author: Judge Terrel J. Broussard,

text:
    Nina D. NEIVENS v. Francisco ESTRADA-BELLI
    NO. 2017-CA-0225
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 27, 2017

      Barbara J. Ziv, Esther L. Greenbaum, BARBARA J. ZIV, L.L.C., 701 Poydras Street, Suite 4100, New Orleans, LA 70139, COUNSEL FOR PLAINTIFF/AP-PELLEE, NINA D. NEIVENS
    Phillip A. Wittmann, Maggie A. Brous-sard, STONE PIGMAN WALTHER WITTMANN L.L.C., 546 Carondelet Street, New Orleans, LA 70130-3588, COUNSEL FOR DEFENDANT/APPELLANT, FRANCISCO ESTRADA-BELLI

      (Court composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore)
   Judge Terrel J. Broussard,

Pro Tempore

| j Defendant-Appellant, Francisco Estrada-Belli, appeals the judgment of the Orleans Parish Civil District Court. dated October 7, 2016, in favor of Plaintiff-Ap-pellee, Nina D. Neivens.

Appellant asserts three (3) assignments of error:

1. The district court erred in holding that the prenuptial agreement is valid and enforceable in Louisiana, and subsequently dismissing Appellant’s demand for partition of community property and granting Appellee’s rule to enforce the prenuptial agreement and request for attorney’s fees and costs.
2. The district court erred by failing to apply the conflict of laws principles prescribed by the Louisiana Civil Code, thereby enforcing the terms of the prenuptial agreement and dismissing Appellant’s demand for partition of community property, demand for final spousal support, and granting Appellant’s attorney’s fees and costs.
3. The district court erred in dismissing Appellant’s Motion for Continuance of Interim Spousal Support and terminating Appellant’s interim spousal support retroactive to the date of divorce while a demand for final spousal support was pending.

For the reasons that follow, ■ the trial court’s ruling is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND:

On April 8, 2015, Appellee filed in the district court a “Petition for Divorce Pursuant to La.C[iv].C[ode]. Art. 102 (With Minor Children)”. In the petition, Appellee alleged, “The parties are separate in property, pursuant to a Prenuptial Agreement which they signed shortly before their marriage in 2004.” Also, on April 8, 2015, a Consent Judgment was signed by the district court. As part of the judgment, Ap-pellee was ordered to pay interim spousal support in the amount of $2,300.00 per month beginning April 1, 2015. The order provided the support “shall terminate by operation of law or pursuant to further agreement of the parties.” (emphasis added.)

On March 8, 2016, Appellant filed an “Answer and Reconventional Demand”. In answering the petition, Appellant denied the parties agreed to a separate property regime stating in pertinent part: “a community property regime exits between them, and Defendant specifically denies the validity and legal enforceability of any purported Prenuptial Agreement signed before the marriage.” Additionally, Appellant sought to partition the community property, to continue interim spousal support, and to be awarded final spousal support. Subsequently, on May 4, 2016, the Judgment of Divorce was rendered.

In response to Appellant’s request to partition the community property, Appel-lee asserted, as an .affirmative defense, the existence of a prenuptial agreement. Additionally, Appellee moved to enforce the prenuptial agreement, for termination of spousal support, and to be awarded attorney’s fees. The district court ordered - a rule to show cause, and a hearing was held on September 26, 2016.

Appellant also filed in’the district court a “Supplemental and Amending Recoven-tional Demand”. One of his requests was to continue interim spousal support due to his change in employment circumstances.

A transcript of the hearing held on September 26, 2016, reveals that Appellant was not present, and his attorney moved for a continuance. Appellant’s attorney informed the .court he did not know “the circumstances of his. absence.” The trial court denied the continuance, and the hearing proceeded in the-absence of the Appellant. . - ,

| a At the hearing, Appellee testified that she and Appellant signed,- in the presence of a notary, a prenuptial agreement' on February 28, 2004, in the State of Tennessee. Appellee specifically identified the prenuptial agreement signed by her and Appellant. Appellee testified she and Appellant were married in August, 2004 in Guatemala.- She confirmed that she and Appellant entered into a “separate property marriage,” which was specifically referenced during the marriage ceremony. Counsel for Appellant conceded Appellee’s requests for admissions had not been answered by Appellant. Consequently, the facts contained in the requests for admissions were deemed admitted. Counsel for Appellee explained that the requests for admissions sought the admission or denial of the authenticity of the prenuptial agreement as well as the admission of the validity of the Appellant’s signature on the agreement. Additionally, Appellee testified the couple established their domicile in New Orleans in July 2012. They resided in New Orleans until their marriage ended May 4, 2016, when the judgment of divorce was rendered. Appellant’s attorney did not present any witnesses or introduce.any evidence that traversed the representation of the Appellee regarding the prenuptial agreement, or the establishment of a matrimonial regime by the parties in Louisiana.

LThe trial court ruled in favor of Appel-lee'and gave oral and written reasons for its judgment. The trial court concluded that the prenuptial -agreement was valid and enforceable. Additionally, the court dismissed Appellant’s requests for partition of community property, for final spousal support, and for continued payment of interim spousal support. The judgment. terminated interim spousal support retroactive to May 4, 2016, and attorney’s fees and cost wex-e awarded to Appellee.

Following the trial court’s ruling, Appellant filed a Motion for New Trial, and Appellee petitioned for dismissal of the motion which was granted by the district court.

STANDARD OF REVIEW:

The court will conduct a de novo review pursuant to the standard of appellate review provided for by the jurisprudence of this circuit. In Felix v. Safeway Ins. Co., 15-0701 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 631, this court addressed the standard of review when only legal issues' are to be determined explaining in pertinent part:

Likewise, “[i]n a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial, court’s legal conclusions are not entitled to deference.” TCC Contractors, Inc. v. Hosp. Serv. Dist. No. 3 of Parish of Lafourche, 10-0685, p. 8 (La. App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108 (citing Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La. 1/30/04), 865 So.2d 34, 43); see also Benson v. ABC Ins. Co., 12-517, 12-385, p. 2 (La. App. 3 Cir. 11/7/12), 106 So.3d 143, 145, writ denied, 12-2650 (La. 2/8/13), 108 So.3d 86.

In this case, there are no material facts in dispute for the following reasons: 1) Appellant failed to appear at the hearing, and Appellant’s attorney -did not present any witnesses or evidence to rebut Appellee’s factual assertions; and 2) Appellant, Rby failing to answer the requests for admissions, admitted he signed the prenuptial agreement. Under such circumstance, a de novo review is appropriate.

A similar circumstance was presented in Barber v. Barber, 09-0780, (La.App. 1 Cir. 5/7/10), 38 So.3d 1046. There a couple entered into a matrimonial agreement, under Louisiana law, prior to their marriage. In addressing the validity of the agreement, the court held in pertinent part:

When parties are bound by a valid contract and material facts are not in conflict, the contract’s application to the case is a matter of law. An appellate review that is not founded upon any factual findings made at the trial court level, but is based upon an independent review and analysis of the contract within the four corners of the document, is riot subject to the manifest error rule of law. In such eases, appellate review is simply .whether the trial court was legally correct.

Id. at p. 4, 38 So.3d at 1049 (citations omitted).

Accordingly, this court affirms the decision of the trial court as discussed below.

BURDEN OF PROOF:

The Appellee had the burden of proof in this case. In Ross v. Ross, 02-2984, p. 9 (La. 10/21/03), 857 So.2d 384, 390, the court set forth the burden of proof when a spouse is asserting a separate property regime explaining in pertinent part:

The Code also provides 'that things in the possession of a spouse during the existence of a regime of acquets and gains are presumed to be community. La.C[iv].C[ode]. art. 2340. However, either spouse may rebut this presumption. La.C[iv].C[ode]. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving that the property is separate in nature. Knighten v. Knighten, 00-1662 (La. App. 1 Cir. 9/28/01), 809 So.2d 324, writ denied, 01-2846 (La. 1/4/02), 805 So.2d 207.

In Talbot v. Talbot, 03-0814, p. 12 (La. 12/12/03), 864 So.2d 590, 600, the court held the spouse rebutting the presumption must do so by a preponderance of the evidence. Thus, Appellee was required to prove by a preponderance of- evidence | flthat a separate property regime existed between her and Appellant. As will be discussed below, Appellee carried that burden by a preponderance of evidence.

ASSIGNMENTS OF ERROR NOS. 1 arid 2:

' Since assignments of error one and two are interrelated, théy will be addressed in tandem. It should be noted ab initio, that Appellant does not contest the validity of the agreement under Tennessee law. Rather, he'challenges the validity and enforceability" of the agreement under Louisiana law, and he asserts the agreement has no effect on their matrimonial regime that was established when the parties moved to Louisiana.

CONFLICT OF LAWS:

Appellant asserts the district court failed to apply the conflict of laws principles prescribed by the Louisiana Civil Code.

The trial court ruled the prenuptial agreement was valid and enforceable in the State of Louisiana and applied Tennessee law. Written reasons are not to be substituted for the words in the actual judgment rendered by the court. However, the written reasons of the trial court illustrate a clear adjudication of the facts and law at issue. The trial court, when considering whether the prenuptial agreement, which was legally executed according to the laws of Tennessee, was valid and enforceable in the Louisiana domestic proceeding, responded as follows:

In short, the answer is yes. The prenuptial agreement is valid and enforceable. Considering Louisiana Civil Code, Book IV, Conflicts of Law, and the express terms of the agreement, the Court applies Tennessee Law toward its interpretation. Pursuant to Tennessee Code Annotated § 36-3-501:
[a] prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any court having jurisdiction over such spouses and/or such agreement if such agreement is |7determined, in the discretion of such court, to have been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse.

