author: WINDHORST, J.

text:
    131 BEVERLY KNOLL, LLC v. CLIPPER CONSTRUCTION, LLC
    NO. 18-CA-486
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, 131 BEVERLY KNOLL, LLC, Jason M. Cerise, Omer F. Kuebel, III, Natalie M. White, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, CLIPPER CONSTRUCTION, LLC AND JOSEPH S. TUFARO, Thomas P. Hubert, David K. Theard, New Orleans
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
   WINDHORST, J.

Appellants, Clipper Construction, LLC ("Clipper Construction") and Joseph S. Tufaro ("Tufaro"), appeal the trial court's (1) May 22, 2017 confirmation of default judgment in favor of appellee, 131 Beverly Knoll, LLC ("131 Beverly Knoll"), and against appellants; and (2) May 21, 2018 judgment denying appellants' motion for new trial. Appellants also filed a peremptory exception of res judicata in this Court. For the reasons that follow, appellants' peremptory exception of res judicata is overruled and the trial court's May 22, 2017 confirmation of default judgment and May 21, 2018 denial of appellants' motion for new trial are affirmed.

Facts and Procedural History

On January 10, 2012, appellee, 131 Beverly Knoll, filed a "Petition for Executory Process and Appointment of Keeper" against Clipper Construction. In its petition, appellee asserted the following: (1) it was the holder and owner of two promissory notes ("notes") executed in 2005 and 2008 by Tufaro on behalf of Clipper Construction ("Borrower") in favor of First Community Bank ("FCB" or "Lender"); (2) the notes were secured by a mortgage executed by Tufaro on behalf of Borrower; (3) the notes were obtained for the sole purpose of building a residential home at 129 Beverly Drive ("Beverly Property"); (4) the Beverly Property was used to secure the notes; (5) Troy Duhon purchased the notes and collateral documents from FCB; (6) Duhon assigned the notes and collateral documents to appellee; (7) the notes and mortgage were in default; (8) the current indebtedness due to appellee; (9) notice of default was sent to Borrower; and (10) Borrower failed to remit payment.

On January 12, 2012, based on the allegations in the petition and attachments thereto, the trial court ordered a writ of seizure and sale of the Beverly Property. On October 3, 2012, the Beverly Property was sold for $ 885,000.00.

On August 25, 2015, appellee filed a "Second Amended and Restated Petition Converting Executory Process Foreclosure to Deficiency Judgment Action," adding Tufaro, individually, as an additional defendant. The second amended petition contended that the price at the foreclosure sale was insufficient to satisfy the indebtedness owed to appellee and requested that the proceeding be converted to an ordinary proceeding to obtain the deficiency amount owed. Appellants were personally served with the second amended petition on February 2, 2016.

On February 24, 2016, appellee filed a motion for preliminary default judgment after appellants failed to appear or file an answer or pleading. On February 14, 2017, the trial court granted the motion for preliminary default judgment.

On May 22, 2017, appellee filed a motion for confirmation of default judgment. On the same day, the trial court granted judgment in favor of appellee and against appellants, in solido , for the principal sum of $ 274,443.53, plus accrued interest thereon through May 18, 2017 in the amount of $ 270,231.92, together with attorney fees in the amount of $ 33,502.50, plus costs and expenses in the amount of $ 1,352.90, plus interest continuing to accrue thereafter on said sums at the rate of 21% per annum, until paid, plus all attorney's fees, costs, and expenses incurred with the collection and/or enforcement of the judgment.

On May 30, 2017, appellants filed a motion to annul default judgment or alternatively, motion for new trial, alleging (1) the ill practices of appellee's counsel for failing to notify appellants' counsel of its intention to file a motion for preliminary default judgment and to confirm the default judgment, when appellee knew appellants were represented by counsel; and (2) that Tufaro believed that the claims in the second amended petition for deficiency judgment were extinguished by a settlement agreement entered into by the parties in November 2012 ("2012 Settlement Agreement"), one month after the Beverly Property was sold. Appellants filed a consent motion to continue and reset the hearing, which the trial court denied on July 31, 2017, stating "the Motion to Annull [sic ] Default Judgment is Denied Improper Form."

On March 22, 2018, appellants filed an unopposed motion to reset their motion for new trial, arguing that the trial court did not rule on their previously filed motion for new trial. Appellants' motion for new trial was set for hearing.

On May 9, 2018, after argument of counsel and submission of exhibits into evidence, the trial court denied appellants' motion for new trial. The trial court found that (1) appellants were properly served with the petition; (2) appellants failed to appear or file an answer or other pleading; (3) in February 2016, appellee's counsel sent, and appellants received notice of, appellee's intention to file a motion for preliminary default; (4) appellants had over a year to file an answer or other pleading in response to the motion for preliminary default but failed to do so; (5) the motion for preliminary default was granted almost one year after it was filed; (6) the evidence supporting the motion for confirmation of default judgment presented a prima facie case; and (7) the confirmation of default judgment was properly served on appellants. A written judgment denying the appellants' motion for new trial was signed on May 21, 2018. This appeal followed.

Discussion

On appeal, appellants contend that the trial court erred in granting appellee's motion for confirmation of default judgment and denying appellants' motion for new trial. Additionally, appellants filed a peremptory exception of res judicata , for the first time, with this Court. Appellants' peremptory exception may be raised for the first time in the appellate court pursuant to La. C.C.P. art. 2163, and will be considered herein.

Exception of Res judicata

Appellants contend that on November 6, 2012, one month after the Beverly Property was sold in this proceeding, the parties entered into the 2012 Settlement Agreement, which extinguished any debt owed and remaining by Clipper Construction and/or Tufaro to Duhon concerning the Beverly Property. Appellants assert that the 2012 Settlement Agreement involves the same parties and the same transaction or occurrence, i.e. , the remaining indebtedness owed to appellee concerning the Beverly Property.

La. R.S. 13:4231 provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Thus, a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chauvin v. Exxon Mobil Corp., 14-0808 (La. 12/09/14), 158 So.3d 761, 765, citing Burguieres v. Pollingue, 02-1385 (La. 02/25/03), 843 So.2d 1049, 1052-1053 ; See also, Chevron U.S.A., Inc. v. State, 07-2469 (La. 09/08/08), 993 So.2d 187, 194.

Res judicata also applies where there is a transaction or settlement of a disputed or compromised matter that has been entered into by the parties. Chauvin, 158 So.3d at 765, citing Ortego v. State, Dept. of Transp. and Development, 96 (La. 02/25/97), 689 So.2d 1358, 1363. A party asserting res judicata based on a compromise agreement must have been a party to the compromise, and the authority of the thing adjudged extends only to the matters those parties intended to settle. Chauvin, 158 So.3d at 766, citing Ortego, 689 So.2d at 1363. A compromise instrument is the law between the parties and must be interpreted according to the parties' intent. Id. When the words of a settlement or compromise are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046.

A review of the record reveals that this case and the 2012 Settlement Agreement do not involve the same parties. Appellee, 131 Beverly Knoll, LLC, and appellant, Clipper Construction, LLC, are not parties to and did not sign, the 2012 Settlement Agreement. Additionally, this case does not involve the same transaction or occurrence and/or property as the 2012 Settlement Agreement. This case involves promissory notes and a mortgage originally executed between Clipper Construction and FCB, secured by commercial guaranties executed by Tufaro and the Beverly Property, concerning immovable property in Metairie, which was subsequently transferred to and currently held by appellee. Conversely, the 2012 Settlement Agreement concerned notes originally executed between Clipper Land Holdings, LLC ("Clipper Land") and Mississippi River Bank (MRB), secured by a MRB mortgage and a Duhon mortgage, and secured by commercial guaranties executed by Tufaro and Duhon concerning immovable property owned by Clipper Land in St. Tammany Parish.

Furthermore, the clear and unambiguous terms of the 2012 Settlement Agreement do not specifically extinguish the debt remaining on the Beverly Property as alleged by appellants. The agreement only provides for the potential release of the Duhon mortgage if the immovable property located in St. Tammany Parish is purchased by a third party. Moreover, even if the property was purchased, thereby triggering the release of the Duhon mortgage, a release of the mortgage does not result in the release of the underlying debt. See La. C.C. art. 1891.

Accordingly, appellants' exception of res judicata is overruled.

Assignments of Error: Motion for New Trial and Confirmation of Default Judgment

Appellants contend that the trial court erred in granting the confirmation of default judgment and denying appellants' motion for new trial contending that the confirmation of default judgment should be vacated based on (1) the ill practices of appellee's counsel for failing to notify appellants' counsel of appellee's intention to file a motion for preliminary default judgment and a motion for confirmation of default judgment, when appellee knew appellants were represented by counsel; and (2) Tufaro's belief that the claims in the second amended petition for deficiency judgment were extinguished by the 2012 Settlement Agreement.

Appellants contend that even if the 2012 Settlement Agreement did not extinguish the remaining debt concerning the Beverly Property, the confirmation of default judgment should be vacated. Appellants argue that appellee's counsel knew that they were represented by counsel and failed to notify their counsel of appellee's intention to file a motion for preliminary default judgment or a motion for confirmation of default judgment. Appellants further assert that: (1) there was a related matter in St. Tammany Parish involving the parties and First NBC Bank, in which appellants were represented; (2) the parties engaged in communication via a ten page letter in May 2017, prior to the filing of the motion for confirmation of default judgment; (3) appellee's counsel knew appellants were represented by counsel in various other related business matters between Tufaro and Duhon and their affiliate companies over the years; and (4) Tufaro believed that the claims in the second amended petition for deficiency judgment concerning the Beverly Property were extinguished by the 2012 Settlement Agreement.

