text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-55
    NO. 2017-BA-2125
    Supreme Court of Louisiana.
    August 31, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

Petitioner applied to take the Louisiana Bar Examination. The Committee on Bar Admissions ("Committee") advised petitioner that it could not certify him to take the bar exam on character and fitness grounds. Petitioner then applied to this court for permission to take the bar exam. We granted the application, with the condition that upon petitioner's successful completion of the exam, he apply for the appointment of a commissioner to take character and fitness evidence.

Upon passing the bar exam, and on petitioner's application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner's recommendation and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall execute a two-year diagnostic monitoring agreement with the Judges and Lawyers Assistance Program ("JLAP").

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

Hughes, J., would grant admission without conditions.


source: Caselaw Access Project

author: PER CURIAM CLARK, J., dissenting.

license: Public Domain

text:
    IN RE: Neil Dennis William MONTGOMERY
    NO. 2018-B-0637
    Supreme Court of Louisiana.
    August 31, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Neil Dennis William Montgomery, an attorney licensed to practice law in Louisiana but currently ineligible to practice.

FORMAL CHARGES

16-DB-096

In October 2013, Jason Burke paid respondent $2,000 to represent him in a divorce matter. Thereafter, respondent failed to take any action in the matter and failed to respond to Mr. Burke's requests for information. In July 2015, Mr. Burke filed a complaint against respondent with the ODC. Respondent did not reply to the complaint.

The ODC alleged respondent's misconduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.1(c) (failure to pay bar dues and the disciplinary assessment), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

17-DB-031

In August 2013, George McIntosh retained respondent to represent him in a divorce, custody, and support matter, paying him $7,500. Mr. McIntosh never received a billing statement from respondent to account for these funds.

On December 2, 2013, respondent appeared in court with Mr. McIntosh. Without consulting with Mr. McIntosh, respondent waived Mr. McIntosh's right to support, although his wife's income was substantially more than his and waiving his right to support did not serve his interest.

After the hearing, Mr. McIntosh saw respondent only twice, and only when their paths crossed at coffee shops, as opposed to scheduled meetings at respondent's office. Mr. McIntosh also had a difficult time reaching respondent by phone. He called respondent repeatedly for a month at a time, sometimes longer, before getting any response. Eventually, Mr. McIntosh was able to reach respondent on his cell phone and they discussed the need to file a detailed descriptive list and to traverse the descriptive list filed by the opposing party. Mr. McIntosh last made contact with respondent in April 2015, when respondent advised that he would be filing a detailed descriptive list in the matter. Mr. McIntosh made numerous attempts to contact respondent after this date, to no avail.

In September 2015, Mr. McIntosh was served with a rule to show cause why the opposing party's detailed descriptive list of assets and liabilities should not be approved. Mr. McIntosh tried numerous times to reach respondent regarding this matter, but he was not successful. Mr. McIntosh then reviewed the record and learned that respondent did not file his detailed descriptive list or the motion to traverse the opposing party's list. Mr. McIntosh further learned that a final divorce judgment was granted in May 2015, and that respondent had been served with notice of the rule to set the divorce hearing, but failed to appear and failed to notify Mr. McIntosh.

In November 2015, Mr. McIntosh retained new counsel to complete the matter. In July 2016, Mr. McIntosh filed a disciplinary complaint against respondent. Respondent failed to answer the complaint, necessitating the issuance of a subpoena for his sworn statement. To date, the ODC has been unable to successfully locate respondent and respondent has not contacted the ODC.

The ODC alleged respondent's misconduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(4) failure to account for funds paid in advance), 1.16(d), 8.1(c), and 8.4(a).

DISCIPLINARY PROCEEDINGS

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 16-DB-096 and 17-DB-031. Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

In July 2017, the matters were consolidated by order of the hearing committee chair. No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee noted that the facts alleged in the formal charges are deemed admitted. Based on those facts, the committee determined that respondent violated Rules 1.1(b), 1.1(c), 1.3, 1.4, 1.5(f)(4), 1.16(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

The committee determined that respondent negligently violated duties owed to his clients, the legal system, and the legal profession. The committee noted that the amount of injury he caused is difficult to ascertain from the record but found that actual injury did occur as a result of respondent's misconduct.

The committee determined that the applicable baseline sanction is suspension. The committee did not mention the presence of any aggravating factors, but noted that respondent became ineligible to practice law shortly after the misconduct occurred, demonstrating respondent's disconnection from the requirements of the practice of law. The committee noted that no mitigating factors were found.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined that the factual allegations of the formal charges are deemed admitted and proven by clear and convincing evidence. The board also determined that the legal conclusions of the committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent knowingly violated duties owed to the public, the legal system, and the legal profession. His conduct caused actual injury. Both clients paid for work that respondent did not complete and Mr. McIntosh had to retain new counsel to complete his matter. Respondent also did not respond to the complaints or cooperate in the ODC's investigations. The deemed admitted facts and evidence in the record demonstrate that respondent knew or should have known that his lack of diligence and lack of communication negatively impacted his clients and was below the standard required by the Rules of Professional Conduct. Further, respondent certainly knew that he collected fees for work he did not complete.

After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is suspension. The board found the following aggravating factors are present: multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 2006), and indifference to making restitution. The sole mitigating factor found by the board was the absence of a prior disciplinary record.

After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board also recommended respondent be required to pay restitution to his clients, with legal interest. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent failed to comply with bar obligations, neglected legal matters, failed to communicate with clients, failed to account for fees, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent has violated Rules 1.1(b), 1.1(c), 1.3, 1.4, 1.5(f)(4), 1.16(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

The record also supports a finding that respondent knowingly violated duties owed to his clients, the legal system, and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is suspension. We agree with the board's assessment of aggravating and mitigating factors.

Turning to the issue of an appropriate sanction, we find guidance from In re: Brown-Manning , 15-2342 (La. 3/4/16), 185 So.3d 728, wherein an attorney neglected two legal matters, failed to communicate with two clients, failed to refund unearned fees, and failed to cooperate with the ODC

in two investigations. For this misconduct, we suspended the attorney from the practice of law for one year and one day.

In light of this jurisprudence, we will accept the disciplinary board's recommendation and suspend respondent from the practice of law for one year and one day. We will also order respondent to provide an accounting and make restitution of any unearned fees to Mr. Burke and Mr. McIntosh.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Neil Dennis William Montgomery, Louisiana Bar Roll number 30204, be and he hereby is suspended from the practice of law for one year and one day. It is further ordered that respondent shall provide an accounting and a refund of unearned fees, with legal interest, to Jason Burke and George McIntosh. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

CLARK, J., dissents and assigns reasons.

CRICHTON, J., dissents in part and assigns reasons.

CLARK, J., dissenting.

I dissent. I would disbar.

CRICHTON, J., dissents in part and assigns reasons

I agree with the per curiam that respondent has knowingly violated duties owed to his clients, the legal system, and the legal profession, causing actual harm. However, I disagree with the Court's imposition of a suspension of one year and one day, as I find this sanction to be too lenient. The per curiam relies upon In re: Brown-Manning , 15-2342 (La. 3/4/16), 185 So.3d 728, in support of its imposition of suspension in this matter. However, the respondent in Brown-Manning , while admittedly somewhat uncooperative with the Office of Disciplinary Counsel ("ODC"), did actually respond to some requests for files and documents. Here, respondent has made zero effort to respond to any of the accusations against him, failed to make restitution, and has never appeared in response to any subpoena issued to him. In fact, the record reflects ODC still has been unable to actually locate respondent and respondent has not contacted ODC. Thus, I find Brown-Manning distinguishable from the instant matter, and providing little support for the sanction imposed here. Based upon the record before the Court in this case, I would impose disbarment.

      On September 9, 2015, respondent was declared ineligible to practice law for failing to pay bar dues and the disciplinary assessment and for failing to file his trust account disclosure statement. He is also ineligible for failure to comply with the mandatory continuing legal education requirements.