Tenn. Code Ann. § 36-3-501 (emphasis supplied).

In determining that Louisiana Law permits the application of Tennessee Law as the clear, voluntary and intelligent will of the party, the court opined as follows (emphasis added):

The Court finds the parties intentionally drafted the prenuptial agreement freely, knowledgeably, in good faith, and with the assistance of independent counsel.
In fact, Paragraph 15 of the agreement reads, “[t]his Agreement has been entered into [by] the parties in accordance with [Tennessee law], and has been entered into freely knowledgeably and in good faith ... This Agreement shall be interpreted in accordance with the substantive laws of the State of Tennessee, it being the intention of the parties that any court having appropriate jurisdiction shall interpret this Agreement according to the applicable laws of Tennessee which would be most advantageous in giving full force and effect to all of the provisions of this Agreement”. Prenuptial Agreement, Pg. 9. Based on the four corners of the agreement, which both parties signed and initialed on February 28, 2004, in front of a notary, the parties voluntarily agreed to be bound by its terms, which would specifically be interpreted under the laws of Tennessee.

Under La.Civ.Code arts. 3515 and 3537, the court looks to the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. The jurisprudence of this state establishes that articles 3515 and 3537 are intended to be read together, (ie. inpari materiae). Comment (c) to article 3537, supports such an application. Additionally, Montgomery v. Farmers Texas Cty. Ins. Co., 34,628 (La.App. 2 Cir. 5/9/01), 786 So.2d 306, grounds this application in our jurisprudence. Comment (a) of article 3537 establishes that this article gives further insight on the choice of law provisions stating:

IsThis Article establishes the general approach for selecting the law applicable tconventional obligations. Being more general, this Article will be superseded by the more specific Articles contained in this Title. Articles 3538 and 3539, infra, are more specific with regard to issues of form and capacity respectively. Both Articles contain language that regulates more specifically their relationship to this Article. (See comment (e) under Article 3538 and comment (b) under Article 3539, infra). The same is true with regard to Article 3540. See comments (d) and (f) under Article 3540, infra. In essence, this Article applies in the absence of an effective choice of law by the parties ....

There was a specific choice of law by the parties that did offend Louisiana Law. The prenuptial agreement specified Tennessee Law would apply. Louisiana Civil Code Article 3540 permits the law chosen by the parties to be given preference by Louisiana Courts so long as doing so would not be offensive to laws of the state that would otherwise be applicable. Specifically, the article provides: “All other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.” Id. The same result was reached in this circuit in English Turn Prop. Owner’s Ass’n, Inc. v. Short, 16-0460, p. 8 (La.App. 4 Cir. 11/30/16), 204 So.3d 672, 679 (citing Landis Const. Co. v. St. Bernard Par., 14-0096, p. 5 (La.App. 4 Cir. 10/22/14), 151 So.3d 959, 962, writ denied, 14-2451 (La. 2/13/15), 159 So.3d 467), in which this court held that: “It is a well-settled rule that, when the words of a contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine. the parties’ true intent.” We find, as did the trial court, that the prenuptial agreement is clear and unambiguous; thus, the trial court did not err by upholding the validity of the choice of law provision in the prenuptial agreement.

Once a choice of law provision is determined, this court examines whether lathe application of state law to the prenuptial agreement would be against public policy, the statutory framework, and established jurisprudence. In making .this determination, this court relies on the method outlined in Mobil Expl. & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note 95-3317(A), 01-2219 (La.App. 1 Cir. 11/20/02), 837 So.2d 11, writ denied, 03-0418 (La. 4/21/03), 841 So.2d 805, and writs denied, 03-417, 03-427, 03-438 (La.5/16/03), 843 So.2d 1129. There, the court set forth this legal principle and explained the apportionment of the burden of proof:

It is well established that where the parties stipulate the state law governing the contract, Louisiana conflict of laws principles require that the stipulation be given effect, unless there is statutory or jurisprudential law to the contrary or strong public policy considerations justifying the refusal to honor the contract as written. La.,C[iv].C[ode]. art. 3540 and its Revision Comments. See also Continental Eagle Corp. v. Tanner & Co. Ginning, 95-295, pp. 2-3 (La.App. 3 Cir. 10/4/95), 663 So.2d 204, 206. See also Francis v. Travelers Ins. Co., 581 So.2d 1036, 1041 (La.App. 1 Cir.), writs denied, 588 So.2d 1114, 1121 (La.1991). A choice of law provision in a contract is presumed valid until it is proved invalid. The party seeking to prove such a provision is invalid bears the burden of proof. Continental Eagle Corp. v. Tanner & Co. Ginning, 95-295 at p.3, 663 So.2d at 206.

Id. pp. 38-39, 837 So.3d at 42-43.

In this case, once the Appellee proved the existence of the prenuptial agreement and that the agreement was governed by Tennessee Law, the burden shifted to the Appellant to prove that there are Louisiana statutory ór' jurisprudential impediments or' a strong Louisiana public policy that justifies the refusal to apply the contract as written. The success of the efforts of the Appellant to carry his burdeif of proof will be discussed below.

hn The Appellant did not prove the existence of a public policy, jurisprudential or statutory impediment to the application of Tennessee Law .to a prenuptial agreement by a Louisiana Court.

Appellant asserts that the legislature intended to make it onerous to waive one’s community property rights in Louisiana. He contends that procedural hurdles were enacted to ensure the parties considered the consequences of entering a matrimonial agreement. There is no question that the Louisiana Civil Code prescribes both formal and substantive law mechanisms for the implementation of matrimonial regimes. However, as will be discussed below, the Louisiana Civil Codé was written and enacted as an interrelated, complete body of private, substantive law to be read in pari materia. It is intended to be “a self-sufficient and logically interdependent enactment, to be construed as a whole .... ” Albert Tate, Jr., Techniques of Judicial Interpretation in Louisiana, 22 La. L. Rev. 727, 728 (1961-62). Therefore, any review of these articles of the Civil Code requires a systematic and logical analysis of alb-the legislative enactments that are available to resolve a particular question of law.

Appellant contends that upon establishing their domicile in Louisiana in 2012, the legal regime of community of acquets and gains applied to the couple. In support the Appellant cites La.Civ.Code art. 2334, and Martin v. Martin, 09-1960 (La.App. 1 Cir. 5/26/10), 38 So.3d 1174. In Martin, the court applied the principles of article 2334 and found the community property regime applied to a couple married in Mississippi and who later moved to Louisiana. However, Martin is l^easily distinguishable. It did not involve a couple who married outside of this state, who prior to marriage, entered a prenuptial agreement that contained a choice of law provision] Thus, Martin is not analogous to the matter at hand.

Appellant inaccurately asserts he and his wife, in order to preserve the efficacy of' the I ^prenuptial agreement formed in Tennessee, should have entered into a new matrimonial agreement or filed the prenuptial agreement into the public records in the State of Louisiana. In support of his assertion, he seeks refuge in La. Civ.Code art. 2329. The jurisprudence of this state including article 2329 of the Louisiana Civil Code does not deny the legitimacy of prenuptial agreements perfected in another state simply because the parties have not selected a community or separate property regime. It would be pointless to reconstruct the same matrimonial agreement when it was done with the intent of the parties to apply in all states. Additionally, Appellant’s assertion that failure to file the prenuptial agreement in Louisiana renders the agreement inapplicable in Louisiana is neither persuasive nor well founded in the law. No statute in Louisiana requires a party to ñle a prenuptial agreement prepared in this state or in another state in the conveyance records in order to maintain a valid and enforceable agreement between the parties. There is a requirement that in order for a matrimonial agreement to be effective towards third persons as to immoveable property, it must be filed in the conveyance records where the immovable property is located. There.is a preference in Louisiana Law that a spouse living under a matrimonial agreement contracted in another state to continue to be governed by it when they move to Louisiana. Further, La.Civ.Code art. 3537 does not erode this preference, and the provisions of article 2329, allowing out of state couples one year for contracting a separate property regime without court approval, is further evidence of that preference. Thus, this contention is without merit.

Appellant argues the prenuptial agreement did not contain specific language to “opt out of the community property of this State (sic).” We find this contention is also without merit. Although Louisiana was not specifically mentioned in the prenuptial agreement, it clearly establishes a separate property regime during the marriage. Additionally, the testimony by Appellee, as well as the plain language of the prenuptial agreement itself, established that the parties intended the agreement to be applicable in any state. It is noteworthy that Appellant1 did not attend the proceedings, and the record is void of any evidence -or testimony to contradict these well-established facts.

JQjAppellant’s argument that the agreement is invalid because it was not in authentic form as required, by Louisiana also lacks merit.'

Appellee and Appellant signed the agreement in the presence of a notary, but before no witnesses. Appellant supports his position that the prenuptial agreement was defective by citing Shaheen v. Khan, 13-998 (La.App. 5 Cir. 5/21/14), 142 So.3d 257. However, reliance on this case is misplaced. In Shaheen, the parties were wed in a Muslim ceremony in India, and later, they became domiciled in Louisiana. During the divorce, the husband argued that the parties entered into a marriage contract in India that excluded the legal regime of acquets and gains, and that the couple owned no community property. The Fifth Circuit Court of Appeal held there was a community property regime. It noted the contract contained no provision renouncing or modifying the community property regime. Additionally, the court denied the husband’s claim of a separate property regime because there was no evidence the India contract was in the form of an authentic act or act under private signature duly acknowledged by the spouses. While Shaheen may be the law in the Fifth Circuit, this court chooses to distinguish this case as not controlling in this jurisdiction. In Shaheen, the court did not discuss the contents of the alleged matrimonial contract. The court did not determine if the contract made in India was valid and enforceable under the laws of the United States, and if so, was it against Louisiana’s public policy to apply India law. Once the Shaheen court found Louisiana law applied, it addressed the validity of the agreement under Louisiana law. Thus, we find Shaheen is distinguishable from the present case and not 114dispositive of the issues at hand.

