

On April 14, 2007, C.R. married M.R., the minors' stepmother (collectively "the Plaintiffs"). On January 6, 2012, the Plaintiffs filed this intrafamily adoption suit alleging that S.R. failed to support her minor children without just cause for a period of six months and that she failed to communicate with the minor children without just cause for a period of six months. On March 22, 2012, the trial court granted the adoption finding that it is in the best interest of the children.

However, on June 14, 2012, S.R. filed a Petition to Annul Final Judgment alleging that the Plaintiffs did not properly serve her with the adoption suit and that the judgment was obtained by fraud and ill practice. After a hearing on March 19, 2014, the trial court found that no service was ever attempted on the mother, C.R., and that the Plaintiffs failed to provide the appointed curator with information that would have been helpful in locating her. On May 22, 2014, the trial court signed the judgment that granted the Petition to Annul Final Judgment. In its reasons for judgment, the trial court did not find fraud; rather, the annulment was only to cure procedural defects and to allow S.R. the opportunity to object to the Plaintiffs' Petition for Intrafamily Adoption. Specifically, the trial court stated as follows (citations omitted):

An ill practice justifying annulment of a judgment encompasses situations where the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, if the enforcement of the judgment would be unconscientious and inequitable, even though no actual fraud or intentional wrong is shown in the procurement of the judgment. The jurisprudence has considered conduct which unfairly prevents the opposing party from having his day in court to urge his defenses as an ill practice justifying annulment of a judgment so obtained.
In this case, the Court does not find fraud, however, the Court does find that the information withheld from Mr. Tabb [the curator], directly prevented [S.R.] from being notified of the adoption of the minor children. This resulted in ill practice. Plaintiff did not accomplish due process.

On May 27, 2014, S.R. was personally served with the Petition for Intrafamily Adoption. On October 8, 2014, S.R. filed an answer alleging that she was unable to financially pay the support obligation and that in May of 2011, she was involved in an automobile accident with an eighteen wheeler that rendered her unable to work. S.R. also filed peremptory and declinatory exceptions of no cause of action, no right of action, lis pendens, and improper service, all of which were denied by the trial court on January 22, 2015. On January 29, 2015, S.R. filed a motion for new trial, re-urging her exceptions of no cause of action, no right of action, and lis pendens. On December 19, 2016, after a hearing, the trial court signed a judgment that denied the motion for new trial.

On May 17, 2016, a bench trial was held on the Petition for Intrafamily Adoption. After a four-day trial, the trial court granted the Plaintiffs' adoption, finding that S.R. failed to pay child support and that it was in the best interest of the minor children to be adopted. S.R. now appeals this final judgment, alleging the following assignments of error: (1) the trial court erred when it allowed C.R. and M.R. to re-litigate their intrafamily adoption after it was annulled by judgment on May 22, 2014; (2) the trial court erred when it overruled her peremptory exception of no cause of action and no right of action and her declinatory exception of lis pendens; (3) the trial court erred when it failed to find that when an adoption judgment is annulled, the case resolves itself into a custody dispute; and (4) the trial court erred in finding that her consent was dispensed with when she failed to pay child support for a period of six months after the court ruled that C.R. and M.R. interfered with her attempts to visit or communicate with her children.

In their appellee brief, Plaintiffs alleged as their assignment of error that the December 13, 2016 judgment "should be modified, revised or reversed insofar as the adoption should have also been granted for the refusal or failure of [S.R.] to visit, communicate or attempt to communicate with the children, without just case, for a period of at least six (6) months." However, we find that this issue is not properly before this court as no answer to the appeal was filed pursuant to La.Code Civ.P. art. 2133. Thus, we will not consider Plaintiffs' argument.

While on appeal, S.R. filed two motions to consolidate, a peremptory exception of res judicata, and an emergency motion to correct record. On November 15, 2017, this court denied S.R.'s expedited motion to consolidate this current intrafamily adoption proceeding with an unlodged appeal in her non-support action finding that "judicial efficiency is not served with this consolidation." After reviewing the record, and for the reasons already stated by this court in its November 15, 2017 ruling, we deny S.R.'s second motion to consolidate this appeal with her unlodged appeal involving her non-support proceeding.

S.R. argues in her exception of res judicata that once the trial court annulled the Plaintiffs' intrafamily adoption decree on grounds of ill practices on May 22, 2014, the doctrine of res judicata bars the Plaintiffs from re-litigating their intrafamily adoption case. S.R. also argues that the intrafamily adoption proceeding resolved into a custody dispute by operation of law after the trial court annulled the adoption decree because it was obtained through ill practices. In support of this argument, S.R. cites to In Re Wildeboer , 406 So.2d 687, 690 (La. App. 2 Cir. 1981) and Durr v. Blue , 454 So.2d 315 (La.App. 3 Cir. 1984), for the proposition that once the nullity of an adoption judgment is determined, the contest resolves itself into a custody dispute. As such, S.R. argues that the Lafayette Parish District Court has subject matter jurisdiction over the custody and child support issues and that the Iberia Parish District Court lacked jurisdiction over the intrafamily adoption proceeding. After reviewing the pleadings and case law discussed below, we find no merit in S.R.'s res judicata argument that this matter resolved into a custody proceeding following the judgment being annulled or that the Iberia Parish District Court lacked subject matter over this adoption hearing.

The Louisiana Supreme Court addressed the history of the Louisiana Children's Code in State in Interest of K.C.C. , 15-1429, p. 9 (La. 1/27/16), 188 So.3d 144, 149, and stated, in pertinent part:

The Children's Code was enacted in 1991 principally "to gather together all of the laws affecting the exercise of juvenile court jurisdiction" previously scattered within the Revised Statutes and the Code of Juvenile Procedure. Lucy S. McGough, The Drafting of the Children's Code, 1 Louisiana Children's Code Handbook, pp. xi, xvi (West 2016). The intention of the drafters was "a true code, an internally consistent, harmonious set of substantive principles and procedures ... for any proceeding within the juvenile court's jurisdiction." Id. at xvii-xix. A goal of the drafters was "to resolve ambiguity and to reconcile often conflicting laws ...," such as "in the differences in the standing requirements and procedure governing abandonment proceedings and termination of parental rights cases. ..." Id. at xvii-xviii; see also Comment, Involuntary Termination of Parental Rights in Louisiana: Unraveling the Statute, 58 Tul. L.Rev. 1045 (1984) (critiquing the pre-Code statutes as poorly drafted).

The Louisiana Children's Code authorizes intrafamily adoptions that involve a stepparent and spouse of the custodial parent of the child. La.Ch.Code arts. 1170 and 1243. Further, "[t]he 1991 enactment of the Children's Code, which includes fully articulated adoption procedures for ... intrafamily adoptions, recognizes the importance of well-established, timely procedures for adoption. The title of the code which governs adoption states as its purpose 'to promote the permanent placement of available children into suitable homes.' " In re Rodrigue , 95-0009, p. 4 (La.App. 1 Cir. 6/23/95), 657 So.2d 648, 650, writ denied , 95-2141 (La. 10/27/95), 662 So.2d 2 (quoting La.Ch.C. art. 1167) (footnote omitted).

