author: Judge Regina Bartholomew Woods

text:
    STATE of Louisiana IN the INTEREST OF A.S., Z.H., Z.H. and X.H.
    NO. 2017-CA-0028
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 10, 2017

      Elizabeth Lincoln, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 1450 Poydras Street, 16th Floor, New Orleans, LA 70112, COUNSEL FOR APPEL-LEE/STATE OF LOUISIANA
    Justin Caine Harrell, H2 LAW, LLC, 1100 Poydras Street, Suite 2900, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Roland Belsome, Judge Regina Bartholomew Woods)
   Judge Regina Bartholomew Woods

hln this case, a mother, Calendria Houston, appeals the involuntary termination of her parental rights to her minor children, A.S., Z.H., Z.H., and X.H. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Appellant, Calendria Houston (“Appellant”), is the mother of the following minor children: J.S. (born November 9, 2010), A.S. (born February 29, 2012), Z.H. and Z.H. (twins born February 26, 2014), and X. H. and K.H. (twins born December 7, 2014). On March 15, 2015, law enforcement officers responded to a call at the Appellant’s home where three-month old K.H. was found dead in the crib that she shared with her twin and the other five (5) children were found severely undernourished and developmental^ delayed; the officers suspected that Appellant and her husband, Xavier Houston (“Mr. Houston”) either refused or unreasonably failed to provide adequate care for the deceased child and the surviving minor children. The Louisiana Department of Child and Family Services (“DCFS”) received a report from law enforcement, which was later confirmed by a RDCFS investigator, that Appellant’s home was inadequate and in disarray, and that the children had severe diaper rashes and bruising. On that same date, pursuant to an Instanter Order, the remaining five (5) minor children were taken into the custody of the DCFS. On April 14, 2015, DCFS filed a petition for children in need of care for each of Appellant’s minor children. On April 15, 2015, Mr. Houston and Appellant attended a DCFS family team conference and signed their case plan with a goal of reunification of the family, with a concurrent goal of adoption. Appellant worked her case plan until May 27, 2015, when Appellant was arrested and charged with Second-Degree Murder of K.H., Cruelty to Juveniles, and Second-Degree Cruelty to Juveniles. Appellant’s bond was set at ls$350,000. On May 28, 2015, Appellant, without admitting the truth of the allegations contained within the petition for children in need of care, stipulated that her minor children were in need of care. On that same date, J.S. was placed into the custody of his biological father, Joshua Wheatley, and is not a part of this proceeding. Subsequently, Mr. Houston pled guilty and was sentenced to more than ten (10) years of imprisonment; Mr, Houston is not a party to this appeal.

Unable to fulfill the financial obligations of her bond, Appellant has remained in pre-adjudication custody since her arrest. Approximately ten (10) months after Appellant’s arrest and pre-trial detention, on March 23, 2016, DCFS filed a Petition for Termination of Parental Rights. In the petition, DCFS alleged, inter alia, the following:

(1)[Appellant] did engage in misconduct towards each child and the deceased sibling in a ■ manner that constitutes extreme abuse, cruel and inhuman treatment, and/or grossly negligent behavior below a reasonable standard of human decency by
(a) starvation by neglecting to feed the children adequately resulting in the children being severely underweight ..., and
(b)abuse or neglect which was chronic and life threatening and did result in the death of one child
* * *
(2)[Appellant] has failed to maintain stable and safe housing;
(3)[Appellant] has failed to make any ... parental contributions;
(4)[Appellant] has failed to comply with the visitation schedule with her children;
(5)[Appellant] has failed to participate in and successfully complete a qualified parenting program;
(6)[Appellant] has failed to. acknowledge •.and take responsibility for the extreme harm that her children suffered while in her care due to her neglect

|4On November 14, 2016, the trial court rendered a judgment, which terminated Appellant’s parental rights to her minor children. In a separate document, the trial court issued “Reasons for Judgment,” which set forth the grounds upon which Appellant’s rights were terminated. It is from this judgment that Appellant appeals.

STANDARD OF REVIEW

It is well-settled that a trial court’s findings on factually-intense termination of parental rights issues — including a parent’s- compliance with a case plan, and whether termination is in the children’s best interests — are -reviéwed on appeal under a manifest error standard of review. State in Interest of T.M.P., 13-1006, p. 21 (La.App. 4 Cir. 10/23/13), 126 So.3d 741, 754.

DISCUSSION

Timeliness of Appeal

Although it is not raised as an assignment of error, DCFS argues that the subject matter jurisdiction lapsed and cannot be re-instated. The judgment terminating parental rights was signed on November 14, 2016. On November 15, 2016, the St. Bernard Parish Sheriffs Office “walked” the judgment to counsel for the Appellant. On December 5, 2016, counsel for Appellant filed a motion for appeal. DCFS moved the trial court to deny the motion for appeal as untimely. The trial court ruled that Appellant’s motion for appeal was premature. On December 12, 2016, the trial court mailed the judgment of termination of parental rights to | ¡^counsel for the State and the parents. On December 15, 2016, counsel for Appellant filed a Notice of Appeal.

DCFS asserts that the 25th Judicial District relies on the local custom of personal service through the St. Bernard Parish Sheriffs Office; thus DCFS asserts that the clock for timely filing of a Notice of Appeal begins at that moment. However, Article 332 of the Louisiana Children’s Code states, in pertinent part, that “appeals shall be taken within fifteen days from the mailing of the notice of the judgment,” (Emphasis added). The “starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The legislature is presumed to mean what it plainly says in the text of a statute. Cat’s Meow v. City of New Orleans, 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198. “Courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” State v. Williams, 10-1514, p. 6 (La. 3/15/11), 60 So.3d 1189, 1192. “When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written.” Id. In the instant matter, the mailing of the judgment, not the custom or practice of the Sheriffs Office, marked the start of the time delay for filing a Notice of Appeal, Therefore, DCFS’s argument that subject matter jurisdiction lapsed is without merit. We find the Notice of Appeal timely and as such, will consider the merits of Appellant’s appeal.

Assignments of Error

Appellant raises the following two (2) assignments of error:

1. Whether the trial court committed manifest error in terminating Appellant’s parental rights based on her pre-trial incarceration, which directly led to her failure to comply with her case plan.
2. Whether a parent’s pre-trial incarceration may be used as a material or substantial basis for termination of parental rights.

For ease of discussion, we address these inter-related assignments of error together.

“In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child.” State ex rel. M.S., 99-2190, p. 3 (La.App. 4 Cir. 6/23/00), 768 So.2d 628, 631. The United States Supreme Court has recognized that the “liberty interest.. .of parents in the care, custody, and control of them children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000); State ex rel. S.M.W., 00-3277, p. 12 (La. 2/21/01), 781 So.2d 1223, 1232. The court in State ex rel. J.A., 99-2905, p. 8-9 (La. 1/12/00), 752 So.2d 806, 810 states,

The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Serv.'s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445, 452, In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. La. Child. Code art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens.

| «Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. At the time of the involuntary termination of Appellant’s parental rights, there were eight (8) statutory grounds for the involuntary termination of parental rights that are enumerated in La. Ch. C. art. 1015, Although the State need only establish one statutory ground, the trial court |flmust also find that termination is in the child’s best interest. State ex rel. SNW v. Mitchell, 01-2128, p. 9 (La. 11/28/01), 800 So.2d 809, 815 La. Ch. C. arts. 1015 and 1039. Moreover, “[g]iven the draconian nature of an involuntary termination proceeding, the state is required to prove the statutory ground on which it relies by clear and convincing evidence.” La. Ch. C. art. 1035 (A); Mitchell, 01-2128, p. 10 (La. 11/28/01), 800 So.2d 809, 816.

