source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF C.E.K.
    NO. 2017-CA-0409
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 21, 2017

      Cindy H. Williams, ATTORNEY AT LAW, 111 Veterans Blvd., Suite 804, Me-tairie, LA 70005, COUNSEL FOR APPELLANT
    Jeffrey M. Hoffman, Robert C. Lowe, LOWE, STEIN,; HOFFMAN, ALL-WEISS & HAUVER, LLP, 701 Poydras Street, Suite 3600, New Orleans, LA 70139-7735, COUNSEL FOR APPEL-LEE
    (Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew Woods, Judge Tiffany G. Chase)
   Judge Daniel L. Dysart

11 This is an appeal of a juvenile court judgment terminating the parental rights of Jesse Kaptein (“Mr. Kaptein”), the father of C.E.K. The judgment at issue in this appeal was rendered during the pen-dency of a. separate appeal involving Mr. Kaptein and Heather Roper Kaptein (“Ms. Kaptein), his former spouse and the mother of C.E.K., which arose from a divorce and child custody proceeding. In that case, Kaptein v. Kaptein, 16-1249 (La. App. 4 Cir. 6/14/17), 221 So.3d 231, 232 (“Kaptein I”), writ denied, 17-1421 (La. 10/9/17), 228 So.3d 746, this Court affirmed a judgment of the Civil District Court which granted sole custody of C.E.K. to Ms. Kaptein, but reversed that part of the judgment which kept in place a prior judgment suspending Mr. Kaptein’s ability to engage in FaceTime visitation with C.E.K.

In this current appeal of the judgment terminating Mr. Kaptein’s parental rights, we consider two primary issues: (1) whether Ms. Kaptein, as C.E.K’s mother, was a proper party to pursue the termination of Mr, Kaptein’s parental rights, and (2) whether those rights were properly terminated by the juvenile court. I j)For the reasons that follow, we .find that, under the circumstances of this case, the juvenile court erred in granting leave of court, ex partq, by which Ms. Kaptein’s attorneys were permitted to seek the termination of Mr, Kaptein’s parental rights; and we farther find that the juvenile court erred in its determination that Mr. Kap-tein’s parental rights should be terminated. ■,

FACTS AND PROCEDURAL BACKGROUND

This matter commenced with the October 7, 20Í6 filing of a Motion for Leave of Court to File Termination of Parental Rights, filed by Ms. Kaptein, which requested that the juvenile court “appoint, designate and authorize her attorneys of record, Robert C. Lowe and Jeffrey M. Hoffman, as private counsel,” to file an attached Petition for Termination of Parental Rights (hereafter, “Petition”) seeking to terminate Mr. Kaptein’s parental rights.: The motion for leave was granted ex parte by the juvenile court on October 11, 2016.

In the Petition, Ms. Kaptein alleged that the basis for the termination of Mr. Kap-tein’s parental rights was his abandonment of C.E.K. In particular, Ms. Kaptein alleged the following “factual allegations which constitute grounds necessary for termination of [Mr. Kaptein’s] parental rights due to abandonment”:

- By judgment dated May 15, 2017, Ms. Kaptein was awarded sole interim custody of C.E.K., pending a custody evaluation; the judgment further awarded Ms. Kaptein $5,000.00 per month in child support (however, Mr. Kaptein “had only provided ... 8.75% of his total support obligation);
- |aThe last time Mr. Kaptein had “visited with and/or was physically present with C.E.K.” was on September 13, 2015 (or for a period greater than “six (6) consecutive months”);
- By judgment dated December 9, 2015, the trial court ordered Mr. Kaptein to provide an address, phone number and email address so that he could receive and accept service of process but Mr. Kaptein failed to do so;
- A nine month custody evaluation was issued by Dr. Dahlia Bauer, Ph.D., on December 15, 2015, which concluded that C.E.K. should remain in Ms. Kaptein’s sole custody (with security measures for Mr. Kaptein’s visitation to prevent his removing C.E.K. from the country), that Mr. Kaptein should “participate in an assessment and treatment regarding his sexual behaviors and relationship issues, including a comprehensive sexual addiction evaluation (which Mr. Kaptein had failed to do);
- By judgment dated July 1, 2016, Ms. Kaptein was awarded sole custody of C.E.K.

Ms. Kaptein based her claim that Mr. Kaptein demonstrated an intent to permanently avoid parental responsibility under La. Ch.C. art. 1015(4)(a),(b), and (c) (we note that, as of an August 1, 2016 amendment to the article, subpart (4) was redes-ignated as subpart (5); See footnote 9, infra) on the following specific allegations:

- Mr. Kaptein failed to disclose his address or residence, despite being ordered by the trial court to do so;
- Mr. Kaptein failed to provide significant contributions to C.E.K.’s care and support for any period of six consecutive months, having paid “only 8.75% of his Court ordered support obligation”; refused to return to the United States to visit C.E.K. since September 15, 2015 “leaving 100% of the child care and rearing to” Ms. Kaptein;
- Mr. Kaptein failed to maintain significant contact with C.E.K., having not visited with her since September 13, 2015 (despite having no restrictions on visitation until the trial court revoked his supervised visitation on July 1, 2016) which led to the suspension of his FaceTime visitation rights.

14At the time that the Petition was filed in October, 2016, Mr. Kaptein was represented in connection with Kaptein I by his counsel in the current matter, Ms. Williams and an appeal had been taken of the July 1, 2016 judgment at issue in Kap-tein I. Nevertheless, counsel for Ms. Kap-tein requested that a curator ad hoc be appointed to represent Mr. Kaptein in the termination proceedings in juvenile court, on the basis that his whereabouts were unknown and as such, “service on [Mr. Kaptein] cannot be made.” On October 13, 2016, Catrice Johnson Reid was appointed as Mr. Kaptein’s curator ad hoc. The termination proceedings were scheduled for November 29, 2016.

Ms. Williams then enrolled as counsel for Mr. Kaptein on December 7, 2016, and filed an opposition to the Petition, denying that Mr. Kaptein had abandoned C.E.K. and denying that he had exhibited an intent to permanently abandon her. Mr. Kaptein then filed several exceptions (no cause of action, no right of action, lack of subject matter jurisdiction and lis pen-dens) to Ms. Kaptein’s Petition and sought to have the Petition dismissed. A hearing on the exceptions was held and by judgment dated February 7, 2017, the exceptions were dismissed.

An adjudication hearing on Ms. Kap-tein’s Petition was held on March 8, 2017 and, by judgment dated April 3, 2017, the juvenile court granted the Petition and terminated Mr. Kaptein’s parental rights.

Mr. Kaptein timely appealed this judgment.

DISCUSSION

Exception of no right of action

| ^Before considering the merits of the juvenile court’s judgment terminating the parental rights of Mr. Kaptein, we first address Mr. Kaptein’s contention that the juvenile court erred in finding that Ms. Kaptein had a private right of action to pursue the termination of Mr. Kaptein’s parental right and thus, improperly allowed the Petition to be filed ex parte. The juvenile court, in its February 7, 2017 judgment dismissed, rather than denied, all of Mr. Kaptein’s exceptions, including the exception of no right of action. We treat the “dismissal” of the exception as a denial and note that an “exception of no right of action is peremptory and can be brought up at any time, including on appeal.” Kelly v. Smith, 13-0280 (La. App. 4 Cir. 2/26/14), 134 So.3d 644, 650-51, writ denied, 14-0822 (La. 6/20/14), 141 So.3d 809.

In Zeigler, this Court reiterated the well-settled rules regarding a peremptory exception of no right of action:

... “[Peremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law.” Fortier v. Hughes, 2009-0180, p. 2 (La. App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186. “The exception of no right of action tests whether the plaintiff has a real and. actual interest in the action.” Weber v. Metro. Cmty. Hospice Found., Inc., 2013-0182, p. 4 (La.App. 4 Cir. 12/18/13), 131 So.3d 371, 374, citing La. C.C.P. art. 927(5). The function of the exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the lawsuit. Louisiana Paddlewheels v. 6Louisiana Riverboat Gaming Com’n, 94-2015, p. 4 (La.11/30/94), 646 So.2d 885, 888. “The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.” Indus. Companies, Inc. v. Durbin, 02-0665, p. 12 (La. 1/28/03), 837 So.2d 1207, 1216.

Id., 15-0626, pp. 4-5, 192 So.3d at 178. An “exception of no right of action presents a question of law; thus, ... appellate review of that exception is de novo ...,” N. Clark, L.L.C. v. Chisesi, 16-0599, p. 6 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1017 (citation omitted).

Ms. Kaptein filed the Petition in this matter under the alleged authority of La. Ch.C. art. 1004 F, which provides as follows: ■

By special appointment for a particular case, the court or the district attorney may,.designate private, counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by Article 1015(5).

When the Louisiana Children’s Code was enacted in 1991, and became effective on January 1, 1992, Article 1004 allowed a petition for the termination of parental rights to be filed only by either “[t]he district attorney or the department when a child has been placed in its custody for at least eighteen months” or “[t]he court on its own motion.” The 1991 Official Comments recognized that, with respect to the “authority of others”:

Under prior law, a private individual had no authority to file a termination of parental rights petition. R.S. 13:1601, However, an abandonment action could be initiated by affidavit by a “private individual” or by a private “residential child-caring institution lawfully ^exercising physical custody of the child at issue” with leave of court. R.S. 9:403(B)(1) and (2).

There have been several revisions to Article 1004 over the years. In the 1997 revision, subpart F was added to Article 1004. The official comments of 1997 indicate that the newly enacted “[paragraph F clarifies the fact that the court, as well as the district attorney, may authorize private counsel to initiate a termination case based on the ground of abandonment.” Official Comment (g).