      Louisiana Rules of Professional Conduct, Rule 1.1 (c) provides that "[a] lawyer is required to comply with all of the requirements of the Supreme Court's rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address , and proper disclosure of trust account information or any changes therein." (Emphasis added)


author: PER CURIAM:

text:
    STATE of Louisiana v. Mary Henderson TRAHAN
    No. 2016-KP-2150
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

Writ granted. Relator's claim that counsel provided ineffective assistance at trial, and in particular that counsel erred in failing "to introduce any evidence in support of the hypothesis of innocence proposed by defense counsel [in opening remarks]," as noted by this court on direct review, State v. Trahan , 11-1609, pp. 8-9 (La. 7/2/12), 97 So.3d 994, 998-999, merits a full evidentiary hearing conducted in accordance with La.C.Cr.P. art. 930. No witnesses testified at the hearing held in the district court and no evidence was presented. Therefore, we are unable to adequately review relator's claim at this time. Accordingly, we remand to the district court to reconsider its ruling after conducting a full evidentiary hearing.

REMANDED

GUIDRY, J., would deny.

CLARK, J., would deny.

GENOVESE, J., would deny.


author: PER CURIAM

text:
    STATE of Louisiana v. Brandon BOYD
    No. 2017-K-1749
    Supreme Court of Louisiana.
    August 31, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM

Defendant was found guilty of a second degree murder he committed while 17 years old. After conducting a hearing pursuant to La.C.Cr.P. art. 878.1, the district court sentenced defendant to life imprisonment at hard labor without parole eligibility. The court of appeal affirmed the conviction. State v. Boyd , 17-0014, p. 8 (La. App. 1 Cir. 9/15/17), 2017 WL 4082248 (unpub'd). However, the court of appeal identified as an error patent that defendant was sentenced within 24 hours of the denial of defendant's motions for new trial and postverdict judgment of acquittal in violation of La.C.Cr.P. art. 873's prohibition, "If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." The court of appeal found that, because the district court was required to exercise discretion to determine whether defendant would receive parole eligibility, and because defendant moved to reconsider the sentence and complained of the sentence on appeal, the error required it to vacate the sentence and remand for resentencing.

However, La.C.Cr.P. art. 873 also provides: "If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately." At the outset of the hearing here, the state offered the trial record into evidence with the proviso that it was doing so if defendant was prepared to go forward with the hearing. The defense responded that it had no objection to doing so. This sufficed to constitute an explicit waiver of the sentencing delay, as authorized by La.C.Cr.P. art. 873. Accordingly, we reverse the court of appeal, reinstate the sentence, and remand to the court of appeal to consider any pretermitted claims.

REVERSED AND REMANDED

GENOVESE, J., would deny.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-392775
    NO. 2017-BA-0796
    Supreme Court of Louisiana.
    August 31, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

Petitioner successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions ("Committee") advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds.

Petitioner then applied to this court for admission to the practice of law. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner's application for admission be denied. Neither party objected to this recommendation.

After reviewing the evidence and considering the law, we conclude that at this time, petitioner has failed to meet his burden of proving that he has "good moral character" to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(D). Accordingly, it is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until one year has passed from the date of this judgment.

ADMISSION DENIED.

JOHNSON, C.J., would conditionally admit.

HUGHES, J., would conditionally admit.


text:
    STATE EX REL. Donald Lee LEGER, Jr. v. STATE of Louisiana
    NO. 2017-KH-0992
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE EX REL. Larry W. SIMS v. STATE of Louisiana
    NO. 2017-KH-0994
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Corey SCOTT
    NO. 2017-K-1743
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    STATE of Louisiana v. Joshua Michael MITCHELL
    NO. 2017-KO-1890
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    STATE EX REL. Dontrale PHILLIPS v. STATE of Louisiana
    NO. 2017-KH-0981
    Supreme Court of Louisiana.
    August 31, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Phillips v. State, 16-0594 (La. 8/4/17), 223 So.3d 1144.


text:
    STATE of Louisiana v. Marlon Frank THOMAS
    NO. 2017-KO-1153
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    STATE of Louisiana v. Jason M. LUTZ
    NO. 2017-K-2011
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    IN RE: PMJ HOUMA LAND, LLC
    NO. 2018-CC-0665
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


author: WEIHER, J., would grant.

text:
    METALS USA PLATES & SHAPES SOUTHEAST, INC. c/w O'Neal Steel Louisiana, LLC v. LOUISIANA DEPARTMENT OF REVENUE
    NO. 2018-C-0635
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.
   WEIHER, J., would grant.

HUGHES, J., would grant.


text:
    Scottie MCCOY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and David Comeaux
    NO. 2018-CC-0643
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Patrick Newton HARRIS
    NO. 2018-KK-0669
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    IN RE: ALR and BAR
    NO. 2018-CJ-0954
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Joseph SLAY v. PHYSICIANS MEDICAL CENTER, Jane Doe and ABC Insurance Company
    NO. 2018-CC-0650
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


author: HUGHES, J., would grant in part.

text:
    RAPIDES REGIONAL MEDICAL CENTER v. The CITY OF PINEVILLE FIRE DEPARTMENT
    NO. 2018-CC-0671
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.
   HUGHES, J., would grant in part.


text:
    Phillip Deron WASHINGTON v. MAGNOLIA MANOR NURSING HOME AND REHABILITATION, L.L.C., et al.
    NO. 2018-C-0682
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018-CC-0645
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Phillip Deron WASHINGTON v. MAGNOLIA MANOR NURSING HOME AND REHABILITATION, L.L.C., et al.
    NO. 2018-C-0666
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Phillip Deron WASHINGTON v. MAGNOLIA MANOR NURSING HOME AND REHABILITATION, L.L.C., et al.
    NO. 2018-C-0685
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Donna SUTTON v. ATLANTIC SPECIALTY INS. CO. and The City of Westlake
    NO. 2018-CC-0642
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Hector L. ALONSO husband of/and Maria D. Alonso v. TULANE UNIVERSITY MEDICAL CENTER, et al.
    NO. 2018-OC-0655
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Gustave J. LABARRE, Jr., Ramona B. Talbot, Howard J. Dupre, III, Gail D. Boudreaux, Floyd A. Labarre, Marlene L. Folse, Cheryl D. Daigle, Henry R. Lawes, Jr., Sidney J. Hernandez, June D. Bouchereau, Louis P. LeBlanc Jr., Peirre F.V. Delabarre IV, Mary G. Delabarre; Katherine D. Labarre, Andre P.V. Delabarre, Gilbert J. Dupre Jr., Grant J. Dupre, Grantlyn D. Wheeler, Elena R. LeBlanc, Helen H. Shaw, Anita H. Williams, Gertrude L. Landry, Lydia L. Shavers, Merrill L. Cornay, Harry J. Simoneaux Sr., Harry J. Simoneaux Jr., Amy Simoneaux, Lyle T. Simoneaux, Joie A. Simoneaux, Simone S. Lawson, Christopher A. Simoneaux, Gregory J. Dupre, Augusta L. Riffert, Albert H. LeBlanc Jr., Maria Carmen Delabarre, and Lizarraga Enterprises, LLC v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LCC
    NO. 2018-CC-0786
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


author: GENOVESE, J., would grant.

text:
    Aaron Allen STALL v. MERCURY INS. CO. of Florida, et al.
    NO. 2018-C-0629
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.
   GENOVESE, J., would grant.


text:
    Gustave J. LABARRE, Jr., et al. v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LLC
    NO. 2018-CC-0660
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    STATE of Louisiana v. August GARNETT
    NO. 2018-KK-0676
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.


text:
    Gustave J. LABARRE, Jr., Ramona H. Talbot, Howard J. Dupre, III, Gail D. Boudreaux, Floyd A. LaBarre, Marlene L. Folse, Cheryl D. Daigle, Henry R. Lawes, Jr., Sidney J. Hernandez, June D. Bouchereau, Louis P. Leblanc Jr., Peirre F.V. Delabarre IV, Mary G. Delabarre, Katherine D. Labarre, Andre P.V. Delabarre, Gilbert J. Dupre Jr., Grant J. Dupre, Grantlyn D. Wheeler, Elena R. Leblanc, Helen H. Shaw, Anita H. Williams, Gertrude L. Landry, Lydia L. Shavers, Merrill L. Cornay, Harry J. Simoneaux Sr., Harry J. Simoneaux Jr., Amy Simoneaux, Lyle T. Simoneaux, Joie A. Simoneaux, Simone S. Lawson, Christopher A. Simoneaux, J. Gregory, J. Dupre, Augusta L. Riffert, Albert H. Leblanc Jr., Maria Carmen Delabarre, and Lizarraga Enterprises, LLC v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LCC
    NO. 2018-CC-0787
    Supreme Court of Louisiana.
    August 31, 2018
    Denied.
   HUGHES, J., would grant.


