author: WHATLEY, Judge.

text:
    Antonio S. LEVY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1066.
    District Court of Appeal of Florida, Second District.
    June 18, 2010.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Antonio Levy challenges his sentence of eighteen months for the first-degree misdemeanor of possession of less than twenty grams of cannabis. See § 893.13(6)(b), Florida Statutes (2008). The State concurs that because a first-degree misdemeanor is punishable by up to only one year in jail, § 775.082(4)(a), Levy must be resentenced.

After a jury found Levy guilty of the third-degree felony of delivery of cannabis, § 893.13(l)(a)(2), and the first-degree misdemeanor of possession of cannabis, the trial court orally pronounced that it would sentence Levy to eighteen months in prison. The written sentence is consistent with the court’s pronouncement in imposing a general sentence for the two offenses, which the supreme court has held is improper. See Dorfman v. State, 351 So.2d 954, 957 (Fla.1977). Trial courts must impose separate sentences for separate offenses.

Accordingly, we reverse Levy’s sentence of eighteen months for the first-degree misdemeanor of possession of less than twenty grams of cannabis and remand with directions that the trial court sentence Levy to not more than one year for this offense.

Reversed and remanded for resentenc-ing.

KELLY and KHOUZAM, JJ., Concur.

      . Levy raised the issue of the trial court's failure to impose separate sentences for the two offenses of which he was convicted in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court failed to hear or enter an order on the motion, and it is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B).


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    John A. MIMS, by and through Raymond MIMS, his Attorney-in-Fact, Appellant, v. AMERICAN SENIOR LIVING OF DADE CITY, FL, LLC, a/k/a ASL of Dade City, FL, LLC, d/b/a Edwinola Retirement Community; National Assisted Living Management Corporation, a/k/a National Assisted Living Management Corp.; American Senior Living Limited Partnership; American Senior Living, Inc.; Thomas E. Rawles, Jr.; George P. Wagner, Jr.; Alan B. Parrish; Sharon Oswald; Graham R. Hutchins, a/k/a Graham Hutchins; and Kathy Fritzler (as to Edwinola Retirement Community), Appellees.
    No. 2D09-1286.
    District Court of Appeal of Florida, Second District.
    June 23, 2010.

      Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Janice L. Merrill of Marshall, Dennehey, Warner, Coleman & Goggin, Orlando, for Appellees.
   KHOUZAM, Judge.

This appeal arises from a final order of dismissal of a lawsuit for damages resulting from alleged violations of John A. Mims’ statutory rights while he was a resident at Edwinola Retirement Community, an assisted living facility. We reverse.

Mr. Mims, the plaintiff, died during the course of his litigation against the defendants. Mr. Mims’ counsel first served and then filed a motion for substitution of the personal representative of Mr. Mims’ estate as the plaintiff, but the motion was served one hundred and fifteen days after the filing of the suggestion of death. This exceeded the ninety-day period set forth in Florida Rule of Civil Procedure 1.260(a)(1). Plaintiffs counsel presented evidence to the trial court that demonstrated excusable neglect for the untimely filing. Specifically, the evidence established that plaintiffs counsel overlooked the suggestion of death due to a clerical error in counsel’s office and that the appointment of the personal representative of the estate was delayed due to difficulties in locating Mr. Mims’ original last will and testament. Furthermore, the court filings revealed that plaintiffs counsel had actively litigated the lawsuit throughout the proceeding.

The trial court did not consider this evidence establishing excusable neglect and dismissed the complaint without prejudice because the personal representative of the estate had not been substituted within the ninety-day period set forth in rule 1.260(a)(1). At the time the trial court granted the motion and entered the order, the statute of limitations had expired. Mr. Mims’ counsel filed a third amended complaint naming the personal representative of the estate as the plaintiff. The third amended complaint was dismissed with prejudice because the statute of limitations had expired, and this appeal ensued.

Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the ninety-day period set forth in the rule. See Tucker v. Firestone Tire and Rubber Co., 552 So.2d 1178, 1179 (Fla. 2d DCA 1989). Furthermore, “[t]he courts of this state have a long-standing tradition in favor of the disposition of an action on its merits.” Id. Here, as in Tucker, excusable neglect has been demonstrated and this action should proceed on the merits.

Accordingly, we reverse and remand for a vacation of the order of dismissal.