A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973. The granting or denying of a motion for new trial is within the discretion of the trial court. Davis. v. Witt, 02- 3102, 02-3110 (La. 07/02/03), 851 So. 2d 1119, 1130. The trial court's determination shall not be disturbed absent an abuse of that discretion. Lambert v. State Through Dep't of Transp. & Dev., 96-160 (La. App. 5 Cir. 10/16/96), 683 So.2d 839, 845.

An allegation that the judgment was obtained by fraud or ill practice in a motion for new trial can constitute good cause for granting a motion for new trial. See Pollock v. Talco Midstream Assets, Ltd., 44,629 (La. App. 2 Cir. 09/23/09), 22 So.3d 1033 ; Campbell v. Select Car Co., 38,443 (La. App. 2 Cir. 05/12/04), 874 So.2d 391, writ denied, 04-1747 (La. 10/15/04), 883 So.2d 1057 ; Verret v. State Farm Mut. Auto. Ins. Co., 99-1250, 99-1251 (La. App. 3 Cir. 02/02/00), 759 So.2d 115, 123-124, writs denied, 00-0690 (La. 04/20/00), 761 So.2d 535, and 00-0673 (La. 04/20/00), 760 So.2d 1159 ; Danel v. Knek, 490 So.2d 282 (La. App. 3 Cir. 1986) ; Perrodin v. Zander, 441 So.2d 12, 17 (La. App. 3 Cir. 1983), writ denied, 444 So.2d 120 (La. 1984).

The record is void of any evidence or testimony at the motion for new trial hearing to support appellants' assertions of ill practice as alleged in their motion for new trial. Arguments made by appellant's counsel as to facts not in evidence are not considered evidence. Additionally, at the motion for new trial hearing, counsel for appellants admitted that he was not counsel for appellants in the instant proceeding. Therefore, based on a review of the record, the trial court did not abuse its discretion denying appellants' motion for new trial.

The procedure for obtaining a default judgment is set forth in La. C.C.P. arts. 1701 and 1702. If a defendant fails to answer within the time prescribed by law, a preliminary default judgment may be entered against him. La. C.C.P. art. 1701. A preliminary default judgment must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702 A. The default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.

A plaintiff seeking to confirm a default judgment must prove both the existence and the validity of his claim. Arias v. Stolthaven New Orleans, LLC, 08-1111 (La. 05/05/09), 9 So.3d 815, 820. Therefore, the plaintiff must offer competent evidence that convinces the court that it is probable that it would prevail at trial on the merits. Id. at 823 ; White Haute, LLC v. Mayo, 09-955 (La. App. 5 Cir. 03/23/10), 38 So.3d 944, 951. When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. La. C.C.P. art. 1702 B(1).

When reviewing default judgments, an appellate court is restricted to determining whether the record contains sufficient evidence to support a prima facie case. U.S. Bank Nat. Ass'n v. Custer, 09-802 (La. App. 5 Cir. 02/09/10), 33 So.3d 303, 305. On appeal, the appellant has the burden of overcoming the presumption that the judgment has been rendered upon sufficient evidence to establish a prima facie case and is legally correct. Id.; N & F Logistic, Inc. v. Cathay Inn Int'l, Inc., 14-835 (La. App 5 Cir. 04/15/15), 170 So.3d 275, 277.

Appellants have not asserted any ground or submitted any evidence to establish that the evidence supporting the confirmation of default judgment is insufficient to establish a prima facie case or that the judgment itself is invalid. Upon review, we find the record contains sufficient evidence to support a prima facie case, and appellants failed to provide any evidence to rebut the presumption that the judgment was rendered upon sufficient evidence and is legally correct. Accordingly, we find the trial court did not err in granting the motion to confirm default judgment.

Conclusion

For the reasons stated herein, appellants' peremptory exception of res judicata is overruled and the trial court's May 22, 2017 confirmation of default judgment and May 21, 2018 denial of appellants' motion for new trial are affirmed.

EXCEPTION OVERRULED; AFFIRMED

      The original petition stated the property's municipal address was 131 Beverly Drive, Metairie, Louisiana. On May 3, 2012, appellee filed a "First Amended and Restated Petition for Executory Process and Appointment of Keeper" to reflect the correct municipal address of 129 Beverly Drive, Metairie, Louisiana.

      The following documents were attached to the petition: (1) Secretary of State report showing that Clipper Construction did not have a registered agent for service of process; (2) the 2005 promissory note and subsequent modification agreements; (3) the 2008 promissory note and subsequent modification agreements; (4) the mortgage; (5) Borrower's certificate of authority attached to act of sale by which Borrower acquired the Beverly Property; (6) the "Sales and Notarial Assignments of Promissory Notes and Collateral" from FCB to Duhon; (7) the "Sales and Notarial Assignments of Promissory Notes and Collateral" from Duhon to appellee; and (8) the notice of default.

      The second amended petition also alleged that the notes were secured by commercial guaranties executed by Tufaro individually. The commercial guaranties were attached to the second amended petition.

      The second amended petition asserted that the total indebtedness due under the notes as of October 3, 2012 was $ 1,119,690.78 inclusive of principal, interest, costs, and attorney's fees. The Beverly Property was sold for $ 885,000 and $ 856,274.78 was remitted to appellee and subsequently applied to the indebtedness leaving a deficiency amount due of $ 263,416.00 as of October 3, 2012. Appellee contended that as of the date of the second amended petition, appellants owed appellee $ 425,373.64.

      It is unclear from the record why the motion for preliminary default judgment was not signed until almost one year later from the date it was filed.

      In support of appellee's motion for confirmation of default judgment, the following documents were attached: (1) the 2005 and 2008 notes; (2) the transfers of the notes from Duhon to appellee; (3) the commercial guaranties by Tufaro; (4) the sales and assignments of the notes and collateral; (5) the first amended and restated petition; (6) payoff affidavit; (7) amended writ of seizure and sale (8) judicial advertisement (9) process verbal of October 3, 2012 sale and the Sheriff's return of writ of seizure and sale as unsatisfied; (10) the return of service on appellants of the second amended petition for deficiency judgment; (11) the certificate from Clerk of Court stating that no answer, pleading, appearance was made in this proceeding; (12) the motion for preliminary default judgment filed February 24, 2016; (13) the February 14, 2017 judgment granting preliminary default judgment; (14) the affidavit of Duhon attesting to the allegations set forth in the petitions and to the amounts owed by appellants to appellee; and (15) the certificate of appellee's counsel describing the nature of the suit and the evidence introduced with the motion.

      A hearing on appellants' motion was originally set on June 21, 2017. The trial court previously granted appellee's consent motion to continue and reset the hearing for August 2, 2017.

      Appellants filed a "Petition to Annul Judgment" and a "First Amended and Restated Petition to Annul Judgment and for Enforcement of Settlement and Compromise Agreement." In response, appellee filed responsive pleadings. Appellants filed an unopposed motion to transfer the petition to annul and related pleadings to a new case number, to which the trial court denied stating "Denied Must be filed as a New Petition & allotted a New Case No. [sic]." A review of the record reveals that the petition to annul and related pleadings were filed as a separate proceeding in the Twenty-fourth Judicial District Court and are currently pending before the trial court in Division "L."

      At the motion for new trial hearing, the following exhibits were introduced into evidence: (1) letter dated 2/24/16 and the green cards showing service on appellants; (2) email dated 9/1/18; (3) email dated 9/8/18; (4) 2012 Settlement Agreement. Despite the trial court allowing appellants to present witness testimony, appellants elected not to present testimony from Tufaro, who was present at the hearing.

      An appellate court may consider a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163. We will consider appellants' exception because the ground for the exception appears in the record, i.e. , the 2012 Settlement Agreement was admitted into evidence at the motion for new trial hearing.

      The following exhibits were attached to appellants' exception of res judicata : (1) the "Schedule of Debts to Duhon and Affiliates" attached to the 2012 Settlement Agreement; (2) the "Act of Cash Sale" by Clipper Land Holdings, LLC to Clipper Wind Down, LLC; (3) the "Sale and Notarial Assignment of Promissory Notes, Mortgages and Other Collateral" by Mississippi River Bank to Clipper Noteholder, LLC; and (4) the "Petition for Executory Process" in case in St. Tammany Parish by Clipper Noteholder, LLC against Clipper Land Holdings, LLC. This Court can only consider a peremptory exception of res judicata , filed for the first time in this Court, "if proof of the ground of the exception appears of record ." La. C.C.P. art. 2163. (Emphasis added.) The "Schedule of Debts to Duhon and Affiliates" is the only exhibit admitted into evidence in the trial court at the motion for new trial hearing. Therefore, this Court cannot, and does not, consider the other exhibits attached to appellants' exception of res judicata .

      Clipper Construction is only mentioned in the stipulation section of the agreement.

      La. C.C. art. 1891 provides "Release of a real security given for performance of the obligation does not give rise to a presumption of remission of debt."

      While the denial of a motion for new trial is generally a non-appealable interlocutory judgment, the court may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. Occidental Props. v. Zufle, 14-494 (La. App. 5 Cir. 11/25/14), 165 So.3d 124, 130-131, FN 10, writ denied, 14-2685 (La. 04/10/15), 163 So.3d 809.