author: McCLENDON, J.

text:
    Jeffrey M. EHLINGER, Jr. v. Sarah Barnett EHLINGER
    2017 CU 1120
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 29, 2018 Rehearing Denied July 11, 2018
    Frank P. Tranchina, Jr.Tracy E. Gold, Covington, Louisiana, Counsel for Plaintiff/Appellee Jeffrey M. Ehlinger, Jr.
    Richard Ducote, Covington, Louisiana, Counsel for Defendant/Appellant Sarah Barnett Ehlinger Donahue
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

In this custody dispute, the mother appeals a trial court's judgment that denied her request for sole custody. She also appeals the trial court's decision to seal the entire record. For the following reasons, we affirm in part and remand.

FACTUAL AND PROCEDURAL HISTORY

Jeffrey M. Ehlinger, Jr. and Sarah Barnett Ehlinger were married in 2001 and had two children together, a daughter born on September 9, 2002, and a son born on March 11, 2005. Mr. Ehlinger filed a petition for divorce in March 2011. On May 17, 2011, after the parties reached an agreement, the trial court signed a consent judgment, granting them joint and shared physical custody of their two minor children, but naming no domiciliary parent. The consent judgment also made provisions for, inter alia, child support, private school expenses, health insurance, and income tax exemptions. The parties were divorced on June 14, 2012. Ms. Ehlinger married Brandon Donahue on June 28, 2012, and they have a son together, born on January 13, 2013.

On January 30, 2015, Mr. Ehlinger filed a "Motion for Sole Custody, Modification of Custodial Schedule, Designation of Mover as Domiciliary Parent and Prohibition on Drug and Alcohol Use." On February 17, 2016, Ms. Donahue filed her own motion for sole custody of the minor children. A three-day trial took place on both motions for sole custody and on Mr. Ehlinger's motion to be named domiciliary parent, and the trial court took the matter under advisement. On February 10, 2017, the trial court rendered its "Judgment on Rule Granting Joint Custody with Incorporated Implementation Order Pursuant to [LSA-] R.S. 9:335" that maintained shared custody equally between the parties, with no domiciliary parent. The trial court sealed its reasons for judgment.

On August 15, 2017, this court issued a Rule to Show Cause Order, stating that the February 10, 2017 judgment appeared "to lack the specificity required to constitute a final, appealable judgment, in that it fails to specifically identify the party or parties in favor of and against whom judgment was rendered." On September 13, 2017, we issued an Interim Order, remanding the case to the trial court for the limited purpose of allowing the parties to seek an amended judgment. On September 27, 2017, the trial court held a hearing and signed an Amended Judgment, which was supplemented into the appellate record.

Ms. Donahue has appealed and assigns as error the trial court's denial of Ms. Donahue's motion for sole custody and to be designated as the domiciliary parent.

She also assigns as error the sealing of the written reasons for judgment and then, in the amended judgment, the sealing of the entire record.

DISCUSSION

In a proceeding for divorce or thereafter, the trial court shall award custody in accordance with the best interest of the child. LSA-C.C. art. 131. Indeed, the best interest of the child is the sole criterion to be met in making a custody award, and the trial court must pursue actively that course of conduct that will be of the greatest benefit to the child. It is the child's emotional, physical, material and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. Hodges v. Hodges, 15-0585 (La. 11/23/15), 181 So.3d 700, 702 ; Harrell v. Harrell, 17-0561 (La.App. 1 Cir. 12/5/17), 236 So.3d 704, 709, writ denied, 18-0018 (La. 2/2/18), 235 So.3d 1112. The legislature has mandated that the court look only to the child's interests so that the court can fulfill its obligations to the child. Hodges, 181 So.3d at 702.

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. LSA-C.C. art. 132. In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. Id. ; Hodges, 181 So.3d at 702.

In determining the best interest of the child, the court shall consider all relevant factors, and such factors may include those enumerated in LSA-C.C. art. 134. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Harrell, 236 So.3d at 709-10. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id.

Additionally, as in most child custody cases, the trial court's determination as to what is in the best interest of the child is based heavily on factual findings. It is well settled that an appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Olivier v. Olivier, 11-0579 (La.App. 1 Cir. 11/9/11), 81 So.3d 22, 26. Further, in cases where the original custody decree is a stipulated judgment, as is the case before us, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 239-40 ; Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738.

Hence, the starting point of our analysis is the legislative pronouncement that the courts must first and foremost consider what is in the best interest of the child, with a strong legislative preference for shared custody on an equal basis unless otherwise indicated by the evidence. In the instant case, Ms. Donahue initially argues that the trial court erred in denying her motion for sole custody. Both parties raised a number of complaints and concerns about the other parent's ability to properly parent, and each asserted that they should be granted sole custody of the minor children. The trial court, in its thorough reasons for judgment, stated:

The acts of bad conduct alleged by father and mother against the other are numerous and sometimes colorful. In an attempt at brevity I will only mention here those issues I consider to be the most relevant. Also, I will not delve into a complete detailing of all the accusations of the parties in an attempt to protect their privacy. The family as a whole has been through extensive counseling and psychological examinations by experts.

Based on our review of the record, it is clear that both parents want the best for their children. However, it is also clear that they cannot agree on the most effective way to achieve that goal. The trial court had the benefit of direct observation of the parties and the difficult task of weighing the credibility of the witnesses. The trial court, after hearing and weighing all of the testimony and evidence, including the expert reports, found that neither party sufficiently established that there had been a change in material circumstances warranting a change in custody. The court determined that it was in the best interest of the children to maintain joint custody. We cannot conclude that the trial court abused its discretion in denying Ms. Donahue's request for sole custody.

Ms. Donahue next asserts that the trial court erred in denying her motion to be designated as the children's domiciliary parent. She contends that there is no implementation order, and, therefore, the absence of a named domiciliary parent is reversible error. Ms. Donahue cites the Hodges case in support of her argument.

In response to this assignment of error, Mr. Ehlinger contends that while LSA-R.S. 9:335 sets forth the preference for the designation of a domiciliary parent, the supreme court in Hodges only held that a court cannot designate co-domiciliary parents and that it did not hold that a court is prevented from designating no domiciliary parent. He also maintains that the amended judgment qualifies as an implementation order.

Louisiana Revised Statutes 9:335 governs joint custody arrangements and provides, as follows:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2) (a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.

Louisiana Revised Statutes 9:336 also provides that "[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority." Major decisions normally include decisions concerning major surgery or medical treatment, elective surgery, and schools attended, but not the day-to-day decisions involved in rearing a child, e.g., bedtimes, curfews, household chores, and the like. See Griffith v. Latiolais, 10-0754 (La. 10/19/10), 48 So.3d 1058, 1069. Non-major decisions are not subject to judicial review. Id. ; Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d 731, 738.

Thus, according to Subsection B of LSA-R.S. 9:335, the trial court shall designate a domiciliary parent in a decree of joint custody. However, it also provides for two circumstances in which a court may decline to name a domiciliary parent in a joint custody context, that is, when "there is an implementation order to the contrary" or "for other good cause shown." LSA-R.S. 9:335B(1); Wolfe v. Hanson, 06-1434 (La.App. 1 Cir. 5/2/08), 991 So.2d 13, 17, writ denied, 08-1205 (La. 6/27/08), 983 So.2d 1292. See also Hodges, 181 So.3d at 708. An "implementation order to the contrary" must meet the requirements set forth in LSA-R.S. 9:335A by specifically allocating physical custody times for each parent and allocating the legal authority and responsibility of the parents. Wolfe, 991 So.2d at 17. If, however, the joint custody decree neither designates a domiciliary parent nor otherwise provides an implementation order that allocates the legal authority and responsibility of the parents, good cause must be shown for the court's decision not to assign a domiciliary parent. LSA-R.S. 9:335B(1); Wolfe, 991 So.2d at 17.