Reversed and remanded.

CASANUEVA, C.J., and KELLY, J., Concur.


author: CASANUEVA, Chief Judge.

text:
    STATE of Florida, Appellant, v. Chance Marshall ISOM, Appellee.
    No. 2D09-3182.
    District Court of Appeal of Florida, Second District.
    June 23, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    Nathaniel B. Kidder, St. Petersburg, for Appellee.
   CASANUEVA, Chief Judge.

Chance Marshall Isom pleaded no contest to a third-degree felony and two misdemeanors. Mr. Isom’s scoresheet reflected a minimum permissible sentence of 45.75 months’ prison. Although the State objected, the trial court imposed a downward departure sentence on the felony of four years’ probation with two of those years to be served in prison as a condition of probation. The trial court stated that the age of Mr. Isom’s prior convictions justified a departure from the minimum permissible sentence. The State argues, and Mr. Isom concedes, that this is not an appropriate basis for a downward departure. We agree.

Section 921.0026(1), Florida Statutes (2008), provides:

A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).

Subsection (2) does not list the age of prior convictions as a potential mitigator. And the fact that section 921.0024 requires scoring of all prior convictions indicates that the age of prior convictions is inconsequential in sentencing and inappropriate to support a downward departure sentence.

The trial court also erred in ordering that two years of the four-year probationary term were to be served in prison. Section 948.03(2), Florida Statutes (2008), states that “if the court ... imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days.” See also Stephens v. State, 14 So.3d 254 (Fla. 4th DCA 2009) (finding similar error in an order imposing 51.45 months’ prison as a condition of a fifteen-year term of probation).

For these reasons, we reverse Mr. Isom’s sentence on the third-degree felony and remand for further proceedings. If he chooses, Mr. Isom may withdraw his plea on remand.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.


author: PETTIGREW, J.

text:
    Gregory JEANLOUIS v. Richard STALDER, Secretary of Louisiana Department of Public Safety & Corrections; Connell Hubert, Warden of Elayn Hunt Correctional Center; Danny Williamson, Director of Mental Health; Five Nurses or “Jane Doe’s”; NP Joni Niclews; Ms. Smith and Stephanie Slaughter.
    No. 2009 CA 1653.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.
    Rehearing Denied April 16, 2010.
    Gregory Jeanlouis, Angola, LA, in proper person.
    William L. Kline, Baton Rouge, LA Attorney for Defendant-Appellee Department of Public Safety & Corrections.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

ly.This action was filed by an inmate seeking judicial review of a disciplinary decision made by the Louisiana Department of Public Safety and Corrections (“DOC”). The district court, upon recommendation of the commissioner, rendered judgment in favor of DOC and against the inmate, dismissing the inmate’s suit without prejudice, at his cost. From this judgment, the inmate now appeals to this court.

FACTS

Petitioner, Gregory Jeanlouis, an inmate at Louisiana State Penitentiary (“LSP”) at Angola, Louisiana, initially filed a request for Administrative Remedy Procedure (“ARP”) on December 1, 2006. Mr. Jean-louis, who is allegedly afflicted with Hepatitis C, alleged therein that on November 29, 2006, he was “abruptly [refused] ... life-saving treatment as retaliation for ... availing [himself of] the ARP process on November 21, 2006, only five (5) weeks into an 11-month [treatment] plan.”

In response to his ARP request, Mr. Jeanlouis received a First Step Response Form dated March 7, 2007, from Assistant Warden Haydel, who found that on November 27, 2006, Mr. Jeanlouis had “signed a refusal form.” Assistant Warden Haydel further stated that Mr. Jean-louis had been “explained the risk in not receiving proper treatment by our Hepatitis Specialist. Since this time [Mr. Jean-louis was] transfered [sic] back to LSP.”

On April 5, 2007, Mr. Jeanlouis filed a request for a Second Step review. Mr. Jeanlouis received a Second Step Response Form dated May 23, 2007, from Linda Ramsay, designee of DOC Secretary, Richard Stalder. In her response, Ms. Ramsay stated, in pertinent part, as follows:

Your statements have been considered as wed as your medical records. After a thorough review of all pertinent documentation, we find that you received continuous medical evaluations and treatment for your Hepatitis condition since 1998. The medical staff has addressed your concerns in an appropriate manner and in accordance with Health Care Policy # B-06-001. Medical opinion is controlling. The care you have received as well as the care you will continue to receive from the medical staff is determined adequate for your health care concerns. As such, this office has accepted staffs position in this matter and concurs with the response provided at the First Level. Therefore, administrative intervention is not forthcoming.
Your request for relief is denied.