      Despite their ability to present testimony from Tufaro, who was present at the motion for new trial hearing, appellants did not avail themselves of this opportunity.

      An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Appellate briefs of the parties are not a part of the record on appeal, and this Court has no authority to consider facts referred to therein if those facts are not in the record. Additionally, examination of exhibits attached to an appellate brief, but not offered into evidence at the trial court, is beyond the scope of appellate review. Distefano v. B & P Constr., Inc., 04-25 (La. App. 5 Cir. 05/26/04), 874 So.2d 407, 411, writ denied, 04-1735 (La. 10/15/04), 883 So.2d 1058. Further, the Louisiana Supreme Court has held that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Servs., 07-2143 (La. 05/21/08), 983 So.2d 84, 88.

      At the motion for new trial hearing, counsel for appellants stated "Now, I'm not his lawyer. I never was his lawyer in this case to begin with ..."

      A trial court's reasons for judgment are not controlling and do not constitute the judgment of the court. Dufresne v. Dufresne, 10-963 (La. App. 5 Cir. 05/10/11), 65 So.3d 749, 754. Appellate courts examine the result of the judgment rather than the reasons. Id. Here, the trial court did not specifically address appellants' allegations of ill practice as to the motion for new trial, noting that the petition to annul was currently pending in another division of the Twenty-fourth Judicial District Court.


source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    Justo E. ROQUE, Jr. v. STATE of Louisiana/DPTO of Social Services, Secretary, et al. DCFS/Orleans-Midtown, Par Staff/Administration
    NO. 2019-CA-0063
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 2019
    Justo E. Roque, Jr., P.O. Box 820323, New Orleans, LA 70182, COUNSEL FOR PLAINTIFF/APPELLANT
    Karen C. Yarbrough, DCFS BUREAU OF GENERAL COUNSEL, 627 North 4th Street, Room 316, Baton Rouge, LA 70802, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

This is a government benefit case. The Appellant, Justo Roque, Jr., appeals the district court's judgment affirming the decision of the administrative law judge ("ALJ") that the Department of Children and Family Services ("DCFS") correctly determined the amount of his benefit under the federal Supplemental Nutrition Assistance Program ("SNAP"). For the reasons that follow, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

In early 2017, DCFS advised Mr. Roque, who was receiving a SNAP benefit, that he was required to recertify his eligibility. In response, Mr. Roque completed a re-enrollment form. Based on the information provided, DCFS approved Mr. Roque's re-enrollment. DCFS also informed him that it had determined his SNAP benefit would be $ 82 per month.

Challenging the determination, Mr. Roque requested an administrative hearing. After the hearing, the ALJ affirmed the determination. Mr. Roque petitioned the district court for review of the ALJ's decision. After a hearing, the district court affirmed the ALJ's decision. This appeal followed.

DISCUSSION

Judicial review of DCFS' SNAP benefit determinations is governed by the Louisiana Administrative Procedure Act, La. R.S. 49:950, et seq. ("APA"). See La. R.S. 46:107(D) (providing that "all adjudicatory and review proceedings under this Section shall be governed by the [APA]"). Under the APA, the standard of judicial review is as follows:

[A reviewing 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.

La. R.S. 49:964(G).

Before addressing Mr. Roque's arguments on appeal, we find it appropriate to discuss the statutory and regulatory framework of SNAP. Under SNAP, funds appropriated by Congress are disbursed to the states, which in turn distribute the funds to qualifying households pursuant to federal regulations. Congress has authorized the states to adopt a simplified SNAP for households with elderly or disabled members who are eligible to receive Supplemental Security Income ("SSI"). Louisiana has adopted a simplified SNAP, called the Louisiana Combined Application Project ("LaCAP").

Under LaCAP, SNAP benefits are determined using a three-tiered framework. Each qualifying applicant is assigned to a tier based on the applicant's shelter costs (i.e. , housing and utility costs), and each tier provides a standard benefit amount.

Mr. Roque applied for, and is receiving, his SNAP benefit under LaCAP.

The gist of Mr. Roque's argument on appeal is that, in determining his SNAP benefit under LaCAP, DCFS was required, but failed, to consider his actual monthly utility and medical expenses. Mr. Roque contends that DCFS' failure to consider his actual monthly expenses resulted in an erroneous tier assignment and, by extension, an insufficient benefit, which prejudiced his substantial rights. Thus, he contends, the ALJ's decision affirming DCFS' determination should be reversed. We consider Mr. Roque's arguments regarding his utility and medical expenses separately.

Utility Expenses

The Federal SNAP Act allows states that have adopted a simplified SNAP to use a Standard Utility Allowance ("SUA"), rather than considering actual utility expenses. Indeed, the Federal SNAP Act confers on such states the authority to make the use of an SUA mandatory. Consistent with these provisions, Louisiana has mandated the use of an SUA for households that incur heating or cooling expenses separate and apart from their rent or mortgage.

In his re-enrollment form, Mr. Roque represented that he incurs heating and cooling expenses separate and apart from his rent. Thus, in determining Mr. Roque's LaCAP tier assignment, DCFS was required to consider only the SUA, rather than Mr. Roque's actual utility expenses.

Medical Expenses

The Federal SNAP Act permits consideration only of medical expenses exceeding $ 35 per month. During the administrative hearing, DCFS offered pharmacy receipts provided by Mr. Roque establishing that his monthly medical expenses are $ 11. Because Mr. Roque's monthly medical expenses do not exceed $ 35, DCFS was not permitted to consider such expenses in determining Mr. Roque's LaCAP tier assignment.

In sum, DCFS' determination of Mr. Roque's SNAP benefit under LaCAP violated no statutory provision and, thus, did not prejudice his substantial rights. To the contrary, DCFS correctly determined Mr. Roque's SNAP benefit. Mr. Roque pays $ 136 per month in rent; the SUA is $ 353 per month-making Mr. Roque's monthly combined shelter cost $ 489. Accordingly, DCFS correctly assigned Mr. Roque to the second LaCAP tier, for which the standard benefit is $ 82 per month.

DECREE

For the foregoing reasons, the district court's judgment is affirmed.

AFFIRMED

      See 7 C.F.R. § 273.15(a) (providing that "each State agency shall provide a fair hearing to any household aggrieved by any action of the State agency which affects the participation of the household in [SNAP]"); La. R.S. 46:107(A)(1) (providing that DCFS "shall provide for a system of hearings and are responsible for fulfillment of all hearing provisions as prescribed under ... [SNAP]" and that "[u]nder these provisions, an opportunity for a hearing shall be granted at the state level to ... any recipient who is aggrieved by an agency action resulting in suspension, reduction, discontinuance, or termination of benefits").

      See La. R.S. 46:107(C) (providing that "an applicant or recipient may obtain judicial review [of an administrative decision] by filing a petition for review of the decision in the Nineteenth Judicial District Court ["19th JDC"] or the district court of the domicile of the applicant or recipient"). Mr. Roque initially filed his petition for review in the 19th JDC. Subsequently, he filed a motion requesting that the case be transferred to the Civil District Court for the Parish of Orleans ("CDC")-the district court of Mr. Roque's domicile. Finding venue in Orleans Parish to be proper, the 19th JDC granted Mr. Roque's motion and transferred the case to the CDC.

      See La. R.S. 49:965 (providing that "[a]n aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal" and that "[t]he appeal shall be taken as in other civil cases").
      While Mr. Roque's appeal was pending, this court, citing Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr.-New Orleans , 18-0812 (La. App. 4 Cir. 1/9/19), 263 So.3d 449, issued an order to the district court to amend its judgment "to include the appropriate and necessary decretal language." In compliance with that order, the district court amended its judgment, and the Clerk of the CDC supplemented the record on appeal.

      See generally 7 U.S.C. § 2011, et seq. ("the Federal SNAP Act"); 7 C.F.R. § 271, et seq. In Louisiana, DCFS is the agency responsible for administering and distributing SNAP benefits. See generally La. R.S. 46:290.1, et seq. ; La. Admin. Code tit. 67, Pt. III, § 1701, et seq.

      See 7 U.S.C. § 2035(b) (providing that "a State may elect to carry out a simplified [SNAP] ... in accordance with this section"). Because households in which all members receive or are authorized to receive SSI benefits are categorically eligible for SNAP benefits, simplified SNAPs facilitate the efficient distribution of benefits by reducing such households' evidentiary burden in demonstrating need and the states' administrative burden in processing applications. See 7 C.F.R. § 273.2(j)(2)(i)(D) (providing that "[a]ny household in which all members receive or are authorized to receive SSI benefits" are "categorically eligible for food stamps unless the entire household is institutionalized as defined in § 273.1(e) or disqualified for any reason from receiving food stamps").

      See La. Admin. Code tit. 67, Pt. III, § 2101(A) (providing that "[t]he Louisiana Combined Application Project (LaCAP) is established in accordance with applicable state and federal laws").

      See La. Admin Code. tit. 67, Pt III, § 2107(A) (providing that "[p]articipants [in LaCAP] will receive one of three standard amounts of SNAP benefits based on the household's total combined shelter (housing and utilities) costs").

      Id. The current breakdown of LaCAP tiers and the SNAP benefit associated with each tier is as follows:
      Monthly Combined Shelter Costs Monthly Allotment $0 - $399.99 $29 $400 - $699.99 $82 $700 or more $173
      Because, in a particular case, LaCAP's three-tiered framework may not provide an appropriate benefit amount, application for SNAP benefits through LaCAP is optional. Individuals wishing to have their benefits determined under regular SNAP-which allows consideration of circumstances beyond shelter costs-may do so at any time. See La. Admin. Code tit. 67, Pt III, § 2113(A) (providing that "[h]ouseholds may choose to opt out of LaCAP at any time and participate in regular SNAP, if otherwise eligible").