In other words, while LSA-R.S. 9:335B(1) provides a preference for the designation of a domiciliary parent, a court could choose not to designate a domiciliary parent at all and, instead, allocate authority by means of an implementation order allocating both physical and legal custody. Hodges, 181 So.3d at 708-09. By making available an implementation order, the legislature has given courts great procedural flexibility to craft a custody arrangement on a case-by-case basis that promotes the best interest of the child. Hodges, 181 So.3d at 709.

In Hodges, the parents were designated "co-domiciliary parents," and one of the issues before the court was whether LSA-R.S. 9:335 permitted such a designation. After reviewing the clear language of LSA-R.S. 9:335, the supreme court concluded:

We hold that [LSA-] R.S. 9:335 precludes the designation of "co-domiciliary parents" in a joint custody arrangement. It is unnecessary and contrary to the plain language of [LSA-] R.S. 9:335 to designate both parents as "co-domiciliary parents" in order to allocate parental responsibility. For example, when a court wishes to depart from the default rule that the sole domiciliary parent has superior decision-making authority, a court can make different provisions for decision making within the joint custody implementation order.
Further, we find that [LSA-] R.S. 9:335 does not explicitly require a particular form for the rendition of a joint custody implementation order, and we hold the only mandatory requirements for a joint custody implementation order stated in [LSA-] R.S. 9:335 are: (1) the time periods during which each parent shall have physical custody of the child; and (2) the legal authority and responsibility of the parents.

Hodges, 181 So.3d at 711.

In the case sub judice, the record reflects that Ms. Donahue and Mr. Ehlinger have failed to effectively communicate, and in fact, their heated arguments have resulted in police involvement on at least one occasion. This inability to cooperate has led to continued disagreement and conflict between the parties. The trial court, after hearing and weighing all of the testimony and evidence, declined to name a domiciliary parent. In its written reasons for judgment, the trial court stated: "Following the holdings in the Hodges case the court declines to designate either parent as being domiciliary." The trial court maintained the joint and shared custody arrangement with no domiciliary parent. Based on the record before us, it is clear that the trial court determined that it was in the best interest of the children to have no domiciliary parent. We find no error in this determination.

Accordingly, we must now determine whether the implementation order provided by the trial court was sufficient. The February 10, 2017 judgment first allocated physical custody and then provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that while exercising custody each parent shall have full authority to administer medical care, including psychological treatment, as they deem to be in the best interest of the minor child[ren]; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that before implementing any such action above, the parent intending such action shall inform the other parent of their intent to do so via the Family Wizard program; and if the other parent objects they may petition the court for a resolution of the dispute by either formal or informal procedure. Formal procedure is defined as the filing of a Rule to Show Cause. Informal procedure means that both parties, after having filed a rule and having consented to [waiving] service and all delays, may schedule an instanter phone conference with the court for a swift resolution.

Although the judgment specifies the time periods during which each parent is to have physical custody, the judgment fails to adequately allocate the legal authority and responsibility of the parents. See LSA-R.S. 9:335A. The trial court's judgment gives each parent, when exercising custody, the authority to administer medical care, including psychological treatment, as they deem to be in the best interest of the child and provides steps for the resolution of any disputes regarding same, but it does not allocate legal authority and responsibility for other major decisions.

In Hodges , the trial court's judgment awarded joint custody and ordered a physical custody and holiday custody schedule. The judgment also contained provisions for the parents' rights and responsibilities relative to health insurance, medical costs, daycare costs, claiming the minor child for income tax purposes, and the payment of child support. However, the supreme court in Hodges found that the custody judgment did not meet the second requirement of LSA-R.S. 9:335A in that the judgment failed to "allocate the legal authority and responsibility of the parents." While the supreme court did not set forth specifically what responsibilities are mandated to have a valid implementation order, it found that setting forth only custody and financial arrangements was insufficient.

Given that the statute fails to set forth what specific legal authority and responsibility must be allocated, we must examine the legislative intent of LSA-R.S. 9:335. It would appear that the legislature, in requiring an allocation of the legal authority and responsibility regarding the minor children, intended to promote greater harmony between the parents by providing less opportunity for conflict. In order to accomplish this goal, we find that an implementation order should at a minimum allocate the legal authority and responsibility for major decisions, such as medical care, elective surgery, dental or orthodontic care, and school and/or preschool choices. See Griffith, 48 So.3d at 1069.

Considering the above, we find that in this case the trial court did set forth the authority for making medical decisions regarding the minor children, but failed to allocate which parent would be responsible for other major decisions regarding the health, education, and welfare of the minor children. Accordingly, we remand this matter to the trial court for the entry of a joint custody implementation order allocating not only the legal authority and responsibility of the parents regarding health decisions for the minor children, but also the legal authority and responsibility of the parents with regard to other major decisions as previously set forth.

Lastly, Ms. Donahue argues that the trial court erred as a matter of law in sealing the written reasons for judgment, and then, in the amended judgment, sealing the entire record. The Louisiana Constitution has an "open courts" provision which mandates that all courts shall be open. LSA-Const. art. 1, § 22. Additionally, LSA-Const. art. 12, § 3 provides that no person shall be denied the right to observe the deliberations of public bodies and to examine public documents, except in cases established by law. The right of access to public records is to be liberally construed in favor of unrestricted access.

When doubt exists about the right to access certain records, the doubt must be resolved in favor of the public's right to see. A claim of annoyance, embarrassment, oppression, or undue burden or expense is not enough to overcome the public's right of access to public records. In re Kemp, 45,028 (La.App. 2 Cir. 3/3/10), 32 So.3d 1050, 1054, writ denied, 10-0755 (La. 6/25/10), 38 So.3d 338 (citing Copeland v. Copeland, 07-0177 (La. 10/16/07), 966 So.2d 1040 ).

However, the fact that a document is filed in the court record does not necessarily mean that it will be accessible to the public. In commenting on a court's records, the United States Supreme Court has held that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files and that access has been denied where court files might have become a vehicle for improper purposes. The Court declined to identify all the factors to be weighed in determining whether such access is appropriate, but recognized that the discretion as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99, 98 S.Ct. 1306, 1312-13, 55 L.Ed.2d 570 (1978) ; Copeland, 966 So.2d at 1044.

Louisiana has no specific statute providing for sealing court records. Trial courts exercise this power under general provisions on courts' authority to govern proceedings. Louisiana Code of Civil Procedure article 191 provides that a court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law. Further, LSA-C.C.P. art. 1631A states that the court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done. Copeland, 966 So.2d at 1045.

Even without a statute exempting certain court proceedings and documents from public review, the constitutional right of access is not unlimited. Louisiana Constitution article 1, § 5 provides, in pertinent part, that every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. This provision protects certain documents and information from disclosure. Copeland, 966 So.2d at 1045-46. In the Copeland case, the supreme court recognized that the right to privacy is defined as the right to be let alone and to be free from unnecessary public scrutiny. However, the court has also defined the limits on the right to privacy, reasoning that the right to privacy is not absolute; it is qualified by the rights of others. The right of privacy is also limited by society's right to be informed about legitimate subjects of public interest. The court went on to note that individuals involved in civil litigation may be compelled to give evidence which tends to embarrass them or to produce documents of a confidential nature. Copeland, 966 So.2d at 1046.

In Copeland, the Louisiana Supreme Court recognized a balancing test to be used in analyzing the competing constitutional rights:

Considering the strong constitutional bias in favor of open access by the public to court proceedings, we find the trial court's blanket order sealing the entire record in this case to be overbroad. Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public's constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access.

Copeland, 966 So.2d at 1047 (citing Copeland v. Copeland, 06-1023 (La. 6/2/06), 930 So.2d 940, 941 ( Copeland I ) ). The court noted that this balancing test properly subjects a request to have the record sealed to the trial court's discretion, which has supervisory power over its own records and files, placing the burden of proof on the parties seeking closure, and balancing the parties' privacy interests against the public's constitutional rights of access to court proceedings and documents.