^ACTION OF THE DISTRICT COURT

Having exhausted his administrative remedies, Mr. Jeanlouis filed a Petition for Judicial Review in the Nineteenth Judicial District Court on July 20, 2007. Secretary of DOC, Richard Stalder; Warden of Elayn Hunt Correctional Center, Connell Hubert; Director of Mental Health, Danny Williamson; Five nurses or “Jane Does”; N.P. Joni Niclews; Ms. Smith; and Stephanie Slaughter were all named as defendants in the suit filed by Mr. Jeanlouis. The basis of Mr. Jeanlouis’ suit is that he received inadequate medical treatment and has been subjected to harassment or retaliation by the medical or other prison staff in attempting to obtain medication and treatment for Hepatitis C and related medical conditions. Mr. Jeanlouis moved for, and was granted, the right to proceed informa pauperis.

The DOC filed the administrative record, # EHCC-2007-170, into the record as “Exhibit A,” and following issuance of an order for a medical supplement, the DOC filed “Exhibit B” in compliance therewith. The district court thereafter issued orders concerning briefs to the parties, and a report by the commissioner followed.

Following a review of the claim filed by Mr. Jeanlouis, and a de novo consideration of the entire record, the Nineteenth Judicial District Court agreed with the commissioner’s findings, which the court adopted as its reasons, and dismissed, without prejudice, Mr. Jeanlouis’ suit. Mr. Jeanlouis thereafter moved for a devolu-tive appeal to this court.

ISSUES ON APPEAL

In connection with his appeal in this matter, Mr. Jeanlouis filed a rambling 68-page recitation of events that have taken place during his incarceration; however, it is unclear as to the particular relief sought by Mr. Jeanlouis. It is evident that Mr. Jeanlouis is dissatisfied with the medical treatment he has received in prison, and claims he has been harassed or retaliated against by the medical or other prison staff in his attempts to obtain his proper medication and treatment for Hepatitis C and related medical conditions.

DISCUSSION

This court discussed the administrative review procedure provided for in the Corrections Administrative Remedy Procedure Act (CARP), La. R.S. 15:1171, et seq. in Lightfoot v. Stalder, 00-1120 (La.App. 1 Cir. 6/22/01), 808 So.2d 710; writ denied, 01-2295 (La.8/30/02), 823 So.2d 957:

Through the Corrections Administrative Remedy Procedure Act, LSA-R.S. 15:1171, et seq., the prison systems were given authority to adopt procedures for offenders to produce evidence to substantiate their claims. Blackwell v. Louisiana Department of Public Safety and Corrections, 96-0954, p. 6 (La.App. 1 Cir. 2/14/97); 690 So.2d 137, 141, writ denied, 97-1158 (La.9/5/97); 700 So.2d 507. A simple review of the Act evidences that its procedures are designed primarily as an internal investigative and information-gathering mechanism, a function of particular importance in the prison setting, since most, if not all, of the evidence is at the prison itself. Blackwell, 96-0954 at p. 9; 690 So.2d at 142.
The Corrections Administrative Remedy Procedure promotes the State’s interest in prompt and fair internal resolution of inmate grievances and, consequently, does not violate an inmate’s right to substantive due process. Blackwell, 96-0954 at p. 11; 690 So.2d at 143. Furthermore, an inmate’s right to procedural due process is satisfied by the availability of judicial review. Blackwell, 96-0954 at p. 11; 690 So.2d at 143.
Pursuant to the Corrections Administrative Remedy Procedure Act, review of a decision by the [DOC] made in the course of the Corrections Administrative Remedy Procedure shall be conducted by the court without a jury and shall be confined to the record. The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. LSA-R.S. 15:1177(A)(5).
Thus, under the statutory framework of the Corrections Administrative Remedy Procedure Act, the opportunity for the parties to present evidence occurs at the administrative level, not at the trial court level, and review by the trial court is limited to the record established at the administrative level, absent alleged irregularities in the procedure. See LSA-R.S. 15:1177(A)(5).