      Contrary to the requirements of Rule 2-12.4(5)-(6) of the Uniform Rules of the Courts of Appeal, Mr. Roque's appellate brief contains neither an assignment of alleged error nor a listing of the issues presented for review. Given that Mr. Roque is representing himself, we construe his appellate brief liberally. See Manichia v. Mahoney , 10-0087, p. 8 (La. App. 4 Cir. 8/4/10), 45 So.3d 618, 622 (observing that "a pro se litigant may be afforded some leeway or patience in the form of liberally construed pleading").

      7 U.S.C. § 2035(f)(2) (providing that "[i]n operating a [simplified SNAP, like LaCAP], a State or political subdivision of a State may standardize the deductions provided under section 2014(e) of this title"); 7 U.S.C. § 2014(e)(6)(A) (providing that "[a] household shall be entitled ... to an excess shelter expense deduction to the extent that the monthly amount expended by a household for shelter exceeds an amount equal to 50 percent of monthly household income after all other applicable deductions have been allowed"); 7 U.S.C. § 2014 (e)(6)(C)(i) (providing that "[i]n computing the excess shelter expense deduction, a State agency may use a standard utility allowance").

      7 U.S.C § 2014(e)(6)(C)(iii) (providing that "[a] State agency may make the use of a standard utility allowance mandatory for all households with qualifying utility costs").

      La. Admin. Code tit. 67, Pt III, § 1965(A) (providing that "[h]ouseholds which incur heating or cooling costs separate and apart from their rent or mortgage use a mandatory single [SUA] ... in the determination of shelter costs and deductions").

      7 U.S.C. § 2014(e)(5)(A) (providing that "[a] household containing an elderly or disabled member shall be entitled ... to an excess medical expense deduction for the portion of the actual costs of allowable medical expenses, incurred by the elderly or disabled member, ... that exceeds $ 35 per month"). DCFS contends that, although medical expenses can be considered under regular SNAP, medical expenses are categorically excluded from consideration under LaCAP. We need not decide that issue here. Even assuming medical expenses could be considered under LaCAP, Mr. Roque's medical expenses do not meet the federal threshold.

      Additionally, in a document filed with DCFS on April 5, 2017, Mr. Roque represented that his monthly medical expenses were, on average, $ 8.50. In a document filed in the 19th JDC on September 8, 2017, Mr. Roque represented that his monthly medical expenses were, on average, between $ 9.50 and $ 11.50. In a document filed in the CDC on August 23, 2018, Mr. Roque represented that his monthly medical expenses were, on average, between $ 11.50 and $ 18.00.

      During the administrative hearing, DCFS represented that the SUA is $ 349. Before the district court, however, DCFS inconsistently represented that the SUA is both $ 349 and $ 353. Similarly, in its appellate brief in this court, DCFS inconsistently represents that the SUA is both $ 349 and $ 353. We need not resolve this factual issue to dispose of Mr. Roque's appeal, however; either SUA amount places Mr. Roque in LaCAP's second tier.


author: BLEICH, J. (Ad Hoc)

text:
    Tian Vonte WYLIE, Plaintiff-Appellee v. Emily Michelle WYLIE, Defendant-Appellant
    No. 52,800-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    McNEW, KING & LANDRY, LLP, By: April M. Hammett, J. Dhu Thompson, Counsel for Appellant
    JEAN-PAUL GUIDRY, Counsel for Appellee
    Before GARRETT, STEPHENS, and BLEICH (Ad Hoc), JJ.
   BLEICH, J. (Ad Hoc)

This appeal is from the trial court's custody judgment that awarded the parties, Tian Vonte Wylie ("Tian") and Emily Michelle Wylie (now Snyder) ("Emily"), joint custody of their minor daughter Samaya ("Maya"). The judgment is based, inter alia , upon the court's findings that Emily had engaged in tactics and behaviors constituting parental alienation that had almost destroyed the father-daughter relationship between Tian and Maya and granted Tian's request to relocate Maya to Florida. The judgment gave primary physical custody and domiciliary status to Tian, ordered that Tian and Maya undergo reunification therapy and, following completion of therapy and counseling specifically dealing with parental alienation issues, awarded Emily specified periods of visitation with Maya. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

Tian and Emily were married on July 19, 2005. At the time of the marriage, Emily had three children, one of whom lived with Emily's mother. The other two children lived with Tian and Emily. During the Wylies' marriage, a daughter, Maya, was born on December 10, 2007. Because of an extramarital affair on the part of Emily with the couple's recently widowed neighbor, Tian and Emily separated. Tian filed a petition for divorce on December 22, 2015, and he filed an amended petition on February 18, 2016, seeking a divorce on the grounds of adultery. The parties were divorced on July 1, 2016.

There were several interim custody orders issued, as well as a series of mental health experts, including a parenting coordinator, appointed by the trial judge. The judge recognized early in this matter the emotional damage and distress the minor child was sustaining, as well as her sudden rejection of any type of relationship with Tian, making a valiant effort to address these issues by having the parties and Maya undergo psychological testing and participate in counseling.

The hearing for the initial setting of custody was held over three days: July 9, August 31, and September 20, 2018. Because of Tian's move to Florida due to a military assignment, in addition to focusing on the issue of which parent would provide the most stable and suitable home for Maya, the trial court also had to decide a related issue, whether to grant Tian's request that Maya relocate to Florida to live with him. After considering the testimony and documentary evidence, the trial court issued a detailed, most thorough written opinion setting forth its findings on October 22, 2018, and on December 7, 2018, signed a judgment awarding the parties joint custody, with Tian being named domiciliary parent, and granting Tian's request for Maya's relocation. It is from this judgment that Emily has appealed.

DISCUSSION

Emily asserts on appeal that the trial court erred in finding that relocation was in the best interest of Maya, thus modifying the custodial arrangement the parties were at the time following under an interim order, which was equal and shared custody, with Emily as primary domiciliary parent and Tian having visitation during the summer and holiday periods.

A parent seeking to relocate the principal residence of a minor child has the burden of proving that the proposed relocation is in good faith and that the proposed relocation is in the best interest of the child. La. R.S. 9:355.10 ;

Hernandez v. Jenkins , 12-2756 (La. 6/21/13), 122 So.3d 524 ; Curole v. Curole , 02-1891 (La. 10/15/02), 828 So.2d 1094 ; Blake v. Morris , 51,402 (La. App. 2 Cir. 6/30/17), 222 So.3d 1277, writ denied , 17-1334 (La. 9/15/17), 225 So.3d 478. La. R.S. 9:355.14 provides 12 factors that the court must consider in determining whether the proposed relocation is in the best interest of the child as well as other relevant factors. Blake, supra.

A trial court's determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Gathen v. Gathen , 10-2312 (La. 5/10/11), 66 So.3d 1 ; Curole, supra . Upon review, the entire record reflects that the trial court properly considered all of the factors mandated by La. R.S. 9:355.14 (formerly designated as La. R.S. 9:355.12 ). The trial reasonably concluded, based upon the totality of the circumstances, that relocation would be in the child's best interest. Gathen, supra . While La. R.S. 9:355.14 requires consideration of all 12 factors, it does not direct the court to give preferential consideration to any certain factor or factors. Id. ; Curole, supra ; Payne v. Payne , 41,049 (La. App. 2 Cir. 5/19/06), 930 So.2d 1181, writ denied , 06-1871 (La. 8/9/06), 935 So.2d 130.

In the instant case, neither party argued or directly addressed, either at the trial court or appellate level, La. R.S. 9:355.10's requirement that the parent seeking to relocate must prove that the proposed relocation is in "good faith," an inquiry separate and apart from the determination of whether the relocation is in the child's best interest. Jurisprudence has defined the meaning of "good faith" in the context of relocation as a legitimate or valid reason for the move. See, Mathes v. Faucheux , 17-0329 (La. App. 4 Cir. 8/9/17), 226 So.3d 503 ; McLain v. McLain , 07-0752 (La. App. 4 Cir. 12/12/07), 974 So.2d 726. Legitimate reasons for relocation include: to be close to significant family or other support networks; for significant health reasons; to protect the safety of the child or another member of the child's household from a significant risk of harm; to pursue a significant employment or educational opportunity; or to be with one's spouse (or equivalent) who is established, or is pursuing a significant employment or educational opportunity in another location. Gathen, supra ; Mathes, supra ; McLain, supra.

In his "Motion to Authorize Relocation of the Minor Child," Tian asserted that he was being relocated by the U.S. Air Force to Patrick Air Force Base in Brevard County, Florida, at the end of August 2017, and that this relocation was an advancement in his career. He further averred that relocation of Maya would provide her with, inter alia , a positive role model with a successful career, the stability that comes from such a career, and financial benefits. The following testimony by Tian at trial was undisputed :

• Tian moved to Florida in August 2017 after completing officer training school in Alabama. He relocated to Florida then because the time had come where he either had to leave Barksdale or get out of the military.
All of his employment offers were out of state ; he had offers in Virginia, Mississippi, Tennessee, and Florida. He decided to stay with the military to have some consistency-that is how he ended up in Florida. The opportunity to become an officer was a good one; he makes more money and can provide more opportunities for Maya.
• Tian's move to Louisiana was never intended to be permanent, but was a temporary assignment with the military.
• Tian stated that neither he nor Emily was a big fan of Barksdale originally; they were concerned about the schools and cultural issues they might face with them being an interracial couple. There has always been a desire to get out of Barksdale/Bossier, not necessarily to go to Florida.
• Tian remained in Bossier for more than a year after he and Emily separated, and nothing got better. Everyone went to counseling, which, as Dr. Evans testified, did not work. The parenting coordinator appointed by the trial court failed to change anything either.