Since subpart F was enacted in 1997 and authorizes the court or the district attorney to designate private counsel to seek the termination of parental rights, only a scant number of cases have addressed the question of who is a proper party to institute such an action. Mr. Kaptein relies on the Second Circuit case of In re T.E.R., 43,145, p. 1 (La. App. 2 Cir. 3/19/08), 979 So.2d 663, 664, which dealt with the question of “whether an attorney representing the' mother may be |sappointed by [ex parte order of] the trial court to bring an action to terminate the father’s parental rights ... to ... two minor children.” In that case, the father of the children filed a peremptory exception of no right of action on the basis that “no private action exists for one parent to seek termination of the other parent’s parental rights.” Id., p. 3, 979 So.2d at 665.

The Second Circuit, after reviewing the history of Article 1004, recognized that, while “the language in La. Ch. C. art. 1004(F) permitting appointment of private counsel to bring termination actions based upon abandonment does not prohibit the appointment of one of the parent’s counsel to seek termination of the other parent’s parental rights,” it- neither “authorized such an appointmfent.” Id., p. 9, 979 So.2d at 668. It then held:

We observe that permitting a mother to seek termination of the father’s parental rights even indirectly through appointment of her counsel as special prosecutor amounts to giving the. mother the right: to- prosecute that action. The. best interests of a parent-seeking termination may not be the same, «as the best interests of the children. To permit the appointment of the lawyer representing one parent who wants to terminate the parental rights of the other parent creates ah unnecessary and potentially serious conflict of interest.
Because termination of parental rights is recognized as one of the most drastic actions a state can take against a citizen, we rely on previous interpretations of the laws on termination stating there is no private right of action to terminate another parent’s parental rights,' and there are no circumstances under which one parent may file a petition to terminate the parental rights of another parent. Absent a clear indication from the Louisiana Legislature that one parent may seek to revoke.the parental rights of the other parent by appointment of the revoking parent’s personal attorney, we decline to do so.

Id., 43,145, pp. 9-10, 979 So.2d at 668;

la In re T.E.R. was discussed more recently in State in Interest of K.C.C., a case upon which Ms. Kaptein heavily relies. In that case, the unmarried mother of a child gave custody of the child to an unrelated couple who intended to adopt her, and executed a power of attorney granting the couple all parental rights until the child reached the age of eighteen. A year later, the couple filed a petition to terminate the rights of the child’s parents. When that petition was met with exceptions of no right of action and no cause of action by the child’s mother, the couple’s attorney filed a motion for leave to file a petition for the termination of parental rights, which the juvenile court granted. At the same time, the juvenile court denied the mother’s exceptions.

In addressing the rights of the couple’s attorney to bring the action to terminate the parents’ rights, the KC.C. Court reviewed the history of the statutes allowing the termination of parental rights, culminating in' the enactment of the Louisiana Children’s Code and ultimately, Article 1004 F. It noted that Article 1004 is found within Title X of the Code, entitled “Judicial Certification of Children for Adoption” which expressly provides that its purpose is to:

... protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption.

La. Ch.C. art. 1001. The Article further explains that “[i]n all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved.” Id. Thus, “[tjermination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if at all possible, to achieve the child’s adoption.” Id. |inThe KC.C. Court then found as follows:

This history, culminating in the legislature granting the juvenile court the specific power to authorize private counsel to initiate a termination of parental rights proceeding on the ground of abandonment, convinces us that the legislature has intentionally broadened the classes of persons who may bring a termination of parental rights action.

Id., 15-1429, p. 15, 188 So.3d at 152-53. The Court recognized cases, including In re T.E.R., which have declined, for various reasons, to allow the appointment of private counsel representing one parent to seek the termination of the other parent’s parental rights. The Court ultimately noted that, although cognizant of the juvenile court’s concerns in the case (i.e., “balancing the rights of the parents and the best interest of the child when the petitioner seeking termination may have interests averse to reunification of the family”), the matter is best left “to the discretion of the juvenile courts to determine whether to authorize private counsel, by special appointment in a particular case, to petition for the termination of parental rights.” Id., 15-1429, p. 16, 188 So.3d at 153-54.

In this matter, a review of the transcript of the adjudication hearing reflects that the juvenile court, in addressing the issue of whether it could proceed in the matter given that there was a pending appeal of the custody issue, initially indicated that there was no authority for a “private termination against one parent against the other [sic].” Counsel for Ms. Kaptein then provided the court with a copy of the KC.C. case, at which time, the juvenile court judge stated:

... so I read it and I had made a rule and I think it’s consistent with the rule made before ... I brought it up because I thought I perhaps made an error now I’m saying I didn’t.

|nOur interpretation of the juvenile court judge’s statement is that the court understood the KC.C. case to automatically authorize the appointment of a parent’s counsel to seek the termination of the other parent’s parental rights. To the contrary, the K.C.C. case provides the juvenile court with discretion for such an appointment. The record does not contain a copy of the transcript from the hearing on the exception of no right of action and thus, there is no indication as to the juvenile court’s reasons for denying the exception. Nor does the transcript from the adjudication hearing reflect that the juvenile court heard argument or gave consideration to the circumstances of the case in exercising its discretion in designating Ms. Kaptein’s counsel as private counsel to petition for the termination of Mr. Kaptein’s parental rights. While, under KC.C., the juvenile court has discretion in this regard, we note that “deference should be accorded to the trial court’s decision, even if that decision is of less than ideal clarity, if the trial court’s path may be reasonably discerned, such as when its findings, reasons and exercise of discretion' are necessarily and clearly implied by the record.” Leal v. Dubois, 00-1285, p. 4 (La. 10/13/00), 769 So.2d 1182, 1185. Here, the record does not support a reasoned exercise of discretion by the juvenile court under the circumstances of this case. Nor is the juvenile court’s exercise of discretion “necessarily and clearly implied by the record.” We therefore set aside the juvenile court’s ex parte order authorizing Ms. Kaptein’s attorneys to file the Petition.

We now turn to the issue of whether the juvenile court’s ruling terminating Mr. Kaptein’s rights is supported by the record. As discussed herein, even- if the juvenile court had properly exercised its discretion in authorizing Ms. Kaptein’s attorneys to file the Petition, the record does not show that Mr. Kaptein | ^demonstrated an intent to abandon C.E.K, nor that it was in C.E.K.’s best interest that Mr. Kaptein’s parental rights were terminated.

Merits of termination of Mr. Kaptein’s parental rights

In terminating Mr. Kaptein’s' parental rights, the juvenile court judgment expressly found as follows:

1) ... the father’s conduct ... demonstrates an intention to permanently avoid parental responsibility by failing to provide significant contributions to the child’s care and support and by failing to have significant contact with the child by visiting or communicating with her for a period of six months;
2) It is in the best' interest of C.E.K. that the abandonment is granted. Mr. Jesse Kaptein has not provided for the mental and physical health needs of his child; the need for unconditional love, supportive caregivers, safe and secure surroundings, adequate guidance and discipline, ' nor a healthy living environment. He is a stranger to her based on the mother’s uncontroverted testimony ' that the child never asks about him ' ' or discusses him or asks where her father is. (Emphasis in thé original).

No reasons for judgment were issued and there was no request for written reasons for judgment. We note that, on appeal, we review the “trial court’s findings as to-whether parental rights should be terminated according to the manifest error standard.” State in Interest of D.B., 16-0694, p. 3 (La. App. 4 Cir. 12/8/16), 206 So.3d 1021, 1024. (Citation omitted). After our review of the record, we find that the juvenile court erred in terminating Mr. Kaptein’s parental rights on the grounds of abandonment.

Under La. Ch.C. art. 1015(5), abandonment of a child may be grounds for the termination of parental rights. A showing must be made that the parent left the child:

|13.., under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For. a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of. the child’s parent-continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is . filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

La. Ch.C. art. 1015(5). We note that, under our well-settled jurisprudence, only one of the elements under Article 1015(5) is required for the termination of parental lights. See State ex rel. A.T., 06-0501, p. 5 (La. 7/6/06), 936 So. 2d 79, 82 (“[i]n order to terminate parental rights, the court must find that the State has established at least one of the statutory grounds by clear and convincing evidence”). We also note that “the abandonment statutes must be strictly construed ... the evidence must clearly show a'manifestation of an intent to permanently avoid all parental responsibility and all reasonable doubt should be resolved against such a conclusion because a decree of termination parental rights is in derogation of the natural rights of parents.” State in the Interest of Foret, 398 So.2d 78, 81 (La. App. 4 Cir. 1981). See also, In re A.D.H., 01-0107, p. 5 (La. App. 3 Cir. 5/2/01), 784 So.2d 864, 858, (“the termination of parental rights is a severe action which requires an onerous burden of proof’). Indeed, the “permanent termination of the parent-child legal relationship is one of the most drastic actions the State can take against its citizens.” State in Interest of C.A.C., 1411-1315, p. 7 (La. App. 4 Cir. 2/1/12), 85 So.3d 142, 146. Accordingly, in determining whether parental rights should be involuntarily terminated, our jurisprudence has developed a two-pronged test:

First, the State jnust prove by clear and convincing, evidence the existence of at least one of the statutory grounds for termination under La. Ch. C. art. 1015. Second, after the ground for termination is found, the trial court must determine whether the termination is in the child’s best interests.

State in Interest of A.S., 17-0028, p. 9 (La. App. 4 Cir. 5/10/17), 220 So.3d 179; 186, writ denied, 2017-1134 (La. 9/6/17), 224 So.3d 989. See also, State in Interest of C.A.C., 11-1315, p. 8, 85 So.3d at 147.

Mr, Kaptein devotes a significant portion of - his argument concerning the juvenile court’s finding that he abandoned C.E.K. to the issue of whether his whereabouts were proven to have been unknown for four months prior to the termination hearing under Article 1015 (5)(a). We need not address this issue as the juvenile court’s judgment was not based on this particular factor." Rather, the juvenile court’s finding -that Mr. Kaptein had abandoned C.E.K. was based on the other two possible grounds for abandonment under Article 1015 (5) — subparts (b) and (c).