Furthermore, this court finds the prenuptial agreement in this case was valid under Tennessee Law and can be enforced in Louisiana for the following reasons: 1) Appellant offered no Tennessee law requiring the parties to sign a prenuptial agreement in the presence of a notary and two witnesses. See Tenn. Code Ann. § 36-3-501; 2) Appellant conceded the agreement was valid and enforceable under Tennessee law; 3) A review of the prenuptial agreement indicates Appellant and Appellee signed the document in the presence of a notary and acknowledged it was their signatures in the presence of the notary; 4) Though there were no witnesses’ signatures on the prenuptial agreement, the Appellant admitted the authenticity of all signatures and waived his ability to challenge the prenuptial agreement by failing to answer the requests for admission; and 5) The trial court found both Appellant and Appellee signed and initialed the agreement in front of a notary. Accordingly, this court finds that Appellant failed to prove that the prenuptial agreement prepared and governed by Tennessee Law was defective as to form under Louisiana Law.

We find Appellant failed to carry his burden to establish the choice of law provision should not be applied because of the existence of Louisiana statutory or jurisprudential impediments to the contrary.

The Appellant did not prove Louisiana’s public policy prevented application of Tennessee Law to the prenuptial agreement.

Appellant is correct in that Louisiana has a strong public policy in favor of the community property regime. However, Louisiana also favors a separate property regime. In Robinson v. Robinson, 99-3097, p. 6 (La. 1/17/01), 778 So.2d 1105, 1113, the court explained Louisiana’s principles of community property and separate property stating in pertinent part:

Under Louisiana law, property is characterized as either community or separate. La.Civ.Code art. 2335. Property acquired during the existence of the community is presumed to be community, but either spouse may rebut the presumption and prove the separate nature of said property. La.Civ.Code art. 2340. The classification of property as separate or community is fixed at the time of its acquisition. Smith v. Smith, 95-0913 (La.App. 1st Cir. 12/20/96), 685 So.2d 649.

Prenuptial agreements are not against public policy in Louisiana. Louisiana Law allows contracts before or during marriage to establish a separate property regime. Therefore, separate property is not against public policy and exists as one of the legal means of owning property during marriage in this state. In Sarpy v. Sarpy, 323 So.2d 851, 853 (La.App. 4 Cir. 1975), writ denied, 328 So.2d 166 (La. 1976), this court held there was no public policy against a marriage contract abrogating the existence of a community of ac-quets and gains.

Appellee does not contest the provision in the prenuptial agreement waiving interim spousal support is against Louisiana’s public policy, but she urges the clause regarding waiver of interim spousal support is severable from the contract. Paragraph 7 of the prenuptial agreement provided “that each party waives, release and relinquishes any and all right to maintenance alimony or support, both temporary and permanent.” Paragraph 20 of the agreement contained a severability clause.

lujThe trial court did not specifically rule on this issue. However,. Appellant does not request relief from the trial court’s failure to rule on this issue. Nor does he seek to invalidate the prenuptial agreement because of the interim spousal support clause. Nevertheless, in accordance with this Court’s de novo review, we find that the inclusion of the waiver of interim spousal support in the agreement, which is against Louisiana’s public policy, does not affect the validity of the prenuptial agreement. Although not directly on point, Barber, 38 So.3d 1046, lends guidance on this issue. In Barber, the couple’s Louisiana -matrimonial agreement waived interim and final spousal support. The appellate court held the waiver of interim spousal support contained in the agreement was against public policy and must be stricken from the agreement, but it found the entire paragraph, which included final spousal support, need not be stricken. The court stated:

Although the agreement regarding interim spousal support and final spousal support are in the same sentence, they are two distinct provisions with different interests and different requirements. It does not appear that the portion of the sentence regarding interim support is so entangled .,. with the rest of the sentence that it cannot be deleted without ■striking the entire paragraph.

Id. p. 6, 38 So.3d at 1050 (footnote omitted). Likewise in this case, the waiver of interim spousal support can be stricken from the agreement without effecting the agreement. The inclusion of the waiver of interim spouse support in the prenuptial agreement does not prohibit the application of Tennessee Law.

We find that Appellant failed to prove that public policy considerations rendered the prenuptial agreement, including the spousal support provision, void ' as 1 ^against Louisiana public policy.

DISMISSAL OF PARTITION OF COMMUNITY PROPERTY:

-Having determined that the prenuptial agreement is valid and enforceable under Louisiana and that Tennessee Law applies, this' court also finds that the dismissal of Appellant’s demand -for partition of community property was appropriate and justified. Though the prenuptial agreement provided for a sepai’ate property regime, there was no community property to partition. Additionally, Appellant presented no witnesses or evidence that the parties acquired community property after moving to ' Louisiana. Since Louisiana courts are courts of record, Appellant is left with the fruits of his choice not to participate in litigation and not to protect his interest. Accordingly,’ the decision of the trial court to dismiss the Appellant’s claim- for the partition of the community property is affirmed.

DISMISSAL OF DEMAND FOR FINAL SUPPOSAL SUPPORT:

' In as much as the parties expressly waived final spousal support, the judgment-of the trial court to dismiss the claim for final spousal support is affirmed. See McAlpine v. McAlpine, 94-1594, p. 14 (La. 9/5/96), 679 So.2d 85, 92 (holding waiver of final spousal support was not per se against Louisiana’s public policy).

AWARD OF ATTORNEY’S FEES AND COSTS:

The trial court properly awarded Appellee attorney’s fee and costs incurred in the action to enforce the prenuptial agreement. The prenuptial agreement provided the prevailing party shall be entitled to recover reasonable attorney’s fees 11sto be fixed by the Court. In English Turn Prop. Owner’s Ass’n, Inc., 16-0460, p. 17, 204 So.3d at 684 (quoting KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-0598, p. 11 (La.App, 4 Cir. 3/14/12), 89 So.3d 1207, 1213), this court stated, “It is axiomatic that „attorneys’ fees are not recoverable unless expressly authorized by statute or by a contract between the parties.’ ” Based, upon the express language of the contract, the trial court awarded attorney’s fees and costs to Appellee, the victor in the litigation. Appellant failed to cite any statute or jurisprudence in support of his argument and failed to show that such a provision is against Louisiana’s public policy.

Accordingly, we find assignments of error numbers one and two lack merit and are denied.

ASSIGNMENT OF ERROR NO. 3:

We find the district court did not err in dismissing Appellant’s claim to continue interim spousal support and in terminating interim spousal support retroactive to the date of the divorce while a demand for final spousal support was pending.

In Hall v. Hall, 08-706 (La.App, 5 Cir. 2/10/09), 4 So.3d 254, writ denied, 09-0812 (La. 5/29/09), 9 So.3d 166, a similar issue was addressed.' Ms. Hall waived final spousal support in the matrimonial agreement. Relying on La. Civ.Cod. art. 113(B), the appellate court held, despite the waiver of final spousal support, that Ms. Hall’s award of interim spousal support would terminate one hundred and: eighty days after the judgment of divorce, instead at the date of- the | ^divorce. This Court declines to follow Hall and finds it distinguishable. In this case, the trial-court-determined the parties expressly waived final spousal support, and no good cause was shown for an extension of interim spousal support. The absence of contradictory evidence by the Appellant confirms this determination.

Accordingly, this Court concludes that assignment of error three lacks ’merit and is denied.

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED

      . The agreement was admitted into evidence.

      . Appellant alleged, in his brief to the court', the couple first moved to Louisiana in 2004, for Appellee to complete her. PhD at Tulane University. Appellee countered, in her brief, only she lived here from 2004 to 2006 to complete her PhD, No testimony or evidence was presented at the hearing by either party as to these allegations.

      . On March 7, 2013, less than one year after moving to New Orleans, Appellee purchased a home located at 4911 St. Charles Avenue, New. Orleans, LA 70115, She paid for the home with her separate funds. The Act of Cash Sale was recorded in the Orleáns Parish Conveyance Office, Appellant appeared and signed the Act as an Intervener, affirming, that: “Ms, Neivens purchased said property with her separate funds, which would remain under her separate administration and control; and, he had no interest in said property.”

      . Appellant relies on Acurio v. Acurio, 16-1395, pp. 5-6 (La. 5/3/17), 224 So.3d 935, 2017 WL 1709823, p. *3, wherein the court addressed the procedural requirements for a valid matrimonial agreement prepared in Louisiana' and governed by Louisiana Law.

      . Louisiana Civil Code Article 2334 provides, "The legal regime of community of acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage,"

      .Louisiana Civil Code Article 2329 provides; Spouses may: enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
      Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding1 by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.
      During the first year after moving into and acquiring a domicile in th.is state, spouses may enter into a matrimonial agreement without court approval.

      .A commentator set forth thoughts on the issue writing:
      Although it is not explicitly stated in the Civil Code, it appears that spouses living under a matrimonial agreement contracted in another state would continue to be governed by it when they move to Louisiana, Thát was the traditional Louisiana view and probably is still authorized' by Louisiana Civil Code Article 3537'... Indeed, the provision, of Article 2329 allowing out of state couples one year to contract a separate property regime ... without court approval reflects that policy. That provision also seems to assume that such a couple would not have to heretofore contracted such a regime, it would seem to be pointless to r regime if it had existed before,
      Andrea Carrol & Richard D. Moreno, 16 La. Civ.L Treatise, MATRIMONIAL REGIMES, § 8:11, p. 892-93(4th ed. 2016)(footnote omitted). ..

