author: Judge Marion F. Edwards, Pro Tempore LOVE, J., LOBRANO, J., BROUSSARD, J. PRO TEMPORE,

text:
    IN RE: C.A.C.
    NO. 2017-CA-0108
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 2, 2017

      Leslie A. Bonin, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    Jane Ettinger Booth, BOOTH & BOOTH, APLC, 138 North Cortez Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE
    (Court composed of Judge Terri F. ■ Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

11 This is an appeal from a trial court judgment granting joint custody of a minor child to the biological mother and her former life partner. For reasons that follow, we affirm.

The child was born as a result of artificial insemination during the course of a long term same-sex relationship between Dr. Lisa Colon and Victoria Adjmi. After the parties separated in 2014, Ms. Adjmi filed this Petition for Custody seeking joint custody pursuant to La. C.C. art. 133. Dr. Colon filed exceptions of no cause of action, no right of action and vagueness to the custody petition. The trial court denied the exceptions and appointed Tina Chais-son as the custody evaluator. After this Court and the Louisiana Supreme Court denied Dr. Colon’s writ applications for review of the ruling denying the exceptions, the parties participated in the custody evaluation with Ms. Chaisson.

Ms. Chaisson submitted.a report to the court on January 4, 2016 in which she applied the “best interest of the child” legal standard. Ms. Adjmi filed a motion requesting the court to instruct Ms. Chais-son to apply the “substantial harm Lto the child” legal standard as defined by La. C.C. art. 133 relating to a custody claim by a non-parent. The court granted that motion and Ms. Chaisson filed a supplemental report in compliance with that order. Both reports recommended an award of joint custody.

The matter went to a trial on the merits, after which, the trial court rendered judgment in Ms. Adjmi’s favor. The judgment, which awards joint custody and sets forth detailed visitation rights, is supported by comprehensive reasons for judgment.

FACTS

The facts regarding the relationship of the parties and the conditions of the child’s birth are undisputed. Dr. Lisa Colon and Victoria Adjmi began a romantic relationship in 1996, and lived together as a committed couple for over 18 years. During that time they built' a home together, shared finances and bank accounts. Both women are financially successful. Dr. Colon is a gyne.eólogist/obstetrician and Ms. Adjmi is a business woman who owns several retail stores.

In 2007 the couple decided', to start a family. It was decided that Dr. Colon, who is 10 years younger, than Ms. Adjmi, would undergo an artificial insemination procedure. Both women were involved ⅛ the selection of the donor, the pregnancy and the birth,- Both. women agreed that the donor should be Jewish, Ms, Adjmi’s faith. The procedure was successful and Dr., Colon gave birth to a baby girl on .October 27, 2007. Ms. Adjmi was present at the birth and cut the .umbilical cord. I «The child was named Charlie Adjmi Colon (Charlie) in a tribute to Ms. Adjmi’s father.

Two days after Charlie’s birth, Dr. Colon hand wrote and signed a notarized cjocument that states. “In the unlikely event of my demise (death) Vicki Susan Adjmi is to attain total/complete/sole custody of Charlie Adjmi Colon.”

On April 4, 2008, the parties entered into a “Domestic Partnership Agreement”. The effective date of the agreement was October 27, 2007, the date of Charlie’s birth. There are three pertinent sections of this agreement.

1.) ' Section I Definitions
D. “Children”
The children of the Parties is defined as Charlie Adjmi Conon, and any other children subsequently born of, or adopted by one or either of the Parties, during the term of this Contract.
2.) Section VII Child Custody
Notwithstanding the contrary laws of any state, including Louisiana, it is the intent of the parties and it is agreed to herein that in the event of the termination of this Contract, each Party, whether or not the biological or adoptive parent of Charlie Adjmi Colon or any other children subsequently born to or adopted by any Party during the term of this Contract, will be granted joint custody and reasonable visitation rights of Charlie Adjmi Colon and any other children while they are minors. The Parties agree that if a dispute arises related to this provision, they will mediate their differences with the assistance of a professionally licensed and/or certified family counselor or mediator.
3.) Section XIII Waiver of Constitutional or Statutory Challenge
The Parties agree to waive any constitutional challenge, whether under the Constitution of the United States of America or the constitution of any of the fifty States including Louisiana, to the validity and or enforceability of the Domestic Partnership Contract.
The Parties further agree to waive any right to invoke statutes or laws of the United States, or any of the fifty states including Louisiana, that expressly or implicitly provide that this contract is null or void based on the gender or intent of the Parties.

| .Additionally, Dr. Colon executed a Power of Attorney in which she granted Ms. Adjmi;

.... “absolute full and unlimited power and authority for and in the name of Appearer and in Appearer’s behalf and to Appearer’s use to conduct, manage and transact all and singular Appearer’s affairs, business, concerns and matters of whatever nature or kind, without any exception or reservation whatsoever, related to the care and upbringing of my child, Charlie Adjmi Colon, including, but not limited to the following: (emphasis and underline in original)
To enroll the child in school and extracurricular activities;
To obtain medical, dental and mental health treatment for the child;
To provide for the child’s food, lodging, housing, recreation, transportation and travel.

On April 21, 2009, Dr. Colon executed her Last Will and Testament in which she bequeaths her property to her “life partner, Victoria Susan Adjmi” and her daughter Charlie Adjmi Colon. The will provides for a trust to be set up for Charlie with Ms. Adjmi as the sole Trustee. Most significant are the following provisions:

(6) If Charlie Adjmi Colon survives me and has not yet reached the age of 18 years on the date of my death, I appoint Victoria Susan Adjmi, my life partner and the co-parent of Charlie Adjmi Colon, to be Charlie Adjmi Colon’s legal Guardian and Tutor, intending for her to have all responsibilities and benefits bestowed under law to the legal parent of a child.
(8) It is important to me and it is my specific request that both the Colon Family and the Adjmi Family share in the life and upbringing of my daughter, Charlie Adjmi Colon. Therefore, if she has not yet reached the age of 18 years-on the date of my death, I instruct the two families to grant to each other liberal and frequent visitation and involvement in her life, no matter who serves as her, Trustee, Tutor and/or Under-Tutor.

Dr. Colon, Ms. Adjmi and Charlie lived as a family for the first seven years of Charlie’s life. Then, in 2014 Dr. Colon became romantically involved with Ms. |fiAdjmi’s sister-in-law (the wife of Ms. Ad-jmi’s brother), Amanda Adjmi, and the couple separated as a result. Dr. Colon now resides with Amanda Adjmi, Charlié and, during their' visitation with their’ mother, Amanda Adjmi’s two children.

It is obvious from the filing of this action for custody and the actions and testimony of the parties that the breakup resulted in an acrimonious relationship between Dr. Colon and Ms. Adjmi. Since the breakup. Dr. Colon has taken steps to limit Ms. Adjmi’s participation in Charlie’s life. Dr. Colon testified that she. has limited Ms. Adjmi’s ability to communicate with Charlie’s school specifically to prevent Ms.. Ad-jmi from attending parent-teacher conferences. Dr. Colon also admitted that she will not allow Ms. Adjmi to take Charlie on trips because on one trip to New York Charlie developed a fever and Ms. Adjmi did not take the child to a doctor. Ms. Adjmi explained that she called Dr. Colon from New York when Charlie became ill to ask advice because Dr. Colon is a medical doctor. Dr. Colon flew up to New York that night and.took Charlie to a doctor the next day.

Dr. Colon also expressed concerns about Ms. Adjmi’s living conditions. Specifically, Dr. .Colon stated that Ms. Adjmi’s sister smokes marijuana in front of Charlie. However, both Ms. Adjmi and her sister denied that accusation.

Ms. Adjmi testified that Dr. Colon has completely barred her from any communications with Charlie’s school, does not inform her of school activities, extracurricular activities, or doctor’s appointments, and does not allow her to take Charlie on vacation. Ms. Adjmi also testified that Dr. Colon is in complete control of Charlie’s schedule and does not allow sufficient time or communications with |fiMs. Adjmi. Dr. Colon admitted she controls Charlie’s schedule but asserts that she is aware of the strong bond between Charlie and Ms. Adjmi and allows visits and communications between the two as she deems appropriate.

Although Dr. Colon testified that it was she who parented Charlie and made all of the decisions, she acknowledged that there is a love bond between Charlie and Ms. Adjmi and that Charlie thinks of Ms. Ad-jmi as a mother. She also testified that Charlie loves to be with Ms. Adjmi and is comfortable in her home, which is a few blocks away from Dr. Colon’s home. Other testimony from relatives and experts shows that Charlie thinks of both Dr. Colon and Ms. Adjmi as her mothers and that Charlie considers Ms. Adjmi’s mother to be her grandmother.

Tina Chaisson, the court appointed expert testified that both parties cooperated with the custody evaluation and provided additional information. During her evaluation Ms. Chaisson met with Charlie alone and observed her with each of the parties in their homes. Ms. Chaisson also reviewed school, medical and mental health records as well as the domestic partnership agreement, Dr. Colon’s will and power of attorney.

-Ms. Chaisson- found each home to be appropriate and comfortable for Charlie, who had her own room in each. Charlie talked about both homes and both of the parties. She loves both women and enjoys both homes. Charlie calls Dr. Colon “Mom” and Ms. Adjmi “Bae”, but considers both to be her parents.

Ms. Chaisson found both" parties to have capable parenting abilities with no negative cues in either. Ultimately, Ms. Chais-son’s recommendation to the court [7was that the parties should be awarded joint custody with Dr. Colon as the domiciliary parent and time divided 60/40. Ms. Chais-son also made specific recommendations for liberal visitation with Ms. Adjmi and opined that there is no justification for barring travel with Ms. Adjmi.