The cases cited by S.R. to support her argument that the intrafamily adoption matter is now a custody case, pre-existed the enactment of the Louisiana Children's Code. Because the Louisiana Children's Code now provides the requirements and procedure for intrafamily adoptions, we find the Wildeboer and Durr cases unpersuasive in application to these proceedings. We also find no merit to the argument that res judicata bars the Plaintiffs from "re-litigating" their intrafamily adoption petition. As stated previously, the trial court specifically noted that it annulled the first judgment of adoption to cure a procedural defect and that it did not find fraud or ill practice. Accordingly, we deny S.R.'s exception of res judicata and find that the adoption proceeding was properly heard before the Iberia Parish District Court on May 17, 2016.

We also find no merit to S.R.'s emergency motion to correct the record that was filed on January 25, 2018. Although S.R. alleges in her motion that the record is missing the trial transcript from the March 19, 2014 hearing on the Petition to Annul Final Judgment, we find the record void of any request for the transcript or an appeal from the ruling on the annulment. Because S.R. is only appealing the December 13, 2016 judgment granting the intrafamily adoption, we see no need to supplement the record with the March 19, 2014 transcript that merely annulled the March 2, 2012 judgment on a procedural defect.

STANDARD OF REVIEW:

An intrafamily adoption is the adoption of a child by a stepparent or certain other relative. See La.Ch.Code. art. 1243. The manifest error standard of review applies when reviewing a trial court's decision to grant or deny a petition for adoption. In re W.E.B., 07-1395 (La.App. 3 Cir. 3/5/08), 980 So.2d 123. "Pursuant to the well-settled manifest error standard of review, '[s]ubstantial commitment and parental fitness are factual findings that are entitled to deference unless the trial court is clearly wrong.' In re Adoption of J.L.G., [ 01-269, p. 10 (La.App. 1 Cir. 2/21/01),] 808 So.2d [491,] 498." Doe v. A.B., 06-1226, p. 5 (La.App. 3 Cir. 1/31/07), 949 So.2d 602, 605.

DISCUSSION:

Before considering the merits of the case, we will first address S.R.'s argument on appeal that the trial court erred in denying her peremptory exceptions of no right of action and no cause of action. The Louisiana Supreme Court discussed these exceptions in Badeaux v. Sw. Computer Bureau, Inc. , 05-0612, pp. 6-7 (La. 3/17/06), 929 So.2d 1211, 1216-17, (citations omitted) and stated in pertinent part:

This court has recognized that one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.
The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.
In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. In reviewing a district court's ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court's decision is based only on the sufficiency of the petition. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of
action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.

In this case, Plaintiffs have a right of action in their suit as they clearly belong to the class of persons that have a legal interest under the La.Ch.Code. arts. 1243 and 1245. We further find that Plaintiffs have a cause of action as the last judgment regarding custody of the minor children was in March of 2010, when C.R. was awarded sole custody of the girls in the 15th Judicial District Court for the Parish of Lafayette. After reviewing the record, we find that C.R. and S.R. were not involved in "on-going" custody litigation during the two years prior to the Plaintiffs filing for the intrafamily adoption on January 6, 2012, that would have prevented them from filing this action in the 16th Judicial District Court for the Parish of Iberia. For these reasons, we find no error in the trial court judgment denying S.R.'s peremptory exceptions of no right of action and no cause of action.

We also find no merit to S.R.'s argument that the trial court erred in denying her declinatory exception of lis pendens. In Louisiana, lis pendens is defined by La.Code Civ.P. art. 531, and states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Again, because we find that there was no "on-going" custody litigation in the 15th Judicial District Court for the Parish of Lafayette for the two years prior to the Plaintiffs filing this intrafamily adoption case in the 16th Judicial District Court for the Parish of Iberia, and because the two suits do not involve the same parties, we find that the trial court properly denied the declinatory exception of lis pendens.

We will now address the merits of the appeal. The issue before this court is whether the trial court erred in granting the Plaintiffs' Petition for Intrafamily Adoption on December 13, 2016. "To determine whether the grant or denial of a petition for adoption is warranted, the paramount consideration is the best interest of the child." In re W.E.B. , 980 So.2d at 126-27. Additionally, "[t]his determination is assessed on the facts of each individual case, and the trial court is vested with great discretion in making such decision." Id. at 127.

Generally, under La.Ch.Code art. 1193, a parent's consent is required for an intrafamily adoption. However, under La.Ch.Code art. 1245, consent of a parent is not necessary if the petitioner proves that the parent has forfeited his right to consent. Louisiana Children's Code Article 1245 states as follows:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition.
B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

Thus, C.R. and M.R. must carry the burden of proving S.R.'s consent is not required under the law. In the petition for adoption filed in January 2012, C.R. and M.R. alleged that C.R. was awarded sole custody of the two minor children in March of 2010, and that S.R. had neither paid child support since June of 2011, nor seen her children since December 2009.

At trial, S.R. agreed with the Plaintiffs' allegations that she had not paid child support since 2011, and that she had not seen the girls since December 2009, but testified that she was unable to work because of injuries she suffered after being in an accident with an eighteen wheeler and that Plaintiffs hindered her attempts to communicate and visit with her children. Although the trial court found just cause for S.R. not visiting or communicating with her children, it found that C.R.'s refusal or failure to comply with her court ordered child support obligation was without just cause for a period of at least six months prior to the filing of the petition. In its reasons for judgment, the trial court found that S.R. failed to present any evidence that she was unable to perform any type of work. Specifically, the trial court provided the following reasons for the judgment (citations to exhibits and trial transcripts omitted):

[S.R.] provided no medical testimony of any physician that she was unable to perform any level of employment. Furthermore, during this period of time, [S.R.] failed to file for a modification or suspension of her child support obligation. The only evidence provided by [S.R.] showing her inability to work was an evaluation by Dr. Cornelius E. Gorman, II, a Certified Rehabilitation Counselor and Certified Life Care Planner. That
examination took place on January 10, 2014[,] for a forensic consultation. This evaluation failed to provide this Court with sufficient proof that [S.R.] was unable to perform any level of work. This evaluation by Dr. Cornelius E. Govman, [sic] II was conducted about two (2) years after the filing of the PETITION FOR INTRAFAMILY ADOPTION.
This Court also finds that [S.R.'s] incarceration was not just cause for her failure to pay court ordered child support. She was incarcerated from March-November 2010. She did not provide any evidence that shows her incarceration was due to a mistake or error by law enforcement. [S.R.] never made any child support payments from the date ordered by the court up to and through her incarceration. In addition, she failed to pay any of her child support obligation[s] for a seven (7) month period following her incarceration. Again, [S.R.] never sought a modification or suspension of her current child support obligation. It is clear to this Court that [S.R.] did not have any intention of paying her child support obligation. [S.R.] testified under cross examination on May 18, 2016[,] that she filed a lawsuit by herself (in forma pauperis) in Federal Court against Wal-Mart, Incorporated on January 21, 2015[.] Thus, this Court finds [S.R.] had the ability to file for a modification or suspension of her child support obligation.
This Court finds that petitioners, [C.R. and M.R.] have proven by clear and convincing evidence that [S.R.'s] refusal or failure to comply with her court ordered child support obligation was without just cause for a period of at least six (6) months prior to the filing of the PETITION FOR INTRAFAMILY ADOPTION on January 6, 2012. (Emphasis added)[.] This Court also finds that [S.R.'s] consent to this adoption is unnecessary.