With respect to the juvenile court’s finding of abandonment based upon his “fail[ure] to provide significant contributions to the child’s care and support,” Ms. Kaptein testified that Mr. Kaptein has made monthly payments averaging $1735 per month. She also testified that, in the six months prior to the termination 11 shearing, he contributed “[l]ess than three thousand dollars” for C.E.K’s “care.” According to Ms. Kaptein, Mr. Kaptein is about “eighty thousand” dollars in arrears in child support, for which she has filed a rule for contempt.

In Kaptein I, this Court noted that Mr. Kaptein was to pay $5,000 per month in child support to Ms. Kaptein. See Kaptein I, 16-1249, p. 2, 221 So.3d at 232-33. On November 9, 2015, the parties stipulated to an amount representing the retroactive amount of child support in arrears, and the court issued an order with the intent of bringing Mr. Kaptein current on his child support obligations. See Kaptein I, 16-1249, p. 2, 221 So.3d at 233. A contempt hearing was thereafter held, and Mr. Kap-tein was ordered to make various payments towards the arrearage. Id., p. 3, 221 So.3d at 233.

While we recognize that Mr. Kaptein has not fully complied with his child support obligations, we cannot say that the record demonstrates that Mr. Kaptein “failed to provide significant contributions to [C.E,K.’s] care and support for any period of six consecutive months” such that the circumstances demonstrate “an intention to permanently avoid parental responsibility” as required by Article 1015 (5)(b).

There are few cases which have addressed the issue of whether termination of parental rights is warranted when a parent has failed to pay the full amount of child support ordered by another court’s judgment-outside the context of the contemplated adoption of the child. This Court has recognized the “fundamental liberty interest in [natural parents’] care, custody, and management of their child,” and that interest ‘“does not' evaporate simply because they have not been model parents.’ ” State in Interest of C.A.C., 11-1315, p. 7, 85 So.3d at 146, quoting State ex rel SNW v. Mitchell, 01-2128, p. 8 (La. 11/28/01), 800 So.2d 809, 814. See 16also, State in Interest of T.J., 48,612, p. 11 (La. App. 2 Cir. 9/11/13), 124 So.3d 484, 492 (“termination is an unusually strong remedy in response to poor parenting”).

Courts which have terminated parental rights based on the failure of a parent “to provide significant contributions to the child’s care and support ’for any period of six consecutive months” have-found a complete absence of any contributions to the child’s care. For example, in State ex rel. C.M.O., 04-1780 (La. App. 4 Cir. 4/13/05), 901 So.2d 1168, a father’s parental rights were terminated based on his failure to provide any financial support for his children for a six month period. The Court rejected his contention that his incarceration prevented him' from making such contributions, noting that his “responsibility to support his children, however, was not suspended upon his incarceration.” Id., 04-1780, p. 4, 901 So.2d at 1171. See also, State In Interest of T.D., 16-708 (La. App. 5 Cir. 5/31/17), 221 So.3d 290, 296-97, (termination of both parents’ parental rights warranted where the mother “admitted that she had not seen her son and had not paid any sums of money, for his care” and the father “also admitted that he-had not seen his son or made significant contributions toward his care;” he had paid nothing for two years and in an eight year period had paid only $69.63); State in Interest of M.C., 16.-69, p. 10 (La. App. 3 Cir. 6/1/16), 194 So.3d 1235, 1242, writ denied, 16-1273 (La. 9/6/16), 205 So.3d 918 (where mother had means of financially supporting her children but made no contributions and while she had purchased items for them which she never gave to them because she was “saving them for when she regained custody,” termination of her parental rights was proper); State in Interest of T.J., 48,612 (La. App. 2 Cir. 9/11/13), 124 So.3d 484, 489 (where father provided no contributions to the children, even though he was incarcerated, termination of | i7parental rights was proper); Cf, State ex rel., A.L.D., 09-0820, p. 11 (La. App. 3 Cir. 11/4/09), 21 So.3d 1109, 1116 (where mother “minimally complied with [the care and support] obligation ... Article 1005(4)(b) [could not] be used as a basis for the termination of [her] parental rights.”).

In the instant case, Mr. Kaptein has made regular contributions for the care of C.E.K. While he has not fully complied, with his court-ordered support obligations, we do not believe his failure to do so manifests an intent to “permanently avoid parental responsibility” as is contemplated by Article 1015 (5)(b). Nor do we find that there is “clear and convincing evidence” of such intent in the record. We therefore find that the juvenile court erred in terminating Mr. Kaptein’s parental rights based in Article 1015 (5)(b). Mr. Kaptein’s failure to pay child support and the issue of any arrearages is more properly addressed in the proceeding pending in Civil District Court.

We likewise find that the juvenile court erred in finding that Mr. Kaptein failed to have “significant contact with the child by visiting or communicating with her for a period of six months,” thus warranting a termination of his parental rights under Article 1015 (5)(c). We are aware of the many cases in which parental rights have been terminated based on a parent’s failure to have contact with a child for more than six months. However, in this case, it is clear that Mr. Kaptein’s inability to maintain contact with C.E.K. was not attributable to him but rather to orders of the trial court in the matter pending in Civil District Court culminating in the Kaptein I decision of this Court. More particularly, in the divorce/custody 118proceeding, the trial court, well aware that Mr. Kaptein “does not live or work in the United States” and would not “be in the country for an extended period of time,” issued a judgment on February 4, 2016 suspending Mr. Kaptein’s “rights to visitation through FaceTime pending further orders....” Kaptein I, 16-1249, pp. 2-3, 221 So.3d at 233. The trial court thereafter issued a judgment on July 16, 2016, in which it “maintained its previous order suspending Mr. Kaptein’s FaceTime visitation” and finding that “reasonable visitation with Mr. Kaptein is not in the best interest of the child.” Id., 16-1249, p. 4, 221 So.3d at 234.

In Kaptein I, we found that “the record evidences the fact that Mr. Kaptein and C.E.K. were enjoying their FaceTime visitation up until the February 4, 2016 order,” suspending this visitation. Id., 16-1249, p. 12, 221 So.3d at 239. It is clear from Kaptein I that Mr. Kaptein was prohibited from any meaningful contact with his daughter, through FaceTime visitation. It is equally clear that, when Ms. Kaptein filed her Petition on October 6, 2016, Ms. Kaptein was fully aware that the court order prevented Mr, Kaptein from communicating with C.E.K. through FaceTime. Under these circumstances, it is disingenuous for Ms. Kaptein to argue that she proved at trial “that Mr. Kaptein has not visited or had contact with [C.E.K.] ‘for any period of six consecutive months’ prior to her filing the Petition ..,. ”

A legal procedural process for parental termination would certainly be created by prohibiting a parent from meaningful visitation with his child and then basing the termination of his parental rights on his lack of communication with that child. We do not countenance such a scenario and we find that the juvenile court erred in finding that Mr. Kaptein failed to communicate with C.E.K. for a six month period.

|1flFinally, we turn to the issue of whether the juvenile court erred in finding that it is in C.E.K’s best interest to have Mr. Kaptein’s parental rights terminated. As our jurisprudence indicates, “after the [statutory] ground for termination is found, the trial court must determine whether the termination is in the child’s best interests.” State in Interest of T.M.P., 13-1006, p. 25 (La. App. 4 Cir. 10/23/13), 126 So.3d 741, 756, quoting State in Interest of C.A.C., 11-1315, p. 8, 85 So.3d at 147. See also, State ex rel. L.B. v. G.B.B., 02-1715, p. 5 (La. 12/4/02), 831 So.2d 918, 922 (“only after a finding that at least one of the enumerated grounds set forth in La. Ch. Code Art. 1015 is satisfied, the trial court must determine whether the termination is in the best interest of the child.”). As we have already determined that no grounds exist for the termination of Mr. Kaptein’s parental • rights, we need not reach-.the issue of whether that termination would be in C.E.K’s best interest.

CONCLUSION

For the reasons set forth herein, we find that the juvenile court erred in granting, ex parte, the motion for leave which authorized Ms. Kaptein’s attorneys to file a petition to terminate Mr. Kaptein’s parental rights. We further find that the juvenile court erred in terminating those rights. Accordingly, we set aside the order granting the motion for leave and we reverse the juvenile court’s judgment terminating Mr. Kaptein’s parental rights.

LnVACATED AND REVERSED

      . As is our practice and in accordance with Rules--5-1 and 5-2 of the Uniform Rules-Courts of Appeal, we use the child’s initials in this opinion in order to protect the child's privacy.

      . While we would ordinarily use the initials of the child's parents in a termination of parental rights case, because our decision in this case is interconnected with this Court’s decision of Kaptein v. Kaptein, a case which was not sealed and in which the parents’ names are readily available, the use of the parents’ initials in this case would be pointless.

      . In Kaptein I, we also reversed the trial court’s "finding that reasonable visitation is not in the best interest of the child,” thereby "reinstatfing] Mr. Kaptein’s rights to Face-Time with C.E.K.” Kaptein I, 16-1249, p. 13, 221 So.3d at 239.

      . Mr. Kaptein frames the issues as (1) whether one parent has a right of action to pursue the termination of the other parent’s parental rights; (2) whether Ms. Kaptein proved that Mr. Kaptein abandoned C.E.K.; and (3) whether it was in C.E.K.’s best interest for Mr. Kaptein’s parental rights to be terminated.
      We note, too, that Mr. Kaptein briefed the issue of whether the juvenile court had jurisdiction over this matter because of the pending custody case (Kaptein I), and whether the matter should have been heard in the custody case. He argues that the juvenile court erred in denying his exceptions of lack of subject matter jurisdiction and lis pendens because of the pending custody case. While Mr. Kaptein did not list this as an issue or an assignment of error, our jurisprudence indicates that "an appellate court has the authority to consider an issue [on appeal and of record] even when there is no assignment of error.” J.R.A. Inc. v. Essex Ins. Co., 10-0797, p. 12 (La. App. 4 Cir. 5/27/11), 72 So.3d 862, 870. As La. Ch.C. art. 303 (1)(5) provides that the juvenile courts have exclusive jurisdiction over involuntary terminations of parental rights, the juvenile court properly denied the exceptions of lack of subject matter jurisdiction and lis pendens.