Ms. Chaisson specifically addressed the issue of substantial harm. She stated that a failure to award joint custody of Charlie would result in substantial emotional harm to the child. Ms. Chaisson explained that Charlie was raised, cared for and mothered by both parties for her entire life and enjoyed a parent-child relationship with each party. Ms. Chaisson’s concern was that if Dr. Colon were granted sole custody, she would have the ability and the inclination to completely cut Ms. Adjmi out of Charlie’s life. ,

Dr. Colon offered testimony from Dr. Edward Shwery, a clinical psychologist, who did not conduct a custody evaluation and did not have the opportunity to interview the child with both parties. The trial court allowed Dr. Shwery to testify as an expert, noting that he was retained by Dr. Colon and did not interview Ms. Adjmi.

In his testimony, Dr, Shwery explained that, because he did not have the opportunity to see all three parties, he was unable to make a custody evaluation. He stated his opinion is limited to the single question of whether an award of sole custody to Dr. Colon would cause substantial harm to Charlie. To address this issue, Dr. Shwery reviewed the psychological literature and learned that the concept of substantial harm is defined consistent with the child abuse statutes of I «brutality, neglect, severe neglect, physical abuse, and emotional abuse. These are the situations which lead to substantial harm, manifested in symptoms of a syndrome, depression or anxiety. Based on this clinical definition of “substantial harm” and his testing of Charlie, Dr. Shwery . did not believe Charlie would suffer substantial harm from an award of sole custody to Dr. Colon.

By all accounts, Charlie.is a happy, well-adjusted child with two mothers one she calls “Mom” and one she calls “Bae”, and a loving extended family. There is no indication that either party is unfit in any way to parent Charlie. The evidence is sufficient to show that both women clearly love the child and are fit parents who provide for all of her needs.

' LAW AND ANALYSIS

On appeal, Dr. Colon assigns six errors in which she asserts the trial court violated her constitutionally protected fundamental rights as a natural parent in the award of joint custody ahd liberal visitation to a non-parent, and in finding substantial harm to the child sufficient to deny an award of sole custody to a biological parent. Dr. Colon also argues the trial court erred in. denying her exception of no cause of action and in admitting the domestic partnership agreement, power of attorney, and last will and testament.

1.) NO CAUSE OF ACTION

Dr. Colon argues that the trial court erred in denying her peremptory exception of no cause of action. The denial of this exception was reviewed by this Court and the Louisiana Supreme Court as an interlocutory ruling. Both courts bdenied the application for supervisory writs. On appeal, Dr. Colon maintains the trial court should have sustained that exception because the petition for custody failed to properly allege that substantial harm would result if the minor child remained solely in the biological parent’s custody. However, the majority of her argument centers on whether Ms, Adjmi can meet her burden of proof at trial, not whether the petition states a cause of action.

The limited function of an exception of no cause of action is to determine whether the law provides a remedy to a. plaintiff against these "particular defén-dants. The pertinent question is whether, when viewed in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. 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 that would entitle him to relief.

La. C.C. art. 133 provides:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

The custody petition asserts a claim by a non-parent for custody pursuant to La. C.C.' art. 133 and alleges that “(t)he removal of the child from her (Ms. Adjmi) care will result in substantial harm to the minor child-. and is not in the child’s best I minterest.” We find this petition states a cause of action and find no abuse of the trial court’s discretion-in denying the exception.

2.) MOTION IN LIMINE

Dr, Colon filed a motion in limine in the trial court seeking to exclude the domestic partnership agreement, power of attorney, and her last will and testament as irrelevant, inadmissible and immaterial to the merits of this case. That motion was denied and the documents were admitted over Dr. Colon’s objections.

La. C.E. art, 401 defines relevant evidence as “evidence having any .tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “All relevant evidence is admissible, except'as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence,' or other legislation. Evidence which is not relevant is not admissible.” Irrelevant evidence is inadmissible, and even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues.” A trial court’s rulings on such evi-dentiary issues vrill not be disturbed unless a clear abuse of discretion is shown.

The documents in question show Dr. Colon’s confidence in Ms. Adjmi as a good parent to Charlie, and that she viewed Ms. Adjmi as Charlie’s other parent. They also show that Dr. Colon intended the relationship between Charlie and Ms. |nAdjmi to be a life-long one, even if the relationship between the two women did not last. The documents show that the bond between Charlie and Ms. Adjmi was strong and in the nature of a child-parent relationship. This evidence is relevant to show the depth of the emotional bonds, and to the trial court’s consideration of whether the severance of this relationship would result in substantial harm to the child sufficient to meet the burden of proof required to deprive Dr. Colon of sole custody.

Under the facts and circumstances of this case, yre find these documents to be relevant and admissible. Consequently we find no abuse of the trial court’s discretion in admitting the documents into evidence.

3.) AWARD OF JOINT CUSTODY

The-remainder of Dr. Colon’s assignments of error and issues of law relate to the award of joint custody and liberal visitation to Ms. Adjmi, a non-parent. Dr. Colon argues that Ms. Adjmi failed to meet her burden of proof that an award of sole custody to Dr. Colon would result in substantial harm to the child and that the trial court erred in granting joint custody. Because the trial judge is in the best position to ascertain the best interest of the child based on the particular circumstances of each case, a trial court’s custody determination is entitled to great weight and will not be disturbed by an appellate court absent a clear abuse of discretion.

|iaIn this matter, we are called upon to interpret custody laws in the context of a same-sex relationship, and consider issues not previously before this Court. Our legislature has not yet addressed what changes to the law are necessary and/or appropriate in custody proceedings involving same-sex relationships since the United States Supreme Court’s decision in Obergefell v. Hodges,

Our analysis must begin with the existing law. Dr. Colon’s point, that she is the biological parent and in the law enjoys a superior position over Ms. Adjmi, who by legal status is a stranger to the child, is well taken. Ms. Adjmi is neither a natural parent nor a legal parent. The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” including parents’ fundamental right to make decisions concerning the care, custody, and control of their children. A parent’s interest in her relationship with her child is “manifestly .a liberty interest protected by the Fourteenth Amendment’s due process guarantee.” The United States Supreme Court has declared it “plain beyond the need for multiple citation” that a biological parent’s right to “the companionship, care, custody, and management” of his children is a liberty interest far more important than any property right.

haHowever, a parent’s right under the constitution is neither absolute nor perpetual. That right attaches at the birth of a child. But, parents acquire the substantial protection of their interest in a child’s custody under the Due Process Clause by demonstrating a full commitment to the responsibilities of parenthood by “ ‘[coming] forward to participate in the rearing of his child.’ ” As with all constitutional rights, a parent’s right must be balanced with the child’s right to a custodial arrangement which promotes his or her best interests.

La. C.C. art. 133 provides:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

There is no question that the non-parent bears the heavy burden of proof in a custody contest. The dual prong test to determine whether the non-parent has met that burden is as follows:

In a conflict between a parent and a non-parent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. The test to determine whether to deprive a legal parent of custody is a dual-pronged test: first, the trial court must determine that an award of custody to the parent would cause substantial harm to the child;' if so, then the courts look at the “best interest of the child” factors to determine if an award of custody to the non-parent is required to serve the best interest of the child, (citations omitted)

Dr. Colon argues that the mere separation of Charlie from Ms. Adjmi and her family is not sufficient to meet the substantial harm standard. In support of her luPosition Dr. Colon cites Black v. Simms. In Black the trial court dismissed the custody petition filed by the mother’s former lesbian partner based on a finding that mere separation did not rise to the level of substantial harm for purposes of La. C.C. art. 133. On appeal, the Third Circuit affirmed. However, in that decision, the Court characterized the mother’s actions as “harsh and inconsiderate of (the child’s and the partner’s family’s) obvious affection and attachment to each other.”

While the factual situation regarding the relationship between the parties and the circumstances of the child’s birth are similar, the evidence and testimony are disparate. In Black, the relationship between the parties was described as “toxic”, and there was no communication between the child and the partner’s family in over a year. Additionally, there was conflicting expert testimony regarding what custody determination would best serve the child’s needs.

While there is some acrimony in the breakup between Dr. Colon and Ms. Ad-jmi, there has been no break in the relationship between Charlie and Ms. Adjmi and her family. There was-also a physical distance between the parties in Black that does not exist' in the case before this Court. Additionally, the expert testimony in .the instant matter only differs, in the degree of harm to Charlie should she suffer a separation from Ms. Adjmi. Ms. Chaisson’s opinion is that it would cause substantial harm, while Dr. Shwery did not think the harm would reach the clinical definition of substantial harm.

ImThe “substantial harm” envisioned in article 133 is the threat of abuse or neglect of the child, by an unfit parent and is inapplicable under the facts and circumstances of this case. Dr. Shwery, Dr. Co-Jon’s expert, alluded to- that in his discussion of “substantial harm”, which defined the concept in terms relating to child, abuse statutes. He concluded that there was insufficient data based on his testing of Charlie to meet the high threshold of substantial harm. However, as the trial judge pointed out in.the reasons for judgment, Dr. Shwery gave a psychological definition of “substantial harm”, not a legal one.

In the law, a showing of substantial harm is more inclusive and “includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include ‘any other circumstances, such as prolonged separation of the child from its natural parents that would cause the, child to suffer substantial harm.’