Lightfoot, 00-1120, at 5-6, 808 So.2d at 715, quoting Robinson v. Stalder, 98-0558, pp. 3-4 (La.App. 1 Cir. 4/1/99); 734 So.2d 810, 811-812.

In our previous opinion in Lightfoot, this court further noted:

The standard for judicial review by the district court is set forth, in pertinent part, in La. R.S. 15:1177(A)(9), which provides:
The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law. |B(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand 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.

Lightfoot, 00-1120, at 6, 808 So.2d at 715-716.

In a report to the district court, the commissioner recommended that the decision by DOC be affirmed, and Mr. Jean-louis’ suit be dismissed without prejudice at his costs. The commissioner further stated:

At the outset, I note that this claim is one that is more properly to be filed as an ordinary complaint in the mandatory venue of the prison to which [Mr. Jean-louis] was assigned when his current complaint arose. This claim for additional medical treatment is one that, to be fairly and fully considered, requires additional evidence, including, but not limited to medical testimony regarding the standard of care in the community, which cannot be adequately flushed out or provided in an administrative appeal.
Nevertheless, I have reviewed the limited record herein, and make the following findings on the complaint, which I suggest will have no binding effect on any ordinary suit pending or filed on the same claims since this Court’s appellate review is severely curtailed by the limitations inherent by such a procedure. Any findings made herein will be made solely on the administrative record submitted, which is obviously devoid of any testimony or confrontation of witnesses or discovery by the parties.
The [DOC] considered [Mr. Jean-louis’] complaint that he was not receiving proper medical treatment and his claim that he was being retaliated against by (unnamed) prison personnel and unidentified ways [sic], and denied any administrative intervention on May 23, 2007. The record submitted for review included numerous medical records from the prison, but many, if not most, were hand written notations and were either illegible or unintelligible. In order to fairly consider [Mr. Jeanlouis’] claim, this Court ordered the [DOC] to submit a narrative chronology and statement from the treating physician addressing the medical treatment that Mr. Jeanlouis has received and his complaint in particular. In that supplement, the prison medical director, Dr. Raman Singh, reviewed the medical documents in [Mr. Jeanlouis’] file in regard to his complaint that he is not receiving proper treatment or medication for Hepatitis C. He noted that Mr. Jeanlouis has been evaluated in the LSU Hepatitis Clinic, wherein his liver function was determined to be normal in June 2002. In 2003, he as [sic] again evaluated at the Clinic and he apparently refused the lab work. He was rescheduled for followups and [sic] in 2005 and 2006, where he was seen at the EHCC Hepatitis Clinic (also run by LSU). As late as 2006, his liver enzymes remain at a normal level. On at least one occasion, the record shows that [Mr. Jeanlouis] did not show up for his | (¡scheduled follow-up and that on two occasions, the records show that he refused to allow blood labs.
In Dr. Singh’s medical opinion, the treatment [Mr. Jeanlouis] received meets the standard of medical care for Hepatitis C-that being treatment with Interferon injections. But because the treatment can and does sometimes cause problems in the thyroid as well as psychiatric symptoms, when these side effects occur, Dr. Singh states that further treatment is “contraindicated.”
My review of the evidence in this administrative record shows that [Mr. Je-anlouis] did not offer any evidence in it to show that his constitutional rights have been violated or that others with the same symptoms as he are being treated adequately while he is not. There are no statements in the record other than [Mr. Jeanlouis’] and no evidence to support that prison personnel — medical or otherwise — has been guilty of retaliation or mistreatment. In fact, the only evidence in the record are the medical records previously referred to and Dr. Singh’s chronology of events based on those records.
Given the Court’s limited knowledge of Hepatitis C treatment and the fact that the evidence in the record does not show abuse of discretion by the Doctors or the prison personnel, this Court is constrained to affirm the [DOC’s] decision not to offer any additional relief than that being given currently by the medical department. The burden is on [Mr. Jeanlouis] even in a medical claim to show in the record that he is entitled to additional medical or administrative relief.
My review of this record shows that [Mr. Jeanlouis] has failed to show that he has been harassed, retaliated against, or intentionally deprived of proper medical treatment. But as I stated previously, reviewing a medical claim in an administrative record limits the Court’s ability to obtain the best and most inclusive evidence, including testimony and discovery at a minimum. Such claims are based on delictual actions of prison personnel and are governed by the PLRA and the mandatory venue applicable — which is not this Court. This Court sits as an appellate court only on such complaints. Thus, given the limitations on review, dismissal without prejudice is appropriate. [Footnotes omitted].