We find that the record supports the trial court's implicit determination that Tian's proposed relocation of Maya was in good faith. See, e.g., Atkins v. Atkins , 47,563 (La. App. 2 Cir. 9/26/12), 106 So.3d 614 ; Payne, supra ; State ex rel. Dept. of Social Services v. Whittington , 15-1118 (La. App. 4 Cir. 5/18/16), 193 So.3d 1234 ; Cass v. Cass , 10-327 (La. App. 3 Cir. 11/17/10), 52 So.3d 215, writ denied , 11-0178 (La. 2/25/11), 58 So.3d 460.

The trial court found that relocation to Florida was in Maya's best interest after an extensive analysis of the factors set forth in La. R.S. 9:355.14. Since this was also the initial custody setting, the trial court's judgment awarded the parties joint custody, named Tian domiciliary parent, and awarded Emily liberal periods of visitation with Maya, with specific details set forth in a JCIP. The following is excerpted from the trial court's written reasons in support of judgment:

[Tian] and [Emily] were married on July 19, 2005. At the time of her marriage to Tian, Emily had three (3) separate children from three separate fathers. Emily had surrendered to her mother custody of ... [her] second child. None of those children had any meaningful relationship or communication with their respective fathers during their childhood. For Emily's other two children ... Tian was the closest thing to a father they have ever experienced. The testimony describes those relationships as close and Tian as a provider and interested person in their lives despite the lack of any biological relationship.
During the marriage of Tian and Emily they were blessed with the birth of a daughter, Samaya, born December 10, 2007. Samaya was reared by Tian and Emily until the two separated as a result of the extramarital affair of Emily with a recently widowed neighbor. The parties separated and Tian filed for divorce on December 22, 2015 ... The divorce was subsequently granted. The trial focused, due to the relocation of Tian to Florida with a military assignment, on the issues of which parent would provide the most stable and suitable home for the child, and the issue of possible relocation of Samaya.
In addition to Tian and Emily, testimony and evidence was provided from Dr. Robert Clanton, Ph.D., (who also relied upon the records of Shelly Booker [a mental health counselor appointed by the court to perform mental health evaluations of the parties and Maya] ) who interviewed with the parties and the minor child; Dr. Robert Evans, Ph.D., who testified on the issues of parental alienation in custody proceedings; and voluminous exhibits and records including, but not limited to, records from the Gingerbread House of investigation of allegations of abuse by Tian; and records from Barksdale Air Force Base investigating allegations of abuse by Tian.
The Court, in attempting to fashion a plan going forward for this innocent child caught in an ugly and lengthy custody fight and alienation is guided by the applicable jurisprudence and the provisions of La. R.S. 9:355.14 regarding this contested relocation. A review of each of those considerations and the facts and evidence in this matter follow:
La. R.S. 9:355.14 provides, "In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child ..."
(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life.
Samaya was born to Tian and Emily during their marriage and resided with both of them in the family home until the separation of her parents. Her relationship with both parents was close her entire life until the separation and divorce. The nature, quality, extent of involvement, and duration of the relationships with her parents are equal until Emily moved in with [Mike Snyder,] who became her current husband. Any issues of alienation will be addressed below. The parties stand equally before this Court in this consideration. There is no impediment to relocation.
(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.
Samaya will turn eleven (11) years old ... She is doing well in school and appears to be progressing and enjoys extracurricular activities. Considering her age, developmental stage, and her needs, the Court finds no impediment to relocation. The educational opportunities and extracurricular activities offered in Florida and Louisiana are comparable. The parties stand equally before the Court in this consideration.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
Emily and Tian both love their daughter. The Court is confident the parties will take whatever steps are necessary to maintain a close relationship with their daughter, and that a combination of physical custody and the use of technology, whichever parent is not the domiciliary parent the relationship of the non-domiciliary parent would remain as close as circumstances permit. The parties stand equally before the Court in this consideration.
(4) The child's views about the proposed relocation, taking into consideration the age and maturity of the child.
Samaya is just too young and the current relationship between her and Emily is such that the Court did not believe it in the best interest of Samaya, the parties, or justice to have Samaya testify. The parties stand equally before the Court in this consideration; however, the Court is confident Samaya would have expressed a desire to remain with her mother. Whether that was her voice or the echo of what she lives in daily was a consideration in not having Samaya have to testify.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
The record in this matter is replete with instances of actions by Emily to alienate Samaya from her father. The evidence adduced and the notes of those working with these parties tell an alarming tale of a consistent, concerted, and complex effort by Emily to alienate Samaya from her father Tian. Many instances, no doubt, Emily undertook actions possibly without the specific intent of alienation, but the obvious and predictable result of alienation cannot be ignored by the Court.
The Court was very impressed with Dr. Clanton's observations in this matter. There was a ready acknowledgement of the alienation in this matter, and while Dr. Clanton opined the alienation may or may not be intentional, he conclusively found alienation of Samaya from Tian to exist.... Dr. Clanton further testified that if the alienation was intentional, or if the alienation continued, that he recommended that Samaya be relocated to Florida. The issue the Court must address is whether or not there is a risk of continued alienation, intentional or otherwise.
Clearly there is alienation of Samaya from Tian. In reaching a conclusion as to whether the alienation will occur, the Court considered the environment Samaya would be placed in if she remains with her mother, Emily, and not with her father, Tian. That environment is not conducive [to] rebuilding and supporting a relationship with her father. It is not a coincidence that none of Emily's other children [have] meaningful relationships with their fathers. The current environment, with Emily immediately moving in with a very recently widowed neighbor who is several years her senior, is not an idea endorsed by Dr. Clanton, who confirmed the situation is far from ideal and unlikely to be sustainable long-term.
The Court is concerned about the long history of Emily making decisions with little or no concern for the impact on others in her life.... Emily's decision, while married to Tian, to initiate a romantic relationship with her recently widowed neighbor and to get complementing matching tattoos with this gentleman while married to Tian while she and Samaya continued to live with Tian is astonishing.
Dr. Clanton and the other professionals concluded that Emily has a tendency to become overemotional and she has involved this young child, Samaya, in the life of an adult to the extent Samaya has been imprinted with Emily's feelings and emotions towards Tian.
Emily has an established pattern of taking whatever steps she deems necessary to attempt to place herself in a better light in regards to caring for Samaya, and to attempt to destroy the appearance of any credibility or parenting ability of Tian. The reports to Barksdale Air Force Base of abuse, and the findings and observations regarding those reports, is alarming. Tian's military career appears to have been placed in jeopardy as a result of unfounded allegations with an obvious motive from Emily. The Court is convinced such a desire and efforts, overt and covert, would continue to attempt to sway and alienate Samaya from Tian. That cannot be allowed to continue. Relocation is strongly in favor of Tian, who has proven the ability and desire to provide a loving home and to foster a close relationship between Samaya and Emily, despite obvious reasons to feel otherwise. Tian is placing the needs and best interest of his daughter's long term development above his personal interests and any animosity felt towards Emily.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
The jurisdiction of the Court provides the benefit of serving as the home to Barksdale Air Force Base and therefore handles many relocation matters to and from this area. Having been reared in a career military family, the benefits provided to those living on or near military institutions is well known [by the Court]. The educational opportunities of residing in Florida could serve Samaya well, including providing some emotional benefit, and there is no detriment to such a relocation on those grounds. It is noted that Samaya is a student in one of the highest ranked school districts in Louisiana and has a rigorous extracurricular activities schedule she is reportedly enjoying. The parties stand equally before the Court in this consideration.
(7) The reasons of each person for seeking or opposing the relocation.
Both Emily and Tian love Samaya. They both desire that she reside with them. The parties stand equally before the Court in this consideration.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
As a military officer, Tian has the financial ability and benefits available on and near the Air Force Base to which he is currently assigned to adequately care for all of Samaya's needs. There is a slight advantage in favor of Tian over Emily for relocation, including the fact that Emily is completely at the financial mercy of her new husband ... To the extent Emily's new husband is willing to provide financial support above any child support provided by Tian, as compared to Tian's earnings and benefits, there is only a marginal advantage to Tian regarding this consideration.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
This consideration is inapplicable in the present matter.... The parties stand equally before the Court in this consideration.
(10) The feasibility of a relocation by the objecting person.
The relocation of Samaya to Florida would pose no unreasonable considerations and while Emily may elect not to relocate to Florida to be near Samaya there are opportunities with school and holiday breaks and summers to provide for meaningful and significant periods for Emily to enjoy physical custody of Samaya. Emily could relocate or could enjoy other periods of custody of Samaya. Under a scenario required to be contemplated in this factor, the parties stand equally before the Court in this consideration.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
There is not present in this matter any allegation of current substance abuse by either party. The issues of what can only be described as "harassment" by Emily of the reporting of unsubstantiated claims of abuse by Tian have been addressed above. There are no allegations of issues of violence of either party of any significance. Considering the apparent abuse of reporting unsubstantiated claims of violence in an effort to gain an advantage in custody considerations causes concern for the Court regarding the extent to which Emily has gone to villainize Tian in the eyes of Samaya and others. Tian has an advantage.
(12) Any other factors affecting the best interest of the child.
Samaya has two parents who love her. Unfortunately, her mother seems so determined to keep Samaya close to her that she has been willing to intentionally and possibly unintentionally (but certainly reaping the benefits of) alienating Samaya from her father. Emily's personal history and current circumstances [reflect the making of] decisions for her personal benefit and personal desires and placing those motives above the best interests of her children. Additionally, Emily has exhibited a campaign of degradation of Tian to Samaya. This pattern is concerning to the Court and in its role of determining what is in the best interest of Samaya, not something that can be overlooked or explained away. Advantage to Tian.
When considering the factors as outlined above, after reviewing and considering the evidence introduced and the testimony of the witnesses and making credibility determinations of those witnesses, and considering the concerns and observations as outlined by Shelly Booker and Thomas Davison [court-appointed mental health experts] and further considering the concerns of Dr. Clanton regarding the problems which arise in cases of alienation, the Court is of the opinion that the alienation of Samaya from her father will continue unless a change is made. Dr. Clanton testified that if alienation continues or is intentional then Samaya should be relocated to Florida. The Court accepts this recommendation and finds that Emily has acted to intentionally alienate Samaya from her father and either fails or refuses to recognize the pattern of alienation and lacks the ability to self-correct or rehabilitate that well-settled pattern of behavior....
Dr. Robert Evans, Ph.D., was recognized by the Court as an expert in the field of Psychology with a concentration in Parental Alienation. He made certain recommendations regarding programs and procedures to aid in the relocation of children, including counseling and therapy for all involved. The intensive program appears necessary for there to be any serious opportunity for success of reuniting Samaya with her father and maintaining a long term positive relationship with her mother....

