author: JOHNSON, J.

text:
    STATE of Louisiana, Department of Social Services in the Interest of L. R. v. Christopher HAINES
    NO. 17-CA-328
    Court of Appeal of Louisiana, Fifth Circuit..
    December 13, 2017

      COUNSEL FOR PLAÍNTIFF/APPEL-LEE, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Paul D. Connick, Jr., Amanda L. Calogero, Charles E. To-ney, Jr, Timothy P. O’Rourke
    DEFENDANT/APPELLANT, CHRISTOPHER HAINES, Christopher Haines, In Proper Person
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   JOHNSON, J.

| defendant appeals the juvenile court’s judgment modifying his child support obligation, specifically-increasing the amount from $275/month to $597/month inclusive of private school tuition, and ordering it retroactive to the date of judicial demand. For the following reasons, we affirm in part and amend in part.

FACTS & PROCEDURAL HISTORY

This matter began by a petition to prove paternity and obtain child support- filed in 2009 by the State of Louisiana, Department of Social Services (now the Department of Children and Family Services), in the Interest of L.R. against Defendant, Christopher Haines. Defendant subsequently acknowledged the minor child as his biological child, and child support was set in September 2010 after a hearing. Defendant appealed the judgment setting child support and assessing arrearages. On appeal, this Court vacated the September 2010 judgment on the basis the record was devoid of any evidence to allow a review, and we remanded the matter for further proceedings. State Department of Children & Family Services ex rel. L.R. v. Haines, 11-84 (La. App. 5 Cir. 5/6/11); 67 So.3d 515.

On remand, the parties reached'an agreement regarding child support, and the agreement was made the judgment of the court on December 5, 2011. Specifically, the recipient agreed to a reduced child support amount of $275/month plus 5% court costs for a total, of $288.75/month, with the obligation having prospective application only; thus,. Defendant owed no arrearages.

Approximately five years later, on September 9, 2016, the State filed a motion to modify support on the basis it had been more than three years since support' was set. The matter was heard by a hearing officer on November 29, 2016, who made certain recommendations — specifically that child support be increased to $801/month plus 5% court costs for a total of $841.05/ month — with which |aDefendant disagreed. As a result, a disagreement hearing was set before the juvenile court judge for March 6, 2017.

At the disagreement hearing, the State indicated that the increase of child support recommended by the hearing officer was based on a determination of Defendant’s income from the Louisiana Occupational Wage Survey for a roofer because Defendant did not provide the requested information regarding his income. The State advised the juvenile court that Defendant, on the day of the disagreement hearing, provided his 2015 tax returns with rental income information and check stubs from a new job that he started , on December 30, 2016. Based on this new information, the State argued that Defendant’s child support obligation was ,$697/month, inclusive of his proportionate share of private school tuition.

After, hearing testimony and considering various documents submitted, the juvenile court agreed with-the State’s calculation and set Defendant’s child support obligation at $697/month, inclusive of private school tuition. The court gave Defendant a $100/month second'family credit based on the fact Defendant’s oldest daughter from a previous relationship lived with him, resulting in a total obligation of $597/month plus 5% court costs for a total of $626:85/ month. The court ordered the child support retroactive to the filing date of September 9, 2016. It is from this March 6, 2017 judgment that Defendant now appeals.

ISSUES

Defendant raises three issues on appeal. First, he argues the trial court erred in calculating the amount of his rental income for purposes of determining his adjusted monthly gross income. Second, he maintains the trial court erred in |aincluding private school tuition in the basic child support obligation. And, third, Defendant avers the trial court erred in ordering the child support obligation retroactive to the filing date of September 9,2016.

DISCUSSION

Standard of Review

The trial court’s discretion in setting the amount of child support is structured and limited. Dept. of Social Services ex rel. A.D. v. Gloster, 10-1091 (La. App. 5 Cir. 6/29/11); 71 So.3d 1100, 1102. The obligation must be administered and fairly apportioned between parents in their mutual financial responsibility for their children. The guidelines for determination of child support are set forth in La. R.S. 9:315, et seq., and balance the needs of children with the means available to parents. The standard of review in a child support case is manifest error, and an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Gloster, supra.

Rental Income

Defendant argues that the juvenile court erred in computing his adjusted monthly gross income by incorrectly calculating his monthly rental income. Specifically, Defendant asserts the juvenile court erred in arbitrarily finding his rental income was $513.22/month when his records and tax returns show his rental income was only $52.33/month.

The schedule of basic child support obligations contained in La.- R.S. 9:315.19 relies on the combined adjusted monthly gross income of the parents. Rental income is a component of gross income under La. R.S. 9:315(C)(3)(c), which states:

(c) Gross receipts minus. ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. “Ordinary and necessary expenses” shall not include amounts allowable by the Internal 1 ¿Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

Under this statute, any amount received for rental property shall not be included in gross income until after the “ordinary and necessary” expenses required to produce said income have been deducted. Widman v. Widman, 619 So.2d 632, 636 (La. App. 3rd Cir. 1993). The party seeking the subtraction of “ordinary and necessary” expenses from the gross receipts bears the burden of proving the expenses are “ordinary and necessary.” Dazet v. Price, 16-362 (La. App. 5 Cir. 12/7/16); 204 So.3d 1152, 1154. The court is not bound by a party’s designation of which expenses are “ordinary and necessary,” even if made in federal tax returns. Dejoie v. Guidry, 10-1542 (La. App. 4 Cir. 7/13/11); 71 So.3d 1111, 1118, writ denied, 11-1779 (La. 9/2/11); 68 So.3d 520.

On appeal, - Defendant fails to identify which expenses he believes-were “ordinary and necessary” that were not deducted from the gross receipts by the juvenile court. Instead, he simply makes a broad allegation that the juvenile -court failed to use the amount of rental income as computed on his federal tax return, which as stated above is clearly not required by law.

The record shows that at the disagreement héaring, the State explained that it had calculated Defendant’s rental income to be $513.22/month based on two properties being rented at $1,190/month for a total of $14,280/year. From that amount, the State indicated that it deducted expenses relating to insurance, taxes and the monthly mortgage payments. It specifically noted that it did not deduct expenses for water or electricity, noting that Defendant did not provide the leases for the occupied properties to show what was paid for by the tenants. Defendant ^pointed to his bank statements and other documents and argued that' they showed he paid the water bill on the rental property. Ultimately, the trial court used the $513.22/month figure calculated by the State as Defendant’s rental income.

Upon review, we cannot say the trial court was manifestly erroneous in its calculation of Defendant’s rental income. The record shows the rental property at issue, located on Fourth Street in Marrero, was a building with four units, two of which Defendant rented out and one of which Defendant used for equipment, storage, and maintenance products. It was incumbent upon Defendant to prove the “ordinary and necessary” expenses required to produce income. The record shows the juvenile court clearly allowed some expenses, i.e. insurance, taxes and mortgage payments, as “ordinary and necessary” and disallowed others. Because Defendant has failed to specify on appeal what “ordinary and necessary” expenses were required to produce income and what expenses the trial court failed to deduct from his gross receipts, we cannot find the juvenile court was manifestly erroneous in its calculation. Private School Tuition

Defendant next argues the trial court erred in allowing private school tuition in the child support calculation without proof of the cost of tuition or that the child’s mother, Ms. Rose Roux, paid it.