Further, we note that the term “substantial harm” is not precise and has been used interchangeably with “detrimental” in our jurisprudence. In McCormic v. Rider , our Supreme Court used the “detrimental” standard in reversing an appellate court determination that an award of joint custody to a parent and a non-parent was an abuse of discretion. In McCormic, -the trial court awarded joint custody in a tripartite arrangement among a grandparent, who was the legal parent through the adoption of the child, and the biological parents, who were now third parties under the law. The court of appeal reversed, rendering judgment in favor of the grandmother based on a strict interpretation of La. C.C. art. 133. The appellate 11ficourt .found that the grandmother enjoyed- the paramount right of custody and that the biological parents, as non-parents, failed to meet the heavy burden that an award of custody to the grandmother would result in substantial harm to the child. The Supreme Court reversed and reinstated the trial court’s award of joint custody, finding no abuse in the trial court’s discretion.

The McCormic case illustrates the difficulty in applying -art. 133 to cases that present a factual anomaly to the traditional family situation, The Supreme Court noted that the unique facts did not cleanly fit into the parameters of art. 133 and stated that;

Nonetheless, it is well-established that each child custody case, must be- viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child. The trial court has great discretion in this area, and its determination will not be disturbed in the absence of a clear abuse of discretion. The primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child, (citations omitted)

Ultimately, the McCormic court concluded that the tripartite' custody arrangement “would benefit the child by keeping intact the family unit in which he has lived for virtually his entire life.”

The difficulty in applying La. C.C. art. 133 to same-sex custody contests is that article 133 presupposes an issue regarding the fitness of one or both parents exists, thus creating a threat of harm to the child. This assumption can be seen in the first phrase of the article and the threshold requirement of a showing of substantial harm to the child for a custody award to a non-parent. Further, our [^jurisprudence states that a custody action brought by a non-parent may only arise pursuant to La. C.C. Art. 133 when a threat of “substantial harm” to the child looms.

■ The statutory scheme of La. C.C; arts 131-134 was set up to establish the rights of parents in traditional families, and encompasses a traditional presumption “that natural bonds of affection lead parents to act in the best interest of their children.” But, as the United States Supreme Court noted, “(t)he demographic changes of the past century make it difficult to speak of an average American family. The nuclear family concept that has influenced our laws regarding custody and visitation of children is not always reflected in the real life factual circumstance in the cases that come before our courts.

. An additional problem with applying article 133 to same sex custody cases is that article 133 assumes the third party seeking custody is less likely than the parent to have a parent-child bond, and have lived with and parented the child from birth. These articles were fashioned to manage circumstances in which a parent, or parents become unable or unwilling to properly parent the child and an extended family member or other concerned adult seeks custody.

In same-sex relationships the third party is much more likely to be a co-parent from the child’s point of view than in situations where a grandparent or other extended family member seeks custody. The third party life partner was | 1sthere when the child was born and has established a bond that, to the child, is indistinguishable from that shared with the biological parent.

In child custody proceedings between two estranged parents, the concern for the best interests of their children can be lost in the emotional upheaval of divorce - or separation in hetero-sexual relationships. Custody contests between same-sex couples are more akin to custody contests between embattled divorced parents than that of an unfit parent and a third party.

In reasons for judgment, the trial court found that Ms. Adjmi met her burden of proof that an award of sole custody to Dr. Colon would result in substantial harm to the child for several well supported and articulated reasons. The trial court found that the parties clearly intended to raise Charlie as co-parents. This finding is substantiated by the documents and testimony. The trial court found that Charlie has a strong emotional connection with Ms. Ad-jmi. There is no evidence to dispute that finding, and in fact, Dr. Colon has conceded this point. Dr. Colon has also admitted to restricting and limiting Charlie’s access to Ms. Adjmi, a pattern which the trial court found to cause emotional damage to Charlie.

The trial court expressed concerns about Dr. Colon’s actions reducing Ms. Adjmi’s time with Charlie from twelve or thirteen days a month to only six, many of which were scheduled to conflict with Ms. Ad-jmi’s travel schedule. These actions, in addition to the restriction of access to school, extracurricular activities and doctor appointments, and the testimony of Ms. Chaisson that the limitation of access to Ms. Adjmi has already caused emotional damage to Charlie, gives | ^support to the trial court’s finding that Dr. Colon’s testimony that she did not wish to sever the relationship between Charlie and Ms. Ad-jmi was not credible.

Article 133 is constructed to require an initial showing that any custody award to a parent would result in substantial harm to the child before an award of custody to a non-parent can be considered. The facts and circumstance here are that Charlie was born into a non-traditional family. She has two mothers who have lovingly raised her since birth. She shares a deep emotional connection with both. The trial court found that separation from either of them would cause Charlie to suffer substantial harm. The trial court has great discretion in this area, and its determination will not be disturbed in the absence of a clear abuse of discretion. Based on the facts and circumstances of this case, we find no abuse of the trial court’s discretion in that finding.

After making the finding that substantial harm would result in a sole custody award to Dr. Colon, the trial judge turned to the paramount consideration of the best interest of the child. La. C.C. art. 134 provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
lan(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.

It is clear from the reasons for judgment that the trial court conducted a complete analysis of all the relevant factors listed above and made the determination that an award of joint custody with liberal visitation was in Charlie’s best interest. The court considered the love and emotional connection to Charlie that both women have, and the willingness of both parties to continue to give the child the education and spiritual guidance she needs. Both parties expressed a desire to see Charlie excel in school and will help with homework assignments. Both have the financial ability to care for her material needs. The trial court also commented that the stable life Charlie was living before the breakup has been disrupted by the inconsistent visitation schedule enforced by Dr. Colon.

laiUltimately, the trial court found the factors set forth in article 134 did not weigh heavily in either party’s favor, with the exception of the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. The court found this factor weighed heavily in Ms. Adjmi’s favor.

The court noted that Dr. Colon and Ms. Adjmi chose to bring Charlie into this world and intended to raise her as a couple. Before the breakup of the relationship, both women did just that. The trial court held that forcing Charlie to give up one mother, when both are fit, able and loving parents is not in Charlie’s best interest.

We are mindful of the directive from our Supreme Court to consider the individual circumstances of each case and to afford great deference to the trial court in determinations of child custody. It is well-established that each child custody ease must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child. We note that the facts and circumstances of this case do not fit within the intent or purpose of La. C.C. art. 138. Dr. Colon is not an unfit mother and Ms. Adjmi is not the third party envisioned by the legislature in the enactment of article 133.

Ultimately, our Supreme Court has held that the primary consideration and prevailing inquiry in every child custody ease is whether the custody arrangement | g2is in the best interest of the child. The trial court has carefully weighed the evidence and found that the best interests of the child will be served by a joint custody agreement that will keep her connected to a woman she considers to be her mother and with extended family that are a significant part of her life. We find no abuse of discretion in that judgment.

...For reasons set forth herein, the judgment of the trial court is- affirmed. All costs of this appeal are assessed to appellant.

AFFIRMED

LOVE, J., CONCURS

LOBRANO, J., CONCURS AND ASSIGNS REASONS. •

BROUSSARD, J., PRO TEMPORE, CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

LOVE, J.,

CONCURS

|,I respectfully concur in the results.

LOBRANO, J.,

CONCURS. AND ASSIGNS REASONS.

hi-respectfully concur and would affirm the district court’s decision. As the.Louisiana Supreme Court has recently held, “the overarching inquiry in an action to change custody is the best interest of the child.” Trade F. v. Francisco D., 2015-1812, p. 2 (La. 3/15/16), 188 So.3d 231, 235. Because the district court is in the best position to assess the best interests of the child, the district court’s custody determination ⅛ entitled to great' weight,, and will not be disturbed by an appellate court absent a clear abuse of discretion. Kaptein v. Kaptein, 2016-1249, p. 9 (La. App. 4 Cir. 6/14/17), 221 So.3d 231. For these reasons, I respectfully concur.

BROUSSARD, J. PRO TEMPORE,

CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

IJ respectfully concur in the majority’s finding that the district court did not abuse its discretion in denying the exception of no cause of action and the motion in limine,

However, I respectfully dissent from the majority’s conclusion that there was no error in the district court’s ruling which awarded Joint Custody of the Appellant’s natural child to the Appellant and Appel-lee. The reasons for the dissent are set forth below.

The fundamental basis of this dissent is that the district court misapplied La. Civ. Code art. 133, and the preference given in Louisiana Jurisprudence to the natural mother in the award of joint custody of her natural child. As will be discussed below, this . statutory and constitutional preference given to natural mothers is one of the most venerable of rights afforded under the Fourteenth Amendment of the United States Constitution.

Appellee filed, in the district court, a “PETITION FOR CUSTODY PURSUANT TO LA CIVIL CODE ARTICLE 133” seeking joint custody of Charlie, the natural child. In doing so, Appellee stipulated- that article 133 is the law which governs this case as it involves the award of custody of a child to which |¡¡she did not give birth. Louisiana Civil Code Article 133 provides (emphasis added):

If an award of joint custody or of sole custody to either parent would result in 'substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

Turning to the legal definition of substantial harm, the court in Black v. Simms, 08-1465 (La.App. 3 Cir. 6/10/09), 12 So.3d 1140, 1144, wrote:

“The words ‘substantial harm’ carry no magical connotation. ‘Detrimental’ and ‘substantial.harm’ have been.used interchangeably in the jurisprudence.” Robert [v. Gaudet, 96-2506 (La.App. 1 Cir. 3/27/97) ] 691 So.2d [780] at 783. In Mills v. Wilkerson, 34,694, p. 6 (La.App. 2 Cir. 3/26/01), 786 So.2d 69, 74, the court held that substantial harm “includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include ‘any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.’ ”

See also, Ferrand v. Ferrand, 16-7 (La. App. 5 Cir. 8/31/16), 221 So.3d 909, 920, writ denied, 16-1903 (La.12/16/16), 211 So.3d 1164.