The court is not required to mechanically analyze all of the factors set forth in La. R.S. 9:355.14, but should balance and weigh the factors in view of the evidence presented. England v. England , 18-0056 (La. App. 4 Cir. 7/5/18), 251 So.3d 699, 704 ; Palazzolo v. Mire , 08-0075 (La. App. 4 Cir. 1/7/09), 10 So.3d 748, 769-70. As noted by the Fourth Circuit in Hilkirk v. Johnson , 15-0577 (La. App. 4 Cir. 12/23/15), 183 So.3d 731, 752, writ denied , 16-0083 (La. 2/19/16), 186 So.3d 1172, these factors are considered to be illustrative and nonexclusive, and the trial court has discretion to determine the relative amount of weight to give each factor.

We have reviewed the entirety of the record in this case. No decision dependent upon the "best interest of the child" is ever made lightly or without serious consideration of the effects it will have on the parties, most importantly the child or children involved. The task of the trial judge in this case was herculean, made particularly so by the specific facts and circumstances in this case. While both Tian and Emily are capable, loving parents to Maya, the overshadowing issue in this case, as discussed by the trial court at length in its erudite written opinion, was the deliberate and dysfunctional enmeshment between Emily and her daughter which manifested itself in a plethora of alienating tactics on the part of Emily, and resulted in the disruption and almost complete severance of the father-daughter relationship between Tian and Maya. The record fully supports the trial court's determination that it was in the best interest of Maya that she be allowed to relocate to Florida and that Tian be awarded primary, domiciliary custody.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed against Defendant-Appellant, Emily Michelle Wylie Snyder.

AFFIRMED.

      A Joint Custody Implementation Plan ("JCIP") setting forth the details of the custodial arrangement was signed by the trial court on December 12, 2018.

      In both England, supra, and Palazzolo, supra , the Fourth Circuit discussed the issue of parental alienation and the role it played in each custody case, specifically in the significant effect it had in each trial court's best interest of the child analysis.


author: PITMAN, J.

text:
    STATE of Louisiana IN the INTEREST OF C.F. and B.F.
    No. 52,741-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    GEORGE E. HARP, Shreveport, Counsel for Appellant Elizabeth Bryant
    JAMES E. STEWART, SR., Ann Arbor, District Attorney, SARAH M. HOOD, CHARLES K. PARR, Assistant District Attorneys Counsel for Appellee The State of Louisiana
    RENEE'P. COTE, Counsel for C.F. and B.F.
    ANDREW L. RANDALL, JR., Shreveport, Counsel for Appellee, Jeremy F.
    Before PITMAN, COX, and McCALLUM, JJ.
   PITMAN, J.

The trial court adjudicated two children, C.F. and B.F., to be in need of care and, after a disposition hearing, placed them in the custody of their father, Jeremy F., and his wife, Leslie F. Jeremy's ex-wife, and mother of the children, Elizabeth Bryant, appealed the judgment of disposition. For the following reasons, we affirm the judgment of the trial court.

FACTS

On February 20, 2018, Pansey Rogers, an employee of the Department of Children and Family Services ("DCFS"), filed an affidavit in support of an instanter order concerning C.F. and B.F. The affidavit stated that as a result of Rogers's investigation into this case, she had gleaned the following facts:

On August 9, 2017, the DCFS received a report that two children, C.F., a deaf, 12-year-old male, who communicated through sign language only, and B.F., a 7-year-old female, were the victims of abuse by Bryant and her boyfriend, Randy Lemoine. The report stated that Bryant had been seen hitting C.F. across his face and that the children were verbally abused by both Bryant and Lemoine.

On August 14, 2017, Bryant and Lemoine were asked to submit to drug screening, and both objected. That same day, an anonymous source at the apartment complex where Bryant and the children resided told DCFS that approximately a week before, a man had B.F. standing in a corner and told her to "stand your MF ass in the corner or I will send your MF to Johnny Gray Jones."

During the investigation that day, Rogers observed C.F. at his home. His right eye was black, but appeared to be healing. When C.F. was interviewed a few days later, he signed, through an interpreter, that his black eye was the result of his mother slapping him many times. He stated that she yells at him and often hits him. On that day, his left eye was black.

At B.F.'s interview by Rogers, she stated that when she got into trouble at home, she would be punished by having to sit on her bed and having the television withdrawn. She also stated that no one had hit C.F.

Both children were examined by a physician. At B.F.'s examination, she was asked to tell "good stuff" about her mother. She responded that her mother and Lemoine would "go outside and smoke," but could not recall anything else. Her maternal grandmother prompted her and said, "You went swimming," but B.F. stated that her mother was too tired. She reported that when she gets in trouble, her mother takes away her toys or she is spanked with a belt. B.F. has been diagnosed with ADHD and takes medication for that condition.

C.F.'s examination revealed that he is hearing impaired, has ADHD and needs dental care. He reported that his mother hits his face. Bryant informed the physician that the children were very rambunctious and overwhelming. The physician suggested that she try reinforcing sign language and get counseling.

On August 31, 2017, Bryant was drug screened through urine and hair samples by The Company Clinic of Louisiana ("CCLA"). The samples were sent to Quest Diagnostics Laboratory ("Quest Lab") in Kansas for testing. She tested positive for marijuana.

On September 21, 2017, Bryant was referred to DCFS's Family Services program to receive domestic violence and substance abuse assessments and random drug screens. Because C.F. wears a cochlear implant, Bryant was instructed to complete the procedures necessary for the implant to work, such as recharging the batteries. She informed DCFS that when C.F. was nine years old, she gave him the choice of whether to wear the device, and he chose not to wear it because he heard only loud screeching noises when he wore it. She stated that she offered him the choice because he always violently objected when she tried to make him wear it. She also admitted that she did not take him to the audiologist for years.

Although DCFS attempted to follow Bryant's case, she was uncooperative, would not complete her treatment plan, would not submit to the random drug testing and avoided the agency. DCFS assigned Beverly Hamilton to Bryant's case.

In February 2018, DCFS received a second report concerning Bryant and C.F., which alleged that Bryant was taking C.F.'s ADHD medicine. Rogers interviewed C.F. at school, and C.F. signed that he was supposed to take two pills in the morning, but that he was only getting one, and that his mother would take the other. Also, he was still not wearing his cochlear device and had not worn it all year.

DCFS interviewed B.F. who told investigators that Bryant's new boyfriend, Joshua James, would spank her behind and would drag her to her room by her arm and squeeze it very tightly even though she tried to tell him she was sorry for whatever she had done.

School attendance by both children was a concern. On February 5, 2018, C.F. had 11 unexcused absences and had been tardy 8 times. B.F. had 15 unexcused absences and had been tardy 8 times.

A family services plan was implemented. On February 8, 2018, Bryant was drug screened by CCLA, and the samples were sent to Quest Lab. Her urine results were positive for amphetamines, methamphetamines and marijuana. The hair follicle report was positive for methamphetamines and marijuana.

Because James had moved into the home, he was also drug screened by CCLA, and the samples were sent to Quest Lab. He tested positive for amphetamines, methamphetamines and marijuana.

On February 13, 2018, Rogers and Hamilton went to Bryant's home, but no one answered their knock on the door. They heard children in the back yard and found C.F. and B.F. alone there. B.F. said her mother was inside, but asleep. The worker asked her to go in the house and wake up her mother. When Bryant appeared on the back porch, she appeared to be high, but she claimed she was sick and might have the flu. Hamilton asked to count the children's medication and found that B.F.'s Adderall was six pills short. Bryant claimed she had given C.F. two of B.F.'s pills because she had lost his bottle of pills.