After reviewing the record and exhibits, we agree with the trial court that S.R. failed to present evidence of "just cause" for her failure to pay her court ordered child support obligation. As such, we find that C.R. forfeited her right to consent to this adoption.

We now consider whether M.R.'s adoption is in the best interests of the children. Louisiana Children's Code Article 1255(C) provides that "[w]hen a court has granted custody to either the child's grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child."

In this case, the children have been living with C.R. and M.R. since C.R. obtained custody of the minor children in March 10, 2010. In its reasons for judgment, the trial court gave reasons for finding the adoption was in the best interests of the children, and stated, in pertinent part (citations to exhibits omitted):

[M.R.] is responsible for transporting the minor children to and from their respective schools. [M.R.] also plays a vital role in helping them with their homework and extracurricular school activities.
According to [A.L.R.'s] testimony, she had been emotionally and physically abused by her mother, [S.R.]. In addition, [A.L.R.] also reported that she was physically abused by [S.R's.] husband, Frank. Together both children suffer from childhood trauma and severe anxiety as a result of the treatment from [S.R.] and Frank. Their greatest fear is being required to return to the home of [S.R.]. Ms. Amiee Broussard of priority Psychiatric Services reported to this Court that it was her professional opinion that these minor children are well cared for by [C.R.] and [M.R.]. Ms. Broussard further opined that removing the minor children from their stable environment would be detrimental to these children's emotional well[-]being.
At trial in the matter, [A.L.R.] further testified that she has no relationship with her mother, [S.R.]. She last saw her mother in 2008. During the period of time while with her mother, she was physically and emotionally abused. She felt that when Frank physically abused her, [S.R.] failed to protect her. She testified that she does not want to see [S.R.]. It is her desire that she and her sister be adopted by [M.R.]. [A.L.R.] further testified that she has no love for her mother. Finally [A.L.R.] testified that her mother does not care about her.
[B.A.R.] testified that [S.R.] and her husband, Frank[,] were very abusive. As a form of punishment, she was locked in a dog room (laundry room) where the dog sleeps. [B.A.R.] felt that her mother refused to protect her from the abuses of Frank. It is also her desire
that the adoption is granted. She has no desire to talk to [S.R.]. [M.R.] takes them to school, helps them with their homework, special projects, as well as her personal needs. She is fearful of going back to [S.R.]. She nor her sister ever received any Christmas or birthday gifts from their mother. They only received two (2) letters during the time their mother was incarcerated.
This Court finds that [A.L.R.] and [B.A.R.] do not have any type of relationship with their natural mother, [S.R.]. They do not consider [S.R.] to be their mother anymore. There is no type of bond with [S.R.]. It is their strong desire to be with their father and stepmother. This Court finds that the distance in time from the point their father obtained sole custody of the children to the filing of the PETITION FOR INTRAFAMILY ADOPTION has erased any emotional attachment with their natural mother. It appears that the only things the minor children remember from their natural mother are the physical and emotional abused inflicted on them over seven (7) years ago.
[C.R.] and [M.R.] have provided the minor children with a stable home. [M.R.] has treated these girls as if she was their natural mother helping with their school work, extracurricular school activities, as well as their personal needs. She also provides for their economic needs as well as their emotional needs. This Court finds that the actions of their natural mother [S.R.] is the total opposite.
Finally, this Court finds that this Intrafamily Adoption of the minor children is in their BEST INTEREST. (Emphasis added). For this Court to find otherwise under the facts of this case would be an injustice to [A.L.R.] and [B.A.R.].

After a thorough review of the record, we find that the evidence supports the trial court's judgment that granted the adoption and found that the adoption is in the best interest of the children. Therefore, we find the trial court's judgment neither manifestly erroneous nor clearly wrong.

In conclusion, we affirm the December 14, 2016 judgment that granted C.R. and M.R.'s Petition for Intrafamily Adoption. Further, S.R.'s motions to consolidate and correct the record on appeal as well as her exception of res judicata are denied. All costs of this appeal are assessed to S.R.

MOTIONS TO CONSOLIDATE AND CORRECT RECORD ARE DENIED; EXCEPTION OF RES JUDICATA DENIED; JUDGMENT AFFIRMED.

      The initials of the parties will be used to protect and maintain the privacy of the minor children involved in this proceeding. See Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2.


author: Judge Edwin A. Lombard

text:
    STATE of Louisiana v. Cecilio A. ROMERO
    NO. 2017-KA-0806
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 14, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Scott G. Vincent, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    Colin Reingold, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods )
   Judge Edwin A. Lombard

The defendant, Cecilio Romero, appeals his sentence imposed by the trial court on November 18, 2016. After review of the record in light of the applicable law and arguments of the parties, the defendant's sentence is vacated and remanded for resentencing in accordance with La. Code Crim. Proc. art. 835.

Relevant Facts and Procedural History

On July 27, 2006, the State filed a bill of information charging the defendant with attempted armed robbery in violation of La. Rev. Stat.14:(27)64. The defendant entered a conditional guilty plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on May 14, 2007. According to the docket master entry of that date, the trial court sentenced the defendant to ten years at hard labor, "suspended if and when deportation is effectuated." The entry further states that if the defendant returned to the United States, he would be required to surrender to Criminal District Court and serve the ten-year sentence.

On June 11, 2007, for reasons unclear from the record, the defendant appeared before the court for resentencing. At that hearing, the trial court stated "we're here to clear up the sentence of Mr. Romero" and that it had always been the court's intention that the defendant serve a ten year sentence. The trial court went on to say: "However, that sentence was going to be suspended based upon Mr. Romero being deported to his home country of Honduras." The trial court then imposed the following sentence:

...eleven months, credit for time served. However, defendant is to be turned over to Immigration for full deportation hearings to commence for deportation to his home country of Honduras. If the Court finds that the defendant was not deported, defendant to serve nine years. If the defendant returns to United States after being deported, defendant to serve nine years.

The defendant was deported to Honduras in 2008. In 2015, upon discovery that the defendant had returned to the United States, the State filed a motion to make the sentence executory.

On June 30, 2015, the defendant appeared in court in response to the State's motion. The State's motion was granted and, making the 2007 sentence executory, the trial court sentenced the defendant to nine years at hard labor in the Department of Corrections, specifying that the sentence was to run concurrently with any other sentence the defendant was serving, including federal time. The defendant objected and, on May 13, 2016, filed a motion to challenge the correctness of the sentence imposed on him in 2015 making the 2007 sentence executory. The trial court denied his motion.

Pursuant to the defendant's application for supervisory review, this court found the docket master and minute entries of June 11, 2007, silent as to any suspension of the defendant's sentence. The hearing transcript indicated, however, that the trial court suspended nine years of the defendant's ten-year sentence imposed on May 14, 2007, but stated that if the defendant were not deported or returned to the United States after deportation, he would have to serve the nine-year portion of his sentence. This was error. See La. Code Crim. Proc. art. 893(A) (prohibiting suspension of a sentence "for a conviction for a crime of violence as defined in R.S. 14:2(B)" ); La. Rev. Stat. 14:64 & La. Rev. Stat. 14:27 (sentence for attempted armed robbery is to be served without benefit of parole, probation or suspension of sentence . Therefore, because the suspended sentence imposed in 2007 was invalid, it could not be made executory. Accordingly, the trial court judgment denying the defendant's motion to correct an illegal sentence was reversed, the sentence imposed on June 30, 2015, was vacated, and the matter was remanded for resentencing.