Upon our review of the record in this matter, we agree with the findings of the commissioner, and find no error in the district court’s dismissal without prejudice of Mr. Jeanlouis’ petition for judicial review.

CONCLUSION

For the above and foregoing reasons, the judgment of the district court is hereby affirmed. All costs associated with this appeal are assessed against petitioner/appellant, Gregory Jeanlouis.

AFFIRMED.


author: CARTER, C.J.

text:
    The POLICE JURY ASSOCIATION OF LOUISIANA, INC. and the Louisiana Municipal Association v. STATE of Louisiana and Governor “Bobby” Jindal, In His Official Capacity, Through Attorney General, James D. Caldwell.
    No. 2009 CA 1438.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Dannie P. Garrett, III, John A. Gallagher, Baton Rouge, LA, Attorneys for Plaintiffs-Appellants, Police Jury Assn, of Louisiana, Inc. and Louisiana Municipal Assn.
    James D. “Buddy” Caldwell, Meridith J. Trahant, Baton Rouge, LA, Attorneys for Defendants-Appellees, State of Louisiana and Governor “Bobby” Jindal, in his Official Capacity, through Attorney General, James D. Caldwell.
    Harry J. Philips, Jr., Baton Rouge, LA, Attorney for Intervenor/Appellee, Bell-South Telecommunications, Inc. d/b/a AT & T, Louisiana.
    Robert L. Rieger, Jr., Richard B. East-erling, William D. Shea, Mary E. Taylor, Renee C. Crasto, Baton Rouge, LA, Michael D. Skinner, Lafayette, LA, Attorneys for Intervenor/Appellee, La. Cable & Telecommunications Association (LCTA).
    Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.
   CARTER, C.J.

| «¡This case poses a res nova legal question concerning the constitutionality of Act No. 433 of the 2008 Regular Session of the Louisiana Legislature (hereafter referred to as “Act 433”). Act 433 is commonly cited as the “Consumer Choice for Television Act” and is found in Chapter 10-A of Title 45 of the Louisiana Revised Statutes of 1950, comprising LSA-R.S. 45:1361-1378, including the specific provision at issue, LSA-R.S. 45.1365 B, that allows incumbent service providers the option to terminate existing cable or video service franchises issued by local governmental subdivisions. For the following reasons, we affirm the district court’s declaration that Act 433 is constitutional in its entirety •

FACTS AND PROCEDURAL HISTORY

In 2008, the Louisiana Legislature enacted Act 433 to increase competition in the cable television and video services market, to offer consumers more choices, better prices and services, and to encourage economic development in Louisiana. See LSA-R.S. 45:1362 A. Act 433 became effective on August 15, 2008. Prior to Act 433, cable service providers obtained franchises from local governmental subdivisions for authority to use public rights-of-way in order to provide/transmit their cable |4and video television services to customers. The various franchise agreements set forth the rights and responsibilities of each cable service provider, including the obligation to pay local governmental subdivisions a mutually agreed-upon percentage of the gross revenues from sales of cable services, and in some instances, to provide programming or channels for public, educational, and government (“PEG”) access programming.

Pursuant to the police powers reserved to the state by Article VI, Section 9 of the Constitution of Louisiana, the legislature enacted Act 433 to permit any cable service provider to apply for a uniform, nonexclusive, and nondiscriminatory state franchise to provide cable or video television services to designated municipalities or parishes to be served, according to a streamlined franchise procedure with the secretary of state, as opposed to a local governmental subdivision franchise. See LSA-R.S. 45:1362 B, C, & D and LSA-R.S. 45:1364. Act 433 also gave incumbent service providers the option to apply for the state franchise after terminating their existing franchises with local governmental subdivisions. LSA-R.S. 45:1365 B. However, Act 433 specifically mandated that the incumbent service providers would remain subject to and obligated for any indebtedness, liability, or obligation that is accrued, due and owing to a local governmental subdivision at the time the incumbent service provider terminates the existing franchise previously issued by the local governmental subdivision. LSA-R.S. 45:1365 B(2). Moreover, Act 433 requires all service providers, | ¡¡including incumbents, to pay local governmental subdivisions a franchise fee and PEG access support, to be uniformly applied to all holders of state-issued franchise certificates. See LSA-R.S. 45:1366 and 1370.