In Tracie F. v. Francisco D., 15-1812, p. 8 (La.3/15/16), 188 So.3d 231, 238 (citing Arabie v. CITGO Petroleum Corp., 10-2605, pp. 4-5 (La. 3/13/12), 89 So.3d 307, 312), the court explained:

Our. application of statutory law is guided by the following principles:

The fundamental question in all cases involving statutory interpretation is legislative intent. City of DeQuincy v. Henry, 2010-0070 (La.3/15/11), 62 So.3d 43, 46, Further, according to the general rules ,of statutory interpretation, our interpretation of any statutory provision begins with the language of . the statute itself. In re Succession of Faget, 10-0188, p. 8 (La.11/30/10), 53 So.3d 414, 420. While the Official Revision Comments are not the law, they may be helpful in determining legislative intent. See, e.g., State v. Jones, 351 So.2d 1194, 1195 (La.1977)

Sole custody of the natural parent should not be abrogated, unless, there is substantial harm to the child. Comment (b) of article 133 supports this view as it ^demonstrates the term “substantial harm” was used in the statute to represent an efficient means of giving effect to a parent’s paramount right to custody of his/ her child as against any nonparent. The comment notes primacy of the parental right was recognized by the Louisiana Jurisprudence long before it was given effect by the legislature in 1982. Id. That same efficiency is demonstrated in La.Ch.Codé art., 1015. This article deals with the termination of parental rights in preparation for adoption. Since this is not a same gender marriage and there has not been an adoption, the effect of .the court’s decision in awarding joint custody isfto terminate the exclusive right of the natural parent to manage her responsibility, care, custody, and environment in which her child will thrive. •'

State ex rel C.J., 00-2375, 00-2504 (La.11/28/00), 774 So.2d 107 is instructive to the application of article 133 when applied by the district court’s termination, of exclusive parental rights of a natural mother. The Louisiana Supreme Court determined that the termination of a natural mother’s parental rights was not warranted on grounds of abuse or neglect even though the children sustained mental injury. due to witnessing violence by the father toward the mother. The factors which were considered by the court included the following: the mother made efforts to obtain help for herself through restraining and protective orders and through law enforcement; the mother sought protection at women’s shelter; and the mother took initiative in contacting child protection services to ensure her children’s safety. Id. at 108-09, 115.

• In this present custody contest, which involves a parent and a non-parent present, there is a convergence of two basic principles: the child’s substantive right to live in a custodial arrangement which will serve her best ■ interest, and - a natural ^parent’s constitutional right to parent her biological child. It is well established that the interest of a parent in having a relationship with her/his children is a liberty interest that is protected by the Fourteenth Amendment’s Due Process guarantee. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and Trade F., 188 So.3d at 242. “The United States Supreme Court has declared it ‘plain beyond the need for multiple citations’ that a biological parent’s right to ‘the companionship, care, custody, and management’ of her/his children is a liberty interest far more important than any property right.” In re Adoption of B.G.S., 556 So.2d 545, 549 (La.1990) (citing Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). But, the liberty interest of a parent to the companionship, care custody and management of her children is not .absolute. Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). The child’s right to a custodial arrangement which promotes his or her best interest arises at birth. Therefore, natural parents acquire the substantial protection of their interest in a child’s custody under the Due Process Clause by demonstrating a full commitment to the responsibilities of parenthood and by a personal dedication to participate in the rearjng of the child. Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (quoting Caban v. Mohammed, 441 U.S. 380, 392, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)). Each child custody case has its own unique factual circumstances. Courts must consider the parents’ rights and responsibilities along with the overarching |Band overriding concern for the best interest of the child. Tracie F., 188 So.3d at 235; See also McCormic v. Rider, 09-2584 (La.2/12/10), 27 So.3d 277, 279.

In written reasons for judgment, the district court awarded joint custody to the non-parent, in this case, finding, “The evidence shows that, given.the pattern she [Appellant] has already displayed. Dr. Colon will continue restricting and limiting CAC’s [the natural child] access to Ms. Adjmi. This pattern of diminished access disrupts CAC’s [the natural child] emotional connection with Ms. Adjmi and causes emotional damage.” When these comments are taken at face value, it appears that the court deprived the natural parent of her constitutionally protected right to protect, guide, and nurture her child without a determination of her suitability as a parent. This is clearly wrong.

It is commendable that the district court provided detailed written reasons for judgment. However, when the evidentiary testimony is reviewed, it is clear the district court abused its discretion in failing to follow Louisiana Law. In eroding the constitutionally protected right of the natural parent, the district court misapplied the concept of substantial harm. The district court’s decision appeared to be based on a finding of substantial harm based on speculative emotional damage to the natural child. The following facts were considered by the court to constitute substantial harm. 1) Appellee’s family and friends believed, the .child would be emotionally upset if Appellant prohibited access and visitation between the natural child of the Appellant and the Appellee; 2) Appellee testified she thought the natural child of the Appellant was suffering harm by Appellant placing restrictions on her ability to function as a parent and preventing “continual, constant visitation” between her and the natural child; and 3) Appellee stated the natural child became nervous and uncomfortable showing her attention or affection if Appellant was around. These are subjective statements by the Appellee and not the natural mother of the child. None of these facts render the natural mother | ^incapable of deciding what is in the best interest of the child that would require the intervention of the State of Louisiana. See Troxel, 530 U.S. 57, 120 S.Ct. 2054.

The district court relied on the testimony of Ms. Chaisson, an expert, appointed by the court to conduct a custody evaluation. Her testimony was speculative, and it did not rise to the standard that would deprive a natural mother of her constitutional right to guide, protect and nurture her child. Ms. Chaisson could only testify that it would be a possibility, not a present or certain fact, that a decision by the natural mother regarding relationships with her co-parent would be detrimental to the natural child of the Appellant. Likewise, Ms. Chaisson was of the opinion an award of sole custody to Appellant, with no legal rights and no visitation by Appellee, would cause substantial harm to the natural child. However, she admitted that presently, the child ivas not suffering any substantial harm. This is conclusive evidence that the decisions of the' natural parent were not a substantial harm to her own natural child. The district court was, therefore, clearly wrong in its detérmination.

The district court failed to properly consider. La.Code Evid. art. 703 regarding expert testimony. Dr. Shwery was called, by the Appellant, as an expert in clinical psychology and child. custody evaluations. However, the district court limited Dr. Shwery’s testimony to the concept of substantial harm as a psychologist. He did not give a definition in the context of a custody evaluation because he was unable to interview Appellee; though he tried to interview the Appellee, she refused. In its written reasons for judgment, the district court did not give Dr. Shwery’s testimony “significant weight” because his definition of substantial harm was based on a psychological definition. Nevertheless, I find Dr. |7Shwery’s testimony provides guidance on this issue in light of the district court’s finding that the basis for the substantial harm was emotional damage or distress suffered by the natural child. Dr. Shwery concluded the natural child of the Appellant was a “healthy, thriving child”. This was consistent with all the teacher’s reports, collateral interviews, and the two therapists he interviewed. This testimony was consistent with the other witnesses at the hearing who testified the natural child was flourishing and happy. Even though the court did not give the appropriate weight to, testimony of Dr.' Shwery, his impression was further corroborated by Ms. Chaisson. She concluded that she was not surprised that the testimony from the other witnesses indicated that the natural child was flourishing since the separation. Ms. Chaisson was also of the opinion that the change in the natural child and her exhibited independence was attributed to the fact that she was no longer living in the toxic environment that existed while Appellant and Appellee lived together. Dr. Shwery, like Ms. Chaisson, was of the opinion that the | ^natural child, 'presently, showed no indication of suffering substantial harm. The district court questioned Dr.. Shwery on his definition of substantial harm under these particular facts. Dr. Shwery responded that if there was substantial harm, you would expect some “symptomatology” to show up either in relations, in personality, or at school in which he did not see in this case. The combined testimony, of above referenced witnesses, demonstrates no symptomatolo-gy of substantial harm to the natural child that would warrant the State of Louisiana to erode the parental rights of the natural parent.

Because the evidence at trial did not reflect the natural child suffered from emotional distress' or damage to warrant infringement of a natural parent’s rights, I find that the decision is manifestly erroneous. I also find that the evidence presented and reviewed, by the district court, did not rise to the level that would warrant even minimal intrusion of the state court into the constitutionally protected parental rights., The court record does not reflect abandonment, neglect, abuse, or emotional distress that would merit such á grave erosion of the constitutional right of a natural parent to the companionship, care, custody, and the ability to control the environment in which her child could thrive.

While not. applicable in this case, .the degree to which the rights of the natural mother are elevated in this state is illustrated in La.Ch.Code art. 1015 which provides the standard for abating parental rights in adoption cases. It is offered here to demonstrate how the natural preference is given in other aspects of the law.

Additionally, the district court’s -judgment is manifestly erroneous because it ignored La.Civ.Code art. 256, which .declares that the mother is of right, the natural tutrix of her child born outside of marriage, who is not acknowledged by-the father. Since the birth of the Appellant’s natural child was by artificial insemination, there 19is no acknowledgment by the natural father who by law would also be a natural tutor. The court erroneously equated Appellee’s status as a “co-parent” based upon documentation such as the Domestic Partnership Contract. The court erroneously equated presence at birth, name of the child, cards and drawings of the child to elevate .Appellee’s status above that of .the natural mother and natural tutrix. Neither the courts nor the Louisiana State Legislature has sanctioned such a displacement. of the natural mother as natural tutrix of her child except under crucial situations. This decision of joint custody by the district court is an abuse of discretion as contrary to Louisiana Law of Tutorship.