      . Louisiana Civil Code Article 2332 provides a matrimonial agreement is effective toward third persons as to immoveable property when filed in the conveyance records where the immovable property is located; however, that is not at issue in this case.

      . Carrol & Moreno, supra, § 8:11.

      . See also Lauga v. Lauga, 537 So.2d 758 (La.App. 4 Cir. 1989), where this court applied Louisiana law to a matrimonial agreement entered into by a Louisiana couple prior to the marriage but while the husband was in prison in Kentucky. The opinion does not indicate whether a choice of law provision was contained in the agreement.

      . Of particular note, one of the requests for admission asked Appellant to admit or deny the authenticity of his signature.

      . At the hearing, Appellee testified she paid interim spousal support to Appellant despite the waiver in the agreement.

      . The contract provided, "Severability. In the event that any provision of this Agreement shall be held invalid, unenforceable or void for any reason, the remaining provisions of this Agreement shall not be affected, said provisions being severable.”

      . See Greater New Orleans Expressway Comm’n v. Olivier, 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24, (citations omitted), where the court held, “A judgment and reasons for judgment are two separate and distinct documents. La. C[ode].C[iv], P. art. 1918. Appeals are taken from the judgment, not the written reasons for judgment.”

      . No action need be taken as interim spousal support, was paid by Appellee.

      , Appellate courts may not consider documents or facts, including facts set forth in the appellate brief, which were not introduced or testified to in the trial court, Cozzy Spot, LLC v. City of New Orleans, 16-0529 (La.App. 4 Cir. 1/11/17), 209 So.3d 224, 227.

      . Louisiana Civil Code Article 113(B) provides: “If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.’’


source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    STATE of Louisiana v. Kentrell HICKERSON
    NO. 2017-KA-0093
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 25, 2017
    Leon A. Cannizzaro, Jr., Donna Andrieu, ORLEANS DISTRICT ATTORNEY’S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Jerome W. Matthews, Jr., 310 Huey P. Long Ave., Suite 104, Gretna, LA 70053, Kevin S. Vogeltanz, 2124 Monroe Street, Mandeville, LA.70448, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Marion F. Edwards)
   Judge Rosemary Ledet

laThis appeal arises from the defendant’s convictions for racketeering and conspiracy to distribute heroin. On March 30, 2017, this court remanded this case to the district court with instruction to rule on the defendant’s motion, for a new trial. La, C.Cr.P. art. 851.

Accordingly, the instant appeal is hereby dismissed without prejudice. The defendant’s rights to appeal his convictions and sentences after the district court’s ruling on the motion for a new trial are preserved.

APPEAL DISMISSED


author: Judge Marion F. Edwards,

text:
    STATE of Louisiana v. Bryant R. MCCLENDON
    NO. 2017-KA-0160
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 27, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, PARISH OF ORLEANS, J. Taylor Gray, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    Robert S. Tóale, Kara A. Larson, 505 Weyer Street, Gretna, LA 70053, COUNSEL FOR, DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love,- Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore)
   Judge Marion F. Edwards,

Pro Tempore

| defendant, Bryant McClendon, appeals his conviction and sentence for molestation of a juvenile 'in violation of La. R.S. 14:81.2. We affirm the conviction and remand the matter to the district court for a ruling on defendant’s outstanding motion to reconsider sentence. We reserve defendant’s right to appeal the sentence resulting from the district court’s ruling on the motion to reconsider sentence.

PROCEDURAL HISTORY

On July 29, 2011, Bryant McClendon was charged with indecent behavior with a juvenile in violation of La. R.S. 14:81 involving alleged behavior with R.P., the minor daughter of a woman with whom McClendon had a relationship in the early 2000’s. He entered a plea of not guilty to the charge. The trial court found sufficient probable cause to substantiate the charge at a preliminary hearing on July 16, 2012. On March 26, 2013, the State filed a notice Of intent to offer evidence of similar crimes, wrongs, and/or acts involving previous sexually assaultive behavior pursuant to La. C.E. art. 412.2. The trial court ruled this evidence admissible. On |aJanuary 20, 2016, the bill of information was amended to charge McClendon with molestation of a juvenile, in violation of La. R.S, 14:81.2.

After a trial on the merits held on July 14, 2016, the jury returned a verdict of guilty of molestation of a juvenile. McClen-don was sentenced on July 27, 2016 to five years at hard labor to -run concurrently with any other sentences, with credit.for time served, and assessed $1,286.50 in costs.. On that same day, defense counsel filed a motion for. appeal and a motion to withdraw as counsel. Both motions were granted, and the trial court appointed the Louisiana Appellate Project to represent McClendon on appeal. On July 29, 2016, the defense filed a motion to reconsider sentence that remains outstanding.

FACTS

The victim, R.P., who is now twenty-seven, testified that when she was a child, she. and her mother lived • with Bryant McClendon. Her three younger half-siblings, B.M.l, B.M.2 and B.R.M, also lived in the home. All four children have the same mother, but McClendon is the father of R.P.’s three half-siblings. When R.P, was in middle school, the family lived in a two-bedroom home in New Orleans East. Her mother and McClendon shared one bedroom, and R.P. shared the second bedroom with her three half-siblings. The children’s bedroom had a set of bunk beds. R.P. and B.R.M. slept in the upper bunk and the other two children slept in the lower bunk.

R.P. testified that when she was very young she had a good relationship with McClendon. However, that relationship changed when she was in middle school. R.P. described how the normal play became a “little more touchy-feely,” McClen-don would make her sit on his lap while he touched her breasts. She could Rnot recall the exact time,the touching changed and became uncomfortable, but she remembered it was around the time the defendant drove her to a dance when she was in the eighth grade. ,

Things got worse for R.P. when McClen-don started coming into the bedroom at night after all the children were asleep. R.P. described how she woke up to find McClendon standing on the side of the bunk bed with his erect penis exposed. McClendon put R.P.’s hand on his penis and began to move her hand up and .down. R.P. stated that she didn’t know what to do, so she pretended to still be asleep and tried to turn over away from him to -make him stop, R.P. testified that on other occasions, McClendon would touch her breast or vagina. She pushed his hand away, but he “would just put his hand back.” The sexual contact continued, and escalated over time. R.P. estimated it, was about two years later when McClendon got into the bunk with her and put his mouth on her vagina.

R.P. testified that she wanted him to stop, but did not know what to do about it. She acknowledged that she did not wake any of the other children or call out to her mother. She simply tried to pretend she was still asleep. R.P. described one occasion when McClendon got into her bed and tried to penetrate her. She pushed and kicked him to try to stop him. She heard her mother call out to him and he left her room.

R.P. testified that the abuse occurred between 2002 and 2004. It .stopped, in 2004 when her mother and McClendon broke up and he moved out of the home. She stated that she didn’t tell anyone about the sexual abuse until several years later when she confided in a friend. She told her mother about the abuse in 2009 and. decided to disclose the abuse to police in 2010 after speaking with her half-sister, B.M.l, over the Thanksgiving holiday.

14R.P. explained that after Hurricane Katrina, her mother and three half-siblings relocated to Texas. R.P. returned to New Orleans to live with her maternal grandparents and finish school. When she visited with the family at Thanksgiving in 2010, R.P.,learned that her sister, B.M.l, who was .about fifteen at that time, was struggling in school and began making poor decisions, including transmitting a nude photo of herself to a boy. B.M.l confided.in R.P., stating that her father was touching her inappropriately. R.P. stated that she felt guilty, and in some way responsible for the abuse her sister was enduring, because of her failure to tell anyone about the abuse when it happened.

R.P., who was twenty-seven at the time of trial, testified that the sexual abuse affected her mental health. She has anger issues, as well as sexual and relationship issues, that require professional help. She explained the she has difficulty relating sex to love.

Lisa Holcomb, an investigator fi-om the Children’s Assessment Center in Houston, Texas testified at trial. She stated that the Children’s Assessment Center is a child advocacy center that investigates and treats child sex abuse cases that are subsequently referred to law enforcement and the Texas Department of Family and Protective Services.

Ms. Holcomb conducts forensic interviews with victims. She explained that a forensic interview is a neutral fact finding interview done by an objective party in the investigation of child sexual abuse allegations. Ms. Holcomb interviews children and intellectually disabled adults and communicates using different tools, as needed. In that capacity, Ms. Holcomb conducted a forensic interview with B.M.1 after the report of sex abuse was made to Texas authorities in 2010. At that |stime B.M.l was fifteen-years-old. A videotape of the interview was played for the jury over the objection of the defense.

In the video, B.M.1 stated that she was currently living with her mother and her mother’s boyfriend in Texas where they have lived since Hurricane Katrina. She admitted that she was currently attending an alternative school after being expelled from her former school for cutting classes. B.M.l told Ms. Holcomb she has an older sister who lives in Louisiana that she “talks to about things.” She said she was brought to the center by her mother because she was sexually molested by her father. She promised to tell the truth in the interview,

B.M.l said that her mother and father separated when she was much younger and she and her two siblings lived with their mother. However, they spent half the summer with their father and paternal grandmother in their home in Marrero, Louisiana. During those visits her father would “touch (her) and stuff, a lot, not like a dad should touch his child.” She explained that he would touch her chest with his hands and rub on her legs. On some occasions he would touch her over her clothes, but other times he would go under her bra and “caress” and touch her breast in a “squeezing motion.” The touches usually happened when she came out of the bathroom and would last for five or ten minutes and there was nothing she could do about it. Sometimes her father would touch her at night. Occasionally the inappropriate touching happened after he called her into his room. She estimated the sexual abuse happened about two or three times a week.