At the resentencing hearing on November 18, 2016, the defendant was not present and his presence was not waived by counsel. Nonetheless, the trial court sentenced the defendant to ten-year term of imprisonment at hard labor. This timely appeal follows.

Discussion

On appeal, the defendant argues that the district court erred in resentencing him to ten years at hard labor. This is correct because the defendant was not present at sentencing.

La. Code Crim. Proc. art. 835 clearly states: "In felony cases the defendant shall always be present when sentence is pro nounced .... If a sentence is improperly pronounced in the defendant's absence, he shall be resentenced when his presence is secured. " (emphasis added) Thus, it was clear error for the trial court to impose a sentence in a felony case when the defendant was not present for sentencing. State v. Heim, 03-0957, p. 3 (La. App. 4 Cir. 3/10/04), 870 So.2d 335, 337.

Conclusion

The defendant's sentence is vacated and the matter is remanded to the district court for resentencing when the defendant's presence is secured.

SENTENCE VACATED; REMANDED.

LOBRANO, J., CONCURS IN THE RESULT

      The offense to which defendant pleaded guilty, attempted armed robbery, is an enumerated crime of violence pursuant to La. Rev.Stat. 14:2(B), subsection (21).

      According to a hand-written note on the defendant's notice of intent to seek supervisory writ, defense counsel informed the court that the defendant was in federal custody at the time of the sentencing hearing.

      The defendant's initial writ application was dismissed by this court with an order directing the defendant to "seek relief by appeal."


author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. Jimmy BROWN
    NO. 2017-KA-0822
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    Leon Cannizzaro, District Attorney, Kyle Daly, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
    Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL FOR APPELLEE/DEFENDANT
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Pro Tempore)
   Judge Joy Cossich Lobrano

Appellant, the State of Louisiana ("State"), appeals the district court's April 4, 2017 judgment granting defendant, Jimmy Brown's ("Defendant") motion to quash the bill of information filed against him. For the reasons that follow, we reverse the district court's judgment and remand this matter for further proceedings.

Defendant was arrested and released on a $5,000 recognizance bond on April 20, 2012. The minute entry notes that, as to Defendant, a motion to determine counsel hearing was set for May 1, 2012 and a rule to show cause was scheduled for June 16, 2012. On June 15, 2012, however, the State filed a bill of information charging Defendant with possession of cocaine, a felony violation of La. R.S. 40:967(C)(2) (count 3) and possession of marijuana, a misdemeanor violation of La. R.S. 40:966(E)(1) (count 4). These incidents allegedly occurred on April 16, 2012.

Arraignment was set for July 16, 2012; however, Defendant failed to appear as he was not served. The matter was continued on defense motion to July 30, 2012. The district court ordered that Defendant be notified at the address Defendant had provided at the time he was released on bond. On July 30, 2012, Defendant again failed to appear for arraignment, prompting the State to introduce copies of Defendant's bond and the subpoena returns marked "Subject Moved" as exhibits to its motion for bond forfeiture. The district court granted the bond forfeiture motion and issued an alias capias for Defendant's arrest.

Four and a half years after he was charged via bill of information, Defendant was arrested on January 30, 2017, and subsequently arraigned on February 3, 2017. On March 8, 2017, Defendant filed a motion to quash the bill of information on the basis of prescription pursuant to La. C.Cr. P. art. 578(A)(2). Defendant argued that the sheriff had unsuccessfully attempted to serve him on two occasions-July 6, 2012 and July 18, 2012, and that each time, the sheriff checked off "Subject Moved" without any further comments. Defendant asserted that the subpoena returns were insufficient under La. C.Cr. P. art. 736, and thus, the State failed to establish an interruption of prescription.

The State filed an opposition on March 17, 2017, arguing that Defendant's failure to update his address made it impossible to serve him, and therefore the limitations period was interrupted pursuant to La. C.Cr. P. art. 579 (A)(2). Neither the State nor the Defendant put on testimony or other evidence (with the exception of the subpoena returns and bond) to show whether Defendant, in fact, continued to reside at the address Defendant placed on his bond.

After hearings held on March 17, 2017, March 28, 2017 and March 31, 2017, the district court granted the Defendant's motion to quash on April 4, 2017. In a per curiam, the district court made no factual finding regarding whether Defendant had moved from the address he provided on his bond. Instead, the district court found that the subpoena returns were insufficient to establish an interruption of prescription as a "matter of law." The district court found that "the checking off of a box 'subject moved' is [ ] non-compliant with the clear provision in La. C.Cr.P. art. 736 as no additional facts were set forth explaining any particulars to support the checking of the box 'subject has moved.' "

This appeal timely follows.

In its sole assignment of error, the State argues that the district court erred by granting Defendant's motion to quash. A reviewing court will generally not disturb a district court's ruling on a motion to quash on the ground that the time limitation for commencement of trial had expired in the absence of an abuse of discretion. See State v. Sorden, 2009-1416, p. 3 (La. 4 Cir. 8/4/10), 45 So.3d 181, 183 ; State v. Batiste, 2005-1571, p. 9 (La. 10/17/06), 939 So.2d 1245, 1251. When the issue presented in a motion to quash is exclusively a question of law, however, we review the ruling de novo. See State v. Hamdan , 2012-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816. In the case sub judice , the relevant question is a question of law-whether the subpoena returns were filled out in compliance with La. C.Cr.P. art. 736. Accordingly, we review this matter de novo.

The analysis of whether the applicable periods of limitations for trial have passed begins at La. C.Cr.P. art. 578.

Article 578 enforces a defendant's right to a speedy trial and prevents oppression arising from the indefinite threat of criminal prosecution. See State v. Ramirez , 2007-0652, p. 4 (La. App. 4 Cir. 1/9/08), 976 So.2d 204, 207. It provides:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
B. The offense charged shall determine the applicable limitation.

La.C.Cr.P. art. 578.

Prosecution was instituted in this case via bill of information. See Sorden , 2009-1416 at p. 4, 45 So.3d at 184 ("One method of instituting prosecution of a felony not punishable by death or life imprisonment is by the filing of a bill of information."); see also La. C.Cr.P. art. 382 (A). Possession of cocaine is a non-capital felony; thus, as a general rule, trial on that count should have commenced within two years of the filing of the June 15, 2012 bill of information. Possession of marijuana is a misdemeanor; thus, trial should have commenced on that count within one year of the filing of the June 15th, 2012 bill of information. Passage of the applicable period of limitation mandates dismissal "unless the state carries its burden of showing valid grounds to support an interruption or sufficient suspension of these time periods." State v. Rome , 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286 ; State v. Stewart , 2015-0135, p. 6 (La. App. 4 Cir. 9/9/15), 176 So.3d 465, 469.