In particular, the court’s decision seems to be based on concepts such as, in loco parentis, defacto parent, co-parent, and psychological parent. These theories currently have not been codified by the Louisiana Legislature or by Louisiana Courts in custody determinations. However, the concept of in loco parentis has been used in the termination of parental rights of a minor child. There is no clear jurisprudential or legislative guidance on the application of the co-parent or psychological parent concepts in custody determinations. The question presented - in this case . is: whether a non-parent, former cohabitant, has a fundamental right, superior to the right of the natural mother, to maintain a relationship with a.child born of artificial insemination while the two females cohabi-tated? There was no adoption of the natural child of the Appellant nor was the child born during a lawful marriage. While the rights of children have been recognized by state and federal jurisprudence, the right of a fit parent to care for, guide, and nurture has been given statutory and jurisprudential preference. The district court, in this case, ignored the rights of the natural mother.

The United States Supreme Court provided clear guidance regarding the constitutionally protected right of a natural parent to protect, guide and nurture her child. The district court should have followed this for clear guidance on this issue. In Troxel, 530 U.S. 57, 120 S.Ct. 2054, Justice O’Connor, writing for the majority opinion, addressed a Washington State statute, which provided that any person may petition the court for visitation at any time and that the court may order visitation rights for any person when visitation may serve the best interest of child. The majority held that the statute violated' the substantive due process rights of the mother, as applied, by permitting the paternal grandparents to obtain increased court-ordered visitation in excess of what the mother had thought appropriate. This'is precisely the issue in this case. Here, a non-parent is given superior or equal rights of the natural mother. The Supreme Court opined that the rights of natural- parents over their natural children derive from the Fourteenth Amendment of the -United States Constitution. That amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” The right extended, to the -natural mother, is not only due process but fair process. It has long recognized that the Fourteenth Amendment’s Due Process Clause, “like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ ” Troxel, 530 U.S. at 65, 120 S.Ct. 2054 (citing Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). The rights of natural parents in the care, custody and control of their children are perhaps the oldest and fundamental liberty recognized by the courts. The Supreme Court has long held that "‘liberty’ protected by the Due Process Clause includes the right of natural parents to ‘establish a home- and bring up children’ and ‘to control the education of their own.’ ” Id. at 65, 120 S.Ct. 2054 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). In Troxel, the court determined that decisional framework employed by the Washington State Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. Troxel, 530 U.S. at 69, 120 S.Ct. 2054. I find, in this ease, that the district court ignored the wéll engraved principal of preferential rights for natural parents. As the United States Supreme Court proclaimed in Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054,

111 [TJhere is a presumption that fit parents act in the best interests of their , children. As this Court explained in Parham [v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ]:

“[0]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and preparé [their children] for additional obligations .,.. ’ The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” 442 U.S. at 602, 99 S.Ct. 2493 (alteration in original) (internal quotation marks and citations omitted).
Accordingly, so long as a parent adequately cares for his or her children (ie., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. See, e.g., [Reno v.] Flores, 507 U.S., [292] at 304, 113 S.Ct. 1439 [123 L.Ed.2d 1 (1993) ].”

The Louisiana case of Black, 12 So.3d 1140, serves as a prism through which to examine how courts may better protect children of same-sex unions. In Black, the Louisiana Court of Appeal held that Kimberley Corinne Black (Ms. Black) could not be considered a functional, or de facto parent to Braelyn, the child born to her same-sex partner, Kimberly Renae Simms (Ms. Simms). Ms. Black and Ms. Simms used the same sperm donor and each bore a child. For six years, Ms. Black, Ms. Simms, and half-siblings, Braelyn and Eli, lived together as a cohesive family unit. When the couple’s relationship ended, Ms. Simms cut off all contact between Braelyn and Ms. Black, as well as between Braelyn and her half-brother, Eli. Braelyn’s relationship with Eli was permanently severed when the Louisiana Court of Appeal denied Ms. Black access to Braelyn and failed to make provisions for the siblings to maintain contact.' Applying the United States Supreme Court’s pronouncements in Troxel, the Third Circuit affirmed the district courts ruling finding that the mere severance of the bond between the natural child and her |12mother’s lesbian former partner, partner’s son, and partner’s parents, did not rise to level of substantial harm to the child that warranted the granting of joint custody between the natural mother and the former partner. Black, 12 So.3d at 1145.

A review of this case shows the district court misapplied the standard of substantial harm. The substantial harm standard was designed to protect the rights of the natural parent in correlation with the rights of the child. The district court applied the standard in a manner designed to ignore the rights of the mother to care, guide, and nurture her natural child. Accordingly, I find Appellee failed to prove an award of sole custody to Appellant would result in substantial harm to the child.

For these reasons, I respectfully dissent from the majority’s decision to affirm the district court’s ruling.

      . The couple separated once during that time, but subsequently reconciled before Charlie was born.

      . Hershberger v. LKM Chinese, L.L.C., 2014-1079, p. 3 (La.App. 4 Cir. 5/20/15), 172 So.3d 140, 143.

      . Phillips v. Gibbs, 2010-0175, p. 3 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 797 (citations omitted).

        . Industrial Cos., Inc. v. Durbin, 2002-0665, p. 7 (La. 1/28/03), 837 So.2d 1207, 1213.

      . La. C.E. art. 402,

      . La. C. E. arts. 402-03.

      . Jones v. Peyton Place, Inc., 95-0574 (La. App. 4 Cir. 5/22/96), 675 So.2d 754, 763.

      . Kaptein v. Kaptein, 2016-1249, p. 9 (La.App. 4 Cir. 6/14/17), 221 So.3d 231.

      . — U.S. -, 135 S.Ct. 2584, 2589, 192 L.Ed.2d 609 (2015).

        . Troxel v. Granville, 530 U.S. 57, 57, 120 S.Ct. 2054, 2056, 147 L.Ed.2d 49 (2000) (citations omitted); Ferrand v. Ferrand, 16-7 (La. App. 5 Cir. 8/31/16), 221 So.3d 909, writ denied, 2016-1903 (La. 12/16/16), 211 So.3d 1164.

      . Ferrand v. Ferrand, supra, citing, Troxel v. Granville, supra.

      . Trade F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 234; In re Adoption of B.G.S., 556 So.2d 545 (La. 1990) (citing, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)) and Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).

      . Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (quoting Caban v. Mohammed, 441 U.S. 380, 392, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)).

      . See: Ferrand v. Ferrand, supra.

      . Rupert v. Swinford, 95-0395 (La.App. 1 Cir. 10/6/95), 671 So.2d 502.

      . Ferrand v. Ferrand, supra.

      . 2008-1465 (La. App. 3 Cir. 6/10/09), 12 So.3d 1140.

        . Ferrand v. Ferrand, 16-7, p. 7 (La.App. 5 Cir. 8/31/16), 221 So.3d 909; citing; Ramirez v. Ramirez, 13-166 (La.App. 5 Cir. 8/27/13), 124 So.3d 8, 17.

      . Black v. Simms, supra.

      . 2009-2584 (La. 2/12/10), 27 So.3d 277, 279.

      . McCormic v. Rider, 2009-2584 (La. 2/12/10), 27 So.3d 277, 279.

      . McCormic v. Rider, supra, 27 So.3d at 280.

      . Trade F. v. Francisco D., 15-224 (La. App. 5 Cir. 9/21/15), 174 So.3d 781, 812, reh'g denied (Oct. 6, 2015), writ granted, 2015-1812 (La. 11/16/15), 184 So.3d 20, and aff'd but criticized on a separate issue, 2015-1812 (La. 3/15/16), 188 So.3d 231.

      . Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).

      . Troxel v. Granville, 530 U.S. 57, 63, 120 S.Ct. 2054, 2059, 147 L.Ed.2d 49 (2000).

      . id.

      . Hanks v. Hanks, 2013-1442 (La. App. 4 Cir. 4/16/14), 140 So.3d 208, 214.

      . See; McCormic v. Rider, supra; Tracie F. v. Francisco D., supra.

      . At the time the natural child' was born in 2007, there was no legal avenue through which Appellee could obtain parental rights. Appellant and Appellee are a biologically same-sex couple. Appellant is the natural mother through artificial insemination. Appel-lee could not have adopted thp natural child legally under Louisiana law without Appellant relinquishing parental rights. La.Ch.Code art. 1221 (stating that "a single person, eighteen years or older, or a married couple jointly may petition to privately adopt a child.”) and La.Ch.Code. art. 1240 (stating that, upon a final judgment of adoption, the natural parents are "divested of all their legal rights with regard to the adopted child”); see also Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), writ denied, 565 U.S. 942, 132 S.Ct. 400, 181 L.Ed.2d 257 (2011). Moreover, during that time period, prior to the United States Supreme Court’s decision in Obergefell v. Hodges, — U.S. -, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), Louisiana did not recognize same-sex marriage. See La.Civ.Code.art. 3520(B); see also Costanza v. Caldwell, 14-2090 (La.7/7/15), 167 So.3d 619.

      . Ms. Chaisson admitted she had not seen the natural child since November 2015.

      , At trial, Appellant’s' attorney noted on the record the expert requested to interview Ap-pellee, but Appellee declined. Appellee argued she declined because the request was late, and she feared the interview would post-pone the trial.

      .In Succession of Butterworth, 195 La. 115, 124, 196 So. 39, 41-42 (1940), the court explained in pertinent part, "[T]he'testimony of an expert cannot be arbitrarily rejected. Like the testimony of other witnesses, it should be considered by the Court and accorded the weight to which it is entitled in view of the facts and-the common knowledge of mankind (citations omitted).”