The inclusion of expenses for private school attendance as an addition to the basic child support obligation is authorized by La. R.S. 9:315.6, which provides in pertinent part:

By agreement of the parties or order of the court, the following expenses incurred on behalf of, the child may be' added to the basic child support obligation:
|fi(l) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.

According to the official comments to this statute, “The needs of the child met by the special or private school need not be particular educational needs, but may include such needs of the child as the need for stability or continuity in the child’s educational program.” See Thomas v. Robinson, 15-82 (La. App. 5 Cir. 9/23/15); 176 So.3d 698, 700-01. A trial court’s determination of whether to include private school tuition in a basic child support obligation will not be disturbed absent an abuse of discretion. Id. at 702.

At the disagreement hearing, Ms. Rome testified that the child was in school at Word of Life Academy. She stated the child, who is in second grade, had been attending that school for four years, since pre-K. Ms. Roux explained that she pays cash for the tuition. The child support obligation worksheet introduced into evidence indicated tuition was $330.42/month.

Defendant’s argument against private school tuition during the hearing was that he never agreed to private school, that it was a unilateral decision on the part of Ms. Roux, he could not afford private school, and that the school the child is attending is not accredited. However, the only issue Defendant raises on appeal is that there was no proof offered regarding the amount of tuition or that Ms. Roux paid it. We disagree. Ms. Roux testified that she paid the school tuition and the obligation worksheet showed tuition, based on documentation from the school, was $330.42/month. Additionally, documentar tion from the school showed numerous cash payments were made throughout the 2015-2016 school year and .the beginning of the 2016-2017 school year. Defendant offered nothing to controvert, this ^evidence. Accordingly, we find sufficient evidence to support the juvenile court’s inclusion of private school tuition in the basic child support obligation.

Retroactivity of Child Support

Defendant also argues the trial court erred in ordering the March 6, 2017 child support judgment retroactive to the date of filing of September 9, 2016, creating arrearages during a time he was involuntarily unemployed.

“[R]etroactivity is intrinsic to the concept of child support under Louisiana’s civilian tradition[.] Louisiana law ‘abhors a gap in the support of one in need.’ ” Dept. of Social Services ex rel. P.B., 12-838 (La. App. 5 Cir. 4/24/13); 114 So.3d 1161, 1167, writ denied, 13-1193 (La. 9/13/13); 120 So.3d 698, quoting Fink v. Bryant, 01-987 (La. 11/28/01); 801 So.2d 346, 350. Retroactivity in this context “is not in the nature of a penalty, but merely a judicial recognition of a pre-existing entitlement. Only practicality postpones the effective date of the obligation to pay child support to the date a court orders that payment.” Id., quoting Vaccari v. Vaccari, 10-2016 (La. 12/10/10); 50 So.3d 139, 142.

A judgment modifying a child support judgment shall be retroactive to the date of judicial demand, except for good cause shown. La. R.S. 9:315.2(C). When the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence. La. R.S. 9:315.21(E). The burden is on the obligor parent to-prove that good cause exists for not making the award retroactive to-the date of judicial demand. Dept. of Social Services ex rel. P.B., 114 So.3d at 1167-68. As previously noted, the trial court is vested with much discretion in fixing awards of child support, and the court’s reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. Harrington v. Harrington, 43,373 (La. App. 2 Cir. 8/13/08); 989 So.2d 838, 844.

IsUpon review, we find the juvenile court abused its discretion in failing to find good cause existed for not ordering the child support modification retroactive to the date of judicial demand. The State filed its motion to modify support on September 9, 2016 on the basis more than three years had passed since the last child support judgment of December 2011. There was no indication in the record that Defendant had even been in arrears. In fact, at the time of the initial hearing on the motion, Defendant had a $13.75 credit for overpayment of child support.

At the disagreement hearing, Defendant explained that he had been self-employed as a contractor until August 12, 2016, when his house flooded during the catastrophic Denham Springs flood. He stated that he, his two daughters and his elderly mother had to be rescuéd by boat from the roof of his house after it took on four and one-half feet of water. As a result of the flood, Defendant testified that he “lost everything” — most of the contents of his home, all his vehicles, and his tools and equipment. He stated that he had insurance for his home, but not for his contractor business, CGH Specialty Contractors,. Inc. After losing all his tools and equipment and being unable to obtain an SBA lpan, Defendant was forced to dissolve his company. He submitted a certificate from the Louisiana Secretary of State showing his business corporation, domiciled in Denham Springs, was dissolved on . November 23, 2016. Approximately one month later, on December 30, 2016, Defendant obtained full-time employment at Home Depot, where he earns $13/hour.

Nothing in the record indicates Defendant’s credibility was called into question.. In fact, the juvenile court even noted that Defendant could not go back to his self-employment if he lost all of his tools and equipment. Additionally, the | Juvenile court ultimately based the modification of child support on Defendant’s earnings from Home Depot and not his contractor business, However, despite Defendant’s request that the modification of child support not be made retroactive prior to his new job because he was not employed in September, October, November or December because of the flood damage he sustained, the juvenile court ordered the child support modification retroactive to the date of filing, or September 9, 2016. We find this was an. abuse of the juvenile court’s discretion. Defendant clearly proved that good cause existed for not making the modification award retroactive to the date of judicial demand. Accordingly, we amend that portion of the judgment making the increased child support retroactive to the filing date of September 9, 2016, and render the judgment retroactive to December 30, 2016, the date Defendant obtained new employment after the flood.

DEGREE

\ For the foregoing reasons, we amend that portion of the March 6,2017 judgment ordering the modification of child support to be retroactive to the filing date and order it retroactive to December'30, 2016. In all other respects, the judgment is. affirmed. Each party is to bear its own costs.

AFFIRMED IN PART; AMENDED IN PART

      . The juvenile court signed an order on November 29, 2016, making the hearing officer’s recommendations the judgment of the court,

      . The record shows, that Defendant’s new job was with Home Depot where he earned $13/ hour.

      . The State explained thaf it calculated Defendant’s monthly income to be $2,819.22 based on his rental income (exclusive of the mortgage, insurance and taxes) and his current income from Home Depot. It further noted that, the. recipient’s monthly income was $1,516.67 (based on her current employment at EZ Cash earning $ 10/hour working 35 hours per week). According to the child support obligation worksheet. Defendant’s proportionate share of the basic child support obligation was determined to be 65%. Additionally, the obligation worksheet listed the private school tuition at $330.42/month.

      . We note that Defendant’s 2015 tax return shows his rental income as $17,256. Defendant explained that the higher number on his tax return reflected a third tenant who only tented for a few months at the beginning of the year. The State indicated it did not use the higher number from Defendant's tax return, but rather calculated rental income based on rent Defendant currently received from his two tenants. Defendant did not dispute that he received $1,190/month in rental payments from his tenants. • . -

      . The record indicates that Defendant had two rental properties — one in Marrero and one in Baton Rouge — but only the Marrero property generated income.

      . There was no indication as to the current use of the fourth unit, although at some point in early 201S a third tenant occupied the building for a period of time. (See footnote 4, supra.)

      . At the initial hearing before the hearing officer, the State explained that the amount of tuition was calculated from a statement of account from Word of Life Academy, which was introduced into evidence, showing an average tuition of $330.42/month based on registration, fees, and tuition divided over 12 months. The statement of account further showed numerous cash payments from August 2015 through September 2016.