In summary, the involuntary termination of parental rights is a two-pronged inquiry. First, the State must 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. La. Ch. C. art. 1039; State ex rel. L.B. v. G.B.B., 02-1715, pp. 5-6 (La, 12/4/02), 831 So.2d 918, 922. T.M.P., 13-1006, p. 25, 126 So.3d at 756.

| T (Appellant avers that the trial court committed manifest error when it terminated Appellant’s parental rights based upon her pre-adjudication custodial status. In asserting this argument, Appellant relies, not upon the judgment issued by the trial court, but instead, upon the Reasons for Judgment that the trial court issued. In asserting this argument, Appellant overlooks the well-settled rule that the “district court’s oral or written reasons for judgment form no part of the judgment and that appellate courts’ review judgments, not reasons for judgment.” Wooley v. Lucksinger, 09-0571, p. 77 (La. 4/01/11), 61 So.3d 507, 572 (citing Bellard v. American Cent. Ins. Co., 07-1335 p. 25 (La. 4/18/08), 980 So.2d 654, 671). Furthermore, “judgments are often upheld on appeal for reasons different than those assigned by the district judges.” Id.

In the present case, DCFS presented the trial court with six (6) different bases upon which to terminate the parental rights of Appellant. During the termination proceedings; the trial court was presented with a plethora of evidence, which proved, by a clear and convincing standard, that Appellant’s parental rights should be terminated. Further, DCFS also presented the trial court with compelling evidence showing that termination was in the best interest of the children.

In As Appellant correctly asserts, DCFS sought to terminate Appellant’s parental rights based on her non-compliance with the case plan and based upon Appellant’s abandonment of the children, due to her pre-adjudication custodial status, as a result of her failure to make the $350,000 bond. However, Appellant overlooks the fact that DCFS also sought to terminate her parental rights based upon her misconduct toward the children that constituted extreme abuse and cruel and inhuman treatment. In fact, the record is replete with evidence showing that the third basis, alone, was sufficient to terminate Appellant’s parental rights. On the date that the minor children were removed from Appellant’s home, the children were observed to have severe diaper rashes, with raw skin that required prescription medication for treatment, as well as, marks and bruises on their bodies indicative of physical abuse. The youngest child, X.H., was hospitalized for failure to thrive. Also, Appellant’s home was observed in disarray with dirty dishes in the sink, trash cans overflowing, cluttered counter tops, children’s writings on the walls, and a stench of urine, despite the absence of pets in the home.

Accordingly, we do not find that, based upon the clear and convincing evidence presented, the trial court erred in terminating Appellant’s parental rights. We further find that the trial court properly considered the best interest of the children in terminating the parental rights. In fact, evidence was presented that 112since their placement in foster homes, the minor children have begun to thrive developmental^ and emotionally. Although she initially appeared to have laeked food and nutrition, A.S. is no longer anxious about food and is well-adjusted with her foster family. Since entering foster care, Z.H. and Z.H. have received the immunizations that they lacked, gained adequate weight, recovered from their severe diaper rashes, met developmental milestones such as crawling and standing, and have been examined and treated by an ENT, Neurologist, and Orthopedist. Upon entering foster care, X.H. was diagnosed with failure to thrive as a direct result of neglect; he has since been released from the hospital, received the immunizations that he lacked, gained adequate weight, and received medical treatment to address issues with his breathing. All of the aforementioned support the trial court’s determination that the termination of Appellant’s parental rights was in the children’s best interest.

DECREE

For the aforementioned reasons, we affirm the judgment of the trial court terminating the parental rights of Ms. Houston.

AFFIRMED

      . In this opinion, the initials, rather than the full names, of the minor children are used to protect and maintain the privacy of the minor children involved in this proceeding. See Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2.

      . According to a report by DCFS, the case plan for Mr. Houston and Appellant was as follows:
      1. Mr. and Mrs. Houston will maintain safe and stable housing that will meet their children's needs. They will provide consistent supervision in the home for the children. The home will be clean, free of hazardous items, have running water and electricity. They will ensure they are available to meet with the agency worker monthly in the home.
      2. Mr. and Mrs. Houston will maintain contact with the agency worker. They will notify the worker of any changes in their circumstances such as change of address, phone number, and employment/financial resources.
      3. The agency worker will keep Mr. and Mrs. Houston abreast of their children's progress or lack thereof.
      4. Mr. and Mrs. Houston will contribute to the cost of care of their children while in foster care. They will pay $25.00 per child totaling $125 monthly to Parental Contribution, P.O. Box 3318, Baton Rouge, Louisiana 70821 in the form a money order. They will include the children’s Social Security number and date of birth. They will provide proof of payment to the agency worker.
      5. Mr. and Mrs. Houston will complete a mental health assessment. They will follow all the recommendations of the assessment and participate in any further services deemed necessary. They will sign a consent to release information form so that the worker can maintain contact with the mental health provider.
      6. Mr. and Mrs. Houston will complete a substance abuse assessment. They will be open and honest with the evaluator. They will sign a consent to release information form so that the worker can communicate with the evaluator. They will follow all recommendations, of the assessment.
      7.Mr. and Mrs. Houston will participate in a domestic violence program until the completion of the program, They will demonstrate the knowledge learned in the .program. They will not have any other involvement with law enforcement due to domestic violence disputes. Worker will maintain contact with the provider. They will sign a consent to release information form for the program.
      8. Mr, and Mrs. Houston will attend all FTCs, visits, court hearings, and other appointments in regards-to their children in order to remain up to date on their children's progress,
      9. Mr. and Mrs. Houston will be referred to the Tulane Parenting Education Program, They will participate in the services the program provides until the completion of the program. Worker will maintain contact with the program to determine their progress/lack thereof.

      . Article 332 of the Louisiana Children’s Code states:
      A. Except as otherwise provided within a particular Tide of this Code, appeals shall be taken within fifteen days from the mailing of notice of the judgment. However, if a timely application for a new trial is made pursuant to Paragraph C, the delay for appeal commences to run from the date of the mailing of notice of denial of the new trial motion.
      B. Notice of judgment, including notice of orders or judgments taken under advisement, shall be as provided in Code of Civil Procedure Article 1913.
      C.After judgment is signed, a party may make a written request for a motion for new trial on any ground provided by law. The delay for applying for a new trial is three days, exclusive of holidays, and shall commence to run from the mailing of notice of judgment. A motion for new trial shall be decided expeditiously and within seven days from the date of submission for decision.

      . The version of La. Ch. C. art. 1015 in effect at the time of the involuntary termination of Appellant’s parental rights states:
      The grounds for termination of parental rights are:
      (1) Conviction of murder of the child’s other parent.
      (2) Unjustified intentional killing of the child’s other parent.
      (3) Misconduct of the parent toward this child or any other child of the parent or any other child which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
      (a) Murder.
      (b) Unjustified intentional killing.
      (c) Aggravated crime against nature as defined by R.S. 14:89.1(A)(2).
      (d) Rape.
      (e) Sodomy.
      (f) Torture.
      (g) Starvation.
      (h) A felony that has resulted in serious bodily injury.
      (i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.
      (j) Abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
      (k) The parent’s parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse, prior attempts to rehabilitate the parent have been unsuccessful, and the court has determined pursuant to Article 672.1, that current attempts to reunite the family are not required.
      (l) Sexual exploitation or abuse, which shall include, but is not limited to acts which are prohibited by R.S. 14:43.1, 43.2, 46.3, 80, 81, 81.1, 81.2, 82.1(A)(2), 89, and 89.1.
      (m) Human trafficking when sentenced pursuant to the provisions of R.S. 14:46.2(B)(2) or (3).
      (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him 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.
      (5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.
      (6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child's age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plán for the appropriate care of the child other than foster care.
      (7) The relinquishment of an infant pursuant to Chapter 13 of Tide XI of this Code.
      (8) The commission of a sex offense as definéd in R.S. 15:541 by the natural parent which resulted in the conception of the child.