      , To prepare for his evaluation, Dr. Shwery read all the legal documents pertaining to the couple’s relationship with each other and the child. He was of the opinion from the beginning, Appellant intended the natural child to have a relationship with Appellee and that ■ intent ‘continued to the present although the relationship of Appellant and Appellee changed. He looked at Appellant's medical information. He testified he observed the child over a period of three or four times for a total of three and one-half to four hours. He observed the child at Appellant's home, reviewed all her school records,' and administered a battery of psychological test to the child,

      . Appellant testified the natural child was. going to counseling, and she was flourishing and doing very well in school. Kayla Vails, a friend of Appellee and who also babysit the child for Appellant, testified the child was a .shy, quiet girl, but she did well in school and did not seem unhappy. Ms. Azucena Rivera, a friend of Appellee, testified, since Appellant and Appellee separated, she saw a change in the demeanor of the child; she described the child before the couple split as shy and not very talkative, but after the split, the child had "flourished into this joyful-, happy, joking and just talks to everybody and just affectionate Ms. Adele Adjmi, Appellee's mother, agreed with Ms. Rivera's characterization of the natural child's demeanor.

      .Appellate record,ip. 335.


source: Caselaw Access Project

author: Judge Terri F. Love LEDET, J.,

license: Public Domain

text:
    CAMBRIE CELESTE LLC and Cambrie Celeste Commercial Tenant, LLC v. STARBOARD MANAGEMENT, LLC, F.I.N.S. Construction LLC, Cambrie Celeste Developer, LLC, Robert Armbruster, and Nicole Armbruster
    NO. 2016-CA-1318
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 6, 2017

      Julie U. Quinn, Justin E. Alsterberg, QUINN ALSTERBERG, LLC, 855 Bar-onne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFFS/APPEL-LEES
    Thomas J. Barbera, Fred L. Herman, Mayra L. Scheuermann, LAW OFFICES OF FRED L. HERMAN, 1010 Common Street, Suite 3000, New Orleans, LA 70112-2421, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, ■ Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Terrel J. Broussard, Pro Tempore)
   Judge Terri F. Love

| ¶ This appeal arises from an eviction and breach of contract dispute for failure to pay rent. Defendants appeal the trial court’s judgment denying their motion for new trial with respect to the trial court’s ruling that denied their motion for reconsideration of the imposition of sanctions and granted Plaintiffs’ motion for summary judgment. Defendants claim the trial court improperly struck their affirmative defenses and reconventional demand, failed to enforce the settlement agreement, and genuine issues of material fact preclude summary judgment. We find the appeal Qf the sanctions issue is untimely, subject matter jurisdiction is lacking in order to consider an alleged settlement agreement, and summary judgment is inappropriate as to all defendants except Starboard, Accordingly, we dismiss the appeal in part, affirm in part, and reverse and remand in part.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In this litigation, Cambrie Celeste, LLC, and Cambrie Celeste Commercial Tenant, LLC (collectively “Plaintiffs”) are companies owned and controlled by Steven Anderson (“Mr. Anderson”), a property developer who specializes in ^developing properties using tax credits. Starboard Management, LLC (“Starboard”); F.I.N.S. Construction, LLC; Cambrie Celeste Developer, LLC, are companies owned and controlled by Robert Armbrus-ter (“Mr. Armbruster”), a contractor.

In this case, Plaintiffs sought to enforce alleged lease obligations that they contend Starboard owes pursuant to a March 22, 2010 lease of a building located at 621 Religious Street in New Orleans, Louisiana. Plaintiffs filed a petition for eviction and breach of contract, in March-2012, against Starboard; F.I.N.S. Construction, LLC; Cambrie Celeste Developer, LLC; and Robert and Nicole Armbruster (collectively “Defendants”) for failure to pay rent.

According to Defendants, in 2009, Mr. Anderson, through his companies obtained the property at 621 Religious Street from a real estate company owned by the Arm-brusters. Defendants allege that the parties entered into a New Markets Tax Credit (“NM.TC”) transaction'to obtain a low market loan to refinance the existing debt on the property. Defendants further allege that in order for the NMTC transaction to close, the .property had to be leased; therefore, the parties executed a lease agreement in March 2010. As part of the lease ¡ agreement, the Armbrusters, F.I.N.S., Construction, LLC, and Cambrie Celeste Developer, LLC, executed, a guaranty agreement.

Defendants allege that the contract contained a number of one-sided terms ■ that favored Plaintiffs. However, Defendants claim that Mr. Anderson told ^Defendants that the lease would not be enforced by its terms and that the lease existed only to ensure compliance with NMTC regulations. Defendants further claim that the parties later made a separate agreement that reflected their business arrangement.

In March 2012, Plaintiffs filed a petition for eviction and breach of contract against Defendants for failure to pay rent. In June 2012, Defendants filed an exception of prematurity, alleging the matter was subject to arbitration, and an exception of unauthorized use of summary proceedings, claiming the lease was a simulation. Plaintiffs opposed the exception of prematurity stating that the evidence offered did not support Defendants’ claim. Plaintiffs also opposed the exception of prematurity on the basis that Defendants submitted no evidence at all to demonstrate that the lease was a simulation. Thp trial court ultimately denied Defendants’ exceptions.

Around the time Defendants filed their exceptions in this case, however, the Arm-brusters also filed a petition for bankruptcy in the United States Bankruptcy Court relative to another business entity they owned. The Armbrusters obtained a stay of Plaintiffs’ eviction suit in this case. In July 2013, the stay was lifted, and Plaintiffs’ eviction suit proceeded in the trial court.

On July 17, 2013, Pjaintiffs issued interrogatories and requests for production of documents to Starboard. When Starboard failed to produce responses, Plaintiffs filed a motion to compel, and at the August 15, 2013 hearing, the trial court orally granted the motion. The trial court issued a judgment on | ¿September 3, 2013, ordering Starboard to comply with Plaintiffs’ discovery requests 'and awarded Plaintiffs $750.00 in attorneys’ fees. Defendants then filed an answer and a reconventional demand, which alleged that the actions and damages set forth in Plaintiffs’ petition were generally false, that they were barred under the law, and that Plaintiffs committed fraud, breach of contract, and “other illegal acts.” On September 16, 2013, Plaintiffs filed its first motion for contempt for Starboard’s continued refusal to provide discovery or to pay the attorneys’ fees as ordered. A contempt hearing was set on the same day as the eviction proceeding in October 2013.

At the eviction proceeding, counsel for Defendants argued that the Jease was unenforceable because it was a simulation. However, the trial court noted that Defendants offered no- evidence or testimony to support their contention. In its oral reasons for judgment, the trial court determined that a valid lease existed and ordered Starboard evicted from the property. In that Plaintiffs prevailed on the eviction of Starboard, the trial court requested that Plaintiffs withdraw the contempt motion for failure to provide discovery.

Following the summary eviction proceeding, Plaintiffs sought to obtain a judgment in an ordinary proceeding on the damages Defendants allegedly owed for unpaid rent. However, in order for Plaintiffs to proceed on the damages issue, Plaintiffs contended it was essential that they have Defendants’ responses to the outstanding discovery. Plaintiffs filed a second motion for contempt in November 2013," but the motion was denied in January 2014 for improper service. Although | ¿the trial court denied the motion, the trial court concluded, in its reasons for judgment, that Plaintiffs repeatedly attempted, via email and letter correspondence, to secure the requested discovery responses without having to file a second motion for contempt. The trial court also found that Defendants’ counsel acknowledged receipt of Plaintiffs’ correspondence “but did not request additional time nor did counsel indicate that he was having any difficulty in responding to this request.”

At that time, Defendants also amended their answer and reconventional demand, re-urging their claim that the lease was a simulation. However, just as they failed to attach supporting evidence to their exception of unauthorized use of summary proceeding, Defendants also failed to attach any evidence to support the claims alleged in their amended answer and reconven-tional demand.

As of February 2014, Starboard still failed to respond to Plaintiffs’ discovery requests, prompting Plaintiffs to file a third motion for contempt. Defendants filed an untimely “Opposition to Motion for Contempt and Incorporated Motion for Leave to File Opposition and Motion for Continuance.” Defendants’ opposition did not include any of the requested documents Plaintiffs sought in discovery. At the March 14, 2014 contempt hearing, the trial court found Starboard in contempt for failure to comply with its September 2013 order compelling Starboard to comply with Plaintiffs’ discovery requests. The trial court dismissed with prejudice Starboard’s affirmative defenses and reconventional demand and further ordered Starboard to “produce all documents having any connection to this matter to [Plaintiffs] at' [Plaintiffs’] counsel’s office (Quinn Law) on or before Monday, |fiMarch 24th, 2014.” Additionally, the trial court awarded Plaintiffs attorneys’ fees and costs associated with the filing of the third motion for contempt. The contempt judgment was signed on April 3, 2014,- and notice of the signing of the judgment was sent on April 4, 2014.

On April 28, 2014, Plaintiffs- 'filed a fourth motion for contempt after their requests for discovery were continually ignored, in violation of the trial court’s September 2013 and April 2014 orders. Defendants’ current counsel formally enrolled the next day; and, on May 1, 2014, Defendants filed a “Notice of Intent to Take Supervisory Writs/Appeal.” Defendants, however, did not pursue appellate review of the April 2014 contempt judgment at that time.

While Defendants later produced certain documents following the enrollment of new counsel, Plaintiffs alleged that Defendants’ discovery responses remained incomplete. Plaintiffs elected to proceed and filed a motion for summary judgment in November 2014. Plaintiffs later agreed to continue the motion in an effort to reach a settlement agreement in this case as well as in other pending matters between the party principals and their various business entities.