Copeland was a divorce proceeding where no "custody hearing" was involved and the parties filed a joint motion to seal the record. See Copeland, 966 So.2d at 1041. In this matter, unlike Copeland, a custody hearing was at issue and it was the trial court that sealed the record on its own motion. The trial court, after hearing all of the testimony and reviewing the evidence, initially concluded that it was in the children's best interest to seal the reasons for judgment based on the criteria set forth in the Copeland case. Thereafter, in its amended judgment, the trial court decreed that, again pursuant to the Copeland criteria, the entire record be sealed, "only to be reviewed by express permission of the Court." The trial court, however, gave no reasons or explanation for its decision.

On appeal, Ms. Donahue is requesting for the first time that the record should be unsealed. Because of the procedural posture of this case, Ms. Donahue's request to unseal the record was presented for the first time on appeal. As we are a court of review, we remand the matter to the trial court for a determination of what part of the record, if any, should be sealed, taking into consideration the balancing test set forth by the Louisiana Supreme Court in Copeland.

CONCLUSION

For the above and foregoing reasons, this matter is remanded to the trial court for a modification of the implementation order consistent with this opinion. We also remand the matter to the trial court for a determination of what part of the record, if any, should be sealed. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally between the parties, Jeffrey M. Ehlinger, Jr. and Sarah Barnett Ehlinger Donahue.

AFFIRMED IN PART AND REMANDED.

      For ease of reading, we will refer to Sarah Barnett Ehlinger as Ms. Donahue for the remainder of the opinion. We also note that Mr. Donahue and Ms. Donahue were subsequently divorced. See Donahue v. Donahue, 16-0757 (La.App. 1 Cir. 6/2/17), 222 So.3d 249.

      At least part of Mr. Ehlinger's motion was based on actions in the Donahue custody matter, wherein Mr. Donahue was granted sole custody of the minor child. Dr. Alicia Pellegrin, who had been appointed to conduct psychological evaluations of Mr. Donahue and Ms. Donahue in that matter, was appointed to conduct an evaluation of the parties and the Ehlinger children in this case. On June 17, 2016, Mr. Ehlinger filed a motion to compel Ms. Donahue to submit to a mental examination pursuant to LSA-C.C.P. art. 1464. Ms. Donahue opposed the motion, and, following a hearing, the trial court granted the motion.

      We note that when Ms. Donahue's current attorney enrolled as counsel, he also filed a motion to recuse Judge Dawn Amacker. Judge Amacker voluntarily recused herself, as she does in all cases involving current counsel. Thereafter, the matter was allotted to Judge Mary Devereaux. Ms. Donahue's counsel then filed a motion to recuse Judge Devereaux, alleging bias and prejudice against Ms. Donahue as shown in the Donahue case. Judge Devereaux denied those allegations, but found that a conflict did exist so that the law required her to recuse herself from the present matter. The case was then allotted to Judge Reginald Badeaux.

      The amended judgment of September 27, 2017, provided that "unless expressly modified here, all other aspects of the judgment signed February 10, 2017 shall remain unchanged."

      While we note that Mr. Ehlinger asserts that Ms. Donahue never asked to be named domiciliary parent in her motion for sole custody, Ms. Donahue maintains that her request to be named domiciliary parent is found in her motion for sole custody, wherein she stated that "[t]he best interest of the parties' children mandates that Ms. Donahue, as their sole custodian, serve, of course, as the domiciliary parent." We find this to be sufficient.

      We note that Ms. Donahue also filed a motion for new trial, which was denied as being untimely.

      We do not address whether "good cause" existed for not issuing an implementation order as the trial court rendered a "Judgment on Rule Granting Joint Custody with Incorporated Implementation Order," clearly finding that an implementation plan was necessary. See LSA-R.S. 9:335A(1).

      We note that the supreme court in Hodges questioned the desirability of giving the parent with whom the child is residing at the time decision-making authority. See Hodges, 181 So.3d at 706. However, this issue is not before us.


text:
    Nicholas MILLER v. Teal DICHERRY
    2017 CU 1656
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 29, 2018
    Brian J. Prendergast, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee, Nicholas Miller
    Natalie T. Robertson, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Teal Dicharry
    Teal Dicharry, Baton Rouge, Louisiana, Defendant/Appellant, Pro Se
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

A mother appeals a trial court judgment that maintained a 50/50 custody arrangement with the child's father, granted the child's father authority to make medical decisions, and ordered the child be vaccinated. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Teal Dicharry and Nicholas Miller are the parents of the minor child, H.M. After the parents' relationship ended, Mr. Miller, on August 1, 2014, filed a petition that sought to set custody and support. The parties stipulated to a joint custody arrangement, which designated Ms. Dicharry as the domiciliary parent and granted Mr. Miller physical custody on alternating weekends and a four-hour visit once per month. Following various motions by the parties, the trial court eventually issued a ruling that maintained Ms. Dicharry as domiciliary parent, but granted joint custody of the minor child with physical custody to be shared equally. The ruling granting Mr. Miller joint custody was affirmed by this court in Miller v. Dicherry, 17-0699 (La.App. 1 Cir. 9/27/17) (unpublished opinion) 2017 WL 4314358.

On March 29, 2017, Mr. Miller filed a motion to modify the joint custody order wherein he sought, among other things, to be designated the domiciliary parent. Mr. Miller indicated that he requested to be named domiciliary parent in order to make medical decisions for H.M.

On July 12, 2017, Ms. Dicharry filed a rule to modify visitation and child support, a motion for contempt, and a motion for a joint custody implementation plan. In her motions, Ms. Dicharry sought, among other things, modification of the 50/50 equal sharing to limit Mr. Miller's exercise of physical custody to every other weekend.

Following a hearing on August 7, 2017 in which the parties' motions were considered, the trial court issued both written reasons for judgment and a judgment on September 15, 2017. In its judgment, the trial court maintained the 50/50 custody arrangement with Ms. Dicharry as domiciliary parent, but ordered that Mr. Miller would have full authority to make medical decisions and ordered that H.M. be vaccinated.

Ms. Dicharry has appealed assigning the following as error:

1. The district court erred by not finding that Mr. Miller resides in Texas and allowing him to continue the 50/50 custody arrangement[.]
2. The district court erred by granting Mr. Miller the right to make medical decisions and ordering that the parties' minor child be vaccinated.

The parties have filed multiple pleadings with the trial court since the rendition of the September 15, 2017 judgment. However, none of the pleadings filed or rulings made have affected the issues currently before this court on appeal.

DISCUSSION

In her first assignment of error, Ms. Dicharry contends that the trial court erred in allowing the 50/50 custody arrangement to continue because Mr. Miller lives, works, and resides in Texas. Ms. Dicharry avers that Mr. Miller never provided verification from his employer to show when he is off from work and that he will be able to exercise physical custody in Louisiana. Ms. Dicharry avers that Mr. Miller, in accordance with past practice, will likely bring H.M. to Texas during his custodial week.

The paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Id. ; Major v. Major, 02-2131 (La. App. 1 Cir. 2/14/03), 849 So.2d 547, 551. By contrast, an uncontested decree in which no evidence is presented as to the fitness of the parents is not a considered decree.

Major, 849 So.2d at 552. When a trial court has made a considered decree of permanent custody, the party seeking a change bears the heavy burden of proving that the continuation of the present custody is "so deleterious to the child as to justify a modification of the custody decree," or of proving by "clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child." Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La. 1986). "Although the trial court retains a continuing power to modify a child custody order, there must be a showing of a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order." Bergeron, 492 So.2d at 1194.

It is a well-recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Major, 849 So.2d at 550. Every child custody case must be viewed within its own peculiar set of facts. Id. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Id.

The trial court noted that it rendered a considered decree of custody on August 9, 2016. Accordingly, the trial court recognized that the heightened standard enunciated in Bergeron applied. In its reasons for judgment, the trial court found that Mr. Miller had been temporarily living in Texas during a training program for his employment. However, the trial court also noted that Mr. Miller indicated that once his training period-which was near completion-was over, and assuming he was hired by the company, he would be working on a week on/week off rotation in Texas. Mr. Miller testified that he would be able to spend his custodial week in Louisiana and work in Texas during his non-custodial week. Because Mr. Miller could exercise physical custody of H.M. in Louisiana, the trial court did not find a material change in circumstances to warrant changing its prior 50/50 custody order.