      .Ms. Kaptein takes the position in her appellate brief that, had Mr. Kaptein sought to challenge the juvenile court’s order granting the motion for leave, he should have filed a "Motion for Reconsideration or a supervisory writ with this Court.” We disagree.- Mr. Kap-tein properly challenged Ms. Kaptein’s capacity to have brought the action by filing a peremptory exception of no right of action, discussed infra.

      . This July 1, 2016 judgment was at issue in Kaptein I.

      . As previously noted, this Court reversed the trial court’s suspension of Mr. Kaptein’s Face-Time visitation with C.E.K. in Kaptein I.

      . By Order dated November 16, 2016, the juvenile court allowed Jerry Settle to serve as Mr. Kaptein’s ad hoc curator for “the absent parent.”

      . Mr. Kaptein's appellate brief contains two recitations of the issues in this case. In one, he asserts that Ms. Kaptein has no “right of action” to pursue the termination of Mr. Kap-tein’s rights, while in the other, he asserts that she has no "private cause of action.” (Emphasis added). His argument, though, is entitled: “Heather Roper Kaptein has No Right of Action to File a Petition to Terminate Parental Rights Against her Former Husband .... ” An exception of no cause of action “is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading,” whereas "[t]he exception of no right of action tests whether the plaintiff has a real and actual interest in the action.” Zeigler v. Housing Authority of New Orleans, 15-0626, p. 4 (La. App. 4 Cir. 3/23/16), 192 So.3d 175, 178, (Internal citations omitted). The two exceptions are not interchangeable and in this case, it is Ms. Kaptein’s right of action that is at issue.

      . Abandonment, as a ground for the termination of parental rights, was originally found in subpart (4) of La. Ch.C. art, 1015. In a 2016 amendment, subpart (4) was redesignat-ed as subpart (5).

      . Indeed, as the Louisiana Supreme Court noted in State in Interest of K.C.C., 15-1429, p. 7 (La. 1/27/16), 188 So.3d 144, 148 "[i]n 1948, the. Louisiana legislature first recognized termination of parental rights, but limited it to 'abandoned' children," and in enacting former La. R.S. 9:403, ‘‘initially authorized only a state agency or an officer of the, court to initiate the action by. affidavit before the juvenile court,” (Footnotes omitted). In 1984, former La. R.S. 9:403 was amended "to permit, with the court’s approval, a private individual or a residential child-caring institution lawfully exercising physical custody to file the abandonment action." Id., 15-1429, pp. 8-9, 188 So.3d at 149.

      ,As the K.C.C. court noted, this .amendment may have been in response to the case of In the Interest of D.G.C., 96-1093, p. 11 (La. App. 4 Cir. 2/26/97), 690 So.2d 237, 242, in which this Court reviewed the development of the Children’s Code and the laws which preceded it and found that:
      The failure [of Article 1004] to specify that a private individual has authority to institute termination proceedings, and under what circumstances, cannot be considered accidental, We conclude that Article 1004, as presently written, represents an intentional legislative determination that State action, through the district attorney or the Department, is required to terminate a parent’s right to the care and custody of his. or her child. We hold that the present proceeding was improperly filed [by a non-parent custodian] and .cannot be maintained as a private action.
      Other cases had also held that, under the previous version of Article 1004, no private right of action existed for the termination of parental rights. See, e.g., In Interest of Young, 461 So.2d 636, 637 (La. App. 1 Cir. 1984); State in Interest of Bartee, 446 So.2d 512, 513 (La. App, 4 Cir. 1984).

      . The overwhelming majority of termination of parental rights cases involves a department of the State seeking to terminate parental rights and/or cases involving adoption. While the A.S. case involved a proceeding initiated by the Louisiana Department of Child and Family Services, we know of no reason why Ae two-prong test would not apply equally to cases in which the proceeding was instituted by special appointment by the court pursuant to La. Ch.C. art. 1004.

      . See, e.g., State in Interest of M.C., 16-69 (La. App. 3 Cir. 6/1/16), 194 So.3d 1235, 1237, writ denied, 16-1273 (La. 9/6/16), 205 So.3d 918; State in Interest of T.J.; 48,612 (La. App. 2 Cir. 9/11/13), 124 So.3d 484; State ex rel. A.T.C., 06-562 (La. App. 5 Cir. 11/28/06), 947 So.2d 71; State in Interest of L.D., 47,226 (La. App. 2 Cir. 4/11/12), 92’ So.3d 454; State ex rel. 99-433 (La. App. 5 Cir. 11/30/99), 748 So.2d 1216, 1217.

      . Ms. Kaptein argues that, while his Face-Time visitation was suspended, nothing prevented him from traveling to Louisiana to visit with her. We find no merit in this argument. First, in Kaptein I, the trial court found that reasonable visitation was not in C.E.K.’s best interest. A reasonable construction of this finding is that Mr. Kaptein would not have been able to visit with her in person. Second, Article 1015 (5)(b) requires a showing that the parent "has failed to maintain significant contact with the child by visiting him or communicating with him.” (Emphasis added). The use of the term "or” clearly signifies that contact with the child need not be through in-person visitation. Indeed, incarcerated parents, in order to avoid a finding that they have abandoned their children, must show contact with their children; in many cases, in-person visitation is not possible. The requirement of in-person .visitation could have the unintended consequence of the termination of parental rights merely as a result of being incarcerated for a period of six months.


author: Judge Paula A. Brown

text:
    STATE of Louisiana, THROUGH Orleans Parish Criminal District Court, Clerk of Court, Arthur MORRELL v. The CITY OF NEW ORLEANS THROUGH its Mayor, Mitchell J. LANDRIEU
    NO. 2017-CA-0110
    Court of Appeal of Louisiana, Fourth Circuit.
    12/21/2017

      Madro Bandaries, MADRO BANDAR-IES, P.L.C., 938 Lafayette Street, Suite 204, New Orleans, LA 70156, COUNSEL FOR PLAINTIFF/APPELLANT
    Adam J. Swensek, Chief Deputy City Attorney, Rebecca H. Dietz, CITY ATTORNEY, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown) -
   Judge Paula A. Brown

I-Appellant, the State of. Louisiana, through Orleans Parish Criminal District Court, Clerk of Court, Arthur Morrell (“Clerk”), appeals the district court’s judgment(s) which denied his -Petition for Writ of Mandamus (“the Petition”) and.Motion for New Trial in favor of Appellee, the City of New Orleans, through its Mayor, Mitchell J. Landrieu (“the City”). For the reasons that follow, lye. affirm.'

FACTUAL AND PROCEDURAL HISTORY

The principal issue on appeal between these'parties — -whether the City hás met its statutory duty to fund the Clerk’s Office — has been before this Court on three prior occasions; To explain the extensive history behind this litigation, we adopt many of the facts outlined in State of Louisiana v. City of New Orleans, 2014-0421, pp. 1-4 (La. App. 4 Cir. 10/1/14), 151 So.3d 714, 714-16 (“Clerk II ”) as follows:

This matter comes before this Court after a remand to the district court in State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu, 2012-1756 (La. App. 4 Cir. 10/23/13), 126 So.3d 762 [ (See Clerk I)]. The facts giving rise to the first appeal were summarized as follows:
During 2012, a budget was proposed for the City to provide funding for the operation of the Clerk’s Office, including certain personnel. After the 2012 budget was approved, Chief Administrative Officer, Andrew Kopplin (“Mr. Kopplin”), informed the Clerk of Court in a March 2012 letter that the City intended to “hold back ... over two percent” of the funding appropriated for the Clerk of Court for the 2012 fiscal year “in order to mitigate budget risks to the city.” Following the City’s Revenue Estimating Conference in June 2012, Mr. Kopplin sent a letter in July to the Clerk of Court indicating that Mr. Kopplin was “directing the city budget office to reduce the [Clerk of Court’s] spending authority by 3.8 percent.” Mr. Kopplin further stated in the letter that pursuant to lahis direction the temporary “hold back” would be “a permanent reduction.”
In October, the Clerk of Court informed Mr. Kopplin that the Clerk’s Office did not have sufficient funds to buy office supplies. Consequently, Mr. Kopplin released additional funds to the Clerk of Court in order to purchase necessary office supplies.
Thereafter, the Clerk of Court filed a petition for writ of mandamus in the trial court alleging the City abused its discretion and acted arbitrarily and capriciously in refusing to fund the operations of the Clerk’s Office. The Clerk of Court further alleged that state law mandates the City to pay various funds including the salaries of his office’s employees in addition to other operating expenses. The City filed an exception of no cause of action alleging that the remedy of mandamus was not available in this case because the act of approving expenditures is inherently discretionary pursuant to the Home Rule Charter, which the trial court denied. After a trial on the merits, the trial court concluded that the Clerk of Court failed to establish how the City’s discretionary decision to reduce the budget of the Clerk’s Office under the Home Rule Charter was an abuse of discretion. Accordingly, the trial court denied the Clerk of Court’s petition for writ of mandamus. The Clerk of Court then filed a motion for new trial, which was denied.

Id., 2012-1756, pp. 2-3, 126 So.3d at 764.