      . We take judicial notice of the fact the August 2016 flood was of historic and devastating proportion with widespread flooding, especially in Denham Springs, where approximately 90% of homes and buildings were flooded, and surrounding areas. See La. C.E. art. 201(B) (Judicial notice may be taken of a fact "not subject to reasonable dispute in that it is either ... [gjenerally known within the territorial jurisdiction of the trial court; or .., [cjapable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be'questioned.”)


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    STATE of Louisiana v. Sean E. STOCK
    NO. 17-KA-340
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, SEAN E. STOCK, Prentice L. White
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

h Defendant appeals his habitual offender adjudication and his sentences. For the following reasons, we affirm. We also remand for correction of the uniform commitment order, and we grant appellate counsel’s motion to withdraw as attorney of record.

PROCEDURAL HISTORY

This is defendant’s second appeal.

Defendant, Sean E. Stock, was charged and convicted of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 (count one) and receiving stolen things having a value of over $1,500.00 in violation of La. R.S. 14:69 (count two). The trial court sentenced defendant to ten years imprisonment at hard labor on each count to be served concurrently. Defendant filed a motion to reconsider his sentences.

Thereafter, the State filed a habitual offender bill of information alleging defendant to be a second felony offender. After a habitual offender hearing, the trial court adjudicated defendant as a second felony offender. It vacated defendant’s original sentence on count one and resentenced him under the habitual offender statute to ten years imprisonment at hard labor, to be served without the benefit of probation or suspension of sentence. Defendant appealed.

In that appeal, this Court found that defendant’s motion to reconsider his original sentences remained pending and remanded the matter for the trial court to consider the motion. State v. Stock, 16-552 (La. App. 5 Cir. 2/22/17), 212 So.3d 1268, 1280. Furthermore, it found that the trial court erred in finding defendant to be a second felony offender since the State did not provide sufficient evidence to meet its burden of proving that defendant’s predicate conviction fell within the ten-year “cleansing period” prescribed by La. R.S. 15:529.1(0). Id. at 1281. Thus, it vacated defendant’s adjudication and enhanced sentence as a second felony Uoffehder, reinstated defendant’s original sentence on count one, and remanded the matter for further proceedings as warranted. Stock, 212 So.3d at 1281-1282.

On remand, the trial court held a habitual offender hearing on April 21, 2017. At the start of the hearing, the trial court considered defendant’s outstanding motion to reconsider his original sentences, as directed by this Court’s opinion, and denied the motion. Also, after the State presented evidence, the trial court found defendant to be a second felony offender, vacated his original sentence on count one, and sentenced defendant as a habitual offender to ten years at hard labor without benefit of probation or suspension of sentence. It also' denied defendant’s oral motion to reconsider his habitual offender sentence. Defendant appeals.

FACTS

The underlying facts of the case are not relevant to defendant’s second appeal. Nevertheless, the full narrative can be found in this Court’s opinion regarding defendant’s first appeal. See Stock, 212 So.3d at 1272-74.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be |^accompanied by “‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support "their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an An-ders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id. When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 676 So.2d at 1110.

DISCUSSION ,

In this appeal, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. He states.that on remand, the trial court,denied defendant’s motion to reconsider his original sentences, and the State. proved that defendant was released -from state supervision on the predicate offense within ten years of his arrest and conviction of simple burglary of an inhabited dwelling. Appellate counsel avers that defense counsel engaged in a colloquy with defendant, wherein defendant did not indicate |4any opposition to the accuracy or legitimacy of the State’s evidence of his release date. He contends that an examination of the record reveals that the trial court thoroughly addressed defense counsel’s motions and objections prior to and during the habitual offender hearing. Appellate counsel has fíled a motion to withdraw as attorney of record.

The State agrees with appellate counsel that this case presents no non-frivolous issues for appellate review and that appellate counsel’s motion to withdraw should be granted,

It is noted that defendant’s convictions were affirmed in the first appeal, and this second appeal is limited to the matters remanded to the trial court. See State v. Evans, 09-477 (La. App. 5 Cir. 12/29/09), 30 So.3d 958, 969, writ denied, 10-0363 (La. 3/25/11), 61 So.3d 653. In compliance with this Court’s order, on remand the trial court ruled on defendant’s motion to reconsider his original sentences, and it held a habitual offender hearing at which the State presented evidence of defendant’s discharge date from state custody on his sentence for his predicate conviction. The trial court also vacated defendant’s original sentence on count one and imposed a habitual offender sentence of 10 years without probation or suspension of sentence.

Our independent review of the record supports appellate counsel’s assertion that there are' no non-frivolous issues to be raised on appeal.

In order to prove that a defendant is a habitual offender, ‡⅛ State must establish by competent evidence the defendant’s prior, felony convictions and that defendant is the same person who was convicted of the prior felonies. Stock, 212 So.3d at 1278-79. In addition, when a defendant’s habitual offender status is based Jjon guilty pleas in the predicate convictions, the State has the burden of proving the defendant was represented by counsel when the guilty pleas were taken. Id. See also State v. Shelton, 621 So.2d 769, 779 (La. 1993).

The record shows that .defendant was present at his April'21, 2017 habitual offender adjudication and sentencing and was represented by counsel. At this hearing, the State reoffered certified copies of the December 13, 2004 guilty plea transcript, bill of information, minute entry, and guilty plea form, bearing case number 04-6312, which reflect that on that date, defendant was represented by counsel and entered a plea of guilty to the offense of carjacking and was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence. The State also reoffered a fingerprint card taken on August 26,- 2016,. a fingerprint card taken on September 4, 2004, and a DVD interview of defendant which was admitted at the trial of defendant’s underlying convictions, to show that defendant was the same individual convicted of the predicate offense alleged in the habitual offender bill of information.

The State then offered a stipulation that if probation officer Gregory Wax were called to testify, he would testify as to the authenticity of defendant’s probation and parole records which showed that defendant was released from supervision - on March 29, 2010. Defendant stipulated to the authenticity of the probation and parole documents. The trial court then found defendant to be a second felony offender. The record establishes that the State pre- - sented competent evidence of defendant’s status as a second felony offender. Thus, there are no non-frivolous issues which would support an appeal of his adjudication as a second felony offender.

le,As to defendant’s original sentences, defendant received sentences of ten years imprisonment at hard labor on each count to run concurrently. The original sentence on count one was vacated following his adjudication as a habitual offender, but the sentence on count two remains. At the time of the offense, defendant’s conviction on count two, receiving stolen things having a value of $1,500.00 or more, was punishable by imprisonment, with or without hard labor, for riot more than ten years, or by a fine of not more than three thousand dollars, or both. See La. R.S. 14:69(B)(1). Therefore, defendant’s ten-year sentence at hard labor fell within the sentencing range and does not present any non-frivolous issues which would support an appeal in this case.

Additionally, defendant’s enhanced sentence falls within the sentencing range as set forth in La. R.S. 15:529.1 and La. R.S. 14:62.2. At the time of the offense, defendant’s underlying conviction on count one, simple burglary of an inhabited dwelling, was punishable at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence nor more than twelve years. See La. R.S. 14:62.2(B). At the time of the offense, La. R.S. 15:529.1(A)(1) provided that:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Thus, defendant faced a sentencing range of six to twenty-four years imprisonment. Defendant’s enhanced sentence of ten years imprisonment is within the statutory range and does not present any non-frivolous issues which would support an appeal in this case.