The trial court also acknowledged Ms. Dicharry's concerns about H.M. traveling to Texas and set limitations to alleviate those concerns. Specifically, the trial court ordered that physical custody be exercised in Louisiana. Additionally, the trial court ordered that if Mr. Miller was "called to work in Texas during his custodial period, Mr. Miller will give the right of first refusal to Ms. Dicharry." Considering the foregoing, we cannot conclude that the trial court was manifestly erroneous in its factual determination, nor did it abuse its discretion in declining to change its prior custody order. Accordingly, Ms. Dicharry's first assignment of error is without merit.

In her second assignment of error, Ms. Dicharry contends that the trial court erred by granting Mr. Miller, the non-domiciliary parent, the right to make medical decisions and ordering immunizations for H.M. Ms. Dicharry notes that she has always been the domiciliary parent and her decisions are presumed to be in the best interest of the child, and Mr. Miller must demonstrate otherwise. See LSA-R.S. 9:335(B)(3). Ms. Dicharry avers the mere fact that she is opposed to immunizations was not sufficient grounds to warrant granting Mr. Miller the right to make medical decisions. Ms. Dicharry contends that the trial court did not find that her refusal to vaccinate H.M. was not in the child's best interest, nor did the trial court find that there had been a material change in circumstances to justify a custody modification in this regard.

When parties are awarded joint custody, the court shall designate a domiciliary parent "except when there is an implementation order to the contrary or for other good cause shown." LSA-R.S. 9:335(B)(1). Courts have inherent power to determine a child's best interest and to tailor a custody order that minimizes the risk of harm to the child. Lawson v. Lawson, 48,296 (La.App. 2 Cir. 7/24/13), 121 So.3d 769, 774. The trial court noted that the parties could not agree on medical decisions that must be made for the child, including whether the child should be vaccinated. The trial court retained Ms. Dicharry as domiciliary parent, but ordered that Mr. Miller have the authority to make medical decisions for H.M. and ordered that H.M., pursuant to Mr. Miller's request, be vaccinated. The trial court also provided that all medical, surgical, and dental records be made available and accessible to both parents.

Contrary to Ms. Dicharry's assertions, the trial court did not base its decision solely on Ms. Dicharry's belief that the child should not be vaccinated. Rather, the trial court, after considering the parties' testimony, found that Ms. Dicharry "will not follow the standard medical practices recommended by pediatricians involved in the child's case." Specifically, Mr. Miller testified that he and Ms. Dicharry have "gone down the avenue of trying to discuss and consult [about health care], and time and time again there's just been too many missed opportunities, direct violations of recommendations from the doctors, threats of lawsuits and being discharged from practices." In reviewing the evidence, the trial court noted that Mr. Miller presented a letter from Hansbrough, Peters, Traxler & Scallan which stated that H.M. was discharged from their practice due to "non[-]compliance of recommended medical care, and verbal threats of legal restitution from the mother." Ms. Dicharry testified that she never threatened to sue any physicians, but that some doctors "did not want us in their practice because we couldn't agree on medical." Mr. Miller testified that he had never had any issues with H.M.'s physicians and that he would not do anything to cause them to resign or withdraw from caring for H.M. Additionally, the trial court also found that Ms. Dicharry, in contravention of its prior judgment, had failed to provide Mr. Miller notice seventy-two hours prior to scheduled doctor's appointments. Considering the trial court's factual determinations, we find no error in its conclusion that Mr. Miller met his burden to show "good cause" to grant him authority to make medical decisions.

Ms. Dicharry also contends that the trial court erred in ordering that H.M. be vaccinated. Ms. Dicharry contends that the First Amendment to the United States Constitution grants a parent the unilateral right to refuse routine immunization on religious grounds. Ms. Dicharry further avers that given the presumption afforded the decisions of domiciliary parents, a finding that her refusal to immunize was not in the best interest of the child has no basis in the record.

When questioned about the specifics of her religious beliefs against vaccinations, the following colloquy occurred between counsel and Ms. Dicharry:

Mr. Prendergast: Let's talk about doctors. You have a religious belief that you will not allow your child to have vaccinations or immunizations?
Ms. Dich[a]rry: Yes.
Mr. Prendergast: What's that religious belief?
Ms. Dich[a]rry: It's my belief.
Mr. Prendergast: What is your religious belief?
Ms. Dich[a]rry: I don't have to describe that for you, sir.
The Court: Ma'am, you need to answer his question.
Ms. Dich[a]rry: It's just my belief.
Mr. Prendergast: What religion?
Ms. Dich[a]rry: I don't have to belong to a religion to have a belief.
Mr. Prendergast: Well it says religious belief. I just want to make sure I understand the...
Ms. Dich[a]rry: Religious in nature. I don't have to belong to a religious organization to have a belief about something.
Mr. Prendergast: What religion do you belong to?
Ms. Dich[a]rry: None.
Mr. Prendergast: Are you agnostic or atheist?
Ms. Dich[a]rry: Neither.
Mr. Prendergast: Do you know what that means?
Ms. Dich[a]rry: Yes, it means I don't believe in Christ or I'm agnostic and don't follow a religion at all.
Mr. Prendergast: So how would you define your religious belief or view point?
Ms. Dich[a]rry: I don't understand the question. I don't feel like I have to sit here all day and talk about religion or religious-I mean...
Mr. Prendergast: So you don't have a religion is what you're telling me?
Ms. Dich[a]rry: No.
Mr. Prendergast: So what belief do you have that a child should not be vaccinated or immunized?
Ms. Dich[a]rry: It's my belief.
Mr. Prendergast: Have you been immunized or vaccinated?
Ms. Dich[a]rry: I have.
Mr. Prendergast: Has Mr. Miller?
Ms. Dich[a]rry: I don't know.
Mr. Prendergast: What basis do you rely upon for the child not to receive immunizations or vaccinations ?
Ms. Dich[a]rry: Basis?
Mr. Prendergast: Yes.
Ms. Dich[a]rry: My belief.
Mr. Prendergast: Do you have any religious, scientific, or any type of other protocol that states-that you believe in that says she should not be vaccinated or immunized?
Ms. Dich[a]rry: It's just my belief.
Mr. Prendergast: Do you know that vaccinations and immunizations are there for the health and safety of your child?
Ms. Dich[a]rry: If you believe that.

The First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." and is applicable to the states by virtue of its incorporation by the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ; DeHart v. Horn, 227 F.3d 47, 50 (3rd Cir. 2000). The mere assertion of a religious belief, however, does not automatically trigger First Amendment protections. DeHart, 227 F.3d at 51. "Philosophical and personal" belief systems are not religion, in spite of the fact that these belief systems may be held with "strong conviction" and inform critical life choices. Mason v. General Brown Cent. School Dist., 851 F.2d 47, 52 (2nd Cir. 1988). However, a person need not be a member of a formal religious sect or church to have "religious" beliefs. See Sherr v. Northport-East Northport Union Free School Dist., 672 F.Supp. 81, 91 (E.D.N.Y. 1987).

We recognize that the trial court found that it was in the best interest of the child, in accordance with Mr. Miller's request, that Mr. Miller be granted authority to make medical decisions and that H.M. be vaccinated. After considering Ms. Dicharry's testimony, the trial court made a factual determination that it did "not believe that her beliefs against vaccinations are sincerely and genuinely held 'religious' beliefs." Rather, the trial court found that Ms. Dicharry's "reluctance to have her child vaccinated arises from a personal, moral, or cultural feeling against vaccination for her minor child." The trial court found that "[t]hese views and feelings are more in the nature of a secular philosophy than a religious belief." Considering the record, we find no manifest error in the trial court's factual determinations. See Caviezel v. Great Neck Public Schools, 701 F.Supp.2d 414, 429-30 (E.D.N.Y. 2010), affirmed by, 500 Fed.Appx. 16 (2nd Cir. 2012), cert. denied, 569 U.S. 947, 133 S.Ct. 1997, 185 L.Ed.2d 866 (2013). Accordingly, the trial court did not err in ordering that H.M. be vaccinated as recommended by the child's physicians.