On one occasion around Christmas when B.M.1 was about thirteen or fourteen, she was in her father’s bedroom with her cousin watching television. McClendon was on the computer in the same room. When her cousin left the room to go into the kitchen, McClendon locked the bedroom door. He sat back down at | ñthe computer and called B.M.l to come and see something on the computer. When she went to him, he put her on his lap. She tried to get up, but he held her down. He started touching her under her shirt and began to move her “side to side” on his lap. She stated that McClendon then put his hands in “the front part” of her pants. First, he rubbed the outside of her vagina, then “touched the inside of it for a while.” B.M.1 said the touching “felt painful-ish” and that when she tried to move McClendon’s hand he would “do it harder.” She said- that “whenever he considered himself done,” he would let her go and she could leave the room.

The final incident occurred when she passed by her father’s bedroom. He called out to her to “come in real quick.” He was lying on a couch and she went into the room and sat next to him. Her father sat up and put her on his. lap. Using dolls to demonstrate the positioning, B.M.lde-scribed how McClendon touched her chest, then put his hand inside of her underwear. After touching the outside of her vagina, McClendon inserted his fingers inside “in an in and out motion.” As she tried to leave the room, McClendon asked for a kiss.

After the video ended, the defense cross-examined Ms. Holcomb regarding the interview. She conceded that she did not ask B.M.l why no, one witnessed the sexual abuse or if she was promised anything in return for her statements. She acknowledged that the alleged abuse occurred years before B.M.l transmitted the nude photo of herself. Ms. Holcomb also stated that she was aware that B.M.1 spoke to police about the abuse, and Ms. Holcomb advised B.M.1 that distributing nude photos of herself could constitute child pornography.

Ms. Holcomb interviewed B.M.l’s two younger siblings, who were unable to cor-, robórate the sexual abuse allegations. Ms. Holcomb admitted that her job is 17simply to collect information and provide a statement to law enforcement and child protective services, not to make a credibility judgment.

Ms. Holcomb agreed that, although B.M.l seemed immature for her age, she used terminology more “consistent with a police officer.” Further, she was not aware of any medical reports demonstrating the existence of marks or bruises on B.M.1 consistent with her report of sexual abuse:

Anne Troy, a nurse practitioner at the Audrey Hepburn Care Center of Children’s Hospital, was qualified as an expert to provide background for the jury on the reporting and investigation of sexual molestation. She explained that disclosure of the molestation by a child is a very difficult process because the abuser is often a person the child knows and loves. Depending on their age and development, children who are sexual abused are not sure what’s happening or why. They usually experience feelings of shame, embarrassment and guilt.- External factors, like the fear that no one will believe them, that they may be punished, or that their security will be threatened also prevent or delay the disclosure of sexual abuse.

Ms. Troy did not interview the victim in this case, but stated that it is not unusual for victims to wait-months or years before disclosing the abuse. Ms. Troy also explained that, because children’s bodies heal quickly, there is a very short window of time, between twenty-four and seventy-two hours, for the collection of DNA and physical evidence of sexual abuse. She testified that several things may precipitate the belated disclosure, like the return of the perpetrator or- the fear that a younger sibling may now be at risk of abuse.

Ms. Troy observed in her conversations with sexually abused children that they would often recount the episodes with much less emotion than one would | Rexpect. The reporting would be in a very matter of fact manner because they have been coping with the trauma long before the actual disclosure.

According to Ms. Troy’s testimony, common behavior manifested in sexually abused children includes bed wetting, running away, fighting at school and self-mutilation. Adolescents often act out by taking on high risk activities such as promiscuity and drug, abuse which compounds the problem by putting their credibility in question. On the other hand,, some children become “A” students.and perfect children, in an effort to gain some control of their lives.

The defense called B.M.1 to the stand. She confirmed the sleeping arrangements to which R.P. testified, and admitted that she had no memory of her father coming into the children’s bedroom at night when she was a child and R.P. still lived with them in New Orleans. However, she pointed out that when R.P. was thirteen or fourteen, she would have been only six or seven-years-old.

B.M.l testified that she got into trouble in' school after sending a nude photo of herself to a boy. She was talking to-her mother and her-two sisters about why she was acting out in school around Thanksgiving in 2010. She decided to tell her sister, R.P., about the sexual abuse after her mother and other sister left the room. B.M.l testified that R.P. was the first person she told about the abuse that started after she moved to Texas with her mother and two younger siblings. R.P. confided in B.M.l that she too had been abused by McClendon; After that conversation, the two sisters went to tell their mother about the abuse.

B.M. 1 testified that she later informed Jefferson Parish law- enforcement about the abuse,, but officials there did not follow up on the allegations after the interview. She said the Texas police did not charge her with child pornography. |flShe also stated that she told the truth in the interview at the Child Advocacy Center and was telling the truth on the stand.

The other two siblings, B.M.2 and B.R.M., testified for the defense. .B.M.2 testified- that she lives with her father and her paternal grandmother in Marrero, Louisiana. She testified that she could not recall waking up to find her father in the bedroom she shared with her .three siblings in New Orleans between 2002. and 2004. She did not recall, witnessing her father doing anything inappropriate to B.M.1 in 2008, 2Ó09, or 2010.

B.R.M. also testified for the defense. He stated that he was about four years old in 2002 and slept in the upper bunk with R.P. He' did not recall ever seeing his father get into the bunk at night-and never saw his father come into the room and expose his penis. On cross-examination, he admitted that he was very yóung and could have been- asleep.

McClendon’s motlíer, I.M. testified on her son’s behalf. She stated that, although there was a time that her son and R.P.’s mother lived together in New Orleans, it was not in 2002 to 2004. She claimed that McClendon was living with her in Marrero, Louisiana during that period. I.M. also stated that she never saw McClendon touch B.M.l inappropriately, and that she has a rule in her house that no doors can be locked.

McClendon took the stand in his own defense at trial. He testified, that he is forty-eight years old and is currently living with his mother and daughter, B.M.2, in Marrero, Louisiana. He denied all allegations of sexual abuse of R.P. and B.M.l. He testified he knew that B.M.l transmitted a nude photo, and that Texas authorities were considering bringing child pornography charges against B.M.1. McClendon stated that B.M.l continued to communicate with him after she made |inthe allegations in 2010 and asked him for money to pay for school, books, clothing and doctor visits. He said seeing R.P; and B.M.l cry on the. witness stand' was “hurtful” to him. McClendon testified, that both girls. were known to be liars and were lying about the allegations. He suggested that B.M.l made the allegations against him to avoid the charge of child pornography.

McClendon also stated that no one from NOPD, the Orleans Parish District Attorney’s Office or the Jefferson Parish Police Department contacted him to get his side of the story. He noted that no police official testified at trial about the investigation of the abuse allegations and commented that no law enforcement official came to his home in Marrero to take pictures or talk to his other daughter or mother.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, McClen-don contends that there is insufficient evidence to support his conviction for molestation of a juvenile. Specifically, he argues there is reasonable doubt as to whether he engaged in the alleged behavior because R.P. provided conflicting and unreliable testimony. Additionally, defendant asserts the State presented insufficient evidence to show that he exercised control or supervision over R.P.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard for review of the sufficiency of evidence used- to convict a defendant of a crime is well-settled. In evaluating 11 whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a- reasonable doubt.

Defendant was convicted of the molestation of R.P. when she was between the ages of thirteen and fifteen. Molestation of a juvenile is defined by La. R.S. 14:81.2A.(1) as follows:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person'or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

The essential elements of the crime of molestation of a juvenile, each of which the prosecution must prove beyond a reasonable doubt, are that; (1) the accused was oyer the age of 17, (2) the accused committed a lewd or lascivious act upon the person or in the presence of a. child under the age of 17, (3) the accused was more than two years older than the victim, (4). the accused had the specific intent to arouse or gratify either , the child’s sexual desires or his or her own sexual desires, (5) and the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over the juvenile.

McClendon does not dispute the age difference element of the crime. The victim was about thirteen and the defendant was about thirty-four when the abuse began. Further, the details of the incidents provide sufficient evidence of “lewd or lascivious acts” with the intent to arouse the child’s and/or the defendant’s sexual desires. For purposes of molestation of a juvenile, a “lewd or lascivious act” is one which tends to excite lust and to deprave morals with respect to sexual relations and which is obscene, indecent and related to sexual impurity or incontinence carried on in a wanton manner.

McClendon’s first argument as it relates to the sufficiency of evidence is that there was reasonable doubt as to whether he actually engaged in the alleged behavior because R.P. provided conflicting and unreliable testimony. This argument relies primarily on discrepancies in the timeline of the incidents related in R.P.’s testimony, and when exactly he supposedly exposed his penis. Additionally, McClen-don points to the fact that the three other children sleeping in the same room did not corroborate R.P.’s testimony that he came into the bedroom and molested her. McClendon argues R.P.’s testimony,' that he got into the top bunk with her and another child without waking the other children in the room, is incredible given the fact that he weighs over 250 pounds. He also notes that there is some discrepancy in the record regarding when R.P. decided to report her abuse.

In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction. Credibility determinations are within the sound | ^discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. Although the timeline and order of the incidents of the molestation and the report of the molestation may have been confused in the victim’s mind and testimony, the fact that the abuse occurred on numerous occasions is not. The date and time of the offense of molestation of a juvenile are not essential elements of the offense.

Also, while it is true that none of the three siblings witnessed the abuse, the record shows that when the abuse occurred, they ranged in age from four to eight-years-old. A rational trier of fact could have concluded that the children did not witness the abuse because of their young age, and the fact that they were asleep when it happened.

Furthermore, the veracity of R.P.’s testimony was supported by the videotaped statement of B.M.1 wherein she recounted her own molestation as it showed that McClendon employed similar methods of abuse in his behavior with her. He began the abuse by sitting both girls on his lap and fondling their breasts. Then, on subsequent occasions McClendon began touching and placing his fingers inside of their vaginas. The record also shows that McClendon started sexually abusing both girls when they reached adolescence and were living .or visiting in his household.