The next step in the analysis is to determine whether the applicable period of limitation has been interrupted. The period of limitation may be interrupted for one of the reasons set forth in La. C.Cr.P. art. 579, which provides, in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
1. The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
2. The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
3. The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

The State argues that the prescriptive period was interrupted because Defendant's presence could not be obtained by legal process. See La. C.Cr. P. art. 579 (A). The State's attempts to serve Defendant at the address which he provided on his bond were futile, the State argues, because Defendant had moved from that address. The requirements a subpoena return must meet to prove that presence cannot be procured by legal process are established by La. C.Cr.P. art. 736, which provides:

A. The sheriff shall endorse on a copy of the subpoena the date, place, type of service, and sufficient other data to show service in compliance with law. When the witness cannot be found, the sheriff must set out in his return every fact that in his opinion justifies the return. He shall sign and return the copy promptly after the service to the court that issued the subpoena. The return, when received by the clerk, shall form part of the record and shall be considered prima facie correct.
B. The criminal sheriff for the Parish of Orleans when serving subpoenas under the provisions of Paragraph A of Article 735 of the Louisiana Code of Criminal Procedure shall endorse on a copy of the subpoena the date and time of mailing, and shall attach the return receipt of delivery from the United States Post Office showing the disposition of the envelope bearing the subpoena. He shall return the copy and the attached receipt to the court that issued the subpoena. The return, when received by the clerk, shall form part of the record and shall be considered prima facie correct and shall constitute sufficient basis for an action to cite persons for contempt for failure to appear in response thereto.

(emphasis added).

In its per curiam, the district court stated:

This Court rules that as a matter of law, there was non-compliance with the mandate of C.Cr.P. Art. 736 and further finds that the checking off of a box "subject has moved" is likewise non-compliant with the clear provision in La. C. Cr. P. Art. 736 as no facts were set forth explaining any particulars to support the checking off the box "subject has moved". Further, since there was insufficient service return, the bond likely should not have been forfeited by the undersigned. (However, there was no objection to the bond forfeiture ruling.)

We find that the district court erred as a matter of law in ruling that the sheriff's statement that the "Subject Moved" fails to comply with La. C.Cr.P. art. 736's "every fact" requirement. Upholding the district court's judgment would require this Court to compel the sheriff serving the subpoena to provide an arbitrary level of detail before the subpoena return "shall be considered prima facie correct." This is clearly contrary to the Legislative intent expressed in the clause "that in his opinion justifies the return." Upholding the district court's interpretation is beyond our judicial authority. See State v. Bedford, 2001-2298, p. 3 (La. 1/28/03), 838 So.2d 758, 760 (stating, "[w]hen the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the Legislature."); see also La. C.C. art. 2 ("Legislation is a solemn expression of legislative will).

Moreover, interpreting the "every fact" requirement to require something beyond "every fact that in his opinion justifies the return"-which could, by the clause's very nature, be but one fact-creates a quintessential "slippery slope" conundrum. Every subpoena return, which the Legislature intended "shall be considered prima facie correct," would then have to be litigated against this new judicially created test to determine its correctness. One can easily imagine the absurdity that would result-cases where a defendant with ten neighbors argues that a subpoena return indicating that an officer spoke with nine neighbors is insufficient, cases where a defendant with nine neighbors argues that a subpoena return indicating that an officer spoke with eight neighbors, etc.-all of which would require judicial resolution despite the fact that the Legislature has already created a clearly applicable rule. Such an interpretation is contrary to the purpose of the Code of Criminal Procedure. La. C.Cr.P. art. 2 (stating, "[t]he provisions of this Code...shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.").

Even more damaging to process, the district court's suggested interpretation will encourage defendants to evade service and wager that the State will not be able to meet the ever-shifting burden that such a rule would create through the multitude of cases that would arise under it. The articles of the Code of Criminal Procedure should be construed to guide proceedings to justice, not to promote gamesmanship. See La. C.Cr.P. art. 2 (stating "[t]he provisions of this Code are intended to provide for the just determination of criminal proceedings...."). If Defendant has continued to live in the address he provided and not failed to update his address, it is he who has access to the best evidence to prove that fact. Regardless of the circumstances of any particular case, one can be certain that the only person with actual knowledge of where a defendant is located will always be that defendant. Accordingly, any worry about the level of factual detail present on a proper service return is best assuaged by shifting the burden to the defendant to show that he was in fact present at the proper address, rather than creating additional hurdles for law enforcement outside of the boundaries of La. C.Cr.P. art. 579. See State v. Lawson, 2013-0812, p. 7 (La. App. 4 Cir. 11/20/13), 129 So.3d 792, 797 (stating that a sheriff's return is "considered prima facie correct...[b]ut the presumption is rebuttable if the trier of fact is persuaded by a preponderance of the evidence that the return is incorrect."). Compare State v. Pierre, 2015-0293, p. 14 (La. App. 4 Cir. 3/23/16), 192 So.3d 140, 149 (rejecting a defendant's argument that the State had an affirmative duty to search for her, and placing the burden on the defendant to provide the court with an updated address).

For these reasons, the district court's judgment quashing the bill of information is reversed. The case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOVE, J., DISSENTS AND ASSIGNS REASONS

LOVE, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent from the majority in that I disagree with its application of de novo review as well as its interpretation of La. C.Cr.P. art. 736. In that the motion to quash in this case presents questions of fact and law, I find the appropriate standard of review is an abuse of discretion standard. State v. Lawson , 2013-0812, p. 6 (La. App. 4 Cir. 11/20/13), 129 So.3d 792, 796. The issue in this case is whether the service return was valid in accordance with La. C.Cr.P. art 736. Here, the trial court's finding was based upon the contents of the return as no other evidence was offered at the hearing. The trial court determined that as a matter of law, the mere checking of a box "Subject Moved" does not comply with La. C.Cr.P. art. 736. On appellate review, the majority holds that nothing else is required under the statute. It concludes that to require anything more holds the sheriff serving the subpoena to "an arbitrary level of detail" that is contrary to the legislative intent behind Article 736. I disagree.

As a matter of general statutory interpretation, a statute cannot be interpreted so broadly that it defeats the purpose for which it was enacted or lead to absurd consequences. Further, provisions within a statute are to be read in conjunction and interpreted as to give meaning to each other. The State argued at the hearing on the motion to quash that once the service return is placed in the record it is presumed to be correct. However, the State also acknowledged that the presumption created by subsection (B) of article 736 is a rebuttable presumption. That is, the party attacking the validity of the service return is allowed to present evidence to controvert the State's assertion. Mr. Brown points to the return itself as evidence to argue that the return is not valid on its face. Review of the return shows that: (1) the "Served Date" is blank; thus, it fails to indicate the date service was allegedly attempted; (2) the sheriff allegedly responsible for serving Mr. Brown failed to sign the return; and (3) the comments section of the return has been left blank. The only demarcation appearing anywhere on the return is an "X" next to "Subject Moved."

The presumption of validity created by subsection (B) is in place to eliminate the need for the sheriff to present evidence concerning the validity of the return. See Hall v. Folger Coffee Co. , 03-1734, p. 12 (La. 4/14/04), 874 So.2d 90, 99 n. 22 (considering La. C.C.P. art. 1292, a provision comparable to La. C.Cr.P. art. 736 ). Nevertheless, I find the statute should not be interpreted, as the majority's holding suggests, that so long as the return is received by the clerk and made a part of the record, failure to comply with all of subsection (A)'s requirements is irrelevant. As the trial court pointed out, such an interpretation begs the question why the legislature enacted subsection (A) in the first place. This Court should not construe La. C.Cr.P. art. 736 in a way that leads to such an absurd result and which is contrary to longstanding jurisprudence.