      . The trial court issued a judgment, which simply stated that “Considering the testimony, evidence, law and argument of counsel, ... the Petition to Terminate the Parental ■Rights of [Appellant] is GRANTED.” When it issued its Reasons for Judgment, the trial court reiterated the multiple bases upon which DCFS sought to terminate Appellant’s parental rights. The trial court further stated that DCFS met its evidentiary burden by clear and convincing evidence and found that termination was in the best interest of the children, Additionally, the trial court referenced that Appellant had not inquired about the children arid had contributed nothing to their support.

      . This court takes no position regarding whether it was legally proper or improper for DCFS to seek termination based on Appellant’s failure to provide support to the children and failure to maintain communication with the children while she remains in Parish custody, unable to post a bond, in a pre-adjudicative state. There was clear and convincing evidence to terminate Appellant’s parental rights on another basis, and the law is clear that termination can be based upon one ground listed in La. Ch.C. art. 1015, independent of the other bases.


source: Caselaw Access Project

author: Judge Regina Bartholomew-Woods

license: Public Domain

text:
    Errol G. WILLIAMS, Assessor, Parish of Orleans v. OPPORTUNITY HOMES LIMITED PARTNERSHIP and Louisiana Tax Commission
    NO. 2016-CA-1185
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 10, 2017

      Galen S. Brown, SULLIVAN STOLIER, 909 Poydras Street, Suite 2600, New Orleans, LA 70112 AND John Jurgen Weiler, Christian N. Weiler, WEILER & REES, LLC, 909 Poydras Street, Suite 1250, New Orleans, LA 70112 COUNSEL FOR PLAINTIFF/APPELLANT
    Pierre G. Walker, III, 4127 South Claiborne Ave., New Orleans, LA 70125 Robert Dean Hoffman, Jr., ROBERT D. HOFFMAN, JR., APLC, 7039 Highway 190 E. Service Rd., Covington, LA 70433 COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Regina Bartholomew-Woods)
   Judge Regina Bartholomew-Woods

|! Plaintiff-Appellant, Erroll G. Williams, Assessor for the Parish of Orleans (“Assessor Williams” or “the Assessor”), appeals the judgment of the Orleans Parish Civil District Court dated July 11, 2016, in favor of Defendants-Appellants, Opportunity Homes Limited Partnerships (“Opportunity Homes”) and the Louisiana Tax Commission (the “LTC” or “the Commission”). Assessor Williams asserts four (4) assignments of error relative to two decisions rendered by the Tax Commission on August 5, 2015, determining the fair market value for certain affordable housing rental properties for the 2014 and 2015 tax years for purposes of ad valorem taxation. For the reasons that follow, we reverse the judgment of the district court and reinstate the fair market valuations as determined by Assessor Williams.

FACTUAL AND PROCEDURAL BACKGROUND

Opportunity Homes describes itself as a “scattered-site, low income affordable housing development.” It consists of thirty-two (32) single- and double-unit residential buildings. The separate properties are connected by way of a Tax Credit Regulatory Agreement (“TCRA”). Opportunity Homes notes the TCRA prohibits separation and sale of the various properties, and restricts the chargeable |2rents to “no more than sixty percent (60%) of the Area Median Income (“AMI”)” for an extended period of time, but the rates are even lower for some buildings.

Pursuant to the powers and authority delegated to him by La. R.S. 47:1903, La. R.S. 47:1957, and La. R.S. 47:2323, Assessor Williams determined the fair market value (“FMV”) of Opportunity Homes’ scattered-site properties using what is known as the “market approach,” In using this particular approach, Assessor Williams determined the FMV of Opportunity Homes’ properties to be $4,200,900 and $4,083,610 for tax years 2014 and 2015, respectively.

Pursuant to its authority under La. Const, art. VII, § 18, the Commission reviewed the “correctness” of Assessor Williams’ assessment. At a January 13, 2015 hearing, counsel for Opportunity Homes noted that in 2013, the same properties were valued at $1,525,000, and assessed accordingly. The Commission relied on assessments by Randy Harrington, its own staff appraiser, who used what is known . as the “income approach” and reached FMVs of $1,525,000 for both tax years 2014 and 2015, which assessments specifically excluded the value of “Low Income Housing Tax Credits” (“LIHTCs”) received by the taxpayer for encumbering the properties with below-market-value rents. Counsel for Opportunity Homes noted that pursuant to adopted and promulgated regulations, the income approach is the “recommended” approach for determining the FMV of “affordable rental housing.” Based on the foregoing, the Commission moved to accept the staff recommendations as to each tax year.

As a result of the Commission’s actions, on September 2, 2015, Assessor Williams commenced suit in the district court pursuant’to La. R.S. 47:1998, La. R.S. 47:1989 and La. R.S. 49:964. The district court affirmed the Commission’s decision, finding that the Commission’s decision “was not in violation of any ^constitutional or statutory provisions, was not in excess of its statutory authority, was not made upon unlawful procedure, or affected by other error of law, was not arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” The district court further noted the decision “was clearly supported by the testimony and preponderance of the evidence before it, where [the Commission] had the opportunity to judge the credibility of witnesses by first-hand observation.”

STANDARD OF REVIEW

We review the decision of the Commission pursuant to La. Const, art. VII, . section 18(E) and La. R.S. 47:1998(A)(1). Judicial review of an agency’s adjudication is governed by La. R.S. 49:964(G), which provides as follows:

The court may affirm .the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because ,the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Furthermore, this Court’s review of the district court’s judgment is governed as follows:

14[T]he appellate court reviews the district court’s findings under the manifest error or clearly wrong standard of review. Bibbins v. City of New Orleans, 02-1510, p. 12, [ (La.App. 4 Cir. 5/21/03),] 848 So.2d [686, ]at 695. If the district court’s findings are reasonable in light of the entire record, then the appellate court may not reverse even though if sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, then the factfinder’s choice' between them cannot be manifestly erroneous or clearly wrong. Id.
While the district court’s factual findings are subject to manifest error review, the appellate court gives no special weight to the district court’s findings on questions of law, but exercises its constitutional duty to review questions of law de novo and render judgment on the record. Winston v. Millaud, 05-0338, p. 5 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 150. Appellate review of questions of law is simply a determination of whether the trial court was legally correct or legally incorrect in its application of the law. Richard v. Richard, 14-1365, p. 3 (La. App. 4 Cir. 6/3/15), 171 So.3d 1097, 1100, quoting Harruff v. King, 13-940, p. 4 (La.App. 3 Cir. 5/14/14), 139 So.3d 1062, 1066, writ denied, 14-1685 (La. 11/7/14), 152 So.3d 176. “A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial.” Banks v. New Orleans Police Dept., 01-0859, 01-1302, p. 3 (La. App. 4 Cir. 09/25/02), 829 So.2d 511, 514.

Williams v. Par. of St. Bernard, 15-1105, pp. 8-9 (La.App. 4 Cir. 12/2/16), 206 So.3d 259, 266, writ denied, 2016-2280 (La. 2/3/17).