The Clerk of Court appealed the trial court’s denial of its request for a mandamus. During the pendency of that appeal, the Louisiana Legislature enacted La. R.S. 13:1381.7. This statute notes that “adequate funding of the office of Clerk of the Criminal District Court for the parish of Orleans is necessary for the efficient performance of the powers and duties required of a judicial officer of the state,” and provides that “[t]he amounts to be appropriated and paid by the city of New Orleans for expenses, including salaries and maintenance of constitutional officers, their deputies, subordinates, and employees shall not be reduced by the city of New Orleans without the consent .of the legislature.” La. R.S. 13:1381.7 A.
Noting that the purpose of the newly enacted La. R.S. 13:1381.7 is “to clarify the City’s duty to pay the | ¿appropriated funding of the Clerk’s Office as mandated by state statutes” and “the necessity for the City to provide adequate funding to the Clerk’s Office,” this Court found the statute “to be interpretive law” with “retroactive application.” Id., 2012-1756, p. 9, 126 So.3d at 768. The district court’s denial of the Clerk of Court’s petition was reversed, and the case was remanded to the district court “for application of La. R.S. 13:1381.7.” Id., 2012-1756, p. 10, 126 So.3d at 768.
After remand, on November 18, 2013, the Clerk of Court filed a Motion entitled “Motion and Memorandum in Support to Set for Hearing to Determine Whether Defendant Has Met Its Obligations in Funding the Criminal Clerk of Court In Aceor: dance With the Recent Ruling of the Fourth Circuit” (the “Motion”). In the Motion, the Clerk of Court alleges that the City “continues to refused [sic] to pay ‘the salaries of the deputy clerks appointed’ by [the Clerk of Court] as required by La. R.S. 13:1372.” (emphasis supplied). The Clerk of Court maintains that the City is “activity [sic] seeking to reduce the employees of the Clerk’s office.” The Clerk of Court attached two documents to its Motion: this Court’s opinion and a document entitled “Funding Summary,” which is neither authenticated nor explained in the Motion. In attaching the “Funding Summary” as an exhibit to the Motion, the Clerk of Court merely states that “in current budget allocations presented by the City to the City Council, the City seeks to reduce the Clerk’s employee allocation from 90.49 to 83.49 which is in violation of the law, as well as the ruling of the appeal court.”
The trial court set a hearing on the Motion for December 10, 2013. The record does not contain an opposition by the' City to the Motion, nor a transcript of the hearing of the Motion. By judgment dated December 17, 2013, the trial court found that “La. R.S. 13:1381.7 prohibits the City under the Home Rdle Charter from imposing a permanent budgetary hold back [sic].” The judgment then granted “the Petition for Writ of Mandamus” and ordered the City to “appropriate and fully fund the expenses, including the salaries of the employees and officers of the’ office of the Clerk of Criminal District Court for the 2012 fiscal year.” It further finds that “the City of New Orleans is prohibited from imposing a permanent budgetary hold back [sic] of the funding appropriated for the office of the Clerk of Criminal District Court for the 2012 fiscal year.”
| fiFrom this judgment, the City appealed, and in its Petition for Suspen-sive Appeal, the City maintains that it “has already fully funded the Clerk’s Office for 2012 and any funds held back subsequently were paid to the ■Clerk[,]” but the City appealed the judgment “out of an abundance of caution.” [footnotes omitted]

In Clerk II, this Court, once again, remanded this matter to the district court to determine whether the City had complied with its statutory obligation to fund the Clerk’s Office for the year 2012, and whether the City owed any additional funding to the Clerk’s Office for that year. 2014-0421, p. 6, 151 So.3d at 718.

Clerk II also addressed the district court’s conclusion that La. R.S. 13:1381.7 prohibits the City under the Home Rule Charter from imposing a permanent budgetary hold back. To the extent that the district court’s ruling found “the City may never later reduce the amounts it originally appropriates when it adopts its budget,” Clerk II vacated the ruling. 2014-0421, p. 8, 151 So.3d at 718. In interpreting whether La. R.S. 13:1381.7 prohibits the City from altering a City Council-approved budget, Clerk II opined:

La. R.S. 13:1381.7, construed together with Section 6-103(4), simply means .that, while the City may alter its approved budget, if that alteration affects the City’s statutory obligation to fund the Clerk’s office, the City must seek advanced legislative consent before altering those statutorily mandated sums.

2014-0421, p. 8, 151 So.3d at 719.

On remand, the, district court conducted an evidentiary hearing on November 6, 2014. On behalf of the Clerk, the district court heard testimony from the Clerk; Cheryl Bean (“Ms. Bean”), the Clerk of Human Resources Director; and Alisha Brumfield (“Ms. Brumfield”), the Clerk of Court Financial and Budget Director. Mr. Kopplin and Cary Grant, the Assistant CAO for budget and operations, testified on behalf of the City. After taking the matter under advisement, the | ^district court granted the Clerk’s petition for writ of mandamus on June 25, 2015. The judgment decreed that the City owed the Clerk’s Office $141,000.50 for the year 2012, together with interest and costs. The City appealed the judgment.

On appeal, 'the judgment was affirmed. See State ex rel. Orleans Parish Criminal District Court v. City of New Orleans ex rel. Landrieu, 2015-1089 (La. App. 4 Cir. 3/16/16), 192 So.3d 127 (Clerk III): In affirming the judgment, this Court adopted the district court’s findings, which held, in part:

From all the evidence presented, the Court finds that the City of New Orleans failed to comply with its statutory obligation, pursuant to La. R.S. 13:1381.7, to fund the Orleans Parish Clerk of Criminal Court’s Office for the year 2012. It was established that the adopted budget for the Clerk’s office would have supported salaries for the 90.5 employees/deputy clerks necessary to properly run the office and that the adopted budget was reduced by 3.8% or $141,600.50. Therefore, the Court finds that the City of .New Orleans owes the Orleans Parish Clerk of Criminal District Court $141,600.50 for the year 2012.

2015-1089, pp. 3-7, 192 So.3d at 130-132.

Thereafter, on September 23, 2016, the Clerk filed the present Petition against the City, claiming the City had arbitrarily and capriciously refused to fund the Clerk’s Office for fiscal’years 2013, 2014, 2015, and 2016 at the level required by law to operate the Office. Paragraph 8 of the Petition stated in part, “defendant, City of New Orleans, through' Mayor Landrieu, after paying a Judgment for breech [sic] of defendant’s 2012 ministerial duty to fund Morrell’s 90.5 employees, again breech [sic] their ministerial duty of funding the Orleans Parish Criminal District Court for the years 2013, 2014, 2015, and 2016 .... ”

In response, the City filed an exception of lack of subject matter jurisdiction. The City argued that annual appropriations are valid only for the year in which 17they are made. As such, any dispute 'over the City’s appropriations to the Clerk’s Office for the fiscal years 2013, 2014, and 2015 was moot because any alleged funds owed could not be retroactively applied toward expenses that were neither appropriated nor expended during those years.

Both matters were heard on October 11, 2016. The Clerk reiterated that the City had failed in its statutory duty to fund the Clerk’s Office at 90.5 employees from 2013 through 2016. He argued that the amounts appropriated caused his Office to be reduced to sixty employees; and alleged the level of underfunding for the combined years totaled $2.4 million dollars.

On its exception of lack of subject matter jurisdiction, the City re-urged the arguments submitted in its exception memorandum. In opposition to the merits of the Clerk’s Petition, the City argued that it had consistently funded $3,726 million dollars for the years 2013 through 2016 — the exact amount allocated in 2012 and the sum deemed appropriate to fund 90.5 employees in the Clerk dll decision. The City asserted that the Clerk had not put on any evidence to prove the amount funded was insufficient to hire 90.5 clerks for the years 2013-2016. Emphasizing that mandamus relief is an extraordinary remedy and other remedies were available to the Clerk, the City maintained the Clerk had not met his burden of proof to obtain a writ of mandamus.

On November 2, 2016, the district court overruled the City’s exception of lack of subject matter jurisdiction and denied the Clerk’s Petition. In response, the | «Clerk filed a motion for new trial. On December 20, 2016, the. district court denied the Clerk’s motion for new trial. This appeal followed.

DISCUSSION

On appeal, the Clerk’s assigns the following two errors: 1) the district court erred in denying his Petition; and 2) the district court erred in denying his motion for new trial. The City’s response on appeal includes its re-urged exception of-lack of subject matter jurisdiction. Before addressing the merits of this1 case, we must first address whether- this case is properly before this Court.

Subject Matter Jurisdiction

Appellate courts have the duty to determine, sua sponte, whether subject matter jurisdiction exists, even when the .parties do not raise the issue. Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. This Court lacks subject matter jurisdiction if the appeal as lodged does not contain a valid, final judgment. In determining whether the district court’s judgment conveyed appellate jurisdiction in the present case, we must examine La. C.C.P. art. 1918. That article provides “[a] final ’judgment shall be identified by appropriate language.” Our jurisprudence has established that “appropriate, decretal language” for á final judgment includes the name of the party in favor of whom the ruling is ordered, the party against whom the relief is ordered, and the relief that is granted or denied. Bd. of Supervisors of La. State Univ. v. Mid City Holdings, L.L.C., 2014-0506, pp. 2-3 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910.

We note that the November 2, 2016 judgment on the Petition fails to specify the name of the party against whom the ruling is ordered and it fails to state the party in whose favor the remedy was granted. However, these jurisdictional flaws |8are not fatal. The nature of the specific relief granted by the district court — denial of the writ of mandamus— can be determined from the judgment without reference to an extrinsic source, such as pleadings or reasons for judgment. Moreover, as there are only two parties to this litigation, it is clear as to the party in whose favor the judgment was rendered— the City — and the party against whom relief was denied — the Clerk. See Conley v. Plantation Management Co., L.L.C., 2012-1510, p. 8 (La. App. 1 Cir. 5/6/13), 117 So.3d 542, 547, (where the Court found that a judgment that did not expressly name the defendant cast in judgment contained sufficient decretal language as there was only one remaining defendant and the final judgment determined the rights of the parties). Accordingly, we find the judgment contains sufficient decretal language to confer appellate jurisdiction.