Notwithstanding the fact that the service return fails to provide articulable facts to justify the return, the failure to indicate the date service was allegedly attempted and the failure of the sheriff to sign the return is sufficient evidence upon which the trial court could conclude that the return is invalid. In this case, the State presents no other evidence but the return. In that the return fails to even include the sheriff's signature and the date of the alleged attempted service, a question is raised as to whether service was actually made. The State ultimately bears the burden of establishing an interruption in the time limitations. Thus, where Mr. Brown establishes that the return fails to comply on its face, the State could have presented testimony or an affidavit from the sheriff serving the subpoena, and the State did not.

Additionally, I disagree with the majority's finding that an "X" next to "Subject Moved," in itself, is sufficient as to comply with subsection (A). The Comments of La. C.Cr.P. art. 736 state, "[t]his article should be construed in conformity with the jurisprudential rule that the sheriff or his deputy must exercise reasonable diligence in searching for the person designated in the subpoena. See La. C.Cr.P. art. 736 -Official Revision Comments (C)(1966).

In State v. Mizell , 341 So.2d 385 (La. 1976), the Louisiana Supreme Court examined Article 736 and governing jurisprudential law. The Mizell court held:

A return on a subpoena must show what steps have been taken to find [the accused], what inquiries have been made, from whom, and where those inquiries were made. It is not enough that an officer assert that [the accused] cannot be found ; he must state every fact which justifies this conclusion on his part. This done, the essential question is whether there has been on the part of the officer that diligent search without which the accused might be deprived of the right of compulsory process.

Id. , 341 So.2d at 388.

In State v. Mills , the Louisiana Supreme Court reiterated its finding in Mizell and concluded that while "the article is specifically addressed to the subpoenaing witnesses, the same diligence must be exerted to serve a defendant with notice of his trial." Id. , 390 So.2d 874, 877 (La. 1980). The State asks this Court to presume that in fact Mr. Brown had moved because the service return contains an "X" next to the words "Subject Moved." Under the circumstances presented, the alleged assertion that the "Subject Moved" is the same as an officer asserting that the accused cannot be found. The service return, for that reason, is no different than what the Supreme Court in Mizell and Mills expressly rejected. Therefore, where the return fails to include any articulable fact(s) demonstrating that there has been a diligent search on the part of the officer, I find the requirements of subsection (A) have not been met in this regard either.

Given this Court is to construe Article 736 in conformity with Louisiana's longstanding jurisprudence, requiring the sheriff to exercise reasonable diligence in search of the person designated in the subpoena, I find the return, on its face, woefully lacking and fails to comply with Article 736. For these reasons, I dissent.

      A recognizance bond is bail without a surety. See La. C.Cr.P. art. 325. Such bonds generally feature an unsecured financial obligation on the part of the released party in the event of a default. See La. C.Cr.P. art. 321 (A)(4).

      When the bill of information was filed, La. R.S. 40:966(E)(1) referenced possession of marijuana, first offense. At the time of this opinion, possession of marijuana, first offense, is prohibited by La. R.S. 40:966(C)(2).

      Defendant was charged, along with defendant Donald Harms, in count 3 and charged alone in count 4 of a four-count bill of information. Another co-defendant, Donovan Rayfield, was charged with two counts of distribution of cocaine (counts one and two) in the same bill of information.

      A subpoena return dated "7/6/12" shows attempted service at the address on Defendant's bond and was marked by the server as "Subject Moved." A second subpoena return dated 7/18/12 to the same address is also marked as "Subject Moved." The record does not contain a copy of Defendant's release-on-recognizance bond, but it is uncontested in either party's brief that the attempts at service went to the address placed on the bond.

      La. C.Cr. P. art. 578(A)(2) provides that trial must commence in felony cases within two years from the date of institution of the prosecution.

      As discussed supra, Defendant was charged with possession of cocaine, a felony violation of La. R.S. 40:967(C)(2) and possession of marijuana, a misdemeanor violation of La. R.S. 40:966(D)(1) (at the time of this opinion, La. R.S. 40:966(C)(2) ).


author: AMY, Judge.

text:
    Hannah LEBLANC v. Cody WELCH
    17-908
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 2018
    K. Ray Rush, Post Office Box 704, Oakdale, LA 71463, (318) 335-2759, COUNSEL FOR DEFENDANT/APPELLEE: Cody Welch
    Meredith Abrusley Guillory, Post Office Drawer 1114, Oakdale, LA 71463, (318) 335-9771, COUNSEL FOR PLAINTIFF/APPELLANT: Hannah LeBlanc
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   AMY, Judge.

This case is a custody dispute concerning the parties' minor child. The trial court awarded joint custody with a shared physical custody arrangement. The mother now appeals. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

Hannah LeBlanc and Cody Welch were married in Allen Parish. Together they are the mother and father, respectively, of one minor child, who was born on October 5, 2011. On March 14, 2017, Ms. LeBlanc filed a Petition for 102 Divorce and Determination of Incidental Matters. In the petition, Ms. LeBlanc alleged that it is in the best interest of the child for the parties to be awarded joint custody, with Ms. LeBlanc being designated as the domiciliary parent and Mr. Welch having set visitation privileges. In his answer, Mr. Welch asserted a reconventional demand in which he alleged that there should be shared physical custody of the child and that the parties should be granted possession of the child for alternating three-day periods.

At a hearing, various members of the child's family testified about the child's history and the parents' schedules relating to the child. The mother testified that she takes the child to school at about 7:15 a.m. on her way to work. She explained that after school, the child rides the school bus to the maternal grandmother's home until the mother returns from work at about 5:30-6:00 p.m. The maternal grandmother testified that on Wednesday afternoons, she takes the child to dance lessons, while the mother takes the child to church activities on Wednesday evenings. The mother explained that she takes the child to church services on Sunday.

The mother also explained that she has another child from a previous relationship. The record indicates that the child and the maternal half-sibling have lived together since the child's birth with the exception that the half-sibling has visitation with her biological father every other weekend. The mother explained that the child and the half-sibling are "[v]ery" close to each other.

The father testified that he typically leaves for work at 5:00 a.m. and does not return until about 6:00 p.m. He explained that the child's paternal grandmother, grandfather, and great-grandmother will assist him in caring for the child when he is at work. The paternal grandmother testified that, if the father receives custody during the school week, she is willing and able to come to the father's home at 5:00 a.m. so that the child will not have to be awakened when the father leaves for work. Additionally, the paternal grandmother and the paternal aunt stated that they are willing and able to watch the child after school, as well as to assist the father generally.

Following the hearing, the trial court issued a "Judgment on Rule for Custody and Determination of Incidental Matters." In the judgment, the trial court awarded joint custody of the child with shared physical visitation according to the following custody/visitation schedule:

1. Standard Visitation:
During the school year: Father shall have the child every other Wednesday after school until Saturday morning at 10:00 a.m.; Mother shall have the child every other Saturday morning at 10:00 a.m. until Thursday morning when she drops the child off at school; Father shall have the child every other Thursday after school until Monday morning when he returns her to school; and Mother shall have the child every other Monday after school until Wednesday morning when she drops the child off at school.
2. Summer Visitation:
During the summer months of June and July, the parties shall maintain the standard visitation rotation unless they agree to change possession of the child to alternating weeks from Tuesday to Tuesday.