Because appellate counsel’s brief adequately demonstrates by -full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal,, and an independent review of the record |7supports counsel’s assertion, we affirm defendant’s habitual offender adjudication and his sentence. We also grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

Defendant requests an error patent review. In this second appeal, defendant is limited to an error patent review of the proceedings on remand. See Evans, 30 So.3d at 969. Our review reveals errors in the uniform commitment order (“UCO”), which must be corrected by the trial court.

The trial judge sentenced defendant as a habitual offender to ten years at hard labor without the benefit of probation or suspension of sentence, but she was silent as to the concurrent or consecutive nature of defendant’s habitual offender sentence with any other sentence. The UCO indicates that defendant’s enhanced sentence shall be concurrent with any or every sentence the offender is now serving. The transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983).

Also, the UCO incorrectly indicates that April 4, 2016, was the adjudication date, and August 26, 2016, was the date of sentencing. Defendant was found guilty by a jury of the two underlying convictions on March 22, 2016, and he was adjudicated as a habitual offender on April 21, 2017. Sentencing on the underlying convictions was held on April 4, 2016, and defendant was sentenced as a habitual offender on April 21, 2017.

This Court has previously remanded cases for correction of the UCO in its error patent review. State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 41, unit denied, 14-0481 (La. 11/7/14), 152 So.3d 170. Accordingly, we remand this matter and order the trial court to correct the UCO by amending the habitual offender adjudication and sentencing dates for each count and removing the indication that defendant’s enhanced sentence be served concurrently with any or every sentence defendant is now serving. We also direct the Clerk of Court for | Rthe 24 th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal department. See State v. Suggs, 11-64 (La. App. 5 Cir. 12/13/11), 81 So.3d 815, 830, writ denied, 12-0054 (La. 4/20/12), 85 So.3d 1269.

DECREE

For the foregoing reasons, we affirm defendant’s habitual offender adjudication and his sentences. We also remand to the trial court for correction of the Uniform Commitment Order. Further, we grant appellate counsel’s Motion to Withdraw as Attorney of Record.

AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER; MOTION TO WITHDRAW AS ATTORNEY OF RECORD GRANTED.

      . In Bradford, supra, this- Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mduton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . In his motion to withdraw as attorney of record, appellate counsel indicates he has notified defendant of the filing of the motion to withdraw apd has advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an An-ders brief had been filed and that he had until August 19, 2017, to file a pro se supplemental brief. Defendant has not filed a pro se brief in this matter.

      . The underlying offense occurred on June 20, 2015. Thus, defendant’s predicate- conviction of carjacking falls within the “cleansing period” prescribed by La. R.S. 15:529.1(C).


author: WINDHORST, J.

text:
    STATE of Louisiana v. Jonah D. BROWN
    NO. 17-KA-346
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JONAH D. BROWN, Bertha M. Hillman
    ■Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

hln this appeal, defense counsel for Defendant, Jonah Brown, concludes that there are no non-frivolous issues for review, and requests permission to withdraw. Defense counsel also requests that this Court conduct an errors patent review. For the following reasons, we affirm Mr. Brown’s convictions and sentences and grant defense counsel’s motion to withdraw.

Factual and Procedural History

Because Mr. Brown pled guilty, the facts of this case were not fully developed at the trial court. However, the record reflects that on or between March 7, 2014 and April 29, 2014, Mr. Brown and another codefendant conspired to commit, armed robberies by using “ghost” phone numbers to place requests for cab service and then rob the drivers. The record also reflects that on or about April 29, 2014, Mr. Brown killed Blake Helmer during an attempted armed robbery.

Mr. Brown was ultimately charged with the second degree murder of Blake Hel-mer. The State subsequently filed a superseding indictment, charging Mr. Brown with both the second dégree murder of Mr. Helmer, as well as conspiracy to commit armed robbery and conspiracy to obstruct justice. Following the disposition of several pre-trial motions, the State amended the first count of the' indictment to manslaughter, and Mr. Brown withdrew his not guilty pleas. Ultimately, Mr. Brown pled guilty to the amended charge of manslaughter,.-conspiracy to commit armed robbery, and conspiracy to obstruct justice. The' trial court sentenced Mr. Brown to forty years imprisonment at hard labor without the benefit of probation or suspension of sentence on count one, forty years imprisonment at hard labor without the benefit of probation or suspension of sentence on count two, and twenty years imprisonment at hard labor on count three, to run concurrently with one another.

liJJnder the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per cunam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests permission to withdraw as counsel of record.

In Anders, -the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he or she finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial' record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact, on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. State v. Dufrene, 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33.

Mr. Brown’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Our independent review of the record supports appellate counsel’s assertion that there are no. non-Rfrivolous issues to be raised on appeal. The bill of information in this 'case properly charged Mr. Brown and presents no non-frivolous issues supporting an appeal. As required, it plainly and concisely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crimes charged. See La. C.Cr.P. arts. 464-466.

Mr. Brown filed several pre-trial motions, and a hearing was held on his motion to suppress his statement, which was denied. Although the remainder of Mr. Brown’s omnibus pretrial motions were not heard, when a defendant fails to object to the trial court’s failure to hear or rule' on a pre-trial motion before pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 p. 2 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Here, because Mr. Brown did not object to the trial court’s failure to hear or rule on his pre-trial motions, any objection is waived.

As reflected by the minute entries and commitment, Mr. Brown appeared at each stage of the proceedings against him, including his arraignment, his plea, and his sentencing. Mr. Brown’s presence does not present any issue that would support an appeal. Accordingly, we affirm Mr. Brown’s convictions, and -sentences, and grant defense counsel’s motion to withdraw.

Errors Patent Review

Mr. Brown requests an errors patent review, which this Court routinely conducts in accordance with the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a réquest. The following errors require corrective action.

First, the trial judge erred in sentencing Mr, Brown with regard to his conviction for manslaughter and for conspiracy to obstruct justice. With regard to his sentence for manslaughter, the record reflects that the trial court sentenced Mr. Brown to forty years at hard labor without the benefit of probation or suspension of ^sentence. Although this sentence is within the range prescribed by La. R.S. 14:31, La. R.S. 14:31 does not reflect that a defendant may be sentenced for manslaughter with a restriction of benefits. In addition, with regard to Mr. Brown’s conviction for conspiracy to obstruct justice, the trial court imposed an illegally harsh sentence. Under La. R.S. 14:26 and La. R.S. 14:130.1, a defendant’s maximum sentence for conspiracy to obstruct justice is’ ten years at hard labor. Accordingly, under La. C.Cr.P. art. 882, we amend Mr. Brown’s sentences to remove the restriction on benefits for his manslaughter conviction. We further order the Clerk of Court for the 24th Judicial District Court to transmit notice of this amended sentence to the appropriate authorities pursuant to La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal department.

With regard to Mr. Brown’s illegally harsh sentence for conspiracy to obstruct justice, we vacate his current sentence and remand the matter for resentencing in accordance with this opinion.