Exception of Lack of Subject Matter Jurisdiction

The City’s exception of lack of subject matter jurisdiction alleges that courts do not have subject matter jurisdiction to decide controversies where the judgment serves no useful purpose and gives' no practical relief. See Council of the City of New Orleans v. Sewerage & Water Bd. Of New Orleans, 2006-1989 (La. 4/11/07), 953 So.2d 798. The City contends that any mandamus relief granted to compensate the Clerk for past budget shortfalls is effectively meaningless because the Clerk cannot take funds into the past to retroactively operate the Clerk’s Office with an expanded staff. As such, the City argues the controversy, is moot and this Court lacks jurisdiction to decide a moot issue.

Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the rights asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or | ^proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court 'which has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. art. 3 and La. C.C.P. art. 925; Boudreaux v. State, Dept. of Transp. and Development, 2001-1329, p. 7 (La. 2/26/02), 815 So.2d 7, 12. An appellate court has discretion to consider an exception of lack of subject matter jurisdiction filed in the appellate court because the exception goes to the core of the validity of a judgment and is not subject to waiver. Kerr-McGee v. McNamara, 2000-0770, pp. 6-7 (La. App. 1 Cir. 6/22/01), 826 So.2d 1, 5.

Our courts require a justiciable controversy before exercising supervisory jurisdiction. In Williams v. International Offshore Services, LLC., the appellate court discussed this requirement. The Court opined the following:

Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. A justiciable controversy is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character.

2011-1240, p. 8 (La. App. 1 Cir. 12/7/12), 106 So.3d 212, 218 (citing Women’s Health Clinic v. State, 2002-0016 (La. App. 1 Cir. 5/10/02), 825 So.2d 1208, 1210, writ denied, 2002-2002 (La. 11/1/02), 828 So.2d 586)).

In the instant case, the issue before the Court is whether the Clerk’s Office is entitled to an alleged budgetary hold-back totaling $2.7 million dollars over the course of fiscal years 2013-2016. We find this dispute presents a justiciable controversy. It offers an existing dispute betweén the City and the Clerk — parties with adverse interests — as to whether the City illegally withheld mandated funding over four years. Contrary to the City’s assertion, a favorable ruling in favor of the Clerk’s Office could result in monetary relief. Particularly, we note that the Clerk received over $140,000.00 in 2016 for funds that were improperly withheld in 1^2012. See Clerk III, supra. For these reasons, this Court has the requisite subject matter jurisdiction needed to review this matter. The City’s exception of lack- of subject matter jurisdiction is thereby overruled.

Writ of Mandamus

This Court discussed the purpose of a writ of mandamus in St. Bernard Port, Harbor & Terminal Dist. v. Guy Hopkins Constr. Co., Inc., as follows:

The Supreme Court has explained that “[mjandamus is directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” Aberta, Inc. v. Atkins, 12-0061, pp. 2-3 (La. 5/25/12), 89 So.3d 1161, 1163 (citing La. Code Civ. Proc. art. 3861). A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means. La. Civ. Code Proc. art. 3862 [emphasis added]; Pursuant to La. Code Civ. Proc. art. 3863, “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law.” A ministerial duty is a “simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.” Hoag [v. State], 2004-0857, p. 7 [(La. 12/1/04)], 889 So.2d [1019] at 1024. The Supreme Court has further explained that a ministerial duty “contains no element of discretion.” Aberta, 2012-0061, pp. 2-3, 89 So.3d at 1163 (quoting Newman Marchive Partnership, Inc. v. City of Shreveport, 07-1890 (La. 4/8/08), 979 So.2d 1262, 1269). A writ of mandamus, therefore, may not be issued to compel a public official- to exercise discretionary authority. Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 2016-0566, p. 13 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037 [citations omitted].

2016-0907, pp. 13-14 (La. App. 4 Cir. 4/5/17), 220 So.3d 6, 15, writ denied sub nom. St. Bernard Port, Harbor & Terminal Dist. v. Got Hopkins Constr. Co., Inc., 2017-0746 (La. 9/15/17), 225 So.3d 1088.

Established jurisprudence provides that a writ of mandamus is an extraordinary remedy that is to be used sparingly. A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 2010-1775, p. 8 (La. App. 4 Cir. 8/24/11), 72 So.3d 454, 459. A writ of mandamus should only' be issued in cases where the law provides no relief by ordinary means or where the delay involved in obtaining | ^ordinary relief may cause injustice. La. C.C.P. art. 3862. “Mandamus will not lie in matters in which discretion and evaluation of evidence must -be exercised; the remedy is not available to command the performance of an act that contains any element of discretion, however, slight.” A.M.E. Disaster Recovery Services, 2010-1775, p. 8, 72 So.3d at 459 (quoting Hamp’s Const., LLC v. Housing Authority of New Orleans, 2010-0816, p. 4 (La. App. 4 Cir. 12/01/10), 52 So.3d 970. A mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty to be performed. Baldone v. Terrebone Parish Registrar of Voters, 2015-1356, pp. 4-5 (La. App. 1 Cir. 9/21/15), 182 So.3d 1005, 1008 (citing Bonvillian v. Department of Ins., 2004-0332 (La. App. 1st Cir.2/16/05), 906 So.2d 596, 599, writ not considered, 2005-0776 (La.5/6/05), 901 So.2d 1081).

An appellate court’s review of a district court’s denial of a request for-mandamus is under the abuse of discretion standard. A.M.E. Disaster Recovery Ser vices, 2010-1755, p. 9, 72 So.3d at 460. “An appellate court will grant a writ of mandamus only when there is a usurpation of judicial power -or clear abuse of discretion.” Construction Diva, LLC v. New. Orleans Aviation Board, 2016-0566, pp. 13-14 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037 (citing Wallace C. Drennan, Inc. v. Sewerage & Water Board of New Orleans, 2000-1146, pp. 3-4 (La. App. 4 Cir. 10/3/01), 798 So.2d 1167, 1171)).

Here, the Clerk asserts that the City has failed in its statutory duty to properly fund, the Clerk’s Office for the mandated 90.5 employees for fiscal years 2013-2016, resulting in a cumulative short-fall of $2.4 million dollars and a shortage of sixteen employees. The City counters that it has not reduced the Clerk’s' funding since it. withheld, 3.8% — which created the $141,600.50 shortfall — from his City Council-approved budget of $3.726 million dollars in Iis2012. Thereafter, the City points out -that it replaced those funds as ordered by the district court in its June 25, 2014 judgment and affirmed by this Court in Clerk III. The City notes that at the time of the Clerk III judgment, $3.726 million dollars was determined to be the amount sufficient to employ 90.5 employees.

The record shows the district court offered the following reasons for denying the Clerk’s Petition:

It is undisputed that the Clerk’s annual appropriation has not been reduced and there have been no budgetary hold-backs since 2012; the annual appropriation has remained at $3.726 million, which is the amount determined in 2012 to be adequate to fully fund 90.5 employees. The City did not violate La. R.S. 13:1371.7; the amounts appropriated and paid by the City for expenses, including salaries and maintenance of constitutional officers, their deputies, subordinates, and employees were not reduced by the City in 2013, 2014, 2015, or 2016.

As previously referenced, in affirming and adopting the district court’s judgment and reasons for judgment in Clerk III, this Court also espoused that the adopted budget for 2012 would have supported 90.5 employees. 2015-1089, p. 7, 192 So.3d at 132.

Upon review, we find that the Clerk has failed to establish that a writ of mandamus should have issued in this matter. A factual dispute exists as to the amount required to fund 90.5 employees and whether the 3.726 million dollars the City funded the Clerk is sufficient to meet its statutory obligation to fund the Clerk’s Office. This dispute necessarily requires the evaluation of evidence, weighing the credibility of witnesses, and exercising judicial discretion— functions which are not appropriate for entitlement to mandamus relief. See Hamp’s Const., L.L.C. v. Housing Authority of New Orleans, supra. The Clerk has simply not proven he has a clear and specific right to compel the performance of a ministerial duty on the part of the City.

| Accordingly, we find the district court did not abuse its discretion in denying the Clerk’s Petition for mandamus relief. This assignment of error lacks merit.

Motion for New Trial

The Clerk argues that the district court erred in denying his motion for new trial. La. C.C.P. art. 1972 provides in pertinent part that: “(1) a new trial shall be granted ... when the verdict or judgment is clearly contrary to the law and the evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not in due diligence, have obtained before or during the trial.”

The district court held a contradictory hearing on the • Clerk’s motion for new trial.-After the hearing, both parties were ordered to submit post-trial briefs.- The Clerk’s post-trial brief included the affidavits of two deputy clerks from the Clerk’s Office — Ms. Bean, who averred that the City has never fully funded the Clerk’s Office since 2012; and Ms. Brumfield, who attested that the Clerk’s Office had not been funded for 90.5 employees since 2011. The Clerk also attached correspondence from Mr. Kopplin, the City’s CAO,- as well as several requisition forms in which the Clerk requested more employees.

Upon our review of the record, we find the district court properly denied the motion for new trial. The “evidence” attached to the Clerk’s motion, particularly the affidavits from the deputy clerks and the requisition forms, was not newly discovered evidence required to grant a new trial motion. Rather, the evidence produced was clearly within the custody of'the Clerk’s Office and thereby, available at the hearing on the Petition' on October 11, 2016. By the Clerk’s own admission, it chose not to offer any objective evidence or testimony at this hearing. Next, even if considered, the evidence offered does not conclusively prove that the l1KCity did not meet its statutory obligation to fund the Clerk’s Office from 2012-2016. In denying the motion for new trial, the district 'court opined “the plaintiff failed to meet his burden of establishing that the city of New Orleans failed to appropriate and fully fund the expenses [of the Clerk’s Office].”

It is well settled jurisprudence that a district court’s judgment in denying a motion for new trial should not be reversed unless the appellate court finds the district court abused its discretion. Zatarain v. WDSU, 1995-2600 (La. App. 4 Cir. 4/26/96), 673 So.2d 1181, 1183. Finding no abuse of the district court’s wide discretion, this assignment of error is without merit.