The parties were unable to reach a settlement agreement, and Plaintiffs filed a motion to re-set their motion for summary judgment in May 2016. Instead of filing an opposition to summary judgment, Defendants filed, on May 18, 2016, a “Motion for Reconsideration or, Alternatively, Motion to Reinstate Defenses and- Reconventional Demand,” seeking a rehearing on the trial court’s- April 4, 2014 judgment striking Defendants’ affirmative defenses and re-conventional demand. 17Thereafter, - on June 23, 2016, Defendants filed an untimely- opposition to Plaintiffs’ motion for summary judgment. Defendants attached,- for the first time, documents and exhibits that Plaintiffs previously requested in discovery but were never provided. A hearing on both motions was held on July 8, 2016. The trial court issued a July 27, 2016 judgment denying Defendants’ motion to reconsider as untimely and granted summary judgment in favor of Plaintiffs on the issue of damages for unpaid rent.

In August 2016, Defendants filed a “Motion for New Trial,” seeking reconsidera; tion of the trial court’s July 27, 2016 judgment that denied their previous motion to reconsider and granted Plaintiffs summary judgment. The trial court denied the motion for new trial on September 21, 2016.

Defendants then filed the instant-appeal. Plaintiffs responded by brief and filed a separate motion to dismiss the appeal, alleging certain jurisdictional defects.

JURISDICTION

On appeal, Defendants enumerate four assigned errors including: (1) the trial court improperly struck Defendants’ affirmative defenses and reconventional demand; (2) the trial court improperly failed to enforce the settlement agreement; (3) Defendants were not served with Plaintiffs- “[m]otion;” and (4) genuine issues of material fact exist precluding summary judgment.

Plaintiffs contend that despite Defendants’ assertion that this Court has jurisdiction to review the trial court’s September 21, 2016 judgment, the substance of Defendants’ appeal seeks reversal of judgments that are not subject to appellate preview and must be dismissed. Plaintiffs argue that the substance of Defendants’ motion for new trial, like their motion for reconsideration, seeks the trial court’s reconsideration of its April 2014 contempt judgment — a judgment from which Defendants filed a notice of intent but never sought' appellate review. Thus, Plaintiffs claim that .neither the motion to reconsider nor the motion for new trial, both filed in 2016, can serve to revive a final judgment rendered over two years prior. As to Defendants’ second assignment, of error, Plaintiffs maintain that Defendants seek to appeal the denial of a “Motion to Enforce Settlement Agreement” that was not before the trial court in this case. Therefore, it is not a part of the record on appeal, and the assigned error should be dismissed for lack.of subject matter jurisdiction.

Pursuant to Rule 1-3 of the Uniform Rules, Courts of Appeal, this Court “will review only issues which were -submitted to the trial court and which are contained in specifications or assignments of error,- unless the interest of justice clearly requires otherwise.” Likewise, “[ejvery pleading must be construed as to do substantial justice [... ] Accordingly, courts look beyond mere headings and terminology used on or in pleadings to determine the circumstances and the true nature of the suit.” Adams v. First Nat. Bank of Commerce, 93-2346, 94-0486, p. 4 (La. App. 4 Cir. 9/29/94), 644 So.2d 219, 223 (internal citations omitted); Scullin Individually and on Behalf of Am. Companies v. Prudential Ins. Co. of Am., 421 So.2d 470, 472 (La. App. 4th Cir. 1982).

Moreover, La. C.C.P. art. 2164, states that an “appellate court shall render | aany judgment which is just, legal, and proper upon the record on appeal.” However,

.a party’s failure to timely seek the modification or reversal of an underlying judgment is a “jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power .and authority to reverse, revise or modify a final judgment after the time” for seeking such modification or reversal has elapsed. [...] [W]hen a party fails to seek timely modification or reversal of an underlying .judgment, “the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter, that judgment.”

6126, L.L.C. v. Strauss, 13-0853, p. 21-22 (La. App. 4 Cir. 12/4/13), 131 So.3d 92, 105 (quoting Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La. 1991)).

Contempt Judgment

By way of the present appeal, Defendants ask this Court to revive consideration of the trial court’s April 2014 judgment, striking its affirmative defenses and reconventional demand. The' substance of both the May 2016 motion to reconsidér and the August 2016 motion for new trial sought the reversal of the trial court’s earlier contempt judgment. Because a contempt judgment is a final appealable judgment, Plaintiffs contend all delays for reconsideration by the trial court, and delays for taking an appeal have prescribed. Defendants aver that the April 2014 judgment is not final and appealable because the judgment imposed sanctions pursuant to La. C.C.P. art. 1471 and fails to meet the requirements of La. C.C.P. art. 1915(B).

All contempt judgments are deemed final judgments, subject to immediate |1nappeal. Stiltner v. Stiltner, 00-2079, p. 2 (La. App. 4 Cir. 11/08/00), 772 So.2d 909, 910; Pittman Constr., Co. v. Pittman, 96-1079, 96-1498, p. 3 (La. App. 4 Cir. 3/12/97), 691 So.2d 268, 270.

The trial court relied on Stiltner to con-elude that the delays for reconsideration of its previous contempt judgment had prescribed. Defendants argue that reliance on Stiltner is misplaced because that case addressed La. C.C.P. art. 1915(A)(6), which makes judgments final and subject to immediate appeal when a court “(ijmposes sanctions or disciplinary action pursuant to [La. C.C.P. arts.] 191, 863, or 864....” Judgments rendered under Article 1915(A)(6) do not require, that the. trial court to designate the judgment as final for the purpose of an immediate appeal. See La. C.C.P. art. 1915, Comment 1999 (“A final judgment under Article 1915(A) is appealable without being so designated,...”).

Because the trial court did not issue sanctions pursuant to its inherent powers under Article 191, Defendants claim Article 1916(A)(6) does not apply. They therefore contend that because the judgment lacks an express designation of finality, the judgment is interlocutory and “may be revised at any time prior to” adjudicating “all the claims and the rights and liabilities of all the parties.” La. C.C.P. art. 1915(B)(2). Defendants argue their appeal of the sanctions issue should not be dismissed.

lnLa. C.C.P. art. 1471 sanctions are triggered when a party refuses .or fails to comply with a discovery order. Even in the absence of such an order, La. C,C,P. art. 191 “authorizes trial courts to impose sanctions for [failing to adhere to discovery rules] since [such failure] clearly interferes with the court’s ability to fairly administer justice.” Carter v. Hi Nabor Super Mkt., LLC, 13-0529, p. 7-8 (La. App. 1 Cir. 12/30/14), 168 So.3d 698, 704. Thus, “[a] trial court has the authority to impose sanctions on a party for [...]'discovery misconduct under both its inherent power to manage its own affairs and the discovery articles provided in the Louisiana Code of Civil Procedure.” Id., 13-0529, p. 7, 168 So.3d at 703. Accordingly, it makes no difference whether the trial court expressly issued sanctions pursuant to La. C.C.P. art. 1471 or La. C.C.P. art. 191 in order to trigger La. C.C.P. aft. 1915(A)(6)’s application. Cf., Robinson v. Harlan, 12-0363 (La. 4/9/12), 85 So.3d 131 (reinstating appeal' after appellate court erroneously held a contempt judgment under Article 1471 is not a final and appeal-able judgment); See also In re Jones, 10-66, p. 4 (La. App. 5 Cir. 11/9/10), 54 So.3d 54, 58 (finding contempt judgment is final and appealable and relying on Pittman, supra). Therefore, we find the April 2014 contempt judgment is a final judgment and subject to immediate appeal under La. C.C.P. art. 1915(A)(6). ■ •

■ We next consider whether Defendants’ rights to appellate review have prescribed. Pursuant to La. C.C.P, art, 5002(A), an appeal may be taken within ten days from the signing of the judgment or from service of the notice of judgment. When a .motion for new trial is timely filed, the delay commences on the day after |12the motion is denied or from service of the notice of order denying a new trial. La. C.C.P. art. 5002(B). The delay for applying for a new trial is seven days (exclusive of legal holidays) from the day notice is sent or served by the sheriff. La. C.C.P. art. 1974.

The procedural history demonstrates that all delays for the trial court’s reconsideration of its April 2014 ruling and the delays for appellate review have prescribed. After the trial court orally granted Plaintiffs’ third motion for contempt, Defendants noticed their intent to seek this Court’s review. On May 1, 2014, Defendants filed a “Notice of Intent to Take Supervisory Writs/Appeal.” However, Defendants elected not to pursue appellate review of the judgment, nor did they file a timely motion for new trial. Given Defendants failed to timely seek modification of the trial court’s judgment, the judgment became final and non-appealable.

We find no error in the trial court’s denial of Defendants’ May 2016 motion to reconsider or their August 2016 motion for new trial. Both motions were filed well outside the delays set forth in La. C.C.P. art. 1974, and furthermore, each motion sought reversal of a judgment which became final and non-appealable two years prior. Therefore, this Court has no jurisdictional authority to reverse a final judgment after the delays for seeking reversal have elapsed. Accordingly, Defendants’ appeal of the sanctions issue is dismissed as untimely.

h ¡¡Enforcement of Settlement Agreement

Plaintiffs also argue this Court lacks subject matter jurisdiction to consider Defendants’ claim that the trial court erred when it failed to enforce an alleged settlement agreement. Defendants reference, on appellate review, a judgment which denied a “Motion to Enforce Settlement Agreement.” A review of the record demonstrates that no such motion was ever filed, nor did the trial court issue a judgment denying such motion in this case. Plaintiffs contend Defendants “play fast and loose with their wording” to cloud this Court’s understanding of the events that transpired, what parties were involved, and in what cases.