In addition, because there are inconsistencies between the transcript and the uniform commitment, the uniform commitment is defective in three respects. First, it incorrectly lists the statute for conspiracy to obstruct justice as “14:26:30.1” rather than “La. R.S. 14:26 and La. R.S. 14:130.1.” Second, the uniform commitment lists the dates of the offense with regard to the conspiracy to obstruct justice as April 20, 2014 and July 30, 2014, rather than “on or between April 30, 2014 and July 30, 2014” as reflected in the superseding indictment. Finally, the uniform commitment should reflect that Mr. Brown was sentenced to forty years without the benefit of parole, probation or suspension of sentence specifically as to count two. Accordingly, we remand this matter for correction in accordance with this opinion.

Conclusion

LFor the foregoing reasons, Mr. Brown’s convictions are affirmed, his sentences are amended in part and vacated in part, and this matter is remanded for further proceedings consistent with this opinion. In addition, defense counsel’s motion to withdraw is granted.

CONVICTION AFFIRMED; SENTENCE AMENDED IN PART, VACATED AND REMANDED IN PART, MOTION TO WITHDRAW GRANTED


author: Judge Roland L. Belsome

text:
    STATE of Louisiana v. Celio DACRUZ
    NO. 2017-KA-0681
    Court of Appeal of Louisiana, Fourth Circuit.
    December 13, 2017

      Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
    Juan Bernal, 4902 Canal Street, Suite 201, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE
    . (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Roland L. Belsome

LThe State of Louisiana appeals the trial court’s judgment granting the second motion to quash the bill of information filed by the Defendant, Celio DaCruz. For the following reasons, we reverse and remand for proceedings consistent with this opinion.

STATEMENT OF THE CASE

This case stems from' a fiduciary relationship between a contractor/construction company and a property owner. On January 31, 2012, Detective Shannon Carr of the New Orleans Police' Department filed an affidavit concerning the alleged offense. Based on an interview with the victim, Detective Carr alleged that the Defendant violated La. R.S. 14:67; Felony Theft. In the affidavit,' Detective Carr requested warrants for the Defendant and attested to the following:

The victim told the Detective that she entered into an agreement with Celio Da Cruz [sic], to renovate and make repairs to her property, which is a double unit. The victim stated she paid Da Cruz [sic] $15,000.00. The victim, stated the work Da Cruz [sic] failed to complete at 128 N. Johnson Street, included: the framing of the addition, the install of the walls, the install of the sheetrock, the install of the roof, and the painting of the interior. The victim stated the work Da Cruz [sic] failed to do at 130 N. Johnson St. included: the install of the bath, the install of the plumbing, the install of the deck, and the install of the porch and rails.

|2On the same day Detective Carr filed the affidavit, the trial court issued an arrest warrant for the Defendant.

By bill of information filed on May 22, 2015, the State charged the Defendant with theft of over $1,500.00 a violation of La, R.S. 14:67(B)(1). The bill of information alleged that the theft occurred between November 5, 2010, and June 6, 2011. Subsequent to the filing of the bill of information and the’issuance of an alias capias for his failure to appear at arraignment, the Defendant was arrested in January of 2016. The Defendant later pled not guilty at arraignment.

On May 3, 2016, the Defendant filed a motion to quash, urging that the time limit to institute prosecution had elapsed. After a hearing on July 27, 2016, the trial court denied the Defendant’s motion to quash the bill of information. The case was later transferred from Division L (Judge Franz Zibilich) to Division C (Judge Benedict Willard) on September 13, 2016. Trial was initially set for March 15, 2017.

On the day of trial, the Defendant filed a second motion to quash the bill of informar tion, again claiming that the time limit to institute prosecution on the charged offense had prescribed. Trial was continued due to the pending motion. |aThe State opposed the Defendant’s motion, arguing that the plain language of La. C.Cr.P. art. 577 prohibited the Defendant from' challenging' the timeliness of prosecution more than once. Two days later, the trial court heard and granted the Defendant’s second motion to quash the bill of information, finding that the Defendant only filed one motion to quash in its section of court. This timely appeal followed.

STANDARD OF REVIEW

Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion. State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206. However, when the motion to quash involves solely a legal issue, the trial court’s decision is subject to a de novo standard of review. State v. Hamdan, 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816; State v. Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504. This case presents both a question of law as to. the proper interpretation of the meaning of the La. C.Cr.P. art. 577.

DISCUSSION

In its sole assignment of error, the State asserts that the trial court erred in granting the Defendant’s second motion to quash the bill of information .based on untimely institution of prosecution, arguing that an accused may only raise this issue once.

I/The primary concern in this appeal is whether La. C.Cr.P. art. 577 prohibits a defendant from filing more than one motion to quash based upon untimely institution of charges. La. C.Cr.P. art. 577 provides, in pertinent part:

The issue that a prosecution was not timely instituted may be raised at any time, but only once, and shall be tried by the court alone. If raised during, the trial, a hearing thereon may be deferred until the end of the trial.

(Emphasis supplied).

Where the words of a statute are clear and free from ambiguity, they' are not to be ignored under the pretext of pursuing their spirit. State v. Gray, 16-0687, p. 11 (La. 3/15/17), 218 So.3d 40, 48. We find no ambiguity in the terms of Art. 577, which specifies that an accused may raise the issue of timeliness of prosecution “at any time, but only once[.]” The clear wording of the statute limits, a defendant to raising a prescription issue based upon untimely institution of prosecution only one time.

At the hearing on the second motion to quash, defense counsel acknowledged the limitation under Art. 577, but argued, “when I filed my first motion to quash it was under different facts, with a'different judge, in a different venue.” Attached to his second motion to quash was a Certificate of Occupancy and Completion for work on a Palmetto Street address that the State had produced after, the ruling on. the first motion to quash. The -.State confirmed that the charges only involved the North Johnson Street property and explained that this additional evidence was .produced in an abundance of caution. The State vehemently argued hthat the second motion to quash was improper under Art. 577, and the newly disclosed evidence was irrelevant. We agree.

Finding that “[tjhe motion to quash was filed only once” in Division C, the trial court granted the Defendant’s second motion. Such’ a ruling is in direct violation of the restriction set forth in Art. 577, which prohibits an accused, from raising the issue of prescription based on the time limit to institute charges more than once. The fact that the first motion was heard by a different trial court judge is inconsequential and the article makes no exceptions for cases transferred between divisions. The second motion, raising the identical issue, was filed in the same court and venue,' with the same case number, concerning the same charge. Thus, the Defendant was prohibited by Art. 577 from raising this issue again.

The record reflects that the Defendant filed a second motion to quash after the trial court already heard and denied the first one, triggering the application of |flthe restrictions set forth in Art. 577. Under these circumstances, we find that the trial court erred in granting the second motion to quash the bill of information after the prescription issue was raised for the second time.