CONCLUSION-

Based on the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULTS

      . See State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu, 2012-1756 (La. App. 4 Cir. 10/23/13), 126 So.3d 762; State of Louisiana v. City of New Orleans, 2014-0421 (La. App. 4 Cir. 10/1/14), 151 So.3d 714; and State ex rel. Orleans Parish Criminal Dist. Court v. City of New Orleans ex rel. Landrieu, 2015-1089 (La. App. 4 Cir. 3/16/16), 192 So.3d 127.

      , The City Council appropriated $3,726,329.00 ("$3.7 million dollars”) for the Clerk’s Office in 2012. The City’s 3.8% reduction resulted in a ,net loss of $141,600.50.

      . The Clerk indicated at the October 11, 2016 hearing that $4.2'million-dollars was required . to fund the Clerk's Office, and maintained in its opposition brief to the City's lack of subject matter jurisdiction that $2,421,027 million dollars was owed for "underfunded" years. This Court shall hereinafter round off that amount to $2.4 million dollars.


text:
    SUCCESSION OF Doris Lavner FEINGERTS
    NO. 2017-CA-0265
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 21, 2017

      Kyle D. Schonekas, Ian L. Atkinson, SCHONEKAS EVANS McGOEY & McEACHIN, L.L.C., 909 Poydras Street, Suite 1600, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPEL-LEE
    Michael D. Conroy, .CONROY LAW FIRM, P.L.C., 612 E. Boston Street, Cov-ington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore)
   Judge Daniel L. Dysart

| jBruce L. Feingerts-appeals a summary judgment granted in favor of the Succession of Doris Lavner Feingerts (Succes-' sion), dismissing his Motion .to Annul Probate of Will for Undue Influence, For the reasons that follow, we affirm.

BACKGROUND:

Doris Lavner Feingerts died testate on September 13, 2011, and her Succession was opened shortly thereafter. In 2012, Mr. Feingerts filed a Proof of Claim against the succession asserting that he was owed $103,313.01 from the estate, an amount he calculated as his naked ownership in the succession of his father. He also filed a Motion to Traverse the Second and Amended Usufructuary Accounting, a Motion to Traverse the Amended Estima-tive Descriptive List of Assets and Liabilities, and a Motion to Annul Judgment of Partial Possession and Return of Particular Legacies. The trial court denied all of the motions on October 13,. 2013, and granted the Executrix’s Petition to Homol-ogate the Second Amended Usufructuary Accounting and Petition for Partial Possession. Mr. Feingerts’s Motion for New Trial was denied.

Mr. Feingerts appealed that ruling to this Court, arguing in part that the judg-mentof the trial' court should be reversed and remanded, as based on newly discovered evidence, his mother had been unduly influenced into- signing her last testament. He also alleged that his mother had possibly committed fraud.

This Court declined to consider Mr. Feingerts’s allegations of undue influence and fraud, as those matters were not considered previously by the trial court. We further affirmed the trial court’s order approving an amended estimative Rand descriptive list of assets and liabilities, and a ruling that the debts owed by Bruce Fein-gerts to his mother could be used to offset sums due him from his mother’s or father’s succession, and the Supreme Court denied his writ of review.

After this Court rendered its opinion in Appeal No. 2014-0140, the executrix for the succession filed a Motion for Summary Judgment in the trial court seeking to dismiss Mr. Feingerts’s Motion to Annul Probate for Undue Influence. As explained infra, the motion was eventually heard on June 16, 2016. The trial court ruled in favor of the succession and this appeal followed.

DISCUSSION:

Mr. Feingerts has made three assignments of error. In his third assignment, he argues that the trial court erred in not granting him a continuance of the hearing on the Succession’s motion for summary judgment. We address this issue first.

On June 2, 2016, Mr. Feingerts filed a motion to continue the hearing on the subject Motion for Summary Judgment set for June 10, 2016, arguing that he had not yet recovered from his previous attorney the documents and files he needed to challenge the summary judgment. Also, he desired a continuance because he -wanted to have his “ethics counsel” testify at the hearing, but the attorney was unavailable on the hearing date.- Further, Mr. Feingerts alleged that discovery was incomplete and that complex conflicts of interest needed to be examined.

lain its Reasons for Judgment, the trial court explained that the first hearing on the Motion for Summary Judgment was set for October 9, 2016, but was continued by the consent of all parties to October 30, 2015. The trial court also allowed Mr. Feingerts time to file an opposition to the summary judgment, motion. On October 30, the trial court granted another continuance and allowed Mr. Feingerts’s attorney, Sidney Shushan, to withdraw as counsel. The matter was reset to December 4, 2015.

: On December 4, the matter was continued to February 20, 2016, to allow Mr. Feingerts to secure new counsel and to file a supplemental opposition. On February 19, 2016, the court again granted Mr. Fein-gerts a continuance as he had not yet hired new counsel. The hearing was reset for June 10, 2016. On that date, the trial court denied Mr. Feingerts’s motion to continue, but left the record open for an additional seven days for him to supply the court with depositions or any other evidence he had to- oppose the summary judgment. The trial court ordered counsel for the Succession to forward a copy of the unfiled opposition prepared by attorney Shushan (see fn. 1), which Mr. Feingerts claimed he had never received. Counsel for the Succession was also ordered to submit to the court and to send to Mr. Feingerts the deposition of Rene Lehmann, Mrs. Feingerts’s longtime attorney, which Mr. Feingerts requested the trial court to consider as part of his opposition.

A trial court has vast discretion in controlling its docket and in determining whether motions to continue should be granted. Rowley v. Eye Surgery Center of La., Inc., 06-1243, pp. 4-5 (La.App. 4 Cir. 4/4/07), 956 So.2d 680, 683; Crawford v. City of New Orleans, 01-0802, p. 4 (La. App. 4 Cir. 1/23/02), 807 So.2d 1054, 1056. An abuse of discretion occurs when such discretion is exercised in such a way that a litigant is deprived of his day in court. Howard v. Lee, 50,366, pp. 6-7 (La.App. 2 Cir. 1/13/16), 185 So.3d 144, 149. A trial court must weigh the particular facts of each case in deciding whether or not to grant a continuance, Lconsidering factors such as diligence, good faith, and reasonable grounds. Id., 50,366, p. 7, 185 So.3d at 149. A trial court should also consider the opposing party’s right to have his case heard as soon as practicable. Id.

A continuance should be granted if the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance. La. Code Civ. Proc. art. 1602. The discharge or withdrawal of an attorney is not by itself grounds for the postponing of another party’s access to the courts. The unrepresented party bears the burden of showing additional reasons for a continuance. In this case, Mr. Feingerts was granted several continuances, each time based on his lack of representation, starting in October of 2015. We cannot say that the trial court abused its discretion in denying him another continuance in June of 2016, particularly in light of the fact that the trial court allowed Mr. Feingerts additional time to submit evidence. Considering the foregoing, we do not find that the trial court erred in denying. Mr. Feingert’s motion to continue.

Mr. Feingerts’s first and second assignments of error are intertwined. In his first assignment, he argues that the trial court erred in granting summary judgment as there remain contested issues of fact regarding whether his mother was unduly influenced by others when she executed her 2009 will and the 2011 codicil to that will. In his second assignment of error, he argues that the trial court applied an incorrect burden of proof in deciding whether Mrs. Feingerts was unduly influenced.

We agree with Mr. Feingerts that the proper burden of proof in this matter is a preponderance of the evidence. Louisiana Civil Code art. 1483 provides:

|fiA person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if, at the time the donation was made, or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.

The alleged “wrongdoers” are not related to the donor by affinity,, consanguinity or adoption; therefore, the lesser burden of proof is applicable.

Turning to his first assignment of error concerning the grant of summary judgment, the issue is whether there exist material issues of fact which would preclude a finding of summary judgment as to whether Doris Lavner- Feingerts was unduly influenced when she executed a 2009 will and 2011 codicil to that will, requiring that the probate of her will be annulled.

Mr. Feingerts argues that his ex-wife, her current husband, and Max Nathan, an attorney hired by them, pressured Mrs. Feingerts into changing her previous will so as to deny him his legacy from his father’s succession.

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ. Proc. art. 966 B(2). The movant bears the burden, of proof. La. Code Civ. Proc. art. 966 C. “However, if the movant will not bear the burden of proof at trial ..., the movant’s burden” is “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. Code Civ. | nProc. art. 966 C(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. Code Civ. Proc. art. 966 C(2).

To determine whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria employed by the trial court. Hayes v. Sheraton Operating Corp., 16-0038, pp. 2-3 (La.App. 4 Cir. 5/25/16), 195 So.3d 563, 565, writ denied, 16-1212 (La. 10/17/16), 207 So.3d 1064; Maradiaga v. Doe, 15-450, p. 4 (La.App. 4 Cir. 11/25/15), 179 So.3d 954, 957, writ denied, 15-2361 (La. 2/26/16), 187 So.3d 470; La. Civ. Proc. art. 966.

Mr. Feingerts originally filed his Motion to Annul Probate of Will for Undue Influence in October of 2014, while the previously rendered judgment was on appeal to this Court. It was not set for hearing as the trial court lacked jurisdiction due to the pending appeal. He re-filed the motion in November of 2014. On January 23, 2015, the trial court issued an order continuing all matters in this case until such time as the appeal process was concluded. This Court rendered an opinion on the prior appeal on March 18, 2015, and the Supreme Court denied Mr. Feingerts’s writ on June 1, 2015. On September 15, 2015, the Succession filed the subject Motion for Summary Judgment seeking dismissal of Mr. Feingerts’s Motion to Annul.

In its motion, the Succession argues that Mr. Feingerts is again challenging his mother’s 2009 will and 2011 codicil which instruct that his inheritance be offset by the debts Mr. Feingerts owed his mother during her lifetime. As set forth by the Succession, this Court previously affirmed the trial court judgment allowing 17the executrix to offset his loan debts against the usufructuary accounting, and that decision is now final.