Ms. Dicharry's second assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the September 15, 2017, trial court judgment is affirmed. Costs of this appeal are assessed to appellant, Teal Dicharry.

AFFIRMED.

      In the petition's caption, the appellant's name is erroneously spelled "Dicherry."

      After Ms. Dicharry filed her notice of appeal, she filed a "Motion to Recuse" the trial court judge on the basis of an alleged personal relationship between the trial judge and members of Mr. Miller's family. The trial judge recused himself, noting that while any purported relationship did not prejudice the case, he would recuse on the basis that "it can cause an appearance of impropriety." The remainder of the pleadings do not appear in our record, but have been referenced in Mr. Miller's appellee brief.

      Louisiana Revised Statutes 9:335(B)(3) provides:
      The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

      Ms. Dicharry notes that Louisiana Revised Statutes 17:170(E) allows a parent to exempt children from immunizations, as follows:
      No person seeking to enter any school or facility enumerated in Subsection A of this Section shall be required to comply with the provisions of this Section if the student or his parent or guardian submits either a written statement from a physician stating that the procedure is contraindicated for medical reasons, or a written dissent from the student or his parent or guardian is presented.


author: MCCLENDON, J.

text:
    RADCLIFFE 10, L.L.C. v. Lynda O. BURGER and Lauren E. Warren
    2017 CA 0967
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 29, 2018
    Joseph L. McReynolds, Raymond C. Lewis, New Orleans, Louisiana, And, Ross Dooley, Baton Rouge, Louisiana, Counsel for Defendants/Appellants, Lynda O. Burger and Lauren E. Warren
    Craig J. Robichaux, Mandeville, Louisiana, And, Alicia M. Bendana, Mark S. Goldstein, New Orleans, Louisiana, Counsel for Plaintiff/Appellee, Radcliffe 10, L.L.C.
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   MCCLENDON, J.

Appellants, Lynda O. Burger and Lauren E. Warren, seek reversal of a partial summary judgment that rendered Ms. Burger personally liable to Radcliffe 10, L.L.C. for the full amount of $150,000.00. This judgment was based on the determination that Ms. Burger had "disposed" of $150,000.00 in former community property in violation of LSA-C.C. art. 2357. The trial court certified the partial summary judgment as final under LSA-C.C.P. art. 1915B. For the following reasons, we conclude that the judgment was improvidently designated as final and dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

This litigation has its roots in the sale of the assets of Zip Tube Systems of Louisiana, Inc.-a corporation in which Ronald G. Burger and Ms. Burger owned equal shares of stock-to Radcliffe 10, a limited liability company that James Radcliffe formed in 2002 specifically to purchase Zip Tube's assets and business operations. This court has issued prior opinions in that litigation. See Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, Inc. , 07-1801, 07-1802 (La.App. 1 Cir. 8/29/08), 998 So.2d 107, amended on rehearing, 07-1801, 07-1802 (La.App. 1 Cir. 12/3/08), 22 So.3d 178, writs denied , 09-0011, 09-0024 (La. 3/13/09), 5 So.3d 119, 120; Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, Inc., 09-0417, 09-0418 (La.App. 1 Cir. 12/29/09), 30 So.3d 825, writ denied, 10-0244 (La. 4/9/10), 31 So.3d 394. Effectively, Radcliffe 10 is a judgment creditor of Zip Tube, Burger Engineering, L.L.C., Ronald Burger, and Bryan Burger based on a final judgment for an amount in excess of $3,428,000.00.

On June 5, 2009, Radcliffe 10 filed the underlying "Petition for Money Judgment Based on Disposal of Community Property, For Revocatory Action, and To Seize Community Property to Satisfy Community Debt," naming Ms. Burger and her daughter, Lauren E. Warren, as defendants. Radcliffe 10 alleged that Ms. Burger donated former community funds-$150,000.00 from a certificate of deposit and an additional $55,765.08 in other funds-to her daughter. Radcliffe 10 sought a money judgment against Ms. Burger in the total amount of $205,765.08, plus legal interest from the date of those dispositions, in addition to costs and any and all applicable attorney's fees.

Ms. Burger filed an answer, generally denying many of the allegations in Radcliffe's petition. Ms. Burger also denied having made any donations to her daughter. Further, she asserted that any judgment rendered against Mr. Burger was not a community obligation.

During the underlying litigation, the Burgers sought a matrimonial agreement terminating their legal property regime and establishing a separate property regime. The matrimonial agreement and the judgment approving the matrimonial agreement were entered into and signed after Radcliffe 10's $3,428,000.00 judgment was rendered against Mr. Burger and the other defendants, but before Radcliffe 10's judgment was signed by the trial court. Thereafter, Radcliffe 10 filed suit to revoke the judgment approving the Burgers' matrimonial agreement as an absolute nullity. The trial court revoked the Burgers' judgment as void ab initio for failure to follow the procedural requirements of LSA-C.C. art. 2329. In a per curiam opinion, this court upheld the trial court's judgment. See Radcliffe 10, L.L.C. v. Burger, 14-0347 (La.App. 1 Cir. 3/28/16), 191 So.3d 79 (per curiam ), writ granted, 16-00768 (La. 9/6/16), 204 So.3d 998, and rev'd, 16-0768 (La. 1/25/17), 219 So.3d 296.

After the Louisiana Supreme Court granted the Burgers' writ application to settle the question of nullity of a separation of property agreement the Burgers had entered, but before the supreme court ruled, Radcliffe 10 filed a motion for partial summary judgment. In that motion, Radcliffe 10 alleged that Ms. Burger took $150,000.00 in community property and disposed of it by acquiring an undivided interest in real estate in East Baton Rouge Parish. In its statement of uncontested facts, Radcliffe 10 asserted:

On August 8, 2008, [Ms.] Burger purchased an undivided interest in a home located at municipal address 306 Pecan Meadow Drive, Baton Rouge, LA;
[Ms.] Burger's interest was purchased for $205,765.08. Of that amount, [Ms.] Burger judicially confessed that $150,000.00 was property of the former community between her and Ronald Burger. The remainder, $55,765.08, is presumed to be community. La. C.C. art. 2340 ; Cameron v. Rowland, 215 La. 177, 40 So.2d 1 (1948).

Radcliffe 10 noted that even if the motion for partial summary judgment were granted, the character of the remaining funds, i.e. $55,765.08, as community or separate property remained an issue for trial.

Ms. Burger opposed Radcliffe 10's motion, asserting that Radcliffe 10 could only seize former community property upon a showing that the judgment rendered against Ronald Burger and the other defendants was entered during the community and that the $150,000.00 was a community debt. Moreover, Ms. Burger asserted that she had not disposed of the subject funds, whether community or separate, but applied them to the purchase price of a home jointly titled in her and Ms. Warren's name, which was subsequently sold in 2013. Ms. Burger contended that there was no disposal of former community funds within the meaning of LSA-C.C. article 2357 since the equity interest in the home was in Radcliffe 10's reach before it was sold.

Following argument and review of the evidence submitted in favor of and in opposition to Radcliffe 10's motion for partial summary judgment, the trial court signed a judgment on April 6, 2017 that granted the motion and rendered judgment in favor of "Radcliffe 10, L.L.C. and against Lynda O. Burger recognizing her personal liability to Radcliffe 10, L.L.C. in the full amount of ONE HUNDRED FIFTY THOUSAND AND NO/100 ($150,000.00) DOLLARS, together with legal interest from date of judicial demand and costs to be determined by the court on a separate motion." The trial court noted that its ruling did not resolve all issues, stating in its oral reasons for judgment:

What was the classification of the remaining fifty-five thousand, seven hundred and something? Because I couldn't determine [in previously denying Ms. Burger's motion for summary judgment ] whether that was separate property, whether it was community property, whether it was mixed. And my notes indicate, I went through [Ms. Burger's] deposition and she kind of said: well, I put it in this account; I put it in that account; I wasn't sure how much; it was an employment account. I couldn't make a determination from the record. And since there was no way to determine, I didn't think summary judgment was appropriate. However, if [Radcliffe 10] had filed a cross motion for summary judgment on the hundred fifty, I would have granted it at that time. Now, [Radcliffe 10 is] seeking personal liability only as to the one fifty; again, an amount that Ms. Burger admits was former community, which was used to purchase a home for her daughter. I do think that it meets the definition of disposed. And I think that, under [LSA-R.S.] 23:57, that she now becomes liable for that amount. So, the court will grant the partial motion for summary judgment as to one fifty, acknowledged community only, with the remaining issue for trial being the disposition of the other fifty-five thousand, seven hundred and some odd dollars.