The record indicates that Mr. Anderson, the principal of the Plaintiff companies, and the Armbrusters, the principals of the Defendant companies, are also principals of other various entities that conducted business together and which ended in litigation and/or arbitration. One of those disputes, Community Capital Partners, LLC v. Robert Armbruster, Specialized Response Group, LLC and Bank of New Orleans, Case No. 2012-6629 c/w 2014-2136 (“Community Capital”), was allotted to the same division and trial judge as the instant matter, but was a completely separate and unrelated case with different parties and issues.

The parties in Community Capital attempted to reach a settlement agreement, although unsuccessfully. Nevertheless, Mr. Armbruster sought to enforce what he believed was a settlement agreement. His request was denied by the arbitration panel, so Mr. Armbruster filed a “Motion to Enforce Settlement” in Community Capital, which was pending before the trial court. The trial court | udenied the motion, and Mr. Armbruster sought supervisory review. This Court denied writs on March 9, 2016. However, in the above-captioned matter, the trial court did not consider any motion to enforce settlement or issue a judgment denying the motion.

The fact that the same trial judge rendered judgment on a motion to enforce settlement in another unrelated case is irrelevant where the motion to enforce was never filed or made a part of the record herein. Therefore, this Court lacks subject matter jurisdiction to review, within the context of this appeal, the denial of a motion to enforce settlement agreement filed in a separate, unrelated matter. Pursuant to Rule 1-3, Uniform Rules, Courts of Appeal, Defendants’ second assignment of error is dismissed.

SUMMARY JUDGMENT

Defendants also assign as error the trial court’s granting of summary judgment. Defendants claim they were never served with Plaintiffs’ motion and genuine issues of material fact remain, precluding summary judgment.

Proper Service

Defendants argued at the summary judgment hearing that they had not received service of the “motion.” The trial court offered counsel for Defendants an opportunity to present argument on the issue; however, Defendants declined, indicating they “[did not] want to deal with that” as they were present for the hearing and “ready to roll.” To the extent that Defendants assert on appeal that they did not receive service of the “motion for summary judgment,” procedural due | ^process requires that a party be given adequate notice of the pendency of an action and an opportunity to be heard. Pursuant to La. C.C.P. art. 1313(C), “if a pleading or order sets a court date, then service shall be made either by registered or certified mail or as provided in Article 1314, or by actual delivery by commercial courier.” Therefore, Article 1313(C) requires the mover to provide proper notice of the hearing.

The record reflects that Plaintiffs filed a motion for summary judgment and a separate rule to show cause. The rule to show cause was served upon Defendants, and the Orleans Parish Sheriffs Office filed a certificate of service into the record. Defendants, through counsel, expressly acknowledged service and later waived formal service when Defendants’ counsel sought to reinstate the original July 8, 2016 hearing date. We find no merit to Defendants’ claim of lack of service.

Issues of Material Fact

With respect to the trial court’s granting of summary judgment, Defendants contend the trial court erred as genuine issues of material fact exist. This Court reviews a ruling on summary judgment de novo. Brunet v. Fullmer, 00-0644, p. 3 (La. App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. Appellate courts apply the same standard as the trial court and therefore “[t]o affirm a summary judgment an appellate court must find that reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.” Chapital v. Harry Kelleher & Co., Inc., 13-1606, p. 5-6 (La. App. 4 Cir. 6/4/14), 144 So.3d 75, 81 (quoting Mandina, Inc. v. O’Brien, 13-0085, p. 5 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104).

At the hearing on summary judgment, the issue was raised as to whether the trial court’s April 2014 contempt judgment applied to Starboard only or whether it also applied to the sureties of Starboard, namely the Armbrusters. Counsel for Defendants asserted, on behalf of the Armbrusters, the invalidity of the lease as a defense. Plaintiffs argued that the Arm-brusters are the admitted sureties of Starboard and thus, the law prohibits sureties from raising any defenses that the principal obligor cannot. Accordingly, the Plaintiffs argued that the Armbrus-ters are prohibited from asserting the same affirmative defenses or reeonven-tional demand that Starboard could have but for the trial court imposing sanctions against Starboard.

The trial court agreed, concluding that the defenses the Armbrusters attempted to 'raise, in their individual capacity as sureties, were all defenses that could not be considered in light of its April 2014 contempt judgment'against- Starboard. The trial court declined to consider the Arm-brusters’ affirmative defense that the lease was a simulation and therefore unenforceable. After considering Plaintiffs’ evidence on the damages issue for unpaid rent, the trial court granted summary judgment in favor of the Plaintiffs and against all defendants.

The decretal language of the April 2014 contempt judgment dismissed Starboard’s affirmative defenses and reconventional demand and further stated ' that 117“ Starboard is prohibited from asserting any further claims or causes of action against the plaintiffs in this matter.” The, decretal language only references "Starboard, LLC” and, is therefore only. enforceable against' Starboard. See Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. v. Mid-City Holdings, L.L.C., 12-0506, p. 2-3 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910 (determining a final appealable judgment must name the party in favor of whom the ruling is ordered, the, party against whom the ruling is ordered, and the relief that is granted or denied); Input/Output Marine Sys., Inc. v. Wilson Greatbatch Tech., Inc., 10-477, p. 12-13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 916.

As discussed above, the trial court’s April 2014 contempt judgment is a final judgment and will not be disturbed. The trial court correctly rejected Starboard’s attempts to demonstrate a genuine issue of material fact by asserting affirmative defenses which the trial court previously struck. Therefore, we affirm the granting of .summary judgment as it pertains to Starboard and reverse as to all other defendants.

In that we reverse the trial court’s ruling as to all defendants except Starboard, we find remand necessary. We note, however, that the record demonstrates that the opposition filed by Defendants is untimely pursuant to La. C.C.P. art. 966(B)(2), It is recognized that it is within the trial court’s discretion whether or not it chooses to consider an untimely filed opposition and supporting 11saffidavit on summary judgment. Guillory v. Chapman, 10-1370 (La. 9/24/10), 44 So.3d 272 (reversing appellate court and holding that the trial court did not abuse its discretion by deciding to follow the mandatory language of La. C.C.P. art. 966(B) as to timing); Buggage v. Volks Constructors, 06-175, p. 1 (La. 5/5/06), 928 So.2d 536, 536 (“The time limitation established by La. C.C.P. art, 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded, by the trial court”) (citing Am. Bank & Trust Co. v. Int'l Dev. Corp., Inc., 506 So.2d 1234 (La. App. 1 Cir.1987)); Phillips v. Lafayette Par. Sch. Bd., 10-373, p. 3-4 (La. App. 3 Cir. 12/8/10), 54 So.3d 739, 743.

In this case, the trial court refused to entertain Defendants’- opposition and supporting affidavit as it had previously invoked La. C.C.P. art. 1471 and struck all defenses asserted by the Defendants. While we find the contempt judgment applies only to Starboard, consideration of an untimely filed opposition rests with the discretion of the trial court. Therefore, we remand the matter for the trial court to consider the timeliness of Defendants’ opposition according to La. C.C.P. art. 966(B)(2). If the trial court decides to accept the untimely filing, the trial court is further instructed on remand to conduct an evidentiary hearing on the merits of the motion for summary judgment in line with this opinion.

DECREE

In light of this Court’s discussion, we find Defendants’ motion to reconsider and motion for new trial were filed over two years after the April 2014 judgment Imbecame final and subject to immediate appeal. Defendants’ rights to appellate review of the sanctions issue have therefore prescribed and Defendants’ appeal on the issue is dismissed. We also find that this Court lacks subject matter jurisdiction to consider, for purposes of this appeal, the denial of a motion to enforce settlement agreement rendered in an unrelated case that involves different parties and legal issues. Finally, we find the contempt judgment applies to Starboard only. Therefore, we affirm the trial court’s September 21, 2016 judgment denying Starboard’s motion for new trial relating to the trial court’s previous ruling that granted Plaintiffs’ motion for summary judgment; however, we reverse the trial court’s -judgment as to all other defendants. Accordingly, we dismiss the appeal in part, affirm in part, and reverse and remand in part.

APPEAL DISMISSED IN PART; AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ’

■LEDET, J.,’CONCURRING IN PART WITH REASONS

LEDET, J.,

CONCURRING IN PART WITH REASONS

_JjThe only appropriate procedural action is to remand this matter to the trial court for further proceedings. For this reason, I would not address the issue of whether the Defendants’ opposition was untimely filed pursuant to La. C.C.P. art. 966 B(2).

      . Mr. Armbruster signed on behalf of F.I.-N.S. Construction, LLC as its "Manager” as well as on behalf of Cambrie Celeste Development, LLC, as its “Sole Member.”

      . Before the 1999 amendments to La. C.C.P. art, 1915, courts considered a contempt judgment an interlocutory judgment. Stiltner, 00-2079, p. 1, 772 So.2d at 910. However, an exception to the rule was recognized "in cases where the object of the court proceeding is to hold someone in contempt for violating a direct order of the court, in which case, 'a direct appeal is the most appropriate.’'” Id., 00-2079,p. 1-2, 772 So.2d at 910 (quoting Pittman, 96-1079, 96-1498, p. 3, 691 So.2d at 269).

      . See La. C.C.P. arts. 2123 and 2087 (delays for suspensive and devolutive appeals).

      . . The April 2014 contempt judgment refers to Starboard as “Starboard, LLC,” whereas the caption of the case, however, refers to Starboard as "Starboard Management, LLC.”

      , La, G.C.P. art 966(B)(2) states, "[a]ny opposition to the motion [for summary judgment] and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion,”