Finally, considering the allegations of undue influence made by Mr. Feingerts, La. Civ. Code art. 1479 provides:

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.

Further, jurisprudence instructs that it is insufficient to merely demonstrate that there was some degree of influence over the donor. Rather, the challenger must show that the donee’s influence was so substantial that the donee substituted his or her volition for that of the donor. Succession of Berman, 05-0641, p. 8 (La.App. 4 Cir. 7/26/06), 937 So.2d 437, 441, quoting Succession of Gilbert, 37,047 (La.App. 2 Cir 6/5/03), 850 So.2d 733, 736. Comment (b) to Article 1479 explains that this article presumes testamentary capacity. Although Mr. Feingerts argues that his mother was on her death bed and heavily medicated when executing the 2009 will and 2011 codicil, the record contains no proof of his allegations. The comment continues:

No single definition of “undue influence” has been found acceptable in all of the relevant legal writings.... [E]v-eryone is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would -cause the invalidity of a gift or disposition.... The more subtle influences, such as creating resentment toward a natural object of a testator’s bounty by false statements, may constitute the kind of influence that is reprobat-ed by this Article.. .'.Mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own.

|sThe Succession argues that Mrs. Fein-gerts’s intent to have her son repay or reimburse to her estate monies which she loaned her son during her lifetime has not changed since her 2001 will, long before the time period Mr. Feingerts alleges the undue influence began. The Succession submitted all of the wills and codicils with its motion, as well as excerpts of depositions and correspondence.

In the 2001 will, Mrs. Feingerts left particular legacies to her three children. Mrs. Feingerts’s legacy to her son .was the forgiveness of the debts owed to his mother at the time of her death. The legacies to her two daughters were for “an amount equal to the amount of Bruce’s debts to me which is being cancelled” pursuant to her particular legacy to Mr. Feingerts.

In a codicil to her 2001 will, Mrs. Fein-gerts declared that she had given Mr. Feingerts 3,000 shares of stock valued at $63,000. The codicil provided that her two daughters shall receive particular legacies of $63,000 as equalizing payments.

Mrs. Feingerts executed a new will in 2008, again canceling all debts that Mr. Feingerts owed at the time of her death, and providing to her two daughters equalizing payments in the amount of Mr. Fein-gerts’s debts to her.

In 2009, Mrs. Feingerts executed another will, this time making special legacies to her two daughters in the amount of $250,000 each. She left one-third of her remaining estate to each of her two daughters, and one-third in trust to Mr. Fein-gerts’s three children. She named the children’s mother as trustee. Mrs. Feingerts exempted from collation any gifts or advantages given to each of her children, designating such items as extra portions. However, she specifically noted in Article VI of the will:

I intentionally and expressly leave no part of my estate to my son, Bruce, because, in addition to numerous gifts and donations that I have given him over the years, I |8have advanced funds to him as loans, and not as gifts. If Bruce (1) accepts all provisions of this Testament and refrains from challenging its ■ validity in any way, and (2) expressly waives and relinquishes any claim or right against me or my estate that he might otherwise be entitled to assert as naked owner and/or trust beneficiary under the will of my late husband, Maurice Fein-gerts, then the aggregate amount of all of the debts that he owes to me shall be forgiven; but. if Bruce (1) .challenges this Testament or contests the validity or interpretation of any provision hereof, or asserts any impediment to it for any reason (such as undue influence or lack of testamentary capacity), (2) contests any action taken by the executrix, or (3) asserts any ciaim against my estate or against me as usufructuary or as trustee under my late husband’s will in connection with Bruce’s naked ownership interest, then, regardless of Article V above, all gifts that I have made to him, and all advantages I have bestowed on him, whether as loans or otherwise, shall be subject to collation; and all debts owed by Bruce to my estate, including those for loans that I made to him, shall remain due and owing and shall be payable in full and collectible for my estate by my Succession Representative,

The 2011 codicil to her last will indicates that Mrs. Feingerts increased the special legacies to her two'daughters to $300,000 each. She further altered her 2009 will by deleting the trust provision (Article IV) for her three grandchildren, instead leaving a third of her estate, to be divided equally among them, in full ownership. Last, she amended Article VI of the 2009 will (cited above) to explicitly state that Mr. Fein-gerts would receive nothing from her estate. Article IV of the codicil reads:

I hereby amend Article VI of my said Last Will and Testament by inserting the following provision immediately following the first sentence of that Article as though this provision had been originally incorporated therein: 1 in‘Additionally, although my -estate would owe a usufructuary debt due to BRUCE for the portion of the proceeds that I received upon the sale of the flooded family property' on Bel-laire Drive, New Orleans, Louisiana, that would be attributable to BRUCE’s one-sixth (1/6) naked ownership interest in that property, that amount to which BRUCE would otherwise be entitled must first be applied .to his indebtedness to me, which indebtedness is substantially larger than my estate’s usufructuary debt to BRUCE; thus, no amount will remain due and payable to BRUCE.’

In addition to the wills and codicils submitted in support of its Motion for Summary Judgment, the Succession submitted excerpts of the deposition of Rene Leh-mann, Mrs. Feingerts’s longtime attorney. While Mr. Lehmann admits that he had telephone contact with Jacques Wiener and Max Nathan, he definitively stated that they (or Mr. 'Feingerts’s ex-wife, Sandy) were never present at Lambeth House when the 2009 documents were signed. Additionally, the witnesses to the signing of the '2009 will were a neighbor friend of Mrs. Feingerts at Lambeth House, and Mr. Lehmann’s son, who was visiting his dad and accompanied him to the signing. Last, Mr. Lehmann admitted that he knew Max Nathan, but had never met either Jacques Wiener (other than by telephone) or Sandy (Feingerts) Wiener. He affirmed that the 2008 will was signed in his office and that two of his staff members acted as witnesses, and that no other people were present.

Mr. Lehmann testified that on January 25, 2011, he received a letter from Mrs. Feingerts terminating their professional relationship and asking him to send her current will to Carole Neff. Throughout his deposition, Mr. Lehmann referred to notes he had made while conferencing with Mrs. Feingerts going back to the early 2000’s. He specifically remembered her comments to him about “not letting In Bruce destroy her.” He also had notes indicating that Mrs. Feingerts kept a list of the debts Bruce owed to her in a safety deposit box at the Whitney National Bank on Tchoupitoulas Street. Mr. Lehmann was adamant that if he had any doubt as to Mrs. Feingerts’s mental capacity, he would not have allowed her to sign the wills and codicils he prepared.

In addition to the opposition to the summary judgment that was hand delivered to the judge’s chambers (see, fn. 1, ante), the trial court allowed Mr. Feingerts to file exhibits into the record. Mr. Feingerts filed his mother’s financial records from 1996 to 2004, and an opinion letter, memo and curriculum vitae of an attorney hired by Mr. Feingerts in connection with another lawsuit.

In his brief to this Court, Mr. Feingerts argues that he submitted extensive evidence of undue influence in the form of attachments to his Motion to Annul. However, attachments to motions are not evidence. When a motion that must be proven is presented to the court, the mover bears the burden of presenting the evidence. Landis Const. Co., LLC v. State, Dep’t of Workers’ Compensation Admin., 15-1167, p. 3 (La.App. 1 Cir. 2/29/16), 199 So.3d 1, 2. A court may not consider exhibits filed in the record which were not filed and admitted into evidence at a hearing. Moreover, it is axiomatic that “fajppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc. 07-2143, p. 6 (La. 5/21/08), 988 So.2d 84, 88; Hoddinott v. Hoddinott, 16-1059, p. 2 (La.App. 4 Cir. 4/19/17), 217 So.3d 540, 541. Accordingly, evidence that has not been “properly and officially offered and introduced” in the district court cannot be 112considered- by this court “even if it is physically placed in the record.” Denoux, supra.

Our review of the record indicates that Mrs. Feingerts’s intent never changed in all of her wills and codicils. Mr. Lehmann revealed in his testimony that Mrs. Fein-gerts was troubled about the loans to her son as far back as 2001, and that she always intended for her children to receive equal inheritances. The fact that she chose to leave a third of'her estate to Mr. Fein-gerts’s children, as opposed to him, is not indicative of undue influence. Further, the persons Mr. Feingerts accuses of influencing his mother do not benefit from the legacies. Particularly compelling is Mr. Lehmann’s testimony that Mrs. Fein-gerts’s would not allow her son to “destroy her.”

Accordingly, after review, we find that no genuine issues of fact remain, and that summary judgment in favor of the Succession of Doris Lavner Feingerts is appropriate. The judgment of the trial court is affirmed.

AFFIRMED

      . Maurice Feingerts died testate in-1967, leaving his estate in separate trusts for his three children. His wife, Doris, was granted a lifetime usufruct, and was designated as the trustee for each trust.

      . Mr. Feingerts filed his Motion to Annul Probate of Will for Undue Influence in the trial court while the previous appeal was already pending in this Court. ■

      . 162 So.3d 1215 (La.App. 4 Cir. 3/18/15), writ denied, 15-0754 (La. 6/1/15), 171 So.3d 936.

      .The Clerk of Civil District informed this Court that the opposition was filed and fees were paid; however, the original was “walked” to the judge’s chambers and never returned to the clerk’s office for filing. Thus, the opposition is not physically in the record before us.

      . A subsequent paragraph provides that if Mr. Feingerts asserts a claim to be recognized as a forced heir, and is determined to be a forced heir, any amount due him is to be left in a spendthrift trust, from which no distributions may be made from the principal during Mr. Feingerts’s lifetime,

      .= Mrs. Feingerts resided at Lambeth House after her family home was destroyed in Hurricane Katrina.

      . Ms. Neff is an attorney in the same firm as Max Nathan,