On February 16, 2018, B.F. was also drug tested at CCLA, and the samples were sent to Quest Lab. Her urine test was positive for amphetamine and her hair sample was positive for methamphetamine.

An instanter order was requested; and, on February 16, 2018, a verbal instanter order was issued, placing the children in the temporary custody of DCFS. At the continued custody hearing on February 22, 2018, the hearing officer made recommendations that there were reasonable grounds to believe that both children were in need of care, and the children were placed in the custody of DCFS. The recommendations were not appealed; and, on March 12, 2018, a petition was filed by the state alleging the children should be declared in need of care.

An adjudication hearing was held on June 27, 2018. The state introduced three exhibits, S-1 through S-3, which were the results of the February 2018 drug tests on Bryant, James and B.F. The front page of each exhibit certified the documents as health care provider records under La. R.S. 13:3715. Kimberly Morscher, vice president, clinical director and custodian of records for CCLA, testified that the urine and hair samples were all taken at CCLA and processed by Quest Lab. She stated that CCLA is a medical facility operating in the State of Louisiana which provides occupational medicine, including drug screenings, fitness tests, physicals, blood draws, vaccinations and hearing tests. She also testified that CCLA performs tests for DCFS, including drug screening services and physicals for adults and children. She stated that CCLA draws the sample to send to the lab, in this case, Quest Lab, which performs the tests and posts the results on its website. An authorized representative of CCLA retrieves those results. She is the person who collected the test results of Bryant, James and B.F., after which she compiled these results into the medical record for those three individuals. She stated that the records are printed from the Quest Lab website and are then scanned into CCLA's electronic medical record, which is HIPPA compliant. The files were admitted into evidence as Exhibits S-1 through S-3.

Bryant's attorney objected and questioned Morscher concerning the certification of the documents under La. R.S. 13:3715, which the attorney claimed applied only to state-operated health care facilities. The state's attorney interjected that she was certifying the records as a health care provider, not as a state-run health care facility. She stated that they would fall under La. R.S. 13:3714, which concerns charts of records or hospitals, other health care providers, admissibility of certified attested copies and BAC scientific analysis reports. She pointed out that the document may say "715," but that the witness was present in court offering live testimony regarding the certification. She insisted that there was a difference between introducing the records as certified records and actually providing live testimony to the fact. She claimed that the indication on the front page was simply a typo and that it should be "3714."

The trial court told Bryant's attorney that it noted the objection, but admitted Exhibits S-1 though S-3 "over your strong objections both as to foundation, opinion, and hearsay." The state moved to withdraw any of Bryant's drug tests related to samples taken after February 22, 2018. The motion was granted. Bryant's attorney also objected to the lack of the right of confrontation as a separate objection from the hearsay objection.

Rogers testified regarding Bryant's drug tests, C.F.'s hearing impairment and cochlear implant, the condition of the children when she went to the school to interview them, and about the men who had lived in Bryant's home during the span of the investigation by DCFS. She stated that Bryant was unable to explain why B.F.'s drug screen returned a positive result for methamphetamine. She testified that on the day she went to Bryant's house and found the children in the back yard wearing their school uniforms, she asked Bryant why they were not at school, and Bryant told her she had a flat tire on her vehicle. She confirmed that Bryant did have a flat tire that day. She also testified that it was that same day that she and Hamilton checked C.F.'s ADHD medication and found that the entire prescription was missing. The children were then adjudicated to be in need of care.

A permanent disposition hearing was held on July 16, 2018. At the hearing, Jeremy F. testified that the children were placed with him the day after they were removed from Bryant's home. He stated that it took two to three weeks before Bryant gave him the necessary part of the cochlear implant for C.F. to be able to hear. He learned that C.F. had not been to the audiologist in four years and took the child to the doctor, who adjusted the cochlear implant until C.F. could hear words and not screeching noises. He stated he took C.F. to the audiologist several more times for the device to be "tweaked," and it was so successful that C.F. was able to hear words and no longer had to read lips. He testified that C.F. wears his cochlear device from the time he gets up until he goes to bed, at which time it must be recharged.

The trial court placed the children in the joint custody of their father and stepmother. Bryant was given visitation at the discretion of Jeremy and Leslie F. as to the amount of time she would be allowed to visit and whether the visitation would be supervised or unsupervised. It further encouraged Jeremy and Leslie F. to allow liberal visitation with Bryant's parents. DCFS's custody and supervision were vacated.

Bryant has appealed the judgment of disposition and has challenged the admission of Exhibits S-1 through S-3 on the basis of hearsay and the constitutional right to due process.

DISCUSSION

Bryant argues that the standard of review in a juvenile court's permanent placement determination is governed by the manifest error standard, but when critical findings are not supported by competent evidence, the appellate court has a duty to reconsider the actual evidence and to render an appropriate judgment after conducting a de novo review.

Bryant claims that the sole basis for removal of the children was her alleged drug use and that of her boyfriend at the time, James, and the alleged drug exposure of B.F. She argues that there were no admissions by the parties and the only evidence presented was that of drug test results contained in Exhibits S-1 through S-3. She also argues that there were numerous allegations that the children were otherwise abused or neglected, as found in the affidavit in support of the instanter order and the state's petition, but the evidence at the evidentiary hearing did not support those allegations. Morscher, from CCLA, who testified with respect to the certification and drug tests results, and Rogers, a DCFS investigator, were the only witnesses at that hearing.

In regard to the admission of Exhibits S-1 though S-3, Bryant argues that it was error for the trial court to allow the documents into evidence because the front page said they were certified as records under La. R.S. 13:3715, but the trial court allowed them admitted under La. R.S. 13:3714. She contends that this was error since CCLA could not certify the business records of another business entity over which they had no knowledge or control, i.e. , Quest Lab, and that this introduction skewed the evidence and prejudiced the case against her.

Bryant argues that the admission of the exhibits violates the rule against hearsay and that none of the exceptions in the Code of Evidence apply in this case. She states that the exhibits are signed by Morscher as the vice president and clinical director of CCLA; but, since CCLA is not a "state operated health care facility" under La. R.S. 13:3715, no further inquiry need be made.

Bryant also argues that the trial court erred in allowing the rehabilitation of the certification when it allowed the assistant district attorney to claim typographical error and that the certificates should have read La. R.S. 13:3714 instead of La. R.S. 13:3715. She also argues that it erred by allowing the exhibits to be introduced as the records of "any other health care provider."

Bryant further argues that La. R.S. 13:3714 specifically allows the party against whom the bills, medical narrative, chart or record is sought to be used to "summon and examine" those making the original of the bills, medical narrative, chart or record, as witnesses under cross-examination. Bryant claims the person making the report was the certifying scientist employed by Quest Lab, but that person on the Quest Lab form is identified only by a code. She claims that the summoning of an out-of-state witness to compel his or her appearance would be problematic and a subpoena of that person would be problematic.

She further argues that the trial court's admission of the Quest Lab and CCLA records was the only reason the children were deemed in need of care. She claims the balance of the testimony provided by the state through Rogers was clearly insufficient to independently support the need-of-care ruling.

The state argues that although La. R.S. 13:3714 gave Bryant the right to summon and cross-examine the original makers of the record reports from Quest Lab, she refused to take any action to procure the maker's presence because she did not believe a subpoena would have been successful. That is the reason why Bryant did not even attempt to secure the witness for cross-examination. For these reasons, it claims that argument relating to her due process right of confrontation is without merit.

As to the argument that CCLA could not certify a business record from another company over which it exercises no control by incorporating the record into its own health care provider records, the state points out that hospital records are deemed to be inherently reliable; thus, no foundation, beyond certification, is required for the admission of certified hospital records. It claims that the Quest Lab records were already properly certified at the time they were admitted into evidence through Morscher's testimony and needed no further foundation to be laid to be admitted into evidence.

Bryant attempted to argue that Quest Lab was not a hospital or health care provider in conformity with the statute and, thus, would have to certify its own records. However, the state responded that Bryant never raised this argument at the trial court and it cannot now be objected to at the appellate level. It contends that the argument should be deemed waived and precluded from appellate review.

The state also argues that the trial court did not err in finding that the children were in need of care and that Rogers's testimony was sufficient to independently support the trial court's finding. It reiterates the facts of the case, including that almost everyone in the household tested positive for drugs, that the children did not attend school regularly, that the children's medicine count was askew, that Bryant claimed she had lost a prescription and that C.F. did not wear the portion of the cochlear device that allowed him to hear at school. For these reasons, it claims there was sufficient evidence for the trial court's ruling adjudicating the children in need of care and placing them with Jeremy and Leslie F.

An appellate court's review of a juvenile court's permanent placement determination is governed by the manifest error standard. State in Interest of N.C. , 50,446 (La. App. 2 Cir. 11/18/15), 184 So. 3d 760, citing State ex rel. C.M. v. Willis , 41,908 (La. App. 2 Cir. 12/27/06), 946 So. 2d 316, writ denied , 07-0190 (La. 2/16/07), 949 So. 2d 413. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. State ex rel. L.M. , 46,078 (La. App. 2 Cir. 1/26/11), 57 So. 3d 518.

In State ex rel. W.H.V. v. J.A.V. , 35,887 (La. App. 2 Cir. 2/27/02), 811 So. 2d 189, the court stated that under the manifest error standard of review, in reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Citing Hill v. Morehouse Par. Police Jury , 95-1100 (La. 1/16/96), 666 So. 2d 612. Before a fact finder's verdict can be reversed, the court must find from the record that a reasonable factual basis does not exist for the verdict and that the record establishes that the verdict is manifestly wrong. It is the appellate court's constitutional duty to review facts to determine whether the trial court's verdict was manifestly erroneous, clearly wrong based on the evidence or clearly without evidentiary support. State ex rel. W.H.V. v. J.A.V., supra . The reviewing court must consider whether the trial court's findings are reasonable in light of the record taken as a whole. Id.