Additionally, the trial court ordered that the parties alternate holidays according to the court's holiday visitation schedule. The trial court neither designated a domiciliary parent in the judgment nor allocated legal authority and responsibility for the child in a joint custody implementation order.

On appeal, Ms. LeBlanc asserts the following assignments of error:

1. The trial court disregarded the feasibility of the shared physical custody arrangement in contravention of La. R.S. 9:335(A)(2)(b).
2. The trial court committed manifest error and abused its discretion by awarding shared physical custody without considering the factors enunciated in La. C.C. art. 134. Specifically:
a. the spiritual guidance of the child,
b. permanence of a family unit by separating [the] minor child with her sibling,
c. the history of the child,
d. willingness and ability of each party to facilitate and encourage a close and continuing relationship with the other parry [sic], and
e. the responsibility for the care and rearing of the child previously exercised by each party.
3. The trial court committed an error of law by failing to designate a domiciliary parent, allocate legal authority, or give good reason for failing to do so in accordance with La. R.S. 9:335(B).

Discussion

Physical Custody

In her first two assignments of error, the mother asserts that the trial court erred in awarding shared physical custody of the child because the custody arrangement is neither feasible nor in the best interest of the child. We begin by noting that in child custody matters, the trial court's determinations are entitled to great weight and will not be disturbed on review absent a clear showing of abuse of discretion. C.M.J. v. L.M.C. , 14-1119 (La. 10/15/14), 156 So.3d 16. When joint custody is decreed, La. R.S. 9:335(A) (emphasis added) provides, in pertinent part:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child , physical custody of the children should be shared equally.

In its consideration of La. R.S. 9:335(A), the fifth circuit has reiterated that "[o]nly if it can be shown that a fifty-fifty shared physical custody arrangement is feasible and in the best interest of the child can such an order be implemented." Theriot v. Theriot , 15-311, p. 8 (La.App. 5 Cir. 10/14/15), 177 So.3d 759, 763.

We begin by addressing the feasibility of the shared custody arrangement. The mother expresses concern that the father's work schedule will prevent him from being able to accommodate the child's educational, spiritual, and extracurricular needs. In particular, she alleges that the child will have to wake up early on school days when the father leaves for work at 5:00 a.m. and will have to be taken to a family member's house before she is transported again to school. The mother further alleges that the father will not be available to take the child to church activities and dance classes on Wednesday afternoons because he usually does not return home from work until 6:00 p.m.

As mentioned above, the trial court heard testimony about both parents' respective work schedules as they relate to the child. In his testimony, the father confirmed that he leaves for work at 5:00 a.m. and does not return home until 6:00 p.m. However, the child's paternal grandmother and paternal aunt testified that they are prepared to assist the father in taking care of the child when he is at work. For example, both stated that they are available to assist with the child after school. The paternal grandmother also proposed her willingness to go to the father's house in the morning to watch the child and get the child ready for school so that the child does not have to wake up at 5:00 a.m.

Similarly, the child's maternal grandmother testified that she assists the mother in caring for the child. The maternal grandmother explained that she watches the child after school and during the summer while the child's mother is working. Additionally, the maternal grandmother testified that she takes the child to dance class on Wednesday afternoons, while the child's mother stated that she takes the child to church activities on Wednesday evenings.

In oral reasons for ruling, the trial court indicated that the feasibility of custody for both the mother and the father will depend on the assistance of the child's extended family. For instance, the trial court stated: "[L]uckily each of the parents has good support staff from their parents in order to help with the custody of the child .... The court will grant shared custody[.]" Additionally, in directly addressing the child's grandmothers, the trial court stated: "Both parents have to work .... I want to thank you on behalf of the child for giving the child a good place to rest until the parents are able there to get home to take care of" the child. The trial court further indicated consideration for the feasibility of the shared custody arrangement in terms of the child's spiritual and extracurricular activities when stating:

[W]ith respect to the parents, if you find that this shared custody arrangement is not in the best interest of your child, then please adjust it according to the needs of your child. I know Mr. Welch, you have the child on Wednesday from when the child gets out of school until Saturday at 10:00. If you see this isn't working out for your child because of dance and because of the child going to church on Wednesday nights then please give a little bit in modifying the schedule[.]

Considering the foregoing, the record indicates that the trial court did regard the feasibility of the shared physical custody arrangement in accordance with La. R.S. 9:335(A)(2)(b). We find no clear showing of abuse of the trial court's discretion in the determination that a shared custody arrangement is feasible in light of the assistance of the child's extended family.

Because "joint custody does not mean a fifty-fifty sharing of time on the strength of feasibility alone," we next address the mother's argument that the trial court abused its discretion by awarding shared physical custody without considering the best interest of the child and certain factors enunciated in La.Civ.Code art. 134. Shaw v. Shaw , 30,613, p. 6 (La.App. 2 Cir. 6/24/98), 714 So.2d 906, 910, writs denied , 98-2414, 982426 (La. 11/20/98), 729 So.2d 556, 558. In oral reasons for ruling, the trial court stated:

The court will find that it's in the best interest of the child and the court has considered all of the particular factors in deciding this, the court will grant joint custody of the child to the parties. The court will grant shared custody ... of the child to the parents."

In particular, the mother asserts that the trial court did not consider the spiritual guidance of the child; the permanence of a family unit by separating the child and the child's half-sibling; the history of the child; the willingness and ability of each party to facilitate and encourage a close and continuing relationship with the other party; and the responsibility for the care and rearing of the child previously exercised by each party.

Regarding the best interest of the child, La.Civ.Code 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.

In Galland v. Galland , 14-343 (La.App. 3 Cir. 11/26/14), 152 So.3d 1090, writ denied , 15-0319 (La. 4/17/15), 168 So.3d 404, a panel of this court explained that the trial court is neither required to make a mechanical evaluation of the above factors nor bound to give more weight to one factor versus another. Instead, the relative weight given to each factor is left to the discretion of the trial court. Id. As mentioned above, the trial court's determinations in child custody matters are entitled to great weight and will not be disturbed absent a clear showing of abuse of discretion because, as explained by this court, "[t]he trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses[.]" Hawthorne v. Hawthorne , 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied , 96-1650 (La. 10/25/96), 681 So.2d 365. With this standard in mind, we turn to the facts of the case.

Regarding the spiritual guidance of the child, the mother explains that she takes the child to church functions on Wednesday evenings and attends church services with the child on Sunday. She alleges that the father does not consistently attend church services with the child, "except for designated programs." In his testimony, the father stated that on the weekends that he has had the child during the separation period, he has taken the child to church services "[m]aybe a few times .... I'm not positive." The record indicates that the trial court did take this into account. In oral reasons for ruling, the trial court advised the parents: "If you see this isn't working out for your child ... then please give a little bit in modifying the schedule[.]" The trial court specifically mentioned the child's Wednesday evening church activity as an example of how the parents might need to adjust the schedule a bit to accommodate the child's needs. Thus, we find that the trial court considered the child's spiritual guidance when shaping the custody arrangement.