Nevertheless, assuming arguendo that the Defendant could raise the issue for a second time due to the late disclosure of evidence, we find the State’s prosecution to be timely. The governing statutory provision, La.C.Cr.P, art. 572(A)(2), provides a four-year prescriptive period within which the State may institute prosecution on the instant offense. Pursuant to La. C.Cr.P. art. 573, the four-year period does not commence until the fiduciary relationship between the defendant and the alleged victim ends. See State v. Glasser, 12-0159, p. 6 (La. App. 4 Cir. 11/28/12), 104 So.3d 663, 666 (prosecution for misapplication of payments by a contractor was not timely instituted, where state failed to establish that fiduciary relationship existed between complainant and defendants within prescription period). Moreover, in State v. Brady, 13-0863, pp. 4-5 (La. App. 4 Cir. 12/11/13), 131 So.3d 166, 170 (citing State v. Averette, 99-2054, p. 4-5 (La. App. 1 Cir. 6/23/00), 764 So.2d 349, 351), this Court held that the fiduciary 17relationship between the alleged victim and the defendant ends, and prescription commences, when an affidavit for the defendant’s arrest is filed.

■ In this case, Detective Carr filed an affidavit for the Defendant’s arrest on January 31, 2012. Thus, the fiduciary relationship between the Defendant and the alleged victim ended and the four-year prescriptive period commenced — on January 31, 2012. Therefore, the State had until January 31, 2016, to file the instant charges. The bill of information was filed on May 22, 2015, well within the time limit to institute charges. Accordingly, the record reveals that the State timely instituted prosecution.

CONCLUSION

Given the foregoing, we find that the charges were timely filed and the trial court violated Art. 577 when granting the motion to quash after the issue was raised for the second time. For these reasons, the trial court’s judgment granting the Defendant’s second motion to quash is reversed and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED

      .At the time of the alleged offense,. La. R.S. 14:67 provided:
      A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      B. (1) Whoever commits' the crime of theft when the misappropriation or taking amounts to a value of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both....

      . Though the State designated the July 27, 2016, transcript as part of the record on appeal, the appeal does not contain the transcript. However, review of the aforementioned transcript is not necessary for - consideration ■ of the issues set forth in the current appeal.

      . The minute entry from September 13, 2016, reveals that the instant case was consolidated with a separate case pending against Defendant in Division C with a lower docketed number.

      . Though the case was transferred into another division of court, all trial proceedings in this case have been conducted in Orleans Parish Criminal District Court, case no. 524-917.

      . The record from the second motion to quash hearing reflects that this evidence was disclosed to the Defendant on November 17, 2016, after the trial court disposed of the first motion to quash.

      . In brief, the Defendant responds that limiting him from challenging the timeliness of prosecution more than once violates his rights to present a defense and to due process. Notably, the Defendant did not raise these constitutional issues before the trial court. In support of his argument, the Defendant cites State v. Gremillion, 542 So.2d 1074 (La. 1989). In Gremillion, the Court held, "[w]hile hearsay should generally be excluded, if it is reliable and the exclusion would interfere with the defendant’s constitutional right to present a defense, it should be admitted.” Id., 542 So.2d at 1078. This case is distinguishable in that it does not involve defending the substantive charge, or the admissibility of otherwise . inadmissible evidence to defend against the substantive charge. Rather, Art. 577 merely limits the use of a procedural objection based on the untimely institution of prosecution to one filing, The Defendant exercised his statutory right to file a motion to quash based on the expiration of the time limit to institute prosecution. Under these circumstances,. neither the Defendant's right to present a defense nor his due process rights were implicated or violated.

      .The jurisprudence reveals two cases that addressed the specific issue at hand. In State v. Major, 13-1139, pp. 4-5 (La. App. 4 Cir. 4/9/14), 140 So.3d 174, 177, this Court found that prior oral motion to quash was not a properly filed motion to quash, as La. C.Cr.P. art. 536 requires such motions to be in writing. Thus, this Court found that a subsequently filed written motion to quash was not barred by La. C.Cr.P. art. 577. In State v. Martin, 14-0740 (La. App. 4 Cir. 2/4/15), 160 So.3d 1028, this Court rejected a claim that La. C.Cr.P. art, 577 prohibited the filing of multiple motions to quash based upon , untimely commencement of trial. In doing so, this Court reasoned that La. C.Cr.P. art. 577 only limits the number of motions to quash based upon untimely institution of charges, and does not apply to motions based upon untimely commencement of trial. Id., 14-0740, pp. 5-6, 160 So.3d at 1031. The instant case is distinguishable from both of the foregoing cases in that both of the motions to quash in this case were in proper form (i.e. written) and both raised the issue of untimely institution of the charge.

      . La. C.Cr.P. art. 572(A)(2) states, in pertinent part:
      A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
      (2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.

      . La.C.Cr. P. art. 573(1) provides:
      The time limitations established by Article 572 shall not commence to run as to the following offenses until the relationship or status involved has ceased to exist when: (1) The offense charged is based on the misappropriation of any money or thing of value by one who, by virtue of his office, employment, or fiduciary relationship, has been entrusted therewith • or has control thereof.


author: Judge, Tiffany G. Chase

text:
    Rodney P. HIGHT v. Lisa Lynn McKenzie HIGHT
    NO. 2017-CA-0566
    Court of Appeal of Louisiana, Fourth Circuit.
    December 13, 2017

      Wiley J. Beevers, Shayna Beevers Mor-vant, Steven Michael Mauterer, BEEV-ERS & BEEVERS, L.L.P., 210 Huey P. Long Avenue, Gretna, LA 70063, COUNSEL FOR PLAINTIFF/APPELLEE
    David M. Prados, Robert C. Lowe, LOWE STEIN HOFFMAN ALLWE1SS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F, Edwards, Pro Tempore) .
   Judge, Tiffany G. Chase

| ¶ Plaintiff/Appellant, Lisa Lynn McKenzie Hight (hereinafter “Mrs. Hight”) seeks review of the trial court’s judgment awarding her interim spousal support and Defendant/Appellee, . Rodney P. Hight’s, (hereinafter “Mr. Hight”) rule for rental reimbursement for Mrs. Hight’s use and occupancy of the matrimonial domicile. Specifically, Mrs. Hight lists the following assignments of error on appeal: (1) The trial court failed to award the full amount requested for interim spousal support using Mrs. Hight’s income and expense sheet; (2) excluded her expert from testifying at the hearing for interim spousal support; (3) failed to first provide a monetary amount on the spousal support due to Mrs. Hight and then failed to calculate the monetary amount of credits due to Mr. Hight; (4) failed to award legal interest on interim spousal support; (5) failed to deny Mr. Hight’s request for rent and failing to rule on the request for rent contemporaneously with the use and occupancy; (6) and failed to find Mr. Hight did not prove a rental value at trial. For the reasons s,et forth below, we amend the judgment as to the’ issue of 1¡¡legal interest and in all other respects, we find the trial court did not abuse its discretion and affirm.

Facts and Procedural History

The Hights were married on November 2,1990. Mr. Hight filed for divorce on May 14, 2016. On August 19, 2015, he filed a supplemental petition for divorce pursuant to La. Civ. Code art. 103. Mrs. Hight answered the petition and filed a reconven-tional demand in which she sought interim spousal support, use and occupancy of the matrimonial' domicile, or, alternatively, rental reimbursement. Mr. Hight answered Mrs. Hight’s reconventional demand bn May 29, 2016, and sought rental reimbursement for the first time. The trial court granted the divorce on October 6| 2015/

On January 29, 2016, Mrs. Hight’s request for interim spousal support and use and occupancy of the former matrimonial domicile were partially tried. The trial resumed to conclusion on October 31, 2016, with Mr. Hight’s rule to establish rental factor being set for trial on the same date.