We find that the LTC’s decision was in violation of statutory provisions, in excess of its authority, and based upon unlawful procedures. Thus, the district court’s decision upholding the decision of the LTC was legally incorrect. Accordingly, as explained further, we reverse and reinstate the FMVs as determined by the Assessor.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

Assessor Williams’ third and fourth assignments of error both argue the district court erred in affirming the Commission’s decision requiring use of the income approach while also excluding Low Income Housing Tax Credits^ (“LIHTCs”) in calculating FMV of affordable rental housing when using that approach. However, these two assignments of error have since been rendered moot by the Louisiana Supreme Court’s denial of writs as to this Court’s ruling in Williams v. The Muses, Ltd. 1, 16-0250, p. 31 (La.App. 4 Cir. 10/19/16), 203 So.3d 558, 577, writ denied, Williams v. The Muses, Ltd., 16-2034 (La. 1/13/17), 215 So.3d 254, 2017 WL 375700, in which we “affirm[ed] the trial court’s finding that the LTC did not err in determining the LIHTC is not income and that the Assessor could not include the LIHTC in assessing the Complex using the income approach.” Accordingly, we do not address these assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

Assessor Williams argues the district court erred in affirming the Commission’s decision that the Louisiana Administrative Code “requires” the use of the income approach. Louisiana Revised Statute 47:2323(C) provides that the “fair market value of real and personal property shall be determined by the following generally recognized appraisal procedures: the market approach, the cost approach, and/or the income approach.” The Assessor suggests that the regulation relied upon by the Commission and used by the district court to affirm the Commission’s decision merely “recommends” the use of the income approach in assessing affordable rental housing:

In assessing affordable rental housing, the income approach is recommended. As defined in this Section, affordable rental housing means residential housing consisting of one or more rental units, the construction and/or rental of which is subject to Section 42 of the Internal Revenue Code (26 USC 42), the Home Investment Partnership Program under the Cranston-Gonzalez National Affordable Housing Act (42 USC 12741 et seq.), the Federal Home Loan Banks Affordable Housing Program established pursuant to the ^Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 (Public Law 101-73), or any other federal, state or similar program intended to provide affordable housing to persons of low or moderate income and the occupancy and maximum rental rates of such housing are restricted based on the income of the persons occupying such housing.

La. Admin. C. title 61, pt. V, section 303(C) (hereinafter “Rule 303(C)) (emphasis added). Accordingly, the Assessor submits that he may, within his discretion, use any of the three (3) statutorily-authorized assessment approaches, and that a regulation requiring the use of the income approach would conflict with the statute itself. The Assessor further asserts that even if the regulation mandated use of the income approach, it would conflict with the applicable statute. In that regard, the Assessor relies on this Court’s reasoning in Marshall v. Maynard, 09-1132, pp. 3-4 (La.App. 4 Cir. 3/24/10), 35 So.3d 1134, 1137, which provided:

Appellant’s argument that the Administrative Code takes precedence over the Louisiana Revised Statutes must fail, as the Louisiana Supreme Court has held that “an administrative construction cannot be given effect where it is contrary to or inconsistent with legislative intent.” Jurisich v. Jenkins, 1999-0076, p. 8 (La. 10/19/99), 749 So.2d 597, 602. Likewise, “[a]n administrative construction cannot have weight where it is contrary to or inconsistent with the statute.” Jurisich v. Jenkins, 1999-0076, p. 8, 749 So.2d at 602 (quoting Traigle v. PPG Indus., Inc., 332 So.2d 777, 782 (La.1976)). Specifically, “the tax commission cannot adopt rules in contravention of state statutes.” EOP New Orleans, L.L.C. v. Louisiana Tax Commission, 2001-1452, p. 8 (La.App. 1 Cir. 9/28/01), 809 So.2d 387, 392.

In response, Opportunity Homes suggests the Assessor must “present credible evidence and testimony that the use of the market (“sales comparison”) approach arrives at the [FMV] of Opportunity Homes.” Opportunity Homes notes the properties in question are rent-restricted, encumbered, interconnected affordable housing properties. However, the Assessor “used sales and averages of market rate, unencumbered” properties in reaching his assessment. Opportunity 17Homes suggests there are no “comparable” properties to which the Assessor could even make a comparison, rendering use of the market approach inappropriate under the circumstances.

Opportunity Homes also argues that the Assessor may not ignore “consistently applied, properly promulgated rules and their reasonable interpretations” by the LTC, his “superior supervisory and reviewing agency.” It points to the disjunctive nature of La. R.S. 47:2323(0, suggesting that use of the income approach alone is permitted, and that the Assessor, by virtue of subsection (B) of the same statute, is required to follow the guidelines, procedures, and rules and regulation of the Commission. In support, Opportunity Homes relies upon the following holding of Telecable Assocs., Inc. v. Louisiana Tax Comm’n, 94-0499 (La.App. 1 Cir. 11/9/95), 694 So.2d 279, 283:

The LTC has determined that the best method for determining fair market value of the personal business and industrial property used in general business activity is the cost approach. The Commission has also established that cable systems fall within the category of business activity and type of equipment which is best assessed by the cost approach. Assessors Farley and Wooden were required to follow the guidelines established by the LTC. La.R.S. 47:2323(B). They did not. Moreover, statewide uniformity, as required by statute and the constitution, is impossible when an arbitrary formula for calculating fair market value is employed in only two parishes in the state. The assessments and resulting ad valorem taxes were improper. The ruling of the LTC, upholding the assessments, must be reversed. The district court was correct in doing so.

Opportunity Homes suggests the instant matter is similar, in that the LTC has determined the “best method” for determining the FMV of the property in 18question, and that the Assessor was required to use that approach. Opportunity Homes submits the Assessors’ use of incomparable properties is “unique,” much like combining the approaches and weighing them as the assessor did in Telecable.

Opportunity Homes further relies on the Commission’s December 4, 2012, decision in In re: St. Bernard I, LLC, in which the Commission observed that the income approach “was the most appropriate, and therefore the recommended, methodology to use to reflect the [FMV] of affordable housing developments.” It noted that the promulgation and adoption of Rule 303(C) involved “extensive research into the field of ad valorem taxation ... of affordable housing developments” and included “sub-

stantial input from both assessors and representatives of the affordable housing industry.” This Court discussed St. Bernard I in The Muses. However, The Muses case concerned 263 housing units contained in two buildings. Unlike in the present case, the parties in The Muses were in agreement regarding the Assessor’s use of the income approach to assess those properties,'but disputed whether the Assessor could include the value of LIHTCs in his assessment. Thus, this Court did not address the appropriateness of the. Assessor’s use of the income approach under the specific facts of that case. Instead, this Court only addressed whether the Commission’s decision to exclude LIHTCs was permissible when using the income approach.

The Commission briefly responded to this assignment of error, also suggesting the Assessor used incomparable properties. It further suggested the Assessor is being disingenuous, citing the Assessor’s use of the income approach to assess the affordable housing development in The Muses, yet his use of the market approach here. The Commission argues such an approach results in non-huniform assessments in violation of the Louisiana Constitution and La. R.S. 47:2323.

We begin our analysis with a plain, reading of the statute in question, La. R.S. 47:2323(C), which analysis is guided by well-established, jurisprudence: .

When the law is clear and unambiguous and its application does not result in absurd consequences, it shall be applied as written and no interpretation may be made in search of the legislature’s intent. La. C.C. art. 9; Daigrepont v. Louisiana State Racing Commission, 95-0539 (La.App. 4 Cir. 10/26/95), 663 So.2d 840, writ denied, 95-2828 (La. 2/2/96), 666 So.2d 1085. When a statute is clear the court must give credence to the
mandate expressed by the legislature and cannot resort to construing a statute based on the spirit of the law as opposed to the plain wording of the law. Longman v. Allstate Insurance Company, 93-0352 (La.App. 4 Cir. 3/29/94), 635 So.2d 343. A statute shall be construed to give meaning to the plain language of the statute. State, Department of Transportation and Development v. Walker, 95-0185 (La. 6/30/95), 658 So.2d 190.

Vogt v. Bd. of Levee Comm’rs of Orleans Levee Dist., 95-1187, pp. 9-10 (La.App. 4 Cir. 9/4/96), 680 So.2d 149, 155. Further,

The interpretation of a statute ... is a question of law. Thus, this Court is to determine, through a de novo review, whether the trial court’s ruling was legally correct or incorrect. Delacroix Corp. v. Perez, 1998-2447, p. 4 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865. Where the trial court’s decision is based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference, by the reviewing court.

Hand v. City of New Orleans, 04-0845, p. 5 (La.App. 4 Cir. 12/22/04), 892 So.2d 609, 612. Thus, we need not give any special weight to the district court’s findings in this regard.

A plain reading of the statute supports- the Assessor’s position that he may use any of the three (3) generally-accepted methodologies in ..assessing affordable housing. The statute simply applies to the valuation of “real and personal property” without distinction between any subcategory of the real or personal property in Imquestion. The statute describes how each approach is to be utilized, but not under what circumstances or to what type of property each should apply.