Next, regarding the "permanence, as a family unit" factor, the mother asserts that the trial court failed to consider the family unit that has been created between the child and the child's half-sibling. In another case involving half-siblings, a panel of this court explained that "[w]hile it is true that generally, it is preferable to keep siblings together, ... it is not required if the trial court determines that separating them would be in the best interests of the particular children." Mills v. Hardy , 02-1062, p. 12 (La.App. 3 Cir. 3/26/03), 842 So.2d 443, 452. See also Daugherty v. Cromwell , 501 So.2d 955 (La.App. 2 Cir. 1987) (affirming a custody arrangement in which the minor child would be separated from a half-sibling for nine months of the year). Here, while the trial court heard testimony about the child and the child's half-sibling being "[v]ery" close, the trial court also heard testimony that the child "loves her daddy and she wants to be with her daddy and she's all the time saying ... where's daddy ... and then when he's there she's just happy. She loves him." Based on the foregoing, we find no abuse of discretion by the trial court in finding that the best interest of the child lies in awarding shared physical custody, thus separating the child from the half-sibling for part of the week.

The mother next argues that the trial court failed to consider the home, school, and community history of the child. As the record indicates that the child's school and community will not change under the shared physical custody arrangement, the mother's argument instead focuses on the child's daily schedule. The mother described the child's schedule in the following manner: the mother takes the child to school in the morning on her way to work; the child rides the school bus to the maternal grandmother's house in the afternoon; and the mother returns from work between 5:45 and 6:00 p.m., at which time she takes the child to dance lessons or church functions. She asserts that the shared physical custody arrangement will disrupt the child's life and sense of stability. As discussed above, the trial court heard testimony from the child's paternal grandmother and paternal aunt about their willingness and ability to maintain a similar schedule for the child while the father is working. We find no abuse of discretion in the trial court's determination that the shared physical custody arrangement is in the best interest of the child given the child's history.

The mother also argues that the trial court failed to consider that the father is unable to encourage a close and continuing relationship between the child and the mother. She alleges that the father has prohibited her from communicating with the child during his custodial periods and that he refused to return the child on one occasion. However, in his testimony, the father indicated that he has also had trouble communicating with the child when the child is with the mother. Regarding whether he refused to return the child to the mother, the father responded, "Not that I refused, definitely not." He testified that he "want[s] [the mother] to have her kid just as much as me." Moreover, in oral reasons for ruling, the trial court specifically cautioned the parents against the child having an "internal struggle knowing that mom doesn't like dad or dad doesn't like mom." To this end, the trial court told the parents:

[S]ir, I hope you don't have any ill will toward the mother by virtue of my decision and ma'am I hope you don't harbor any [ill] will against the father because of my decision. In fact what you owe each other because you chose to have a child together but most importantly what you owe your child is to lay down arms and lay down any aggravations or any resentment that you may harbor against each other and try to be civil towards one another.
....
[P]lease don't say anything disparaging about the other parent in front of the child. If you do nothing else for your child find something good to say about the other parent[.]

Accordingly, we find that the trial court did consider each parents' willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other party as called for by La.Civ.Code art. 134.

Last, the mother argues that the trial court failed to consider the responsibility for the care and rearing of the child previously exercised by each party. The mother asserts that she has always been primarily responsible for the care and rearing of the child and that the trial court has placed great responsibility on the paternal grandparents for the father's custodial periods. However, the testimony indicated that the mother and father shared responsibility in caring for the child prior to their separation. Additionally, while the mother asserts that the custody arrangement places great responsibility on the paternal grandparents for the father's custodial periods, the trial court determined that both the maternal and paternal grandparents will have to assist in the child's care due to the parents' work schedules. As discussed above, the trial court addressed the child's grandmothers and stated: "Both parents have to work .... I want to thank you on behalf of the child for giving the child a good place to rest until the parents are able there to get home to take care of" the child. Moreover, the child's maternal and paternal grandmothers testified that they assisted in watching the child even before the parents separated. Thus, we find no abuse of discretion in the trial court's award of shared physical custody in light of what the record indicates about the responsibility for the care and rearing of the child previously exercised by each party.

Based on the foregoing, we find that the trial court did not abuse its discretion by concluding that shared physical custody is feasible and in the best interest of the child. Accordingly, we affirm the trial court's decision to award shared physical custody.

Domiciliary Parent

As noted previously, however, the trial court did not designate a domiciliary parent or allocate legal authority and responsibility in a joint custody implementation order. In her Petition for 102 Divorce and Determination of Incidental Matters, the mother asked that she be named the domiciliary parent. Before this court, she argues that the trial court committed an error of law by failing to designate a domiciliary parent, allocate legal authority, or give good reason for failing to do so in accordance with La. R.S. 9:335(B). The mother argues that, because this is a legal error and the record is otherwise complete, this court should conduct a de novo review of the record and ultimately name her as the domiciliary parent. In response, the father agrees that the record indicates that the trial court neither designated a domiciliary parent nor issued an implementation order allocating the legal authority and responsibility of the parents. However, he points out that in oral reasons for ruling, the trial court identified the parties as "co-parents," such that the issue should be remanded based on Hodges v. Hodges , 15-0585 (La. 11/23/15), 181 So.3d 700.

Once the decision to award joint custody to the parents has been reached, La. R.S. 9:335 governs a court's determination of the details of the custody arrangement. See Hodges , 181 So.3d 700. In pertinent part, La. R.S. 9:335 provides:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

In interpreting La. R.S. 9:335, the supreme court has explained:

Although La. R.S. 9:335(B)(1) provides that "[i]n a decree of joint custody the court shall designate a domiciliary parent," the legislature provided two exceptions to this mandate-that is, (1) "when there is an implementation order to the contrary" or (2) "for other good cause shown." (Emphasis added.) In other words, while La. R.S. 9:335(B)(1) provides a preference for the designation of "a domiciliary parent," a court could choose not to designate a domiciliary parent at all and, instead, to allocate authority by means of an implementation order . See Evans [v. Lungrin] , 97-0541 at 11 [ (La. 2/6/98) ], 708 So.2d [731] at 737. Indeed, according to La. R.S. 9:335(A)(1), (2)(a), and (3), when joint custody is decreed and in the absence of "good cause shown," a joint custody implementation order "shall allocate the time periods during which each parent shall have physical custody of the child" and "shall allocate the legal au thority and responsibility of the parents." (Emphasis added.)

Hodges , 181 So.3d at 708-09 (internal footnotes omitted).

The record indicates that the trial court did not address the issue of "good cause shown," in addition to the fact that the trial court neither designated a domiciliary parent nor allocated legal authority and responsibility in a joint custody implementation order. See La. R.S. 9:335. See also Hodges , 181 So.3d 700. In Hodges , after concluding that the trial court erred by designating both parents as "co-domiciliary parents," the supreme court remanded the matter, explaining that "when a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded[.]" 181 So.3d at 712 (quoting Wegener v. Lafayette Ins. Co. , 10-0810, 10-0811, p. 19 (La. 3/15/11), 60 So.3d 1220, 1233 ). We likewise find "that a first-hand view of witnesses is essential to a fair resolution" of this issue. Id. at 712. Accordingly, we remand to the trial court for consideration of this issue.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed insofar as it awards shared physical custody of the minor child to the mother, Hannah LeBlanc, and the father, Cody Welch. We remand to the trial court for a determination of whether a domiciliary parent should be named consistent with La. R.S. 9:335. All costs of this appeal are assessed against the appellant, Hannah LeBlanc.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.