The trial court designated the judgment as final under LSA-C.C.P. art. 1915B(1), finding that there was no just reason for delay. The trial court did not provide reasons for the certification.

Ms. Burger has appealed, assigning the following as error:

1. The district court erred in granting the partial summary judgment because Radcliffe 10 had been dissolved by affidavit, effective June 21, 2016, pursuant to LA.REV.STAT. 12:1335.1, and thus had no right to a judgment in its favor. This error is the subject of a peremptory exception of no right of action, filed contemporaneously with this brief.
2. The district court erred in holding [Ms.] Burger personally liable for $150,000. Lynda Burger raised genuine issues of material fact and law in her answers as well as her affidavit in opposition to Radcliffe 10's motion as to whether Ron's $3.4 million judgment debt to Radcliffe 10 is entitled to the presumption of community under Civil Code Article 2360, whether Radcliffe 10 is entitled to the presumption of community under Civil Code Article 2361, and whether the judgment debt was the result of an intentional wrong not perpetrated for the benefit of the community or did not in fact benefit the community under Civil Code Article 2363.
3. The district court erred in holding that [Ms.] Burger had "disposed" of former community property, when she used the proceeds of flood insurance to purchase an undivided equity interest in a new home in Baton Rouge, equal in value to insurance funds.

DISCUSSION

The judgment before us was certified as a final judgment in accordance with LSA-C.C.P. Art. 1915B. Before we consider the merits of the appeal, we must determine whether the judgment is properly certified. Although the trial court designated the judgment as being final and appealable under Article 1915B, that designation is not determinative of this court's jurisdiction. Van ex rel. White v. Davis, 00-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 480. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716 (La.App. 1 Cir. 4/30/03), 867 So.2d 715, 717. If no reasons for the certification are given but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113, 1122.

Historically, our courts have had a policy against multiple appeals and piecemeal litigation. Article 1915B attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. Thus, in considering whether a judgment has been properly designated as final and appealable pursuant to Article 1915B, a trial court must take into account judicial administrative interests as well as the equities involved. Id. ; Templet v. State of Louisiana, Department of Public Safety and Corrections, 05-1903 (La.App. 1 Cir. 11/3/06), 951 So.2d 182, 185. Some of the factors a trial court should take into account in making an Article 1915B certification are the relationship between the adjudicated and unadjudicated claims; the possibility that the need for review might or might not be mooted by future developments in the trial court; the possibility the reviewing court might be obliged to consider the same issue a second time; and miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. R.J. Messinger, Inc., 894 So.2d at 1122. However, the overriding inquiry for the trial court is whether there is no just reason for delay. Id. at 1122-23.

The April 6, 2017 judgment at issue addresses less than all the claims insofar as it addresses only the $150,000.00 sum applied to the purchase of the immovable property. However, the judgment does not address the remaining $55,765.08 and whether that sum is community property that can be seized to pay the judgment debt due Radcliffe 10. As such, the judgment is not a final judgment for purposes of an immediate appeal under the provisions of Article 1915A. Therefore, this court's jurisdiction depends upon whether the judgment was properly designated and certified as a final judgment pursuant to Article 1915B(1). See also LSA-C.C.P. Art. 1911B and 2083.

Ms. Burger asserts that the "unadjudicated claim" is essentially a non-issue because those funds are separate inheritance funds that Radcliffe 10 has acknowledged might not be worth pursuing. She contends that the funds at issue in the current appeal are separate and distinct from the unadjudicated claim. She further argues that there is no possibility that future developments in the trial court will moot the need for this court's review of the judgment, nor will this court be in a position to revisit the discrete and particular issue of the insurance proceeds a second time. Moreover, Ms. Burger avers that Radcliffe 10 has already sought to make the judgment executory in St. Tammany Parish in an effort to expedite garnishment proceedings against her such that the underlying judgment is effectively a final judgment rendered against her.

Although Ms. Burger focuses on the nature of the two underlying funds, she asserts that neither of the funds can be seized because issues remain regarding whether the intent and motives for the actions constituting "unfair trade practices" for which the judgment against Zip Tube and Mr. Burger was entered were perpetrated for the benefit of the community. In effect, Ms. Burger contends that the judgment rendered against Mr. Burger and Zip Tube is not a community obligation and that therefore, neither of the funds can be seized by Radcliffe 10.

Our law disfavors piecemeal litigation. R.J. Messinger, Inc., 894 So.2d at 1122. Even were we to conclude that issues remain regarding whether the judgment rendered against Mr. Burger was a community obligation and reverse the partial summary judgment rendered in Radcliffe 10's favor, we cannot render judgment in favor of Ms. Burger given that we do not have a cross motion for summary judgment. As such, this court may have to revisit that issue a second time after a final judgment is rendered. Moreover, while Ms. Burger claims that the issue remaining for trial may not be worth pursuing, that issue is still unresolved, and Radcliffe 10 has not dismissed that claim.

Additionally, we note that Ms. Burger has filed an exception with this court raising the objection of no right of action, asserting that the district court erred in granting the partial summary judgment because Radcliffe 10 had been dissolved by affidavit, effective June 21, 2016. Radcliffe 10 has opposed that exception, or alternatively, sought to substitute James Radcliffe, as sole member of the limited liability company, as the proper party plaintiff. This exception was never presented to the trial court.

Given the nature of the claims and the procedural posture of this case, we are constrained to find that addressing the issues at this time would promote piecemeal appeals. Accordingly, on our de novo review, we cannot conclude that there is no just reason for delay. Therefore, the designation of finality does not meet the R.J. Messinger, Inc. requirements, and we dismiss the appeal.

Ms. Burger can seek appellate relief once a final judgment has been rendered and all issues are properly before this court on appeal. Further, we dismiss Ms. Burger's exception raising the objection of no right of action and Radcliffe 10's alternative motion to substitute proper party plaintiff.

CONCLUSION

For the foregoing reasons, we dismiss Ms. Burger's appeal and her exception raising the objection of no right of action. We also dismiss Radcliffe's 10's alternative motion to substitute proper party plaintiff. Costs of this appeal are to be split equally between the parties.

APPEAL DISMISSED; EXCEPTION OF NO RIGHT OF ACTION DISMISSED; ALTERNATIVE MOTION TO SUBSTITUTE PROPER PARTY PLAINTIFF DISMISSED.

      The writ application was granted on September 6, 2016. Thereafter, the Louisiana Supreme Court upheld the matrimonial agreement entered into by the Burgers that terminated the legal regime and created a separate property regime, See Radcliffe 10, L.L.C. v. Burger, 16-0768 (La. 1/25/17), 219 So.3d 296, 303.

      Louisiana Civil Code article 2357 provides:
      An obligation incurred by a spouse before or during the community property regime may be satisfied after termination of the regime from the property of the former community and from the separate property of the spouse who incurred the obligation. The same rule applies to an obligation for attorney's fees and costs in an action for divorce incurred by a spouse between the date the petition for divorce was filed and the date of the judgment of divorce that terminates the community regime.
      If a spouse disposes of property of the former community for a purpose other than the satisfaction of community obligations, he is liable for all obligations incurred by the other spouse up to the value of that community property.
      A spouse may by written act assume responsibility for one-half of each community obligation incurred by the other spouse. In such case, the assuming spouse may dispose of community property without incurring further responsibility for the obligations incurred by the other spouse.

      Ms. Burger had previously filed a motion for partial summary judgment, asserting that she had not disposed of $150,000.00 in former community funds when she applied them toward the purchase price of the real estate in East Baton Rouge Parish.