The same reasoning applies to the Commission’s regulation that “recommends” use of the income approach in assessing affordable rental housing. There is no ambiguity to either the statute or the regulation which would suggest that the Assessor’s use of the market approach was improper; indeed, the statute authorizes its use, and the regulation does not prohibit it. Thus, while Opportunity Homes suggests that a “reasonable interpretation” of “recommends” means “requires” as used in the regulation, the .language “shall be applied as written and no interpretation may be made in search of’ some other intent when the language is unambiguous on its face.

While Opportunity Homes suggests that the Assessor may use the market approach only after he presents “credible evidence and testimony” that the use of the market approach arrives at FMV, there is nothing to suggest his approach here has not arrived at FMV. His use of a different-approach in this case from that employed in The Muses is also not necessarily an indication that FMV has not been properly determined. Indeed, this Court, in New Walnut Square Ltd. P’ship v. Louisiana Tax Comm’n, 626 So.2d 430, 432 (La.App. 4 Cir. 1993), held:

As long as all. taxpayers are treated the same and the statutory criteria are followed, there is nothing inherently objectionable in a change in the way the assessed value is calculated from year to year, especially if the new calculation more closely reflects fair market value of the property.

We would note here, again, that The Muses is distinguishable in that the parties agreed on the use of the income approach, including the Assessor himself, based on the fact that all 263 units were encompassed in two apartment buildings. There is no indication, or argument for that matter, that the Assessor failed to follow the [^statutory criteria of the market approach here, which requires the Assessor to “use an appraisal technique in which the market value estimate is- predicated upon prices paid in actual market transactions and current listings.” Instead, Opportunity Homes and the Commission suggest the very nature of the units as “affordable rental housing” controls. The Assessor, on the other hand, notes he has always used the market approach for single- and double-unit residential houses like those assessed here, and the income approach for apartment complexes of ten or more units. Thus, it cannot be , said that the Assessor switched from one method to another, as the Assessor relies on the type or nature of the housing — a single or double unit versus an apartment complex — in determining his approach, rather than its designation as affordable rental housing or not.

For similar reasons, we are also convinced by the Assessor’s argument as to uniformity. While Opportunity Homes and the Commission suggest there will be a lack thereof if the market approach is employed here, the Assessor makes a compelling argument that uniformity is maintained by assessing all apartment complexes using one approach (the income approach), and all single- or double-unit residential homes using another approach (the market approach). By focusing on the characterization of the housing as affordable or not — the approach suggested by Opportunity Homes and the Commission — would .result in different FMVs for single- or double-unit homes based on their designation as “affordable” or ,not. Further, such a classification would lead to similarly situated properties being taxed differently and would undermine uniformity.

We also find Opportunity Homes’ reliance on Telecable misplaced. Telecable is distinguishable in that the assessor in question devised an entirely different method for determining FMV of Teleca-ble’s personal property from that | ^prescribed by statute. The assessor in that case incorporated all three (3) approaches to valuation, “then weighted the three approaches according to what he deemed the strengths and weaknesses of each approach.” Id. at 282. The court noted that “statewide uniformity ... is impossible when an arbitrary formula for calculating [FMV] is employed[,]” noting that only two parishes employed the method described. Id. at 284. Conversely, here, Assessor Williams simply used one of the approaches permitted by La. R.S. 47:2323(0). The Assessor submits that Telecable supports his position, as the Commission has adopted its own “unique” method for assessing affordable rental housing despite his use of the market approach to assess residential housing generally.

We do not agree with the assertion that Opportunity Homes’ properties, which consist of sixty-two (62) interconnected units scattered over thirty-two (32) sites, place them in a distinct position thereby mandating the use of the income approach. Assessor Williams chose the approach that he consistently uses with single- and double-unit housing. Therefore, we find that when the district court affirmed the Commission’s decision, it committed legal error.

ASSIGNMENT OF ERROR NUMBER TWO

In a separate, yet related assignment of error, the Assessor asserts that the Commission failed to properly promulgate a rule “requiring” the Assessor to use the income approach for all assessments of affordable rental housing; alternatively even if the Commission did, in fact, promulgate such a rule, it violates La. R.S. 47:2323(A), which provides:

The criteria for determining fair market value shall apply uniformly throughout the state. Uniform guidelines, procedures and rules and regulations as are necessary to implement said criteria shall be adopted by the Louisiana Tax Commission only after public hearings held pursuant to the Administrative Procedure Act.

| isThe Assessor points to the Administrative Procedure Act, in particular, La. R.S. 49:953, which requires notice of the Commission’s intent to adopt, amend, or repeal a regulation, as well as an opportunity for interested parties to respond. Instead of properly adopting a rule, in accordance with the Administrative Procedure Act, the Assessor argues that the Commission instead relied on a prior ruling mandating use of the income approach for affordable housing properties. This, he argues, is insufficient according to the requirements of La. R.S. 47:2323(A) and thus, constitutes an unauthorized promulgation of a regulation, which requires published notice of the Commission’s intent to take action and an opportunity for interested parties to respond.

We agree and find that the Commission’s current purported mandate is nothing more than a recommendation. In support of its position, the Commission, in its brief, noted this Court’s “favorable treatment of St. Bernard I decision.” However, we note again that St. Bernard I is distinguishable. Further, the Commission is an administrative agency and its decisions are merely an administrative adjudication without any precedential value. The Commission is misguided in its argument that this Court should follow its administrative adjudicative decision; its decisions are neither binding nor persuasive on this Court. Louisiana Revised Statute 47:2323 leaves the choice of which approach the Assessor may use to determine FMV with the Assessor. Anything contrary thereto violates the clear mandate of the statute.

^Jj^DECREE

For the foregoing reasons, we reverse the judgment of the district court and reinstate Assessor Williams’s 2014 and 2015 fair market values for the properties of Opportunity Homes.

REVERSED

      . Furthermore, the State legislature enacted La. R.S. 47:2323(E)(1), effective as of January 1, 2017, prohibiting the use of LIHTCs in valuing affordable housing property.

      . Louisiana Revised Statute 47:2323(B) reads:
      Each assessor shall follow the uniform guidelines, procedures, and rules and regulations in determining the fair market value of all property subject to taxation within his respective parish or district. Any manual or manuals used by an assessor shall be subject to approval by the Louisiana Tax Commission or its successor agency.


author: JUDGE SANDRA CABRINA JENKINS LANDRIEU, J., LEDET, J.,

text:
    Roy F. DUSSOUY, Jr. v. Lisanne Alack DUSSOUY
    NO. 2016-C-1316
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 10, 2017

      David M. Prados, LOWE, STEIN, HOFFMAN ALLWEISS & HAUVER, L.L.P., 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139-7735, COUNSEL FOR RELATOR
    Elizabeth J. Wilson, MIDDLEBERG RIDDLE GROUP, 909 Poydras Street, Suite 1400, New Orleans, Louisiana 70112, COUNSEL FOR RESPONDENT
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, and Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

|! Relator Lisanne Alack Dussouy seeks review of the trial court’s December 2, 2016 judgment granting plaintiff Roy F. Dussouy, Jr.’s Motion to Recuse Judge Bernadette D’Souza. For the reasons that follow, we grant the writ application and reverse the trial court’s judgment.

Factual and Procedural Background

Judge D’Souza has handled this contentious domestic matter-since August 2014. Following a status conference in September 2016, counsel for Mr. Dussouy learned that Judge D’Souza’s law clerk, Sara Gu-ruswamy, had previously accepted employment with Winsberg & Arnold, the law firm representing Ms. Dussouy. On November 28, 2016, Mr. Dussouy filed a Motion to Recuse Judge D’Souza under La. C.C.P. art. 151(A)(4) and La. Rule of Professional Conduct 1.12. In the Motion to Recuse, Mr. Dussouy described the “prohibited conduct” as Judge D’Souza’s “interest and/or bias” toward Ms. Dussouy’s law firm, and an unspecified party’s failure to give him written notice of opposing counsel’s relationship to Judge D’Souza so that he would have the opportunity to give his informed consent. According to Mr. Dussouy, because recusal “promote[s] confidence in the judiciary by avoiding even the appearance of impropriety,” 12recusal was required because the prohibited conduct created a “strong appearance of partiality.”