In the alternative, McClendon argues the State presented insufficient evidence to show that he exercised control or supervision over R.P. McClendon asserts that, although R.P. stated she thought of him as a father figure, he is not her 114father, and there is no evidence that he was ever place in charge of R.P. by her mother, or that he was ever alone with her. McClendon argues there was conflicting testimony as to his actual place of residence.

In support of this argument, McClendon cites State v. Mallette. We find McClen-don’s reliance on Mallette to be misplaced. In Mallette there was no evidence that the defendant lived in the home with the victim, nor was there evidence'that the defendant acted as a father figure to the victim. The Mallette defendant was a truck driver who was on the road most of the time and there was no testimony to show he was ever alone with the victim. The facts in Mallette are clearly distinguishable from the instant case in which McClendon lived in the home, was there regularly, acted as a father figure to the victim, and was the biological father of the victim’s three half-siblings.

We are mindful of the Louisiana Supreme Court’s recent pronouncement in State v. Graham, that the defendant’s status alone is insufficient to show control or supervision, and there must be evidence that the defendant exercised control or supervision over the juvenile to satisfy this element. However, unlike Graham, in the matter before us, the State did not rely solely on McClendon’s status as the mother’s boyfriend to satisfy this element of the crime. There was sufficient evidence to show an emotional bond between McClen-don and R.P. that was akin to a father-daughter relationship.

Additionally, there is evidence to support a finding that McClendon used force, menace or intimidation in his molestation of R.P. She testified that she | ^pushed his hand away and kicked him to try to prevent the abuse. Given that McClendon.is a large man .who was about twenty .years older than the victim, the jury could have reasonably found sufficient evidence of this element of the crime;

We find upon review of all of the evidence presented at trial that there is sufficient evidence to convict in this case. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

McClendon’s second and third assignments of error relate to the admission of B.M.l’s videotape. In this assignment, McClendon argues that the trial court erred when it allowed the abuse allegations of B.M.1 against him- by way of the videotape into evidence without a limiting instruction to the jury beforehand. Although the trial court did not give limiting instructions at the time the videotape was played for the jury, the trial court did give limiting instructions in the jury charge .as requested by the defense at the close of trial.

In brief to this Court, McClendon argues that the limiting instructions given by the Court after closing argument were not süfficient- because the State’s opening arguments referred to B.M.l’s allegations; the State’s elicited testimony from Ms. Troy regarding her opinion on B.M.l’s behavior; the court failed to instruct the jury before the evidence of- B.M.l’s allegation was admitted; trial was recessed after the video without hearing fi’om R.P., the victim in this case; and the State consistently referred to B.M.l and R.P. as- the “victims in this case.”

The'record shows that the State gave McClendon notice of its intent to introduce evidence related to B.M.l’s allegation at trial pursuant to La. C.E. art. |1n412.2. After a pre-trial hearing, the trial court found the evidence admissible, and McClendon objected to that ruling. At trial the State introduced the video of B.M.l’s advocacy interview over a defense objection that the video' and the allegations it contained were not relevant, unfairly prejudicial and constituted hearsay. Additionally, McClendon argued the videotape deprived him of the opportunity to cross-examine his accuser. The State countered that the tape was admissible pursuant to La. Ch.C. art. 325 which provides that a “videotape authorized by this Chapter is hereby admissible in evidence as an exception to the hearsay rule.” Further, the State asserted that it provided the proper foundation for the admission of the videotape as required by Ch.C.art, 326, and argued that the defendant’s confrontation rights were not- compromised because B.M.l was 117available to testify. After conducting a brief conference with the attorneys in chambers and speaking 1 with B.M.l, the trial court ruled the videotape admissible.

La. C.E. art. 412.2A creates an exception in sex offense cases to the general prohibition of the introduction of other crimes, wrongs or acts for the purpose of proving a person’s character or propensity to criminal activity set forth in La. C.E. art. 404B(1), However, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time.”

McClendon argues the trial court erred in allowing the videotape to be shown to the jury without explaining to the jury that the accusations in the videotape could not be used to convict him. McClendon points out that he was never arrested for any allegations of abuse of B.M.I.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. This same standard is applied to rulings on the ádmission of other crimes evidence and evidence under La. C.E. art. 412.2. Initially we note that it is not necessary, for purposes of La. C.E. 412.2 testimony, that the defendant be charged, prosecuted, or convicted of the “other acts” described.

• hsln support of his argument that the trial court erred in failing to instruct the jury before playing the videotape, the defendant cites State v. Brown. In Brown, the defendant stipulated that he pled guilty to a prior charge of attempted forcible rape outside the presence of the jury, but objected to the introduction of the factual basis of that guilty plea being read to the jury in his trial for attempted forcible rape of an eleven-year-old victim. He alleged he was convicted on the current charge based on his prior criminal history, not on the evidence or facts presented at trial. The Brown court found merit in defendant’s argument that the trial court erred when it refused to provide a limiting instruction as to the prior convictions.

The Brown court reasoned that the enactment of article 412.2 did not abrogate La,C.E. art. 105 which provides that, “(w)hen evidence which is admissible as to one party or for o'ne purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Failure to restrict the evidence and instruct the jury shall not constitute error absent a request to do so.” The difference in the matter before us is that McClendon did not request a limiting instruction pursuant to article 105 either before or after the videotape was played to the jury. A request for such an instruction is mandated by La. C.E. article 105.

Further, La.C.Cr.P. art. 841(A) provides that “(a)n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence,” and requires that the party state the grounds for the objection. McClendon did not object to the lack of limiting instruction during the trial,' and [13thus did not preserve his right to appeal any prejudice stemming'from the trial court’s failure to instruct the jury before it heard B.M.l’s accusations.

McClendon did request a limiting jury instruction after the general charges were read, and the trial court charged the jury as requested; however, McClendon argues that was insufficient. McClendon also claims that in closing arguments the State rehashed B.M.l’s allegations and made various inappropriate remarks on rebuttal, including that the jury was “here because of the abuse and molestation [B.M.l] went through” in rebuttal arguments. McClen-don argues all these events, in the absence of a limiting instruction beforehand, were prejudicial, misleading, and caused juror confusion.

However, McClendon failed to lodge an objection to the majority of the allegedly improper references and in the instances that he did object, the basis of the objection did not relate to inadmissibility of or prejudicial effect of B.M.l’s abuse allegations. As such, defendant may not avail himself of any of these alleged errors in that regard on appeal.

La. C.Cr.P. art. 801(C) provides that a party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. Here, the trial court instructed the jury prior to deliberations that McClendon could not be convicted of any offense other than the charged offense and no objection was made to the trial court’s instruction. |gnBecause no objection was made to the jury instructions, any error in this regard was not properly preserved for appellate review.

Nevertheless, McClendon urges this Court to find the prejudicial effect of the admission of the video outweighs the probative value. In State v. Wright, the Louisiana Supreme Court noted that arti-ele 412.2, was enacted to loosen restrictions on other crimes evidence, and to allow evidence of lustful disposition in cases involving sexual offenses. In weighing the probative value versus the prejudicial effect of the other crimes evidence before it, the Wright court looked at the similarities between the other crimes evidence and the facts presently before it. Finding the similarities between the two acts “were sufficiently probative to support the admission” of the other crimes evidence, the Supreme Court noted that the “evidence demonstrates defendant had a propensity for sexual activity with adolescents where he held a position of authority, and where the adolescent children were in his household.”

Similarly, the evidence of B.M.l’s abuse was relevant to show that McClendon had a lustful disposition toward adolescent children with whom he shared a household and had a close paternal relationship. The record shows that R.P. and B.M.l were young teenagers and were living or staying with McClendon at the timé of the abuse. R.P. viewed McClendon as a father figure, and he is the father of B.M.I. The pattern of abuse was also similar. We find that the two crimes were sufficiently similar to support the trial court’s decision to admit the evidence.

For the foregoing reasons, we find no merit in this assignment of error.

ASSIGNMENT OF ERROR THREE

In this assignment, McClendon claims that the trial court erred in allowing the videotape of B.M.1 into evidence or erred in denying a motion for mistrial when the prosecution played a videotape of B.M.l but did not call her to testify in its ease-in-chief in violation of his right to confrontation.

Louisiana is one of several states that have established procedures to protect child victims of sexual abuse who testify at trial from unnecessary trauma. Jurisprudence demands that these procedures be followed with exactitude.

Here, after the video of B.M.l’s interview was played in open court and the trial court excused the jury for lunch, defendant moved for mistrial based on hearsay. Outside of the jury’s presence, McClendon argued for a mistrial on the basis that there were no questions regarding medical treatment or purposes, the defense argued, was one of the reasons for allowing the evidence to be admitted. The State countered that the court’s rulings were largely based on hearsay objections and rested its argument ón the proposition that the video was admissible hearsay. The trial court denied the mistrial.

The United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Louisiana Constitution similarly provides, “[a]n accused is entitled to confront and cross-examine the witnesses against him.” McClendon argues that it was insufficient that the State made B.M.l “available” for the defense to call as a | ¡^witness. He claims that a defendant is entitled to cross-examine the witnesses against him and that he is deprived of that right when the accuser is not called in the State’s case-in-chief. McClendon also argues that forcing him to call an accuser to testify creates a risk of inflaming the jury against him and also unfairly requires him to choose between his right to cross-examine a complaining witness and his right to rely on the State’s burden of proof in a criminal case.