During the trial, the parties presented conflicting testimony regarding Mrs. Hight’s monthly expenses in support of her interim spousal support claim. For example, Mrs. Hight listed expenses for her-gasoline bill at $400.00 a month. At trial, she testified that during the marriage she did not generally drive far, even when she worked, as her office was nearby. However, Mrs. Hight has not worked since January 2015. While there were some months Mrs. Hight would drive to their | ¡¡vacation home in Alabama, she acknowledged that she did not routinely drive thousands of miles a month.

Regarding her vacation expenses, Mrs. Hight testified that over the last three years of the marriage, she and Mr. Hight, along with their children and sometimes friends, would take vacations to locations such as London and Paris. She arrived at the amount of her portion of those vacations by dividing the total amount of the vacation costs of her portion (twenty five percent) by twelve months to arrive at $563.00 per month for vacation expenses. She testified that while she also claims $867.00 per month on restaurants, she does not usually dine alone. Mrs. Hight stated that she and her mother take turns paying for the restaurant bill when they dine together. Likewise, while she claimed $200.00 per month in maintenance costs for her vehicle, she acknowledged she had no receipts or credit card charges to specifically support that monthly estimate. The trial court declined to award support for these expenses.

In contrast, while Mrs. Hight acknowledged that she would prepare food for her adult children on occasion or send food back with them to school, she testified that she spent $867.00 a month on groceries for herself. The trial court accepted this testimony and awarded this expense [food] in the judgment, along with her expenses for rent, lawn care, electricity, gas, water, cable television, phone, and cell phone.

As to the credit awarded to Mr. Hight, testimony was presented at trial that he paid numerous expenses. Mr. Hight testified that he would deposit money into Ltheir joint checking account; then, Mrs. Hight would write checks to herself for cash. Mr. Hight maintained that he continued to deposit money into the joint checking account in the months after filing for divorce. At some point during their separation, Mr. Hight submitted that he opened a separate account to pay those same bills because the joint account was continually overdrawn due to actions by Mrs. Hight.

The trial court allowed the parties to file post-trial briefs and issued the judgment on March 15, 2017. The trial court determined that Mrs. Hight failed to satisfy her burden of proof on entitlement to all the categories listed on her income and expense sheet for interim spousal support. Specifically, the court found no merit to Mrs. Hight’s claims for restaurants, gas [gasoline], clothing, grooming, household supplies, recreation, vacation and health insurance, except as to an award of $2,568.00 to Mrs. Hight for six months of COBRA insurance payments. The trial court awarded interim spousal support to Mrs. Hight from May 15, 2015 to April 3, 2016 for the following monthly expenses: rent, lawn care, electricity, gas, water, cable television, phone, cell phone and food and found that Mr. Hight was entitled to receive a credit for the prior payment of these expenses. The judgment did not provide a monetary award amount for Mrs. Hight’s interim spousal support award, or for Mr. Hight’s credit. The trial court found, based on testimony and evidence, that Mr. Hight continued to pay for some of Mrs. Hight’s expenses after filing for divorce, including the mortgage payment for the | ^matrimonial domicile, along with various other expenses, including utilities, taxes, groceries, cell phone bills and Mrs. Hight’s credit card bills.

This appeal from Mrs; Hight follows.

Interim Spousal Support

A trial court’s determination of an interim spousal support award will not be disturbed unless there is a clear abuse of discretion. If the trial, court, record supports the trial court’s reasoning and conclusions regarding the means of the payor spouse and his or her ability to pay, no abuse of discretion will be found. Factual findings by the trial court will not be set aside unless there is manifest error.

La. Civ. Code art. 113 provides for interim spousal support “based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage.” The purpose behind interim spousal support is to ensure that the parties maintain the status quo enjoyed during the marriage while the divorce is pending. The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such support. In order to establish that need, it must be shown that the requesting spouse lacks sufficient income to preserve the- standard of living they previously enjoyed while married. Once that spouse has demonstrated their | fineed, then the court will look to the ability of the other spouse to pay interim support.

Mrs. Hight argues the trial court erred by failing to award the full amount she requested for interim spousal support and erred in offsetting all interim support due to her against Mr. Hight’s credits without fixing the sum of either. Mrs. Hight argues the lower court also erred in failing to use Mrs. Hight’s income and expense list regarding the pre-filing standard of living expenses in making the support determination.

The trial court denied interim spousal support for certain items listed above, finding Mrs. Hight had failed to meet her burden of proof that she was entitled to support for those expenses. The-trial court granted interim .spousal support to Mrs. Hight from May 15, 2015 to April 3, 2016 for the following monthly expenses: rent, lawn care, electricity, gas, water, cable television, phone, cell phone and food and awarded Mr. Hight credit for the prior payment of these expenses.

Income tax returns produced at trial demonstrated that Mr. Hight earned a substantial income of over $500,000 per year, which neither party disputed. Further, testimony at trial established that Mrs. Hight did not work for most of the marriage but only worked sporadically, holding jobs at different points during the marriage. At the hearing on January 29, 2016, Mrs. Hight presented her monthly income and expense list at trial. In addition to that evidence, she presented supporting documentation in the form of credit card and bank statements, showing 17the amounts she spent for various monthly expenses during the marriage. However, as noted above, there was conflicting testimony regarding the expenses listed in Mrs. Hight’s monthly income and expense list and their accuracy. With regard to Mr. Hight’s crédit,' he introduced evidence' at trial documenting expenses -he paid.- The exhibits consisted of excel spreadsheets and bank statements demonstrating bills that were automatically debited each month from their joint checking account, along with checks written on the joint, account by Mrs. Hight during their period of separation.

If there is conflicting testimony-at trial, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as-reasonable.” The trial court below had the benefit of hearing the live testimony, observing the demeanor of the parties and evaluating' the credibility of their testimony., While Mrs. Hight submitted a monthly income and, expense list for $9,374.00, the trial judge, did not accept this as an accurate reflection of her true expenses and needs. From this Court’s review of the record, including the monthly income and expense list introduced by Mrs. Hight, the judgment reflected that the interim spousal support award to Mrs. Hight was completely offset by Mr. Hight’s credit, except as to the award of $2,568.00 to Mrs. Hight for COBRA insurance payments. The trial court found credible Mr. Hight’s testimony and evidence that he paid bills owed by Mrs. Hight, along with joint expenses such as the mortgage, Ras they became due each month. This Court finds that the record supports the trial court’s finding regarding the amounts owed to Mrs. Hight for interim spousal support and the amounts owed to Mr. Hight as credits and finds these assignments of error lack merit.

With regard to expert testimony at trial, a trial judge’s determination on whether an expert will be allowed to testify will not be disturbed unless it is found to be manifestly erroneous. As noted above, Mrs. Hight’s expert on interim spousal support was excluded prior to trial. The trial court found that expert testimony was- not needed to assist the trier of fact to understand evidence or to determine a fact in issue regarding Mrs. Hight’s request for interim spousal support. From this Court’s review of the record, we find no merit to this assignment of error as'to the exclusion of her expert regarding interim spousal support and affirm the trial court’s ruling.