The recusal matter was heard before Judge Regina Bartholomew Woods on December 2, 2016. After hearing testimony at the recusal hearing, Judge Woods stated: “So while it disturbs me greatly to do this, I find that while there is no actual bias, no actual impropriety, to avoid the appearance of impropriety I have no choice but to recuse Judge D’Souza. from this matter.”

On December 2, 2016, Judge Woods signed a judgment granting Mr. Dussouy’s Motion to Recuse, and re-allotting the matter to another domestic court division. On December 20, 2016, the law firm of Winsberg & Arnold withdrew from representing Ms. Dussouy in this matter. Discussion

In support of his argument for recusal, Mr, Dussouy relies on La. C.C.P. art. 151(1)(4), Canon 3(C) of the Code of Judicial Conduct, and Rule of Professional Conduct 1.12. -

La. C.C.P. art. 151

La. C.C.P. art, 151 sets forth the mandatory grounds for recusal, stating, in pertinent part:

A. A judge of any court, trial or appellate, shall be recused when he: ...
(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

According to the Louisiana- Supreme Court, Article 151(A)(4) “ ‘requires a finding of actual bias or prejudice,’ which ‘must be of substantial nature and based on more than conclusory allegations.’” Covington v. McNeese State Univ., 10-0250, pp. 2-3 (La. 4/5/10), 32 So.3d 223, 224-25. See also Succession of Manheim, 03-0282, 03-0283, p. 8 (La.App. 4 Cir. 10/15/03), 859 So.2d 836, 840 (“A judge can only be removed upon a finding of actual bias or prejudice; a substantial appearance of impropriety or even a mere appearance of impropriety are not causes for removing a judge.”); Guidry v. First Nat'l Bank of Commerce, 98-2383, pp. 5-6 (La.App. 4 Cir. 3/1/00), 755 So.2d 1033, 1037 (“mere appearance of impropriety” cannot be a basis for recusal); Chauvin v. Sisters of Mercy Health Sys., 01-1834, pp. 2-3 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, 835 (same).

Our review of the record confirms that Mr. Dussouy failed to present a substantial factual basis for a showing of actual bias or prejudice necessary to support his claim that Judge D’Souza “would be unable to conduct fair and impartial proceedings.” Thus, we find that Mr. Dussouy has failed to satisfy his burden of showing that Judge D’Souza should be recused pursuant to La. C.C.P. art. 1151(A)(4).

Code of Judicial Conduct Canon 3(C)

In his writ application, Mr. Dussouy also contends that recusal was required under Canon 3(C) of the Code of Judicial Conduct:

C. Recusation. A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself. (Emphasis added.)

The denial of a motion to recuse based on Canon 3(C) of the Code of Judicial Conduct is reversible error. See Folse v. Transocean Offshore USA, Inc., 04-1069 (La. 5/7/04), 872 So.2d 467. As with La. C.C.P. art. 151(A)(4), a party |4who challenges a trial judge’s non-compliance with Canon 3(C) has the “burden to prove that a recusal is warranted by presenting evidence of a substantial nature and based on more than conclusory allegations.” Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Mach. Sales Co., 05-0715, p. 5 (La. 4/17/06), 927 So.2d 1094, 1097.

Again, we find that Mr. Dussouy has failed to satisfy his burden of presenting substantial evidence which might reasonably call into question Judge D’Souza’s impartiality in this matter.

Rule of Professional Conduct 1.12

Finally, Mr. Dussouy argues that recusal was required because Ms. Gurus-wamy and Winsberg & Arnold violated Louisiana Rule of Professional Conduct 1.12 by failing to provide written notice that Ms. Guruswamy was employed by Ms. Dussouy’s law firm, which created “a taint and a presumed appearance of impropriety that cannot be erased from this case if it remained on Judge D’Souza’s docket.”

Rule 1.12 of the Louisiana Rules of Professional Conduct states:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person unless all parties to the proceeding give informed consent, confirmed in writing. ...
Rule 1.16(a) provides:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in a violation of the rules of professional conduct or other law;

IsWe find no legal basis in Rule of Professional Conduct 1.12 for the recusal of Judge D’Souza based on the alleged failure of Ms. Guruswamy and/or Winsberg & Arnold to notify Mr. Dussouy in writing that Judge D’Souza’s law clerk was hired by Ms. Dussouy’s attorneys. Rule 1.12 requires only that the Winsberg & Arnold law firm withdraw from representing Ms. Dussouy, which it did in this matter.

Conclusion

Neither La. C.C.P. art. 151(4), Canon 3(C) of the Code of Judicial Conduct, nor Rule 1.12 of the Rules of Professional Conduct require the recusal of Judge D’Souza in this matter. Accordingly, we reverse the trial court’s December 2, 2016 judgment.

WRIT GRANTED; REVERSED

LANDRIEU, J., DISSENTS WITH REASONS.

LOBRANO, J., CONCURS IN THE RESULTS OF THE MAJORITY OPINION

LEDET, J., DISSENTS WITH REASONS

LANDRIEU, J.,

DISSENTS WITH REASONS.

h The record before us establishes that on September 19, 2016, Judge Bernadette D’Souza conducted a status conference in chambers in this contentious custody matter that has been before her for several years. Her law clerk participated in the conference. After the conference, counsel for Mr. Dussouy learned that the law clerk had, by the time of the status conference, accepted a job to work for the law firm representing Ms. Dussouy in the custody matter. Neither the law clerk, members of the law firm, nor Judge D’Souza disclosed this fact to Mr. Dussouy or his counsel on the day of the conference or at any time thereafter. Counsel for Mr. Dussouy learned of the employment later and filed the motion to recuse that is before us for review.

While we find no actual bias or prejudice on the part of Judge D’Souza and have no evidence to suggest that the failure to disclose was intentional, we cannot say that Judge Woods, assigned to hear the recusal motion, abused her discretion in finding that, under the circumstances presented here, Judge D’Souza’s “impartiality might reasonably be questioned.” See Canon 3(C) of the Code of Judicial Conduct, and Folse v. Tmnsocean Offshore USA, Inc., 04-1069 (La.5/7/04), 872 So.2d 467.

LOBRANO, J., CONCURS IN THE RESULTS OF THE MAJORITY OPINION.

LEDET, J.,

DISSENTS WITH REASONS

hi dissent for the reasons assigned by Judge Landrieu.

      . In briefs, it is represented that the law firm employing the law clerk withdrew as counsel for Ms. Dussouy and suggests that this cures the need for recusal. Pretermitting whether we can consider the withdrawal as it occurred after the judgment granting recusal, we find that the withdrawal does not render the issue moot as it is the litigants' confidence in the court that is at issue here.


author: FAIR, J., FOR THE COURT:

text:
    IN the MATTER OF J.W.
    NO. 2015-CA-01553-COA
    Court of Appeals of Mississippi.
    01/03/2017
    Rehearing Denied June 6, 2017
    WARREN LEON CONWAY, HENRY P. PATE III, ATTORNEYS FOR APPELLANT
    BENNY McCALIP MAY, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. J.W. was involuntarily committed to the Mississippi Department of Mental Health at the close of his commitment hearing. The Harrison County Chancery Court had appointed a special master, who conducted the hearing and made a finding that J.W. should be committed. J.W. and his attorney were not present, but attended the hearing through video conference. After the hearing, the special master entered an “Order of Admittance after Hearing” and J.W. filed a motion to reconsider. The chancellor did not enter an order adopting the special master’s findings, nor was the motion to reconsider addressed by the chancellor. However, twenty-two days after J.W. was institutionalized, the chancellor entered an order for his release based on the findings and recommendation of the institution.