McClendon refers this Court to State ex rel. D.G. . In our original opinion in that case we held that, the introduction into evidence of a videotapes interview of a child sexual abuse victim, where the victim did not testify, did not violate the defendant’s Sixth Amendment right to confront witnesses against him where the victim was available in the courthouse during the hearing. We found the victim was “available” for cross-examination by the juvenile defendant, noting that the case was tried before the bench and so there was no jury for the defendant to inflame had he chosen to call the victim to the stand. In doing so, we distinguished prior cases concerned with the potentially inflammatory effect on the jury of having the defendant call the child victim to the stand by reasoning that the defendant in D.G. was tried before the bench, not before a jury. That decision was reversed by the United States Supreme Court, and remanded to this Court for further consideration. On remand we reaffirmed the defendant’s conviction, finding that the victim’s availability in court was sufficient and that it was not necessary for the prosecution to call him as a witness. The Louisiana Supreme I^Court denied writs , the United States Supreme Court has denied certioari and the D.G; case is established law. We are not inclined to revisit that matter. -

In the matter before us, the State announced, and the trial court acknowledged, that B.M.1 was available to testify. Counsel for defense did in fact subject B.M.l to questions at trial. When the declarant appears for cross-examination' at trial, the Confrontation Clause places no constraints at all-on the use of his prior testimonial statements. Additionally, the Confrontation Clause guarantees only ‘an- opportunity - for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.’ Additionally, at the -time of trial, B.M.1 was twenty-years-old and no longer a child. Therefore, the risk of inflaming a jury by the defendant calling a child-accuser- to the stand is not an issue.

Accordingly, we find that, because B.M.1 was available for examination by the defense, McClendon’s right to confrontation was not violated. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER FOUR

As his fourth assignment of error, McClendon argues that the trial court failed to timely bring him to trial in violations of his statutory and constitutional rights. McClendon argues that the State erred by failing to timely commence trial within two years in accordance with La. C.Cr,P. art. 578, He also contends the State violated his right to a speedy trial guaranteed, by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. McClendon [^argues that because the State took five years to bring him to trial, the delay is presumptively prejudicial triggering the consideration of the factors set forth in Barker v. Wingo.

However, McClendon failed to file a motion to quash seeking to challenge the untimely commencement of trial or to assert a violation of his constitutional right to a speedy trial. A motipn to quash is the proper procedural vehicle for raising untimely prosecution. A defendant may also raise a claim for the denial of his constitutional right to a speedy trial by a-motion to quash. Further, McClendon did not file a motion for speedy trial.

Because he did not raise these claims before the trial court,1 McClendon failed to preserve for appeal any alleged violation of his right to speedy trial or claim of untimely prosecution. .

Accordingly, we find no merit in this assignment.

ASSIGNMENT OF ERROR NUMBER FIVE

As his fifth assignment of error, McClendon argues that the trial court erred in allowing Ms. Holcomb to testify as to B.M.l’s statements as such testimony constitutes hearsay.

A defendant cannot avail himself of an alleged error unless he made a contemporaneous, objection at the time of the error. Not only does an objection have to be made, but La.C.Cr.P. art. 841(A) requires that a defendant \ 2Smake known the grounds for his objection, and he is limited on appeal to those grounds articulated at trial.

Ms. Holcomb conducted the interview of B.M.1, and her testimony provided the foundation for the introduction of the videotape of B.M.1 into evidence. As discussed above, McClendon objected to admission of the videotape and raised multiple arguments as to why the -video should be excluded,’ including hearsay grounds. However, McClendon did not argue that Ms. Holcomb should not be permitted to testify nor did he object to the content of Ms. Holcomb’s testimony or to her qualifications.

Even if the hearsay objection made to the videotape can be construed to include Ms. Holcomb’s testimony, there is no merit in defendant’s argument. Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. The-State’did not introduce Ms. Holcomb’s testimony to establish that B.M.1 was sexually abused by défendant. B.M.1 did that herself in the videotape. Ms. Holcomb conducted the interview of B.M.1, and her testimony provided the foundation for the introduction of-the videotape of B.M.1 into evidence. Ms. Holcomb testified that she made no credibility determinations, she simply conducted a forensic interview that was videotaped. Her testimony. was not offered to prove the truth of the matter asserted.

This assignment of error is without merit. •

I ASSIGNMENT OF ERROR NUMBER SIX

As his final assignment of error, McClendon argues that the trial court erred when it failed to maintain a complete record of the proceedings.

Here, the record does not contain a transcript of the hearing on' preliminary examination held on July * 16, 2012. M’cClendon argues that because there is no transcript from the preliminary hearing, he is prohibited from, evaluating the consistency, of .R.P.’s allegations against him. Defendant notes that the preliminary hearing occurred four years before trial and that the State did not interview R.P. until October of 2015. McClendon also argues the record'. shows an -objection was made by the defense and without the transcript this Court is unable to review the objection.

The Louisiana Supreme Court has previously held that where minute entries show relatively minor events, or where there are “gaps” in the record, such inconsequential omissions merit no relief. While the transcript of the preliminary examination is not in the record, the minute entry and arrest warrant are. The minute entry indicates that no witnesses testified and that the matter was submitted to the trial court on the arrest warrant alone. In light of the evidence against McClendon, we do not find the missing preliminary hearing transcript amounts to a material omission that would bear on the merits and require a reversal.

This assignment is meritless.

|27Finally, we have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 and have found no such errors.

For reasons set forth herein, we affirm the conviction and remand the matter to the trial court for a determination of McClendon’s motion to reconsider sentence. We reserve defendant’s right to appeal his sentence after a ruling on that motion is made in the trial court.

CONVICTION AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS

      . State v. Campbell, 2015-0017 (La.App. 4 Cir. 6/24/15), 171 So.3d 1176, writ denied, 2012-0550 (La. 4/20/12), 85 So.3d 1273.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

        .State v. Leblanc, 506 So.2d 1197, 1199 (La. 1987).

      . State v. Terry, 47,425, pp. 25-26 (La.App. 2 Cir. 11/21/12), 108 So.3d 126, 143, writ denied, 12-2759 (La. 6/28/13), 118 So.3d 1096.

      . State v. Jones, 97-2591, p.6 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169, writ denied, 99-3141 (La. 4/7/00), 759 So.2d 91.

      . State v. Vessell, 450 So.2d 938, 943 (La. 1984).

      . State v. Dale, 50,195, p.7 (La.App. 2 Cir. 11/18/15), 180 So.3d 528, 534, writ denied, 2015-2291 (La. 4/4/16), 190 So.3d 1203.

      . 15-1131 (La. App. 3 Cir. 6/8/16), 193 So.3d 603, writ denied, 2016-1301 (La. 6/17/17), 221 So.3d 837.

      . 2014-1801, pp. 7-8 (La. 10/14/15), 180 So.3d 271, 276-277.

      . A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the' accused’s commission of another crime, wrong, or act involving sexually as-saultive behavior or - acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
      B. In a case in which the state intends to offer evidence under the. provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
      C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

      . A. A videotape of the statements of a protected person who is alleged to'be the victim of or witness to a crime may be offered in ■ evidence for or against such crime. To render such a videotape competent evidence, all of the following must be satisfactorily proved:
      (1) Such electronic recording was voluntarily made by the protected person.
      (2) No relative of the protected person was present in the room in which the recording was made.
      (3) No attorney for either party was present when the statement was made.
      (4) Such recording was not made of answers to questions calculated to lead the protected person to make any particular statement,
      (5) Such recording is both visual and oral and is recorded on film or videotape or by other eléctronic means.
      (6) Such recording is accurate, has not been ■altered, and- reflects what the protected .person said.
      .(7) The taking of the protected person's statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, medical psyfchologist, licensed professional counselor, or an authorized representative of the department.
      (8) Every voice on the recording is identified.
      B. The department shall develop and promulgate regulations regarding training requirements and certification for department personnel who are authorized to supervise the taking of the protected person’s statement.

      . La. C.E. 403.

      . State v. Cosey, 97-2020, p.13 (La. 11/28/00), 779 So.2d 675, 684.

      . State v. Wright, 2011-0141, p.8 (La. 12/6/11), 79 So.3d 309, 316.

      . State v. Dale, 50,195, p.11 (La.App. 2 Cir. 11/18/15), 180 So.3d 528, 536, writ denied, 15-2291 (La. 4/4/16), 190 So.3d 1203.

      . 03-1747 (La. App. 3 Cir. 5/12/04), 874 So.2d 318, writ denied, 2004-1413 (La. 11/08/04), 885 So.2d 1118.

      . See State v. Patterson, 05-560, p.15-16 (La. App. 5 Cir. 1/31/06), 922 So.2d 1195, 1204-1205, writ denied, 2006-1191 (La. 3/16/07), 952 So.2d 687.

      . La. C.Cr.P. art. 841(A).

      . State v. Nguyen, 04-321, p. 16 (La. App. 5 Cir. 9/28/04), 888 So.2d 900, 910, writ denied, 2005-0220 (La. 4/29/05), 901 So.2d 1064.

      . 2011-141, pp. 12-13 (La. 12/6/11), 79 So.3d 309, 317.

      . Wright, 2011-141, p. 14 (La. 12/6/11), 79 So.3d 309, 317-318.

      . See, La. R.S. 15:440.1, et seq.; La. R.S. 15:283; La. Ch. C. arts. 322 to 329.

      . State v. Carper, 45,178, p. 20 (La. App. 2 Cir. 6/9/10), 41 So.3d 605, 616.

      . State v. Hawkins, 2011-0193, p. 10 (La. App. 4 Cir. 11/16/11), 78 So.3d 293, 299 (citing U.S.C.A. Const. amend. 6).

      . Id. (citing La. Const. Art. 1 Section 16).

      . See, Lowery v. Collins, 988 F.2d 1364 (5th Cir. 1993).