Judicial Interest on Interim Spousal Support Award

As an assignment of error, Mrs. Hight submits that the trial court erred in failing to award judicial interest on her interim spousal support award. While Mrs. Hight prayed for general and equitable relief, she admits she failed to specifically pray for legal interest. The March 15, 2017 judgment awarded Mrs. Hight $2,568.00 for six months of medical insurance she demonstrably paid following the judgment of divorce on October 6, 2016. At oral argument, counsel for Mr. Hight acknowledged he has not paid Mrs. Hight the $2,568.00 awarded to her. As | Reasoning for the delay, counsel for Mr. Hight cited the appeal. However, the appeal is devolutive, thus execution of the judgment is not stayed. The judgment itself is silent as to the issue of interest. If a judgment is silent as to a litigated issue or a portion of the demand, that issue or demand is deemed to be rejected. However, La. Code Civ. Proc. art. 1921 provides that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” Therefore, the question for this Court is whether legal interest on interim spousal support is provided for by law.

La. Civ. Code art. 2000 provides:

When the object of the performance is a sum of money, cjamages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500.

Thus, it is clear that judicial interest on spousal support is provided for by law.

The next step of inquiry is when the interim spousal support award for the medical insurance payments of $2,568.00 or $428.00 per month for six months following the divorce became due. Ordinarily an interim spousal support award is retroactive to the date of judicial demand. However, La. R.S § 9:310 provides in pertinent part, that “[i]n the event the court finds good cause for not making the award retroactive, the court may fix the date such award shah become due.” As noted above, the judgment is silent as to judicial interest and the date the monetary |tnaward became due. On May 15, 2015, Mrs. Hight first filed her request for interim spousal support, thus, this is the date of her demand. Therefore, this Court finds the trial court erred in failing to award .judicial interest on the interim spousal support for medical payments awarded to Mrs. Hight. This Court amends the trial court judgment to reflect that Mrs. Hight is entitled to judicial interest on her interim spousal support award of $2,568.00 from the date of her demand until it is paid, as provided for in La. R.S. § 9:3500.

Use and Occupancy and Rental Reimbursement

As Mrs, Hight’s final assignment of error, she submits that the trial court properly awarded her use and occupancy of the home but erred in failing to rule on the rental reimbursement claim. The March 15, 2017 judgment awards to Mrs. Hight the use and occupancy of the former matrimonial domicile located at 160 Primrose, Belle Chase, Louisiana until sold. However, the trial court continued Mr. Hight’s rule to establish rental factor until the community partition trial. Mrs. Hight argues the trial court erred in setting Mr. Hight’s rule, because he was never refused use and occupancy of the matrimonial domicile.

La. R.S. § 9:374 allows either spouse to request use and occupancy Of the matrimonial domicile during the pendency of the divorce. Once the community property regime is terminated, the rules of co-ownership apply to former community property. Those rules recognize that the co-owner of a property need not pay rent to the other co-owner for his or her exclusive use of the co-owned ^property. A co-owner may be liable for rent, if they are in exclusive possession and another co-owner has been refused occupancy after demand for use.

While the record reflects that Mr. Hight requested rental reimbursement should Mrs. Hight be awarded use and occupancy, the parties cannot agree on whether Mr. Hight conceded that Mrs. Hight should have use and occupancy of the home or requested use of the home himself. At trial, Mr. Hight testified that he only left the matrimonial domicile based on advice by former counsel that it would help speed up the divorce process. Additionally, Mr. Hight also testified that he was no longer allowed to sleep or stay in the home once he moved out. Thus, a review of the record demonstrates he was refused use and occupancy of the matrimonial domicile, making the trial court’s setting of his rule for rental reimbursement proper.

Mrs. Hight argued the trial court should have ruled on Mr. Hight’s request for rental reimbursement contemporaneously with her award of use and occupancy and erred in failing to rule that Mr. Hight failed to prove a rental value at the time of the trial on the use and occupancy.

In this matter, the trial court decided to continue the rule for rental reimbursement and the valuation issue to be addressed at the community partition trial. It is well established that a trial judge has vast discretion in conducting a trial, “and it is only upon a showing of a gross abuse of discretion that appellate courts 11ghave intervened.” Further, “[a] final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language.” An interlocutory judgment does not determine the merits but only the preliminary matters in the course of a trial. In the case sub judice, this Court does not find that the trial court abused its discretion in continuing the rule and the valuation to the community partition trial. A continuance is not a final judgment, thus, the issue of the rental reimbursement and valuation are not final and any review by this Court would be premature. As such, this Court finds no merit to these two assignments of error.

Conclusion

We find the trial court did not abuse its discretion in its award of interim spousal support to Mrs. Hight. However, since the judgment was silent as to the award of judicial interest, we amend the judgment to provide for judicial interest pursuant to La. R.S. § 9:3500.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED

      , Prior to trial, on January 22, 2016, the trial court granted Mr. Hight’s Motion in Limine to exclude Mrs. Hight's expert on the interim spousal support issue.

      . Molony v. Harris, 2009-1529, p.2 (La. App. 4 Cir. 10/14/10), 51 So.3d 752, 756.

      . Id. (quoting Lambert v. Lambert, 06-2399, p. 10-11 (La. App. 1 Cir. 3/23/07), 960 So.2d 921, 928)).

      . Molony, 51 So.3d at 756.

      . Evans v. Evans, 49,160, p.3 (La. App. 2 Cir. 6/25/14), 145 So.3d 1093, 1094-95.

      . Loftice v. Loftice, 2007-1741, p.5 (La. App. 1 Cir. 3/26/08), 985 So.2d 204, 207.

      . Brown v. Brown, 44,989, p.5 (La. App. 2 Cir. 1/27/10), 31 So.3d 532, 536.

      . Id. (citing Loftice, 985 So.2d at 208).

      , The income and expense list was introduced as Exhibit LH2 at trial.

      . Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

      . Molony, 51 So.3d at 757.

      . Post v. Post, 376 So.2d 1275, 1276 (La. Ct. App. 1979).

      . S. Marine Sates, Inc. v. Matherne, 05-181, p. 8 (La. App. 5 Cir. 11/29/05), 915 So.2d 1042, 1047, writ denied, 2006-0177 (La. 4/24/06), 926 So.2d 545 (citing Mooers v. Sosa, 01-286, p.11 (La.App. 5 Cir. 9/25/01), 798 So.2d 200, 208)).

        . Short v. Short, 11-1084, p.9 (La. App. 5 Cir. 5/22/12), 96 So.3d 552, 558.

      . Loftice, 985 So.2d at 210.

      . La. Civ. Code art. 2369.1

      . Lupberger v. Lupberger, 99-0144 (La. App. 4 Cir. 6/16/99), 738 So.2d 138, 140.

      . McCarroll v. McCarroll, 96-2700, pp. 19-20 (La. 10/21/97), 701 So.2d 1280, 1290.

      . D.M.S. v. I.D.S., 2014-0364, p. 17 (La. App. 4 Cir. 3/4/15), 225 So.3d 1127, 1138, writ denied, 2015-0897 (La. 6/19/15), 172 So.3d 654, reconsideration not considered, 2015-0897 (La. 8/28/15), 174 So.3d 1160 (citing Cooper v. Lacorte, 99-1726, p. 3 (La.App. 4 Cir. 5/17/00), 775 So.2d 4, 7.))

      . Moon v. City of New Orleans, 2015-1092, p.6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425.

      . La. Code Civ. Proc. art. 1841.