¶ 2. J.W. appeals on due-process grounds, asserting he was deprived of notice and denied access to necessary documents in preparation for the hearing. He also claims the commitment proceedings did not comply with Mississippi Code Annotated section 41-21-73 (Rev. 2013). Because there is no final, appeal-able judgement, we lack jurisdiction and must dismiss.

STANDARD OF REVIEW

¶ 3. This Court considers issues of appellate jurisdiction de novo. Nurkin v. Nurkin, 171 So.3d 561, 563 (¶ 6) (Miss. Ct. App. 2015) (citation omitted).

DISCUSSION

¶ 4. In general, only final judgments are appealable. S.E.B. v. R.E.B., 67 So.3d 14, 16 (¶ 9) (Miss. Ct. App. 2011) (citing M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss. 2006)). “A final, appealable judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the [chancery] court.” Newson v. Newson, 138 So.3d 275, 277 (¶ 6) (Miss. Ct. App. 2014) (quoting Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss. Ct. App. 2007)). If the chancery court enters a final judgment under Rule 54(b) of the Mississippi Rules of Civil Procedure, it “must do so in a definite, unmistakable manner.” Harris v. Waters, 40 So.3d 657, 658-69 (¶ 5) (Miss. Ct. App. 2010) (citing M.R.C.P, 54(b) cmt.).

¶ 5. “The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So.2d 912, 915 (¶ 5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So.2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss. See Newson, 138 So.3d at 278 (¶ 11).

¶ 6. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON AND GREENLEE, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      . The special master, George Estes III, is referred to as a "special chancellor” in the chancellor's appointment order, as well as the remainder of the record. However, for all intents and purposes, Estes was a special master, as a special chancellor can only be appointed by the Chief Justice of the Mississippi Supreme Court. See Miss. Code Ann. § 9-1-105 (Rev. 2014).


author: GREENLEE, J.,

text:
    Tyrone Ron BRUENDERMAN, Appellant v. Anna Teresa Latourney BRUENDERMAN, Appellee
    NO. 2015-CA-00077-COA
    Court of Appeals of Mississippi.
    01/10/2017
    Rehearing Denied May 30, 2017

      DONALD WAYNE MEDLEY, DAVID NEIL MCCARTY, ATTORNEYS FOR APPELLANT
    STEVEN JOEL JOHNSON, DANIEL MYERS WAIDE, ATTORNEYS FOR APPELLEE
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from Forrest County Chancery Court where the chancellor awarded sole physical custody of the minor child to Anna Teresa Latourney Bruenderman (Anna). The chancellor also awarded to Anna all of the equity realized in the sale of the marital home. On appeal, Tyrone Ron Bruenderman (Ty) asserts that, in the chancellor’s custody analysis, the chancellor erred by (1) sanctioning him for his adultery, (2) barring admission of Anna’s medical records, and (3) not properly weighing certain testimony. Ty further asserts the chancellor erred in its property division by. awarding one-hundred percent of the equity of the sale of the marital home to Anna. Because the chancery court conducted a proper and complete Albright and Ferguson analysis, and because Ty did not timely seek admission of Anna’s medical records under Mississippi Rule of Evidence 503, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. Anna and Ty were married on December 22, 2002, in Reno, Nevada. At the time of their marriage, both- were active-duty military. Anna agreed to terminate her military career in order to facilitate Ty’s career and to care for Ty’s children from a previous marriage. They relocated to Petal, Mississippi, after Ty was ordered to Camp Shelby. After the relocation, Anna began nursing-prerequisite studies at the University of Southern Mississippi, and, by the time of trial, Ty had achieved retirement from the military, .One .child (“the minor child”) was born of the marriage, who was five years old at the time of trial.

¶ 3. On November 07, 2013, Anna filed for divorce on the grounds of adultery. On May 20, 2014, Anna was granted a divorce from Ty on the grounds of adultery. Anna was awarded full physical custody with Ty being awarded visitation rights, and both parties being awarded joint legal custody. The chancéllor found Anna was entitled to, among other things, all of the equity realized from the sale of the marital home and one-third of Ty’s military-retirement benefits, and ordered Ty to pay Anna one-half of the $11,300 in marital property that he had transferred info his mother’s personal bank account. As. part of Ty and Anna’s asset-settlement agreement, Anna received $14,525 in household items, two vehicles totaling $21,688 in value, and $18,000 from a life-insurance policy. As part of the same agreement, Ty received $5,849 in household items, two vehicles totaling $37,197 in value, a boat valued at $6,965, and $18,000 from the life-insurance policy. On December 31, 2014, Ty appealed to this Court.

DISCUSSION

¶4. A chancellor’s findings will be upheld unless he was manifestly wrong, clearly erroneous, or employed an erroneous legal standard, Heiter v. Heiter ex rel. Sheffield, 192 So.3d 992, 994 (¶ 4) (Miss. 2016). A chancellor’s judgment is reviewed for abuse of discretion. Id. at 994-95 (¶ 4). The chancellor is charged with weighing the evidence; thus, his determination will not. be reversed absent manifest, error or. an abuse of discretion. Id. at 995 (¶ 4).

¶ 5. On appeal, Ty asserts that, in the chancellor’s custody analysis (under Al-bright), Axe erred by (1) sanctioning him for his adultery, (2) barring any evidence of Anna’s medical records, and (3) not properly weighing certain other testimony. Ty further asserts the chancellor erred in his property-division analysis (under Ferguson) by awarding one-hundred percent of the equity of the sale of the marital home to Anna.

I. The Court’s Albright Custody Analysis

¶ 6. Ty asserts the chancellor erred in his child-custody Albright analysis by (1) sanctioning him for his adultery, (2) barring any evidence of Anna’s medical history, and (3) not properly weighing other testimony.

¶ 7. In all child-custody cases, the polestar consideration is the best interests of the child. Sellers v. Sellers, 638 So.2d 481, 485 (¶ 4) (Miss. 1994). The Mississippi Supreme Court set forth the following factors to be considered by the chancellor in custody matters: (1) age, health, and sex of the child; (2) “continuity of care prior to the separation”; (3) parenting skills and “willingness and capacity to provide primary child care”; (4) “employment of the parent and responsibilities of that employment"; (5) “physical and mental health and age of the parents”; (6) “emotional ties of parent and child”; (7) moral fitness of the parents; (8) “the home, school[,] and community record of the child”; (9) “the preference of the child at the age sufficient to express a preference by law”; (10) stability of the home and employment of each parent; and (11) any other factors relevant to the relationship between the parent and the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

A. Ty’s Adultery

¶ 8. Adultery alone does not disqualify a parent from custodianship. Brekeen v. Brekeen, 880 So.2d 280, 284 (¶ 6) (Miss. 2004) (citing Carr v. Carr, 480 So.2d 1120 (Miss. 1985)). The moral-fitness-of-the-parent factor encompasses the charge of adultery. Id. Adultery may be an unwholesome influence and an impairment to a child’s best interests. Id. But marital fault should not be used as a sanction in custody awards. Id.

¶ 9. In his final judgment, the chancellor made references, either direct or indirect, to Ty’s adultery in approximately twelve lines^ of his five-page Albright custody analysis. Specifically, the' references were made under three factors: moral fitness of the parents, stability of the home environment, and other relevant factors.

¶ 10. Under the moral-fitness factor, the chancellor noted that both Anna and Ty contributed to the breakup of the marriage through their mutual sexual behavior involving multiple partners on at least one occasion; however, the. chancellor found Anna’s testimony — that she begrudgingly participated in a multipartner sexual encounter in an effort to appease Ty — more credible than Ty’s testimony that Anna was a willing participant. The chancellor also noted the evidence of Anna’s devout Catholicism, active participation in religion, and desire to raise her son in a religious environment weighed in her favor under this factor.

¶ 11. Under the stability-of-the-home-environment factor, the chancellor noted that the minor child would have to acclimate himself to new surroundings regardless of who ,was awarded custody, that Anna had a much more certain plan for the future than Ty, and that .Ty’s past behavior, namely his philandering, was the source of the instability in the marriage and family unit. On the whole, the chancellor found the factor to favor Anna.

¶ 12. Under the catchall factor, the chancellor found it contradictory that Ty asserted Anna was unfit to raise their child given that Ty appeared to consider her perfectly fit to raise his children from his previous marriage through his allowing her to raise them. The chancellor also found that Anna’s seeking therapy was at least partly due to Ty’s philandering. The chancellor wrote further only to state that the court-appointed guardian ad litem recommended in his written report and testimony that Anna should retain custody.

¶ 13. Though there are an additional two pages devoted to an analysis of the alleged adultery, there is no indication that such an analysis was inappropriate, as Anna filed for divorce on the ground of adultery and the chancellor was required to make a finding of fact as to whether a divorce on such grounds was warranted. Notwithstanding the fact that this was an adultery-grounded divorce, this Court has upheld awards of custody where adultery was discussed in the Albright analysis. Thurman v. Johnson, 998 So.2d 1026, 1029 (¶ 14) (Miss. Ct. App. 2008). Thus, we find the chancellor conducted an appropriate Al-bright analysis, considered all relevant factors applicable to the circumstances of the case now before us, and did not overemphasize Ty’s adultery. Thus, this issue is without merit.

B. Anna’s Medical History

¶ 14. Ty asserts he should have been granted access to Anna’s psychiatric records because they are not privileged under Mississippi Rule of Evidence 503.

¶ 15. Rule 503 states that there is a privilege between patient and psychotherapist; however, Rule 503(d)(4) states that the privilege does not apply to communications — including records — regarding a part/s physical, mental, or emotional health or drug or alcohol condition when relevant to child custody, visitation, adoption, or termination of parental rights. The comments to the rule state that some factors the court should consider when evaluating such evidence under Rule 503 include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant. M.R.E, 503 cmt.

¶ 16. Here, Ty subpoenaed Anna’s psychiatrist for a deposition one week pri- or to trial and did not request a continuance to allow him time to attempt to obtain those records. Though the chancery court ruled that Ty could pursue Anna’s records, he did not, nor did Ty ever move to compel the production of those records. It is well established that the burden is on the mov-ant to request a continuance to pursue discovery matters, and failure to do so constitutes waiver. Ford Motor Co. v. Tennin, 960 So.2d 379, 394-95 (¶ 54) (Miss. 2007); see also generally URCCC 4.04; M.R.C.P. 37.

¶ 17. The chancellor noted that there was no testimony of any major mental or physical problems of either party nor any evidence showing that discovery of any of Anna’s psychiatric records would be relevant to the chancery court’s custody analysis. The chancellor found that, based on what was before him, Anna’s counseling had more to do with the divorce than any underlying issue affecting her ability to properly care for her and Ty’s child. Thus, we find this issue is without merit.

C. Other Testimony

¶ 18. Ty asserts the chancellor ignored the following in his Albright custody analysis: (1) because Ty-was retired from the Army, he could fully devote himself to his and Anna’s child; (2) the amount of time Anna had spent on her nursing degree; and (3) that Ty served as the primary caregiver while Anna was pursuing a nursing degree. All three of the points raised by Ty were taken into account in the chancellor’s Albright custody analysis.

¶ 19. Under the willingness-and-capacity-to-provide-primary-care factor, the chancellor acknowledged that Ty is retired, but also noted that Ty is currently living in Oregon with his parents and one of his children, and that, should Ty get custody of their son, he intended to move with him to either Oregon or Florida. The chancellor found this particular factor favored Anna because she intended to finish her nursing degree and remain in her son’s present school district, thus providing a greater amount of stability for him as well as increasing her ability to provide for him. Under the eontinuity-of-care factor, the chancellor acknowledged Ty’s testimony that he was the primary caregiver of their child while Anna was pursuing her nursing degree; however, the chancellor found this testimony directly contradicted Carla Whitmill’s testimony (a family friend). Whitmill testified that Anna was the primary caregiver during that time, that Anna would call upon her when she needed help with her child, and that Ty would largely be doing yard work or in the house on his computer.

¶ 20. As a result of that testimony, the chancellor found this factor favored Anna. Regarding the amount of time Anna spent on her nursing degree when she was in school, the chancellor did not directly address this in his opinion. However, under the continuity-of-care factor, the chancellor did find that Anna remained the primary caregiver for the minor child during this time, based on Whitmill’s testimony. And based on our review of the record and the chancellor’s findings, we see no indication that Anna was unsuccessful in caring for her son during her schooling. Because the chancellor took these facts into consideration in his analysis, we fail to find any abuse of discretion in the weight he did or did not give to them. Thus, this issue is without merit.

II. The Court’s Ferguson Property Division

¶ 21. Ty asserts the chancellor erred by awarding one-hundred percent of the marital-home equity to Anna because such was done in order to punish him.

¶22. Distribution of marital assets will be affirmed if supported by substantial credible evidence. Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss. 2009). A chancellor is required to make findings of fact regarding all applicable Ferguson factors. Id. “Marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship^].” Id. “An equitable division of property does not necessarily mean an equal division of property.” Id. “Fairness is the prevailing guideline in marital division.” Id. (quoting Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss. 1994)).

¶ 23. Ferguson requires consideration of the following factors, or a finding of inapplicability: (1) “substantial contribution to the accumulation of the property’; (2) “the degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise”; (3) “the market value and the emotional value of the assets subject to distribution”; (4) “the value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse”; (5) “tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution”; (6) “the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties”; (7) “the needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity”; and (8) “any other factor which in equity should be considered.” Lowrey, 25 So.3d at 286 (¶ 28) (citing Ferguson, 639 So.2d at 928).

¶24. When determining contribution (factor one above), the subfactors to be considered are as follows: (a) “direct or indirect economic contribution to the acquisition of the property”; (b) “contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage”; and (c) “contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets.” Id.

¶25. Here, the chancellor made findings of fact regarding all of the Ferguson factors, and his findings were based upon substantial credible evidence before' him. In his analysis, the chancellor considered Ty’s marital misconduct, which was within his sound discretion to do, as it was established that his misconduct placed a burden on the stability and harmony of the marital and family relationships. Further, the chancellor found it highly significant that Anna quit her military career for the sake of the family and that Ty was receiving military-retirement benefits because he was able to stay in his career for the requisite time.

¶26. The chancellor noted that had Anna not quit her career, all else being held constant, she would be only three years away from military retirement at the date of the chancery court’s judgment. The court further noted that, in order for Anna to provide for herself and for her child, she would most likely need to complete her schooling, and will likely need a sizeable amount of liquid assets until she can complete her schooling and attain a more stable and substantial income. Because Ty was retired and drawing retirement compensation, there was less of a need for liquid assets for him, and Ty received substantial personal property in the asset-settlement agreement.

¶27. The chancellor also noted that there was evidence that Ty had disposed of marital assets in the days before being served with process in this action. The chancellor did take Ty’s philandering into account under the stability-and-harmony-of-the-marital-home factor, which was within his discretion to consider and highly relevant under that factor. Thus, because we find that the chancellor properly considered the evidence before him in his Ferguson property-division analysis, specifically the evidence of Ty’s philandering, we find this issue is without merit.

CONCLUSION

¶ 28. For these reasons, we affirm the judgment of the chancery court.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994).

      . At the time of the marriage, Anna was seventeen years old and Ty was twenty-seven years old.

      . Anna agreed so that Ty could retain custody of his children from his previous marriage.

      . Anna was forced to suspend her course work due to her and Ty’s divorce, including the related' fallout, litigation, and’ this appeal.

      . Approximately $57,050,

      . Approximately $650 per month.

      . $5,650,