Admission of Evidence as Certified Records

La. R.S. 13:3715 concerns the admission of charts and records by state-operated health care facilities. La. R.S. 13:3714 concerns admissibility of certified or attested copies of other health care providers and states in pertinent part as follows:

A. Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

La. R.S. 40:1231.1(A)(10) states in pertinent part as follows:

(10) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist, a licensed dietician or licensed nutritionist employed by, referred by, or performing work under contract for, a health care provider or other person already covered by this Part, ... or any partnership, limited liability partnership, limited liability company, management company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.

In Judd v. State, Dep't of Transp. & Dev. , 95-1052 (La. 11/27/95), 663 So. 2d 690, the court stated that the purpose of La. R.S. 13:3714 is to save a litigant the difficulty and expense of producing as a witness each person who assisted in the treatment of the patient. It also provides an exception to the hearsay rule with respect to those who made the medical record. The court stated that once La. R.S. 13:3714 is complied with, the records are admissible. Id.

The medical records presented in Exhibits S-1 though S-3 were certified in court by Morscher, the vice president and clinical director of CCLA. She testified that CCLA is a medical facility operating in the State of Louisiana and providing a variety of medical tests, including drug screenings, blood draws, hearing exams and vaccinations. She testified that CCLA performed the drug screenings on the litigants and children in the matter at bar and sent the tests to Quest Lab to be processed, which results she then recovered from the Quest Lab website and integrated into CCLA's file. Therefore, Morscher certified the tests and results from Quest Lab and the medical records that were produced by CCLA, and the certification complied with the requirements of La. R.S. 13:3714. We find that Bryant was not prejudiced by the notation on the front of the exhibits which stated they were created pursuant to La. R.S. 13:3715, instead of La. R.S. 13:3714.

Accordingly, this assignment of error is without merit.

Due Process Argument

Bryant complained that the trial court erred in admitting the exhibits into evidence because she was not allowed to test the reliability of the underlying test report from Quest Lab, and because CCLA cannot vouch for the reliability of the results which were generated from another company over which CCLA exercised no control.

La. R.S. 13:3714(A) specifically states that certified medical records shall be received in evidence by such court as prima facie proof of their contents, if the party against whom the medical narrative, chart, or record is sought to be used is given the right to summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination. As stated in Judd , supra , the purpose of the statute is to save a litigant the difficulty and expense of producing as a witness each person who assisted in the treatment of the patient.

In the case at bar, Bryant had the option to subpoena Quest Lab so that the person who performed the tests on the samples provided by CCLA and produced the results of the tests could testify and certify the record, but Bryant chose not to do so. For that reason, the certification of the tests and the results by CCLA was sufficient to validate them. The requirements of La. R.S. 13:3714 were met.

Therefore, this assignment of error is without merit.

The Disposition of the Children

Our review of the record shows no manifest error on the part of the trial court in the adjudication and disposition of the children. A reasonable factual basis exists for the finding that the children are in need of care and that placement with Jeremy and Leslie F. is warranted. The evidence presented indicated that both B.F. and C.F. were subjected to verbal abuse and neglect while living in the home of their mother, who tested positive for drugs and even managed to expose her daughter to methamphetamine. Her deaf son was allowed to forgo the use of his cochlear implant, had black eyes, which he said were attributable to his mother, and missed his medication as a result of his mother's abusing it instead of giving it to him. We consider the trial court's findings reasonable in light of the record taken as a whole.

Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court permanently placing the children, C.F. and B.F., in the care of their father and stepmother, Jeremy and Leslie F., with visitation to be allowed with their mother, Elizabeth Bryant, at the discretion of Jeremy and Leslie F., is affirmed. Costs of the appeal are assessed to Elizabeth Bryant.

AFFIRMED .

      Johnny Gray Jones is a youth shelter in Bossier City, Louisiana.

      Sections 1299.41 to 1299.49 were redesignated as R.S. 40:1231.1 to 40:1231.10 by H.C.R. No. 84 of the 2015 Regular Session.


author: MOORE, J.

text:
    Debra HOLMES-TAYLOR, Plaintiff-Appellee v. Flora J. DONATTO, Defendant-Appellant
    No. 52,712-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    KITCHENS LAW FIRM, By: P. Nelson Smith, Jr., Counsel for Appellant
    ROBERT B. DUNLAP, Counsel for Appellee
    Before MOORE, STONE, and STEPHENS, JJ.
   MOORE, J.

Flora J. Donatto appeals a judgment of the 26th Judicial District Court, Bossier Parish, that made executory a judgment from the state of Virginia. We reverse and remand.

The plaintiff, Debra C. Holmes-Taylor, filed this suit on September 28, 2018, in the 26th JDC. She alleged that she had obtained a judgment against Ms. Donatto in the Hampton General District Court, Hampton, Va., and that the delay for appeals had expired. She listed Ms. Donatto's current address, in Bossier City, and her own, in Hampton, Va., and attached an affidavit from a Virginia attorney attesting to all the facts alleged. She also alleged that she was entitled to judgment under the Uniform Enforcement of Foreign Judgments Act ("EFJA"), R.S. 13:4241 et seq. Finally, she attached a copy of the "Warrant in Debt," a kind of docket or ledger sheet from the Hampton General District Court. This showed that Ms. Holmes-Taylor had filed a suit on December 29, 2017, against Ms. Donatto and three other defendants - a home inspector, an exterminating company and a real estate agency - for failure to disclose damage or signs of damage to property in Hampton, prior to the sale, and that a default judgment had been rendered against Ms. Donatto (only) on July 6, 2018, for principal of $ 25,000, interest of $ 92 and court costs of $ 2,700.

The next document in this slim record is a judgment, filed October 5, 2018, making the Virginia judgment executory. A notice of judgment was issued October 10, with service on Ms. Donatto October 12.

Ms. Donatto took the instant devolutive appeal. She raises two assignments of error. The first urges that the court erred in making the judgment executory without any showing that Ms. Donatto received notice of the petition to make judgment executory, as required by La. R.S. 13:4243 B. The record supports this contention.

A foreign judgment may be made executory against a judgment debtor in Louisiana either through an ordinary proceeding, with citation and service to the debtor, La. C.C.P. art. 2541, or through EFJA, which allows notice of the filing of the petition to be given to the debtor by certified mail, La. R.S. 13:4243 B. Cajun Beverage Inc. v. American Nat'l Can Co. , 577 So.2d 172 (La. App. 1 Cir. 1991). The statute says:

B. Promptly upon the filing of the petition, the foreign judgment, and the affidavit, the clerk shall send a notice by certified mail to the judgment debtor at the address given and shall make a note of the mailing in the record. The notice shall include the name and address of the judgment creditor and his attorney, if any. In addition, the judgment creditor may mail a notice of the filing to the judgment debtor and may file proof of mailing with the clerk. Failure to mail notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed. (Emphasis added.)

Specifically, the clerk shall send a notice of filing of the petition to the judgment debtor and shall make a note of this mailing; failure to mail this notice shall not affect enforcement "if proof of mailing by the judgment creditor has been filed." On close examination, we are constrained to find no such note of mailing by the clerk of court, or proof of mailing by the judgment creditor, in the instant record. Ms. Holmes-Taylor's petition prayed for the clerk to mail a certified copy to Ms. Donatto and to make a note of this in the record, but the clerk's compliance is simply not shown. There are no court minutes, which might supply the missing note of evidence.

Ms. Holmes-Taylor responds that she complied with every element of the statute, and argues that there is no requirement that the judgment debtor actually receive notice of filing, Morgan Building & Spas Inc. v. Cutrer , 97-0599 (La. App. 1 Cir. 4/8/98), 711 So.2d 777. We agree that she prayed for the clerk to send a notice of filing by certified mail to the judgment debtor, and that the statute does not require actual receipt of this notice by the judgment. However, the statute plainly requires the clerk to send the notice of filing by certified mail, and to make a note of this mailing. The instant record simply does not show compliance with these requirements.

Ms. Holmes-Taylor further argues Ms. Donatto's only remedy is that stated in La. R.S. 13:4244 : the judgment debtor must file a contradictory motion and prove that either (1) the foreign judgment is being appealed or has been stayed, or (2) any ground exists that would stay the execution of the judgment in Louisiana. Harrah's Club v. Mijalis , 557 So.2d 1142 (La. App. 2 Cir.), writ denied , 559 So.2d 1387 (1990) ; North Amer. Charitable Servs. Inc. v. ADSA Inc. , 35,523 (La. App. 2 Cir. 1/23/02), 805 So.2d 1226. Ms. Donatto did not allege that the Virginia judgment was pending appeal or had been stayed, or that execution in Louisiana would be improper; she merely alleged that the clerk did not comply with mandatory notice before the judgment was made executory. This deficiency deprived her of the opportunity to use R.S. 13:4244. The judgment must be reversed and the case remanded.

We pretermit any consideration of Ms. Donatto's second assignment of error.

For the reasons expressed, the judgment is REVERSED and the case is REMANDED to the district court for further proceedings. All costs are to be paid by Debra Holmes-Taylor.

REVERSED AND REMANDED .