      . 2008-0938 (La. App. 4 Cir. 4/30/09), 11 So.3d 548, writ denied, 2009-1086 (La. 6/5/09), 9 So.3d 877, cert. granted, judgment vacated, D.G. v. Louisiana, 559 U.S. 967, 130 S.Ct. 1729, 176 L.Ed.2d 176 (2010).

      . See, Lowery, supra, and Offor v. Scott, 72 F.3d 30 (5th Cir. 1995).

      . D.G. v. Louisiana, 559 U.S. 967, 130 S.Ct. 1729, 176 L.Ed.2d 176 (2010).

      . State ex rel. D.G., 2008-0938 (La. App. 4 Cir. 5/27/10), 40 So.3d 409, writ denied, 2010-1423 (La. 9/3/10), 44 So.3d 707.

      . D.G. v. Louisiana, 563 U.S. 909, 131 S.Ct. 1795, 179 L,Ed.2d 664 (2011).

      . Crawford v. Washington, 541 U.S, 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004).

      . United States v. Owens, 484 U.S, 554, 561, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988).

      . 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . State v. Mattox, 96-1406, p. 3 (La. App. 4 Cir. 12/10/97), 704 So.2d 380, 382, writ denied, 98-1701 (La. 8/28/98), 723 So.2d 419.

      . State v. Stewart, 2007-850, p. 4 (La. App. 4 Cir. 4/9/08), 983 So.2d 166, 169, writ denied, 2011-1718 (La. 5/18/12), 89 So.3d 1180.

      . See, State v. Smith, 03-786, p. 15 (La. App. 5 Cir. 12/30/03), 864 So.2d 811, 823, writ denied, 2004-0380 (La. 6/25/04), 876 So.2d 830.

      . La.C.Cr.P. art. 841(A).

      . State v. Brooks, 98-0693, p. 9 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 819, writ denied, 1999-2519 (La. 2/25/00), 755 So.2d 247.

      . La. C.E. Art. 801(C).

      . State v. Draughn, 2005-1825, pp. 66, 950 So.2d 583, 627 (citing State v. LaCaze, 1999-0584, p. 17 (La. 1/25/02), 824 So.2d 1063, 1076-1077), cert denied, Draughn v. Louisiana, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

      . Arguably, no transcript exists of the preliminary hearing because no witnesses took the stand.


author: Judge'Daniel L. Dysart

text:
    Austin EARL v. Marlin GUSMAN, Civil Sheriff of Orleans Parish
    NO. 2017-CA-0363
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 27, 2017

      William R. Mustian, III,'STANGA & MUSTIAN, APLC, 3117 22nd Street, Suite 6, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Blake J. Arcuri, Freeman R. Matthews, ORLEANS PARISH SHERIFF’S OFFICE, 2800 Perdido Street, New Orleans, LA 70119, COUNSEL FOR- DEFENDANT/APPELLEE

      (Court composed of Judge Roland L. . Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown)
   Judge'Daniel L. Dysart

| ¶Austin Earl appeals a judgment dismissing his suit against Marlin Gusman, Civil Sheriff of Orleans Parish, with prejudice. For the reasons that follow, we affirm the judgment of the trial court.

Austin Earl was an inmate at the Orleans Parish Prison on Monday, August 29, 2005, when Hurricane Katrina made landfall in New Orleans. He was in jail on domestic violence charges. At the time of trial, he could not recall the length of his sentence or how long he had been in prison at the time of the hurricane.' Earl claims that as a result of negligence on the part of Sheriff Gusman, he was denied food, water and electricity for three days.

Earl testified that he was housed on the second floor of the Templeman 2 facility with thirty-eight- other inmates. He.-.testified that for two days prior to evacuation, there were seventy-nine men on that floor. He stated that to evacuate, the inmates waded through water to a boat) and were then transported to the Broad Street overpass. He claims that he was there for two to three days, during which time there was no food or water available for the inmates. After two or three days 12on the overpass, buses arrived to take the inmates to other penal facilities upstate. He was released about six weeks later.

Captain Sidney Holt testified for the defense. He is a 28-year employee of the Sheriffs Office and was present at the prison at the timé of Hurricane Katrina. He testified that the long-standing policy for hurricane preparedness was to shelter in place. Captain Holt was aware that the mayor of New Orleans had issued a mandatory evacuation of the city, but that the Sheriffs office was exempted.

, Initially, it was believed that the storm was over, but when flood waters started rising, prison personnel'executed a vertical evacuation of prisoners on the first floors of the various jails, Templeman. 2, where Earl was housed,- was the first to have inmates removed from the jail. Holt verified Earl’s testimony that the inmates, were transported by boat on Tuesday to the Broad Street overpass, where they were later picked up by buses and transported out of the city. While he had no personal knowledge of whether Earl received food, he testified that he would be surprised to learn-that the inmate's did not have water.

Following a bench trial, the court rendered judgment in favor of Sheriff Gus-man, dismissing Earl’s petition, with prejudice. In reasons for judgment, the court stated that it found the Sheriff to be'immune from Earl’s claims based on La. R.S. 9:2798.1, and, additionally, that any damages Earl may have suffered were a result of force majeure. The court found that Earl failed to produce any evidence indicating that Sheriff Gusman was negligent in preparing for the impending storm, or in the evacuation of inmates after. Further, the court found that Earl |.Jailed to establish that Sheriff Gusman was not entitled to the application of the doctrines of qualified immunity or force majeure.

This appeal follows.

DISCUSSION;

Louisiana appellate courts review both law and facts. La. Const, art. 5, § 10(B). The applicable standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. To reverse ■ a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Development, 617 So.2d 880, 882 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not. whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id, If the factual findings are reasonable in light of the record reviewed in its entirety, á reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Accordingly, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Id. at 883.

In his first assignment of error, Earl argues that, the trial court erred in finding no negligence on the part of Sheriff Gusman. He argues that the Sheriff had no plan to evacuate the prison or to provide food and water for prisoners. As I ¿evidence, he points to his own testimony that he was denied food and water for three days. Further, Dr. Richard Inglese, the medical director for Orleans Parish Prison, testified that “in some of the buildings there were extended periods of time when the inmates went without food and water.”

The Sheriff argues that these facts were disputed by the testimony of Captain Holt that there was food and water available, and that he would be surprised to learn that Earl was not provided water for three days. Captain Holt also testified . that Earl’s building was the first to be evacuated to the overpass (Tuesday, August 30), and that water had been delivered by the National Guard. Captain Holt further testified that, as the prison had never flooded before, it was the custom to shelter in place for a hurricane.;

Given the above evidence and considering the unprecedented and catastrophic aftermath of -the hurricane, the methods employed to safely care for and evacuate the prisoners were reasonable. We thus cannot say that the trial court was manifestly erroneous in finding that the actions taken by the Sheriff and .his staff were reasonable, especially in light of the circumstances. We thus find no error in the findings of the trial court.

Earl also argues that the trial court erred in applying the doctrine of qualified immunity. Louisiana Revised Statute 9:2798.1, provides in part;

B. Liability shall' not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties, . ,

IsEarl" cites to the two-part test established by the Louisiana Supreme Court in Simeon v. Doe, 618 So.2d 848, 852-53 (La. 1993), which provides that a court must first determine whether a statute,1 regulation, or policy requires the governmental agency to follow a particular course of action. If there is a requirement, then immunity does not apply. If there is a choice about what course to take, then immunity will only apply if the agency’s choice of action is grounded in “social, economic, or political policy.” Id. The second part of the test obliges the court to decide if the conduct in question occurred at the operational level.

Earl argues that the Sheriff -offered no proof that the decision to shelter in place rather than evacuate pre-storm was a decision grounded in social, economic or political policy. He claims that the Sheriffs negligence in not evacuating pre-storm and in not having sufficient supplies for prisoners was a purely operational decision not protected by the qualified immunity of La. R.S. 9:2798.1.

The Sheriff argues that Bordelon v. Gravity Drainage Dist. No. 4, 10-1318 (La. App. 3 Cir. 10/5/11), 74 So.3d 766, cited by Earl in his brief, in fact supports the actions of the Sheriff. In Bordelon, the Third Circuit found that the decision of whether or not to evacuate pumping station employees was the type of discretionary act envisioned by La. R.S. 9:2798.1. A separate decision not to upgrade the pumping systems to operate automatically in emergency situations was found to be operational negligence not protected by statute.

In this case, the Sheriff notes that the mayor’s evacuation order explicitly exempted the Sheriff, his personnel and inmates from the order. Thus, any | (¡decision made by the Sheriff in regard to evacuation is clearly a political and economic consideration. The record establishes that there were over 6,000 inmates housed in the various buildings under the Sheriffs control at the time of the hurricane. It was not feasible to evacuate those inmates from facilities that, up until the time of Hurricane Katrina, were safe places to remain during a storm. We also note that the trial court made the determination that immediately following the storm, Earl did not have food, water or electricity. However, the trial court did not make the factual finding that Earl was without food and water for three days as he claims.

Last, Earl argues that the trial court erred in applying the doctrine of force majeure sua sponte. Specifically, as the Sheriff did not specially plead the affirmative defense in its answer, it is waived. Fin & Feather, LLC v. Plaquemines Parish Gov’t., 16-0256, p. 6 (La.App. 4 Cir. 9/28/16), 202 So.3d 1028, 1033.

Despite his contention that the application of the doctrine was waived, Earl argues that the situation created by Hurricane Katrina did not relieve the Sheriff of his duty to plan for evacuation and to provide food and water to the inmates. As such, the Sheriffs negligence was also a cause in fact of his injuries, and he should have been held responsible for damages.

As we have already determined that the trial court did not err in finding the Sheriff free from fault, any application of the sua sponte application of the doctrine of force majeure is harmless error.

17Accordingly, for the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED