author: PARRO, J.

text:
    San M. HAINS v. Kristin Bock HAINS.
    No. 2009 CU 1337.
    Court of Appeal of Louisiana, First Circuit.
    March 10, 2010.

      Catherine Hilton, New Orleans, LA, for Appellee San M. Hains.

      Nanine McCool, Mandeville, LA, for Appellant Kristin Bock Hains.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

| ⅞A mother appeals a trial court judgment that granted her request for relocation, awarded joint custody, designated her as domiciliary parent, and established a physical custody schedule. This judgment also adjudicated various motions by the parties that were pending before the court. The father answered the appeal. For the following reasons, the judgment is affirmed.

Factual Background and Procedural History

San M. Rains and Kristin Bock Hains met while both were on active duty in the United States Coast Guard. San worked in the medical field and desired to become an x-ray technician. Kristin obtained training in carpentry, welding, and other practical skills. On August 22, 2003, while stationed in Ketchikan, Alaska, San and Kristin got married. The parties then transferred to San Diego, California so San could attend x-ray school. After discussing the possibility of having a child, they decided that neither would reenlist when their current enlistments expired. According to Kristin, they also decided to work on changing their habits relative to smoking and drinking. As part of their plan, both designated units in Louisiana, the home of San’s family, as their next transfer choice. They were transferred to units in the New Orleans area in April 2005 and moved to Slidell. Kristin discontinued drinking and smoking, but San did not. After Hurricane Katrina, the parties began to reevaluate their plans.

In February 2007, Kristin applied for Officer Candidate School. Their son, Dylan, was born on July 25, 2007. In connection with Dylan’s birth, Kristin and San took a leave of absence from the Coast Guard. After spending seven years in the Coast Guard, San departed from active duty in August 2007 at the expiration of his enlistment.' Kristin remained on leave until late September. When Kristin returned to duty, Dylan was placed in daycare. The couple planned to move to Alaska so Kristin could advance her career in the Coast Guard by obtaining the time that she needed at sea. Therefore, in October | o,2007, Kristin requested a transfer for July 2008 — a year before her four-year billet in Louisiana was to be fulfilled. Her transfer request was approved. In conjunction with her request, San and Kristin went through the overseas screening process in January 2008.

Despite Kristin’s anticipated transfer in July 2008, San obtained work in Metairie in January 2008 as an x-ray technician in the civilian sector. Due to problems in their marriage, San indicated that he would not be going with Kristin to Alaska. In an effort to work out their problems, Kristin cancelled her request for transfer to Alaska and submitted a request for early release from her enlistment contract. Nonetheless, on April 9, 2008, San filed a petition for divorce. Subsequently, Kristin withdrew her request for early release, and her orders for transfer to Alaska were cancelled.

In light of Kristin’s request for an early transfer, her tour-complete date for her assignment to Louisiana had been moved up to July 2008, and the position at her Louisiana unit had been marked to be filled for the time of her pending transfer, making it unfeasible for Kristin to remain in her position with the Louisiana unit. Kristin’s reassignment and transfer were inevitable. After considering San’s assurance that he would try to find a job wherever she was stationed and considering the assignments available for her rate, pay grade, and particular situation, Kristin felt that San Pedro, California, was the most favorable place for her relocation. Being in San Pedro would allow her to be near her family who lived in San Diego and enable her to obtain the time needed at sea for the advancement of her career.

In June 2008, Kristin engaged the services of a private investigator to perform surveillance on San when he had or was to have physical custody of Dylan. She believed that the surveillance video evidenced San’s abuse of alcohol and his inability to be a parent.

In his petition for divorce, San sought joint shared custody of Dylan. 14Kristin answered and reconvened, alleging that San abused alcohol. A stipulated judgment was signed on August 13, 2008, requiring both parents to submit to a substance abuse evaluation. The judgment provided that San would have physical custody of Dylan one day each weekend and a couple of hours on two weekdays. If the evaluations did not specify any addiction issues, San was to have custody of Dylan on alternating weekends and one overnight visit each week. San and Kristin were prohibited from consuming alcohol within 12 hours prior to, and during, his or her physical custody time with Dylan.

The results of Kristin and San’s substance abuse evaluations failed to reveal any evidence that either had an alcohol abuse problem. Both parties appeared for their August 27, 2008 court date, which was rescheduled to September 10, 2008, due to an ongoing criminal trial. Disputing whether a stipulation had occurred pri- or to their August 27, 2008 court date, Kristin, believing that San drank excessively, declined to follow the visitation order and dictated the terms of San’s visitations. She believed this was necessary to protect her son. On September 8, 2008, Kristin received orders transferring her to San Pedro, California, effective November 15, 2008. By letter dated September 8, 2008, Kristin notified San of the transfer. This letter was sent certified mail to him and was also faxed to his counsel.

At the September 10th hearing, San objected when Kristin sought to have the court review the video surveillance. His objection was based on the fact that it had been taken prior to the August 13, 2008 stipulated judgment. The trial court agreed with San and refused to admit the videos into evidence. On September 10, 2008, San filed a motion to compel, seeking more complete responses to discovery, production of documents, attorney fees, and costs. He also filed a rule for contempt of court for Kristin’s violation of the visitation | .^provisions in the stipulated judgment, an objection to Kristin’s request for relocation urging that Kristin should leave the service or should be required to stay in Louisiana, and a motion in limine seeking to prevent the introduction of the surveillance videos.

Kristin opposed San’s motion to compel. She also filed a motion for sanctions in connection with San’s motion to compel and his objection to her request for relocation. In her motion, Kristin also sought a limited evidentiary hearing and a temporary order to relocate, as well as sole custody or, alternatively, joint custody with supervised visitation.

The trial of these matters was set for November 14, 2008, and eventually heard on November 21, 2008. On December 16, 2008, the trial court entered a judgment, which in relevant part:

1. ordered joint custody of Dylan, with Kristin designated as the domiciliary parent,
2. ordered that San enroll in and complete “Phase I and Phase II of a Misdemeanor Probation Alcohol Treatment Program” (treatment program),
3. ordered San to enroll in and complete a parenting class,
4. prohibited San from ingesting any alcohol while Dylan was in his care and control,
5. granted Kristin’s motion to relocate with Dylan to San Pedro, California, on December 18, 2008,
6. ordered that San be given the first right of refusal for visitation with Dylan if Kristin goes out to sea for more than two consecutive weeks at any one time,
7. ordered that upon showing of proof of his enrollment in the ordered treatment program, San would be allowed physical custody of Dylan as follows:
Until the Defendant/Mother relocates to California, San ... shall have visitation in accordance with August 13, 2008, judgment, to wit: every Wednesday from 6:30 p.m. until 8:00 a.m. on Thursday, and beginning on December 13, 2008, every other weekend beginning at 9:00 a.m. on | (¡Saturday until 4:00 p.m. Sunday. The parties shall exchange physical custody at the Slidell police station ....
Following [Kristin’s] relocation, and unless otherwise agreed in writing by the parties, San ... shall have physical custody of the child ... for one month out of every three months (for a minimum of 4 times per year).
8. ordered Kristin to pay all travel-related costs of Dylan’s transportation for visitation, and
9. ordered that the parties agree in writing as to an alternating holiday visitation schedule, or in lieu thereof, the court shall impose a schedule.

San’s motion to compel was granted in part, ordering Kristin to produce records from her personnel file including her “dream sheet,” and Kristin was ordered to pay the costs, but not attorney fees, associated with the bringing of the motion to compel. San’s motion for contempt and motion in limine, as well as Kristin’s motion for sanctions, were denied.

After Kristin’s motion for new trial was denied, she appealed, contending that the trial court erred, as follows:

1. in requiring proof only of enrollment in a treatment program as a prerequisite to visitation,
2. in failing to view the surveillance videos, denying her motion for sanctions,
3. in determining that the frequency of the visitation ordered in favor of San was in Dylan’s best interest,
4. in partially granting San’s motion to compel, and
5. in assessing her with costs related to San’s motion to compel.

San answered the appeal, urging that the trial court erred in the following respects:

1. allowing Kristin to relocate in light of her bad faith interference with his visitation,
2. failing to provide him with a specific schedule of regular and holiday visitation,
3. failing to award him custody for at least six months of the year,
4. failing to designate him as the domiciliary parent for the months that he has custody,
|75. in improperly amending the judgment to limit Kristin’s responsibility for travel costs to those of Dylan, and
6. in failing to award attorney fees in connection with the partial grant of his motion to compel.

Relocation

In his answer to Kristin’s appeal, San alleges that Kristin’s request for relocation was motivated by bad faith, and the trial court thus erred in allowing Kristin to relocate. He contends that bad faith interference with his visitation was evidence of her bad faith.

Issues involving parental relocation where a custody order exists are governed by LSA-R.S. 9:355.1 through 355.17. The relocating parent has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child. LSA-R.S. 9:355.13.

In an effort to pursue her career with the Coast Guard, the parties had agreed that Kristin would request an early transfer from her Louisiana unit. Their desired transfer location was Alaska. While in Alaska, San was to care for Dylan while Kristin pursued her career. However, once San filed the petition for divorce, Kristin requested in July 2008 a transfer to California where she would be near her family who could assist with Dylan’s care while she obtained her time at sea. Her work in California would make her eligible for advancement in the Coast Guard. Furthermore, in light of her request for an early transfer to Alaska, her position in the Louisiana unit was no longer available. Accordingly, we are unable to find manifest error in the trial court’s finding that Kristin’s relocation request was made in good faith.

In determining the child’s best interest, the trial court must consider the benefits the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life. LSA-R.S. 9:355.13. To assist the trial court in reaching its decision regarding a proposed relocation, LSA-R.S. |s9:355.12 sets forth twelve factors that the trial court must consider:

A, In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelo-cating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if 19relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.

Although LSA-R.S. 9:355.12 mandates that all the listed factors be considered, it does not require the court to give preferential consideration to any certain factor or factors. See Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094, 1097.

San notes that the trial court did not reference the relocation statute and failed to analyze the factors as required by LSA-R.S. 9:355.12 in making a definitive ruling that such relocation would be in Dylan’s best interest. In oral reasons for judgment, the trial court simply stated that because the mother was in the Coast Guard when the couple married, the father should have known of the possibility that the mother could be transferred at any time. The court also observed that transfer was not something totally within Kristin’s control. Therefore, the court authorized Kristin’s relocation with Dylan. The oral reasons indicate a failure to consider the factors required by LSA-R.S. 9:355.12 and imply that any relocation request by Kristin due to transfer by the Coast Guard would have been acceptable. In light of the nature of this case, we conclude that the trial court imposed a lesser burden on Kristin than the law requires.

When a trial court incorrectly applies a principle of law, which causes a substantial deprivation of a party’s rights or materially affects the disposition, it commits a legal error. Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731, 735. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Id.

In conducting a de novo review of the record, we note that the evidence | ^establishes that both Kristin and San have played an active role in Dylan’s life. At times, each has been Dylan’s primary caretaker. They are good parents, who love their son. Although San has extended family in Louisiana, he was not associating with them at the time of trial. In fact, the record reflects that Kristin’s relationship with San’s parents was better than San’s. Kristin has an extended family that lives in Oceanside, California, which is about an hour and a half from San Pedro.

At the time of trial, Dylan was 16 months old and attending daycare while his parents worked. Since he had not yet started school, he did not have a school history. With relocation, the only obstacle to maintaining San’s relationship with Dylan was distance and the expense involved with Dylan’s transportation. In order to facilitate Dylan’s continuing relationship with his father, Kristin was willing to assist with Dylan’s travel costs. The child’s preference factor is not relevant given Dylan’s age.

Prior to the judgment from which this appeal lies, Kristin refused to comply with the visitation schedule set forth in the stipulated judgment. Her testimony establishes that such refusal was based on her belief that San abused alcohol and that Dylan was in need of protection. Furthermore, she disputed whether they had entered into a stipulated judgment since she had not had her day in court. At trial, she testified that she would abide by the judgment entered by the trial court after it had heard all of the evidence, even one that authorized unsupervised visitation by San. Kristin was aware that it was not good for a child Dylan’s age to be withdrawn from his father. She recognized that San loves Dylan and acknowledged the importance of Dylan maintaining a relationship with his father. Kristin even suggested the use of a webcam as a method of maintaining contact. Kristin also noted the importance of Dylan’s relationship with San’s parents and vowed to continue to foster that ^relationship.

The record establishes that Kristin had been on active duty with the Coast Guard for nine years. She had planned a career with the Coast Guard and would be stationed in California for approximately three years, or through July 2011. Her sex and rank limited her assignment possibilities with the Coast Guard. The smaller cutter in San Pedro, California would require her to be out at sea for only three days at a time as opposed to three to six months with the larger cutters. If she and Dylan are able to move to California, she would have a secure job with a chance of advancement in the Coast Guard, which will result in a higher salary and a better standard of living for them. If she is not allowed to move, she would be required to continue to reside in Louisiana where her position in the Louisiana unit has already been filled. There are no available cutters in the New Orleans area that accommodate women. She does not have a degree or any type of certification. Although the evidence shows that Kristin could possibly obtain employment with San’s father, working at his jewelry store in Morgan City, that employment option would require that she give up her career in the Coast Guard. Although San testified that the terms of employment with his father would be better than Kristin has in the military, he conceded that the retirement and benefits offered by the military are better. Kristin testified that, if she continued in the Coast Guard, she would be eligible for retirement in 11 years. Thus, the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.

Kristin is seeking relocation pursuant to a transfer by the Coast Guard, which would allow her to remain a member of the Coast Guard and give her an opportunity to advance her career. San’s opposition to the relocation is equally clear. He loves Dylan, and he does not want to be separated from him. However, he testified that he was aware that Kristin’s job would eventually require her to relocate.

| ^Considering the situation of both parties, it appears that it might be feasible for San to relocate. The parties have discussed this possibility. At one point San, who was in a relationship with another woman and worked as an x-ray technician for a company with offices across the country, was open to the idea. San checked into the possibility of being transferred to California but without much luck due to a hiring freeze and cutbacks. However, he had not gone so far as to check on the availability of employment with other entities in the San Pedro area. Notably, he had applied locally with a company in an effort to obtain better pay and room for growth. He was not interested in returning to the Coast Guard..

Although Kristin has alleged that San has an alcohol abuse problem, the record establishes that he has never been treated for substance abuse, has never been arrested for driving under the influence, has abided by the court’s order that he refrain from drinking prior to and during visitations, and has never been diagnosed as suffering from such a condition.

Based on our de novo analysis of the twelve factors set out in LSA-R.S. 9:355.12, we find no factors that would prevent relocation. After weighing the factors as a whole, we find that they weigh in favor of allowing the relocation. Accordingly, we find that Kristin has suecess-fully carried her burden of proving that the relocation is in Dylan’s best interest as required by LSA-R.S. 9:355.13. Thus, the legal error by the trial court did not materially affect the outcome. Therefore, we find no clear abuse of discretion by the trial court in authorizing the relocation.

Custody

Kristin urges that the trial court erred in only requiring proof of San’s enrollment in a treatment program as a prerequisite to his entitlement to overnight visitation and that such a prerequisite alone provided no mechanism |1sor review process to ensure that San’s drinking had changed as a result of his attending the classes. In light of the following evidence, we are unable to find that the trial court committed error in allowing joint custody and unsupervised visitation to San upon proof of enrollment in the treatment program: the court-appointed expert found that San did not have a substance abuse problem, the ACER evaluation revealed that San did not have a substance abuse problem, and San testified that he did not drink when he had physical custody of Dylan. In any event, this assignment of error is moot because San subsequently completed his enrollment obligations, proof of which is in the record.

Next, Kristin asserts that the evidence in the record did not support a finding that the ordered visitation schedule was in Dylan’s best interest. In particular, she points to Dylan’s tender age and San’s excessive drinking as allegedly evidenced by surveillance videos that were offered into evidence. San has also assigned error with regard to the visitation schedule set by the trial court. He urges error in the trial court’s failure to award him physical custody of Dylan for at least six months of the year, guaranteeing shared physical custody of Dylan. He also complains that the trial court erred in failing to provide him with a specific schedule of regular and holiday visitation in light of Kristin’s interference with his visitation in the past.

It is undisputed that the investigation and filming of the surveillance videos were done on or about June 24, and July 31, 2007, which was before the August 13, 2007 stipulated judgment. Kristin testified about the content of the videos, but she did not introduce the testimony of the videographer to | ^authenticate the video tapes. Furthermore, the evidence of San’s more recent conduct that was offered at trial presented a conflicting view. Based on these facts, we find no error or abuse of discretion in the trial court’s failure to view the surveillance videos.

In the absence of an agreement, the court shall award custody to the parents jointly. LSA-C.C. art. 132. To the extent it is feasible and in the best interest of the children, physical custody of the children should be shared equally. LSA-R.S. 9:335(A)(2)(b). Nonetheless, the trial court’s finding that joint custody is in the best interest of the child does not necessarily require an equal sharing of physical custody. Martello v. Martello, 06-0594 (La.App. 1st Cir.3/23/07), 960 So.2d 186, 191, citing Stephens v. Stephens, 02-0402 (La.App. 1st Cir.6/21/02), 822 So.2d 770, 777. The implementation order should allocate the time periods during which each parent shall have physical custody of the children so that the children are assured of “frequent and continuing contact” with both parents. LSA-R.S. 9:335(A)(2)(a). In a decree of joint custody, the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown. LSA-R.S. 9:335(B)(1).

The primary consideration in a child custody determination is always the best interest of the child. LSA-C.C. art. 131. Louisiana Civil Code article 134 enumerates the following twelve nonexclusive factors that are relevant in determining the best interest of the child:

1. The love, affection, and other emotional ties between each party and the child;
11fi2. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
3. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
4. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
5. The permanence, as a family unit, of the existing or proposed custodial home or homes;
6. The moral fitness of each party, insofar as it affects the welfare of the child;
7. The mental and physical health of each party;
8. The home, school, and community history of the child;
9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
10. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
11. The distance between the respective residences of the parties; and
12. The responsibility for the care and rearing of the child previously exercised by each party.

The best-interest-of-the-child test under LSA-C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Martello, 960 So.2d at 191. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Id.

The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Martello, 960 So.2d at 191. A trial court’s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id. at 191-92.

116In light of the distance between the parents following the relocation, Dylan’s tender age, and the expense involved in transporting Dylan from one location to the other, the trial court apparently believed that shared custody was not in Dylan’s best interest. Instead, the trial court found that one of the parents needed to be designated as the domiciliary parent, who would have the obligation of communicating with the other parent concerning all matters related to the child’s health, school, activities, and the like. That parent would be in a position to make a decision concerning matters if the other parent did not agree. After hearing the evidence, the trial court found that Kristin should be that parent.

By awarding San custody for one month out of every three months, the trial court split Dylan’s time approximately 2/3 to Kristin and 1/3 to San at a minimum. Additionally, San was to be given the opportunity to have physical custody of Dylan on alternating holidays, as well as when Kristin was at sea for more than two consecutive weeks at any one time. In ordering joint custody, the trial court was trying to maximize the amount of San’s physical custody while minimizing the transportation costs associated with that custody.

Considering the feasibility of preserving a good relationship between the nonrelo-cating parent and the child through suitable custody arrangements, as well as the logistics associated with the custodial times and the financial circumstances of the parties, we conclude that the findings of the trial court concerning custody are reasonable and are not manifestly erroneous. Furthermore, we find no merit to San’s argument that the trial court erred or abused its discretion in failing to name him as a co-domiciliary parent or as the 117domiciliary parent during the minimum of four months of the year during which he had physical custody of Dylan. A decree of joint custody was entered in this case. Pursuant to the designation as domiciliary parent, Kristin was the parent with whom Dylan would primarily reside. Furthermore, the trial court observed the demean- or of the parties and apparently believed that Kristin would work with San with regard to Dylan’s best interest.

Travel-Related Expenses

San complains that the trial court improperly modified its “oral judgment” to limit Kristin’s responsibility for travel-related costs to the minor child only. He notes that the trial court orally ruled that Kristin would be liable for all travel costs. However, the judgment simply orders Kristin to pay for the costs of Dylan’s travel. In light of this disparity, San contends that the trial court modified the substance of the trial court judgment in •violation of LSA-C.C.P. art. 1951.

Article 1951 provides:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

A final judgment shall be identified as such by appropriate language. LSA-C.C.P. art. 1918. We note that when written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment. Id. Thus, where there are only written reasons and no separate signed judgment, there is no final judgment. White v. West Carroll Hospital, Inc., 613 So.2d 150, 155 (La.1992).

In the instant case, the trial court issued only oral reasons for its findings. In oral reasons, the trial court stated that Kristin was “to pay for the transportation.” Until such findings were reduced to writing, there was no final | ^judgment. See White, 613 So.2d at 155. The written judgment simply ordered Kristin to pay for all travel-related costs of Dylan’s transportation for visitation. The trial courts written judgment is controlling, even if the trial court may have intended otherwise. Rebco Marine, Inc. v. Homestead Insurance Company, 961975 (La.App. 1st Cir.12/29/97), 706 So.2d 508, 511. The written judgment in this case was not subsequently modified by the trial court after signing the judgment. Since there was no modification to the “final judgment” by the trial court in this case, this assignment of error lacks merit.

Motion to Compel

Kristin asserts that the trial court erred in partially granting San’s motion to compel and in ordering her to pay associated costs. The particular discovery request at issue, which she objected to on the ground of relevancy, pertained to Kristin’s applications for a transfer. San maintains that the desired information was relevant to Kristin’s request for relocation. The trial court agreed and ordered the documents to be produced. However, it declined to award attorney fees since the procedure set forth in La. Dist. Ct. R. 10.1 was not followed properly by San. Instead, it simply awarded the costs of filing the motion.

Kristin urges that since San did not abide by Rule 10.1, his motion to compel should not have been partially granted and she should not have been ordered to pay costs. Rule 10.1, which pertains to discovery motions, provides:

Before filing any discovery motion, the moving party must attempt to arrange a conference with the opposing party for the purpose of amicably resolving the discovery dispute. The conference may be conducted in person or by telephone. The discovery motion must include a certificate stating:
(a) that the parties have conferred in person or by telephone as required by this rule and the reasons why they were unable to agree; or
(b) that opposing counsel has refused to confer after reasonable notice.
| i3If the court finds that opposing counsel has willfully failed to confer, or failed to confer in good faith, the court may impose sanctions.

See Judson v. Davis, 04-1699 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1116, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167. Rule 10.1 requires that, before filing any discovery motion, the moving party must first attempt to arrange a conference with the opposing party to try to resolve the discovery dispute. Also, a discovery motion must include a certificate stating that the parties conferred and the reasons why they were unable to agree or that opposing counsel refused to confer after reasonable notice. Trahan v. State ex rel. Dept. of Health and Hospitals, 04-743 (La.App. 3rd Cir. 11/10/04), 886 So.2d 1245, 1251.

On appeal, San does not dispute the fact that his motion to compel failed to comply with Rule 10.1; instead, he urges that compliance with Rule 10.1 is required only in non-family/non-domestic cases. The trial court disagreed, stating that Rule 10.1 is followed in family court. Rule 10.1 is found in Title II of the Louisiana District Court Rules. According to La. Dist. Ct. R. 1.1(b), Title II of the rules applies to all civil proceedings in district courts except for family, juvenile, and domestic relations proceedings. Therefore, San correctly asserts that compliance with Rule 10.1 was not necessary in a family proceeding.

Title IV of the Louisiana District Court Rules applies to family and domestic relations proceedings. The numbering system for the rules in Title IV reveals that the filing of discovery motions in these types of proceedings is governed by Rule 26.1 of Chapter 26. However, the rules for the Twenty-Second Judicial District Court do not include Chapter 26 relating to discovery. Accordingly, we find no abuse of discretion or error in the trial court’s consideration of San’s motion to compel.

Since the Louisiana District Court Rules are intended to supplement the Louisiana Code of Civil Procedure, in the absence of an applicable rule, we refer |znto the Code of Civil Procedure for guidance. See La. Dist. Ct. R. 1.0, Comment (a). A party generally may obtain discovery regarding any matter that is relevant to the subject matter involved in the pending action. LSA-C.C.P. art. 1422. There are limitations to this rule, however, when justice requires that a party or other person be protected from annoyance, embarrassment, oppression, or undue burden or expense. Stolzle v. Safety & Systems Assur. Consultants, Inc., 02-1197 (La.5/24/02), 819 So.2d 287, 289; see LSA-C.C.P. art. 1426. The trial court has broad discretion in ruling on discovery matters. Laburre v. East Jefferson Gen. Hosp., 555 So.2d 1381, 1385 (La.1990). Based on our review of the requested discovery and the issues presented to the trial court for consideration, we are unable to find that the trial court abused its discretion in determining that the requested document was relevant or by partially granting San’s motion to compel.

Relative to motions to compel discovery, LSA-C.C.P. art. 1469(4) provides:

If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

This provision provides for three different scenarios. In the instant case, San’s motion to compel was not “granted” but rather was “granted in part.” Furthermore, the scenario pertaining to a “grant in part” does not expressly | ¾1 authorize an award of attorney fees. Therefore, San’s argument that an award of attorney fees was mandatory in this case lacks merit. Because San’s motion was granted in part, we find that the trial court acted within its discretion in ordering Kristin to pay court costs associated with the filing of the motion and in not ordering her to pay San’s attorney fees.

Motion for Sanctions

Kristin challenges the trial court’s denial of her motion for sanctions. In connection with her motion, Kristin asserts that the allegations in San’s motion to compel and objection to relocation were untrue, that his arguments were not supported by law or the evidence, and that San knew that Kristin’s relocation was inevitable. In light of the fact that San’s motion to compel was partially granted, we find no merit in Kristin’s argument that San’s motion to compel was unfounded.

The imposition of sanctions in connection with a request for relocation is authorized by LSA-R.S. 9:355.16(A), which provides:

After notice and a reasonable opportunity to respond, the court may impose a sanction on a parent proposing a relocation of the child or objecting to a proposed relocation of a child if it determines that the proposal was made or the objection was filed:
(1) To harass the other parent or to cause unnecessary delay or needless increase in the cost of litigation.
(2) Without being warranted by existing law or based on a frivolous argument.
(3) Based on allegations and other factual contentions which have no evi-dentiary support nor, if specifically so identified, could not have been reasonably believed to be likely to have eviden-tiary support after further investigation.

(Emphasis added.) The language of LSA-R.S. 9:355.16(A) is clearly permissive. The trial court in this case decided against imposing sanctions. Further, we note that the slightest justification for the exercise of a legal right precludes sanctions, Bingham v. Bingham, 44,292 (La.App. 2nd Cir.5/13/09), 12 So.3d 448, 452. Under the facts of this case, we find that this assignment of error isj^without merit.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. The parties are to bear their own costs of appeal.

AFFIRMED.

      . Kristin denied San overnight visitations from August 27, 2008, until the date of trial, November 21, 2008, based on San’s refusal to wear a Secure Continuous Remote Alcohol Monitoring, or SCRAM, bracelet.

      . See Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094, 1097-98.

      . San has been providing financial support for Dylan.

      . A trial court's determination in a relocation matter involving children of parties to a divorce is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curóle, 828 So.2d at 1096.

      . Dr. Rafael F. Salcedo was appointed by the trial court to perform a mental health evaluation of San and Kristin. His evaluation of San revealed insufficient data to warrant a formal diagnosis concerning his use of alcohol. Dr. Salcedo found that there did not appear to be compelling evidence that San's alcohol consumption had impaired either his social or occupational functioning or had caused him any subjective distress. Nonetheless, given San’s genetic family history of alcohol problems, Dr. Salcedo noted that San had the potential for developing problems with alcohol.

      . In the absence of a proper foundation for the proffered surveillance videos, they are properly excludable by the trial court. See Rareshide v. Mobil Oil Co., 97-1376 (La.App. 4th Cir.4/22/98), 719 So.2d 494, 504, writ denied, 98-1595 (La.10/9/98), 726 So.2d 28.

      . "Joint custody” means a joint custody order that is not "shared custody” as defined in LSA-R.S. 9:315.9. LSA-R.S. 9:315.8(E). "Shared custody” means a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time. LSA-R.S. 9:315.9(A)(1).

      .Many of these factors were considered by this court in determining the relocation issue.

      . The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents. LSA-R.S. 9:335(B)(2). The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child. LSA-R.S. 9:335(B)(3).

      . Furthermore, under the circumstances of this case, we find no abuse of discretion in the trial court’s failure to order Kristin to pay the travel-related costs incurred by San.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Marion Michael GERCHOW.
    No. 2009 CA 1055.
    Court of Appeal of Louisiana, First Circuit.
    March 11, 2010.
    Walter P. Reed, District Attorney, Cov-ington, LA, and Kathryn Landry, Special Appeals Counsel, Baton Rouge, LA, for Appellee-in-Rule, State of Louisiana.
    G. Brice Jones, Slidell, LA, for Appellant-in-Rule, Marion Michael Gerchow.
    Harrietta J. Bridges, Baton Rouge, LA, for Appellee-in-Rule, Department of Pub-lie Safety and Corrections, Office of State Police.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

12Marion Michael Gerehow appeals a judgment denying his motion to expunge the record of his conviction resulting from a violation of LSA-R.S. 14:81.2. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second time this court has considered Gerchow’s request for expungement of his felony conviction and destruction of all records pertaining to it. Pursuant to LSA-C.Cr.P. art. 893, Gerehow pled guilty in March 1991 to violating LSA-R.S. 14:81.2 by molesting a 13-year-old girl during a period of time between June 1, 1988, and April 30, 1990. The trial court suspended the imposition of sentence and placed him on probation for a period of four years under the supervision of the Department of Public Safety and Corrections (DPSC), with special conditions. Gerchow’s probation expired on March 25, 1995, without incident. Therefore, on motion of DPSC, the trial court ordered his probation terminated as of that date and the prosecution dismissed.

In May 2007, Gerehow filed a motion and order to expunge the record of his conviction, citing certain provisions of LSA-R.S. 44:9. The motion sought a hearing concerning expungement and an immediate court order directing destruction of his criminal record by the custodians of the records of a number of governmental agencies. On July 12, 2007, the trial court orally granted the motion to expunge his criminal conviction in this matter, but the judgment signed that day ordered only the destruction of his criminal records. The State appealed, and in State v. Gerchow, 07-2553 (La.App. 1st Cir.8/8/08), 987 So.2d 897 (unpublished opinion), this court concluded that there was no authority in LSA-R.S. 44:9 for the destruction of records pertaining to Gerchow’s felony conviction, reversed the trial court’s judgment ordering such destruction, and |Rremanded for a hearing on expungement. Following that hearing on October 14, 2008, the trial court denied Gerchow’s request for ex-pungement of his criminal record, since he had been convicted of a sex offense involving a child under the age of seventeen, citing LSA-R.S. 44:9(E)(2). A judgment to that effect was signed January 29, 2009, and this appeal by Gerehow followed.

In his assignments of error, Gerehow contends the offense he committed is not a “sex offense” within the definition in LSA-R.S. 15:541, and therefore, the expungement is not barred by LSA-R.S. 44:9(E)(2). He also argues that at the time of his guilty plea in March 1991, LSA-R.S. 44:9(E)(2) did not bar expungement of his offense, and that the retroactive effect of the 1996 amendment of LSA-R.S. 44:9 makes it operative only to August 15,1995.

DISCUSSION

Only certain specified criminal arrest and conviction records may be expunged under the authority of Louisiana Revised Statute 44:9. Criminal records that do not meet the particular circumstances described in the statute are not eligible for expungement. See State v. Daniel, 39,633 (La.App. 2nd Cir.5/25/05), 903 So.2d 644, 648. Therefore, we must determine whether Gerchow’s conviction of a felony offense, which was later dismissed under the authority of LSA-C.Cr.P. art. 893, meets any of the criteria for expungement in LSA-R.S. 44:9.

When first enacted in 1970, LSA-R.S. 44:9 only allowed expungement of records of arrests for violations of municipal ordinances or state misdemeanors when those proceedings had been disposed of by nolle prosequi, acquittal, or dismissal. See 1970 La. Acts, No. 446, § 1. Records of felony arrests and prosecutions were first mentioned by the addition of subsection E in 1978, which stated that no court could order the destruction of any record of the 14arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. 1978 La. Acts, No. 570, § 1. Although the 1978 amendment addressed and prohibited destruction of felony conviction records, the statute did not discuss expungement of such records until it was again amended by 1981 La. Acts, No. 936, § 1, with a rewrite of subsection C. That subsection allowed the record of an arrest for the violation of a state statute classified as a felony to be expunged under certain conditions in which no conviction resulted, but said nothing about allowing expungement if such an arrest resulted in a conviction. This distinction was continued in all subsequent versions of the statute. Therefore, when Gerchow committed the offense between 1988 and 1990 and when he pled guilty and was convicted of a felony in 1991, there was no authority in LSA-R.S. 44:9 for expungement of the record of any felony conviction. Nor was there such authority on July 28, 1995, when his prosecution was dismissed under the provisions of LSA-C.Cr.P. art. 893. This was the earliest possible date upon which he could have been eligible for expungement of his record.

Subsection E of LSA-R.S. 44:9 was amended and re-enacted, effective August 15,1995, to state the following:

(1) No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure, except after a contradictory hearing with the district attorney and the arresting law enforcement agency.
(2) No court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:542(E), involving a child under the age of seventeen years, except after a contradictory hearing with the district attorney and the arresting law ^enforcement agency. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893.

1995 La. Acts, No. 295, § 1. The first paragraph still referred only to the destruction of felony criminal records involving convictions, while the second paragraph discussed both expungement and destruction of such records, but only as they pertained to the conviction of a sex offense. A subsequent amendment to the second paragraph totally eliminated the possible expungement or destruction of such records involving a sex offense. See 1999 La. Acts, No. 1111, § l. Therefore, by the time Gerchow sought expungement of his record in May 2007, LSA-R.S. 44:9(E)(2) stated:

No court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:541(14.1), involving a child under the age of seventeen years. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893. (Footnote added).

Gerchow contends that his conviction does not meet the definition of “sex offense,” and therefore, the record of his arrest and prosecution was eligible for ex-pungement. In 2007, when Gerchow applied for expungement of his records, “sex offense” was defined in LSA-R.S. 15:541(14.1), in pertinent part, as follows:

| ,“Sex offense” means deferred adjudication, adjudication withheld, or conviction for the perpetration or attempted perpetration of ... any provision of Subpart C of Part II or Subpart A(l) of Part V of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, committed on or after June 18, 1992, or committed prior to June 18, 1992, if the person, as a result of the offense, is under the custody of the Department of Public Safety and Corrections on or after June 18,1992.

The crime of molestation of a juvenile, LSA-R.S. 14:81.2, is found in Subpart A(l) of Part V of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950. The crime was committed before June 18, 1992, and, as a result of his conviction, Gerchow was placed on probation for a period of four years, between 1991 and 1995. Under LSA-C.Cr.P. art. 924(2), “custody” is defined as “detention or confinement, or probation or parole supervision, after sentence following conviction for the commission of an offense.” Therefore, under these provisions, he was “under the custody of the Department of Public Safety and Corrections on or after June 18, 1992.”

Based on this analysis, we conclude that there was no authority in LSA-R.S. 44:9 for expungement of Gerehow’s criminal records concerning his felony conviction of molestation of a juvenile. The trial court’s judgment was legally correct.

CONCLUSION

The judgment of January 29, 2009, is affirmed. All costs of this appeal are assessed to Marion Gerchow.

AFFIRMED.

      . A later amendment to LSA-R.S. 14:81.2 precluded the setting aside of a conviction or dismissal of a prosecution for this crime under LSA-C.Cr.P. art. 893. See 1990 La. Acts, No. 590, § 1, effective September 7, 1990.

      . "expungement” means removal of a record from public access, but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, and various specified state boards. See LSA-R.S. 44:9(G).

      . As in the current version of the statute, subsections A, B, and C addressed only ex-pungement of felony arrest records that did not result in convictions. Therefore, Ger-chow's felony conviction did not fall within any of these provisions.

      . The definition of "sex offense” is currently found in LSA-R.S. 15:541(24).

      . There was no general right to seek expungement of records concerning a felony conviction that had been dismissed pursuant to LSA-C.Cr.P. art. 893 until subsection E of LSA-R.S. 44:9 was amended in 1999, at which time paragraph E(l) was re-designated as sub-paragraphs E(l)(a) and (b). Sub-paragraph E(l)(b) stated:
      After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order ex-pungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.
      The wording of this provision has not since been amended.

        . Pursuant to the statutory revision authority of the Louisiana State Law Institute, in 2008, "R.S. 15:541” was substituted for "R.S. 15:541(14.1)” in paragraph E(2).


author: PER CURIAM.

text:
    Joshua L. THOMAS, Mayor for the Village of Wilson v. Jay DARDENNE in his Official Capacity as the Secretary of State.
    No. 2010 CE 0520.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2010.
    Joshua L. Thomas, Wilson, LA, Plaintiff/Appellant, In Proper Person.
    Charles E. Griffin, II, St. Francisville, LA, for Defendants/Appellees, Deborah Thomas, Timothy Perry, and Yvonne Allen.
    William E. Crawford, Benjamin H. Dampf, Baton Rouge, LA, for Defendant/Appellee, Jay Dardenne, Secretary of State.
    William P. Bryan, III, Baton Rouge, LA, for Defendant/Appellee, Lea McGehee, in his official capacity as Registrar of Voters for the Parish of East Feliciana.
    Before: PARRO, DOWNING, GAIDRY, McCLENDON, and WELCH, JJ.
   PER CURIAM.

[ 2This is an election contest in which the Mayor of the Village of Wilson, Louisiana, Joshua L. Thomas, is attempting to stop a recall election. The district court dismissed the suit on an exception of peremption and plaintiff appealed. For the following reasons, we affirm the dismissal of the suit.

On November 30, 2009, the Governor issued Proclamation No. 79 BJ 2009, setting a recall election for March 27, 2010. On December 1, 2009, Thomas, acting pro se, filed a “Petition for Contesting the Certification of Recall Petition and Objection to Calling an Election,” naming the Secretary of State as the sole defendant and alleging irregularities in the recall petition. Plaintiff asked that the recall petition not be certified and that the Governor issue no proclamation.

On December 21, 2009, the Secretary of State filed exceptions of no cause of action and failure to join a party needed for just adjudication, along with an answer. On January 7, 2010, plaintiff filed a motion for leave to file an amending petition, in which he added as defendants the Registrar of Voters for East Feliciana Parish, along with the chair and vice-chair of the recall committee and two other individuals. The amending petition sought, in addition to the relief requested in the original petition, to enjoin the scheduled election. The amending petition alleged that the parties named failed to comply with the law governing recall petitions and the certification thereof. On January 12, 2010, the district court granted the motion to amend.

On February 1, 2010, the Secretary of State’s exceptions were heard. The Court granted the exception of no cause of action and dismissed as moot the exception of failure to name a party needed for just adjudication. A judgment reflecting this ruling was signed on March 8, 2010. No appeal was taken from this judgment.

On February 26, 2010, plaintiff filed a “Petition and Order for Preliminary Injunction to Arrest and Enjoin the Recall Election,” in which he sought to enjoin the recall election.

On March 11, 2010, the Registrar of Voters filed an exception of peremption, alleging that plaintiff had not timely filed his objection to the recall election under applicable statutory law. Defendants Debra Thomas, Yvonne Allen, and Timothy Perry filed exceptions of prescription and improper venue.

The exceptions were heard on March 16, 2010. In a judgment dated that day, the court granted the Registrar’s exception of peremption, dismissed the suit with prejudice, and denied the exceptions of venue. Plaintiff appealed.

Louisiana Code of Civil Procedure Article 927 provides that the appellate court may notice exceptions of no cause of action and res judicata on its own motion.

We note, initially, that the judgment dismissing the suit against the Secretary of State was not appealed and is res judicata. We further observe that | .¡appellant’s petitions fail to state any cause of action under the Election Code against the remaining defendants. The relief sought — stopping the scheduled recall election — is not within the power of any defendant remaining in the suit. For this reason, the judgment of the district court dismissing the instant suit is affirmed.

AFFIRMED.


author: GAIDRY, J.

text:
    Jose F. RICO, Sr., Jewel S. Rico, Individually, and on behalf of their minor children, Jose F. Rico, Jr. and Jesus C. Rico v. David CLARKE, City of Baton Rouge, and State Farm Insurance Company.
    No. 2009 CA 1360.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Mary Roper Counsel, Parish Attorney, Richard B. Nevils, Gwendolyn K. Brown, Special Assistant Parish Attorneys, Baton Rouge, Louisiana, for Defendant/Appellant, City of Baton Rouge/Parish of East Baton Rouge Parish.
    Daniel E. Becnel, III, LaPlace, Louisiana, for Plaintiffs/Appellees, Jose F. Rico, Sr. and Jewel S. Rico, Individually, and on behalf of their minor children, Jose F. Rico, Jr. and Jesus C. Rico.
    Before DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

|?In this case, the defendant appeals a trial court decision overruling its exception of prescription. We reverse.

FACTS AND PROCEDURAL HISTORY

This case arises out of an automobile accident that occurred in East Baton Rouge Parish on August 19, 2002 between Jose F. Rico, Sr. and David Clarke, a police officer with the Baton Rouge Police Department.

On August 18, 2003, Rico and his wife, individually and on behalf of their minor children, filed suit in the 40th Judicial District court for the Parish of St. John the Baptist against Clarke; Clarke’s employer, the City of Baton Rouge (“the City”); and their UM carrier, State Farm Insurance Company (“State Farm”). Clarke was served with the petition on October 3, 2003, and the City was served on October 17, 2003. The petition requests that service on State Farm be withheld.

Clarke and the City filed several exceptions, including an exception of improper venue, which was set for hearing on December 19, 2003. The exception states that, as a political subdivision of the State of Louisiana, La. R.S. 13:5104 requires the City to be sued in the judicial district in which it is located or in which the cause of action arises, which in either case is the 19th Judicial District Court for the Parish of East Baton Rouge. Prior to the hearing on the exception of improper venue, Rico submitted an “Order to Transfer,” requesting that his suit be transferred to the 19th Judicial District Court, “where venue is proper.” The order was signed by the court on December 9, 2003, and a certificate of transfer was issued, transferring the suit to the 19th Judicial District Court, on December 15, 2003.

liiOn October 14, 2005, Clarke and the City filed an exception of prescription, alleging that because venue in the 40th Judicial District Court was improper as to Clarke and the City, and they were not served with the suit during the prescriptive period, prescription was not interrupted by the filing of the suit in the 40th Judicial District Court, and as such, the claims against them were prescribed. In opposing the exception of prescription, Rico admitted that venue in St. John the Baptist Parish was improper as to the City and Clarke, but claimed that the suit was not prescribed because he requested service on the City and Clarke within one year of the accident. The court overruled the exception of prescription.

State Farm was eventually served with the petition on November 8, 2005, and it filed a motion for involuntary dismissal, which was granted. The plaintiffs’ claims against State Farm were dismissed without prejudice on February 7, 2006.

Prior to trial, the City stipulated to liability and plaintiffs dismissed their claims against Clarke. The plaintiffs also dismissed the claims of their minor children. A jury trial was held, after which judgment was rendered in favor of the plaintiffs and against the City in the amount of $188,000.00. This appeal by the City followed. The City also filed an exception of prescription with this court.

DISCUSSION

Venue in this matter is governed by La. R.S. 13:5104(B), which provides that “[a]ll suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court 14having jurisdiction in the parish in which the cause of action arises.” (Emphasis added). This venue provision is mandatory; a political subdivision can only be sued in one of the two specified parishes, and no other exceptions are applicable. Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104, p. 5 (La.1/17/07), 947 So.2d 15, 19. Under the facts of this case, there is only one parish in which venue is proper under La. R.S. 13:5104(B) — East Baton Rouge Parish. Plaintiffs admitted that venue in the 40th Judicial District Court was improper in both their pleading requesting a transfer of venue to the 19th Judicial District court and in their opposition to the exception of prescription.

When a petition is filed in a court of improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. La. C.C. art. 3462. In this case, service was made on the City on October 17, 2003, almost two months after prescription had run. Since the suit was commenced in a court of improper venue, prescription was not interrupted, and the plaintiffs’ claims against the City were prescribed. The trial court erred in overruling the City’s exception of prescription. Accordingly, the trial court judgment in favor of the plaintiffs and against the City is reversed, the City’s exception of prescription is sustained, and plaintiffs’ claims against the City are dismissed with prejudice.

DECREE

For the reasons outlined above, the judgment in favor of plaintiffs and against the City is reversed, the City’s exception of prescription is sustained, and the plaintiffs’ claims against the City are dismissed with prejudice. Costs of this appeal are assessed to plaintiffs, Jose and Jewel Rico.

REVERSED; EXCEPTION OF PRESCRIPTION SUSTAINED; DISMISSED WITH PREJUDICE.

      . Rico incorrecdy named his UM carrier, State Farm Mutual Automobile Insurance Company, as "State Farm Insurance Company" in the suit.


author: GUIDRY, J.

text:
    Rebecca W. LANAUX v. THIBODAUX REGIONAL MEDICAL CENTER.
    No. 2009 CA 1556.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Keith M. Whipple, Bourg, LA, for Plaintiff/Appellant, Rebecca W. Lanaux.
    Thomas M. Ruli, Metairie, LA for Defendant/Appellee, Thibodaux Regional Medical Center.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

12In this workers’ compensation action, Rebecca Lanaux appeals from a judgment of the Office of Workers’ Compensation in favor of defendant, Thibodaux Regional Medical Center (“Thibodaux Regional”), dismissing her claim for supplemental earnings benefits, penalties, and attorney fees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Rebecca Lanaux, a registered nurse, worked as a home health nurse for Thibo-daux Regional. On November 18, 2003, Lanaux sustained injury to her lower back while performing duties within the course and scope of her employment.

Thereafter, Thibodaux Regional paid Lanaux temporary total disability benefits of $429.00 per week. On September 19, 2006, Lanaux filed a disputed claim for compensation, indicating a dispute as to Lanaux’s disability status and stating that a new issue had arisen relative to discovery interrogatories. On March 28, 2006, Lanaux and Thibodaux Regional entered into a consent judgment wherein Thibo-daux Regional agreed to continue paying benefits at the full rate of $429.00 per week until such time that Lanaux was released to return to some form of gainful activities. Thibodaux Regional also agreed to pay $4,000.00 in satisfaction of all claims for penalties and $4,000.00 in attorney’s fees for all actions by Thibodaux Regional and its agent prior to November 5, 2005.

On July 8, 2007, Thibodaux Regional suspended Lanaux’s benefits based on a labor market survey and a vocational rehabilitation report prepared by Jeannie Lillis. Lanaux subsequently filed an amended disputed claim for compensation, disputing Thibodaux Regional’s termination of benefits and requesting attorney’s fees. Following a trial, the workers’ compensation judge ruled in favor of [aThibodaux Regional, dismissing Lanaux’s claim for supplemental earnings benefits, penalties, and attorney’s fees. Lanaux now appeals from this judgment.

DISCUSSION

Standard of Review

In a workers’ compensation case, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard of review. Scott v. Lakeview Regional Medical Center, 01-0538, p. 3 (La.App. 1st Cir.3/28/02), 818 So.2d 217, 220, writ denied, 02-1712 (La.10/4/02), 826 So.2d 1127. Thus, factual findings of the workers’ compensation judge cannot be set aside unless the appellate court determines that there is no reasonable factual basis for the findings and that the findings are clearly wrong. Scott, 01-0538, at p. 3, 818 So.2d at 220.

If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Temporary Total Disability Benefits (TTD)

A claimant who seeks TTD benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work, or employment while working in pain. La. R.S. 23:1221(l)(c). In the absence of such evidence, the claimant’s demand for TTD benefits fails. Bonvillain v. Preferred Industries, 04-0849, p. 12 (La.App. 1st Cir.5/27/05), 917 So.2d 1, 8.

14An employee is ineligible for TTD benefits when his physical condition has resolved itself to the point that a “reasonably reliable determination of extent of disability” may be made and “continued, regular treatment by a physician is not required.” Further, upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to supplemental earnings benefits. Foley v. Sportran, City of Shreveport, 40,624, p. 5 (La.App. 2nd Cir.5/17/06), 930 So.2d 368, 371.

In the instant case, Lanaux treated with two physicians, Dr. Thomas Dormer and Dr. Todd Cowen. Dr. Donner determined that Lanaux should be able to return to work in October 2004 following recovery from back surgery. However, when Lanaux expressed her opinion in December 2004 that she was unable to work full time, he referred her to Dr. Cowen for a functional capacity evaluation (FCE). Dr. Donner did not see Lanaux again until October 2008, some four years later, when she came to his office complaining of chronic lower extremity pain. However, at that time, Lanaux’s physical exam was normal and he discussed epidural steroid injections and medication. Thereafter, on February 27, 2009, Dr. Donner determined that Lanaux had reached maximum medical improvement.

Dr. Cowen noted in January 2006 that Lanaux had reached maximum medical improvement. In February 2006, he expressed his opinion that Lanaux could work at a sedentary level with no bending or lifting, and alternating from sitting to standing. Additionally, between December 2006 and December 2007, Dr. Cowen approved approximately eleven full-time positions for Lanaux as submitted by Jeannie Lillis. Finally, the records show that Lanaux went approximately two years before returning to Dr. Cowen in May 2008, complaining of chronic pain.

|Jn addition to the medical records from Lanaux’s treating physicians, the record also contains the report and deposition of Trevor Bardarson who conducted Lanaux’s FCE. According to Bardarson’s report, he found Lanaux to be “currently unemployable.” However, in an addendum to his report and in his deposition testimony, Bardarson indicated that his report was based on a snapshot of that particular day and he would defer to Lanaux’s doctors as to her ability to work. Bardarson indicated that at the time of the FCE, he felt that Lanaux would benefit from further medical intervention; however, if there was no further treatment that Lanaux was willing to receive, he would have no disagreement with the doctors’ decision to release La-naux to perform sedentary work. Further, Bardarson stated that Lanaux would do well in case management, desk-type nursing.

Finally, according to the record and by her own admission, Lanaux had looked for employment since August 2004, albeit she thought she was only capable of part-time work due to her chronic pain. It is well settled that chronic pain is not enough to establish disability, because chronic pain does not meet the requirements of physical disability under La. R.S. 23:1221(l)(e). Bonvillain, 04-0849, p. 14, 917 So.2d at 9. Accordingly, to the extent that Lanaux indicated that she was capable of at least part-time work, and upon our review of the record as detailed above, we find no error in the workers’ compensation judge’s determination that Lanaux failed to prove by clear and convincing evidence that she is entitled to TTD.

Supplemental Earnings Benefits (SEB)

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent or more of his pre-injury wage. La. R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Hayes v. Louisiana State Penitentiary, 06-0553, p. 12 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 558, writ denied, 07-2258 (La.1/25/08), 973 So.2d 758. Once the employee meets this burden, the burden of proof shifts to the employer, who, in order to defeat the employee’s claim for SEB, or to establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 9 (La.7/1/97), 696 So.2d 551, 556. Actual job placement is not required. Banks, 96-2840 at p. 9, 696 So.2d at 556.

From our review of the record, we find no error in the workers’ compensation judge’s determination that Lanaux failed to establish that she was entitled to SEB. Lanaux received a bachelor of science degree in nursing in May 1994, and thereafter worked in positions where she rendered patient care as well as in several positions involving administration. At the time of her accident, Lanaux was working for Thibodaux Regional as a home health nurse, which involved, among other things, patient assessments and wound care.

Following her accident, Lanaux underwent a laminectomy/discectomy at L4-5 in April 2004. According to Lanaux, she continues to suffer chronic pain and muscle spasms. However, she only takes over-the-counter medication for pain, and occasionally takes Flexeril. Additionally, she has refused epidural steroid injections because she says she is a borderline diabetic and has learned through her research and consultation with her endocrinologist that the injections could cause additional problems.

In early 2006, Jeannie Lillis, a licensed vocational rehabilitation counselor, was hired by Thibodaux Regional to conduct an assessment of Lanaux and to help her secure suitable employment. Lillis met with Dr. Cowen in February 2006 at 17which time he told her that he felt La-naux could return to sedentary employment. Following Lillis’ assessment of La-naux, Lillis located jobs meeting Lanaux’s qualifications and restrictions, such as case manager, clinical project coordinator, nurse director, diabetes RN manager, RN case manager, and grant writer and forwarded notice of these and other jobs to Lanaux. These jobs were all full-time, were available at the time notice was forwarded to Lanaux, paid wages in excess of ninety percent of Lanaux’s pre-injury wage, and were approved by Dr. Cowen. Lanaux, however, stated that she rarely got a return call from the prospective employers. She also stated that she had applied for positions that she located on her own, and that those attempts were also unsuccessful.

Lanaux asserts that all of the jobs located by Lillis were full-time, and she felt that she was only capable of part-time work. However, several of the jobs that Lanaux applied for on her own were the same jobs that Lillis forwarded to her, and in applying for several other positions, La-naux never indicated to the employer that she was seeking only part-time work, nor did she verify the requirements of the positions, some of which were well outside of the restrictions placed by her treating physicians.

As outlined previously, none of Lanaux’s doctor’s restricted her to part-time employment. Rather, as evidenced by Dr. Cowen’s records, it was Lanaux who stated that she wanted to start off with part-time work. Dr. Donner and Dr. Cowen, as well as Bardarson, stated that Lanaux was capable of performing sedentary work, and Dr. Cowen approved the positions submitted to him by Lillis, which were full-time, sedentary positions.

Further, with regard to Lanaux’s contention that she was unable to work because of substantial pain, it is well settled that the employee has the burden of proving the substantial pain by clear and convincing evidence, unaided by any presumption of disability. Vicknair v. The Nature Conservancy, 97-2229, p. 3, (La.App. 1st Cir.6/29/98), 718 So.2d 476, 479, writ denied, 98-2495 (La.11/25/98), 729 So.2d 567. According to her testimony, Lanaux suffers “chronic pain.” However, Lanaux is able to manage her pain with over-the-counter medication, and her treatment history shows gaps of sometimes two to four years without seeking medical attention from her treating physicians. Additionally, Lanaux’s pain does not prevent her from performing her daily activities, as long as she alternates from sitting to standing. Finally, the workers’ compensation judge took notice of the fact that Lanaux sat through two hours of testimony at the trial without any complaint of pain and without standing during questioning.

Accordingly, from our review of the record, we are unable to say that the workers’ compensation judge was manifestly erroneous in finding Lanaux’s testimony regarding her inability to return to work due to substantial pain lacking in credibility, and that she failed to sustain her burden of proof on that issue. Further, we find no error in the workers’ compensation judge’s determination that Lanaux failed to establish that she was unable to earn wages equal to ninety percent of her pre-injury wage.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed to Rebecca Lanaux.

AFFIRMED.


author: DOWNING, J. McCLENDON, J.,

text:
    STATE of Louisiana in the Interest of B.E.M.
    No. 2009 CJ 2061.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.
    Writ Denied May 5, 2010.

      Hector R. Lopez, Covington, LA, Patricia Lee Dearing, Slidell, LA, for Appellant E.F.H. (Father).
    Randall Allen Fish, Lacombe, LA, for Appellee A.A.M. (Mother).
    Anne Lambert Thompson, Covington, for Appellee Dept, of Social Services State of Louisiana.
    Nancy S. Bousfield, Slidell, LA, for Minor Child B.E.M.
    Before DOWNING, GAIDRY and McClendon, jj.
   DOWNING, J.

|2E.F.H., IV, appeals a judgment that terminated his parental rights and obligations and declared that his biological child, B.E.M., was free and eligible for adoption. For the following reasons, we affirm the judgment.

The trial court terminated E.F.H.’s parental rights to B.E.M. on grounds of abandonment for failing to support the child and failing to maintain significant contact with the child pursuant to La. Ch.C. art. 1015(4)(b) & (c). These paragraphs provide grounds for termination, as follows:

(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:
* ⅜ ⅜ ⅜
(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.

E.F.H. appeals the judgment of the trial court, asserting eight assignments of error, as follows:

1. It was legal error to violate fundamental due process in terminating parental rights where a legal relationship did not exist;
2. It was legal error to violate fundamental due process in finding a lack of support predicated on a non-existent legal relationship;
3. It is legal error to terminate parental rights as to illegitimate children where the state fails to prove filiation;
4. It was legal error to violate fundamental due process in finding a lack of significant contact where the initial removal and placement caused parental alienation in derogation of law;
5. It was manifest and legal error to find intent to abandon based on one’s incapability based on disability;
6. It was legal error to implicitly decree parentage in termination proceedings as the court lacked subject matter jurisdiction;
| .¡7. It was manifest and legal error to deny the defense of disability after finding one incapable of self-support based on disability;
8. It was manifest and legal error to anchor best interest determinations on findings inconsistent with the evidence.

DISCUSSION

To prevail in an action to terminate parental rights, the State need establish only one ground for termination, and the trial court must find that the termination is in the best interest of the child. La. Ch.C. art. 1037 B; State ex rel. J.A., 99-2905, p. 9 (La.1/12/00), 752 So.2d 806, 811. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Ch.C. art. 1035 A.

Here, the record clearly supports the trial court’s finding by clear and convincing evidence that E.F.H. has failed to maintain significant contact with B.E.M. by visiting him or communicating with him for any period of six consecutive months. While E.F.H. disputes the fact, testimony and Office of Community Services (OCS) records indicate that E.F.H. did not visit B.E.M. between July 23, 2008 and June 10, 2009. The record also supports the trial court’s finding by clear and convincing evidence that termination is in B.E.M.’s best interest. The child is thriving in his current placement, and E.F.H. has no apparent means to support the child. We find no merit in E.F.H.’s 8th assignment of error.

Even so, we review E.F.H.’s other assignments of error to consider whether he has stated grounds to defeat the termination.

Disability

In his 5th and 7th assignments of error, E.F.H. asserts that the trial court erred in not considering his disability in its finding that he failed to support his child. He provided uncontradicted evidence that he suffered a serious work accident that precluded his earning income and that he had not yet been approved for disability |4payments. He argues, therefore, that under La. Ch.C. art. 1035 B, he has proven an affirmative defense to abandonment. This paragraph provides as follows:

The parent asserting a mental or physical disability as an affirmative defense to abandonment under Article 1015(4) bears the burden of proof by a preponderance of the evidence.

We pretermit discussion of this assignment of error, however, because we conclude the State has proven grounds for abandonment under La. Ch.C. art. 1015(4)(c). Nothing in the record suggests that E.F.H.’s alleged disability interfered with his ability to visit with his child, except perhaps for the times he was actually in the hospital. E.F.H. testified that he was in and out of the hospital for a period of about four months. One ground for termination is sufficient. La. Ch.C. art. 1037 B.

Jurisdiction

E.F.H. argues in his 6th assignment of error that the trial court lacked subject matter jurisdiction because it lacked authority to decree paternity or filiation, citing La. Ch.C. art. 303. Article 303 addresses the exclusive jurisdiction of a court sitting as a juvenile court. Article 303(5) specifically gives a juvenile court jurisdiction to hear cases involving termination of parental rights pursuant to Title X of the Children’s Code. Even so, E.F.H. argues that this jurisdiction does not specifically include the authority to adjudicate paternity or filiation.

An unwed biological father may have his parental rights terminated before he has activated them. A court exercising juvenile jurisdiction is required to order termination of parental rights when it finds by clear and convincing evidence that a statutory ground has been proven and that termination is in the child’s best interest. See La. Ch.C. art. 1087 B. Nothing in the law requires the trial court to first rule on whether an unwed biological father has activated his inchoate parental rights before the court can terminate them. See discussion below.

|fiThe action before us is one for termination of parental rights, not one for paternity or filiation. The trial court has specific jurisdiction over this function. Accordingly, E.F.H.’s argument in this regard is without merit.

Parental Rights

In his 1st, 2nd and 3rd assignments of error, E.F.H. appears to argue that because he does not have a fully-developed legal relationship with his illegitimate child, he has no parental rights to terminate. This argument misapprehends the law. “[P]arents 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.” J.A., 99-2905 at pp. 7-8, 752 So.2d at 810. In the case of an unwed father, however, the parent-child relationship is not constitutionally protected until the father demonstrates his fitness for parental responsibilities, commitment to those responsibilities, concrete actions taken to grasp his opportunity to be a father, and the potential for him to make a valuable contribution to the child’s development. Matter of R.E., 94-2657, p. 2 (La.11/9/94), 645 So.2d 205, 207.

Before certifying that a child is free for adoption, a court must terminate an unwed father’s parental rights, whether active or inchoate. Despite E.F.H.’s arguments, a father’s parental rights need not be fully activated before they can be terminated.

Home Study

In his 4th assignment of error, E.F.H. argues that the OCS interfered with and thwarted his relationship with B.E.M. He argues that the trial court disregarded evidence that OCS interfered with the relationship “through silence and subterfuge.” Particularly, he seems to argue that OCS had a duty to place B.E.M. with him and his mother when OCS had an “approved” home study for the mother’s home.

|fiThe home study at issue contains notations in which the caseworker recommended denial of the placement. It also contains a supervisor’s notation, “Decision: approved.” E.F.H. argues that this means the placement was approved. The State argues that this language merely approved the caseworker’s recommendation. In either event, the record shows that OCS made B.E.M. available to E.F.H. and made efforts to foster a relationship between them. B.E.M. was available for E.F.H. to visit at all reasonable times. He did not avail himself of the opportunities. Despite E.F.H.’s argument, nothing in the record suggests that OCS failed to protect, or thwarted, his opportunity to form a relationship with his child. This assignment of error is without merit.

DECREE

For the foregoing reasons we affirm the judgment of the trial court. Costs of this appeal are assessed to E.F.H., IV.

AFFIRMED.

McCLENDON, J. concurs and assigns reasons.

McCLENDON, J.,

concurring and assigning reasons.

|TI disagree with the overly broad statement in the majority opinion that “[a]n unwed biological father may have his parental rights terminated before he has activated them.” I am unsure as to what the majority would require to activate said rights. However, in this case, E.F.H. was aware of and made no objection to the results of the paternity test in which it was determined that he was the biological father of B.E.M.

Additionally, the Louisiana Supreme Court has set forth the concerns regarding the involuntary termination of parental rights:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. 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, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. 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. 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.

State in the Interest of J.A., 99-2905, pp. 7-8 (La.1/12/00), 752 So.2d 806, 810-11. See also State ex rel. D.L.R., 08-1541, p. 11 (La.12/12/08), 998 So.2d 681, 687-88; State ex rel. K.G., 02-2886, pp. 4-5 (La.3/18/03), 841 So.2d 759, 762-63; State ex rel. C.J.K., 00-2375, pp. 7-8 (La.11/28/00), 774 So.2d 107, 113.

lain balancing these interests, I cannot say the trial court erred in this matter in terminating the parental rights of E.F.H. Therefore, I respectfully concur.

      . An unwed father's rights do not require constitutional protection unless he demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child and grasping the opportunity to accept some measure of responsibility for the child’s future. In re Adoption of B.G.S., 556 So.2d 545, 550 (La.1990). "This interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood.” Id., 556 So.2d at 550.