Two days before Act 433 became effective, two non-profit corporations, the Police Jury of Louisiana, Inc. and the Louisiana Municipal Association (hereafter collectively referred to as “plaintiffs”), filed a joint petition for declaratory judgment, preliminary injunction, and permanent injunction against the State of Louisiana and Governor “Bobby” Jin-dal, in his official capacity, through Attorney General James D. “Buddy” Caldwell (hereafter collectively referred to as “defendants”), seeking to have Act 433 | (¡declared unconstitutional, in whole or in part, and seeking to enjoin the application and enforcement of Act 433. A few days later, two separate petitions of intervention were filed by BellSouth Telecommunications, Inc. d/b/a AT & T Louisiana and the Louisiana Cable & Telecommunications Association (hereafter collectively referred to as “interve-nors”). Defendants and intervenors were similarly aligned, maintaining the constitutionality of Act 433. On August 26, 2008, the district court issued an order combining and consolidating all of the matters for a trial on the merits, and further ordered that until such time as a ruling on the request for permanent injunction was made, the opt-in provision found in LSA-R.S. 45:1365 B was suspended and had no effect as to any franchise agreements in existence on or before August 15, 2008.

The matter went to a trial on the merits, and on January 15, 2009, the district court signed a judgment declaring the entirety of Act 433 to be constitutional, thus denying plaintiffs’ demands for injunctive and declaratory relief. Additionally, the district court lifted the suspension placed on the opt-in provision found in LSA-R.S. 45:1365 B and contained in its August 26, 2008 order, thereby freeing incumbent service providers to exercise any and all rights granted under Act 433. Plaintiffs devolutively appeal, asserting that the district court erred in concluding that Act 433 is constitutional in its entirety.

LAW AND ANALYSIS

The legislative power of the state is vested in the legislature. LSA-Const. art. Ill, § 1. The Louisiana Supreme Court described the exercise of legislative power as follows:

17[T]he legislature may enact any legislation that the state constitution does not prohibit. Thus, to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature to enact such a statute. Laws enacted by the legislature are presumed to be constitutional, and the constitutionality of statutes should be upheld whenever possible. Further, “it is not enough [for a person challenging a statute] to show that the constitutionality [of the statute] is fairly debatable, but, rather, it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute.”

Louisiana Public Facilities Authority v. Foster, 01-0009 (La.9/18/01), 795 So.2d 288, 298 (quoting Board of Directors of Louisiana Recovery Dist. v. All Taxpayers, Property Owners, and Citizens of the State of Louisiana, 529 So.2d 384, 388 (La.1988)) (citations omitted) (emphasis added).

In other words, if a statute is susceptible of two constructions, one of which would render it unconstitutional, or raise grave constitutional questions, the court will adopt the interpretation of the statute which, without doing violence to its language, will maintain its constitutionality. Nevertheless, the constitution is the supreme law of this state, to which all legislative acts must yield. When a statute conflicts with a constitutional provision, the statute must fall. SEMO, Inc. v. Board of Com’rs for Atchafalaya Basin Levee Dist., 07-2571 (La.App. 1 Cir. 6/6/08), 993 So.2d 222, 226-227 (citing City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 12-13).

Furthermore, unless the fundamental rights, privileges, and immunities of a person are involved, there is a strong presumption in the law that the legislature in adopting a statute has acted within its constitutional powers. Board of Directors of Louisiana Recovery Dist., 529 So.2d at 387. The presumption is especially forceful in the case of statutes enacted to promote a public purpose. Id. The party attacking such a statute has the Rhigh burden of showing clearly that the legislation is unconstitutional, and any doubt must be resolved in favor of the legislation’s constitutionality. Id. Because Act 433 was enacted for the specific public purpose of promoting and encouraging economic development, increasing competition and providing consumers more choice, better prices, and better cable and video services, Act 433 is entitled to the strong presumption that the legislature acted within its constitutional powers. Thus, plaintiffs have a high burden of clearly and convincingly showing the constitution denies the legislature the power to enact Act 433.

Plaintiffs contend that Act 433, and more specifically LSA-R.S. 45:1365 B, violates article VII, section 15 of the 1974 Louisiana Constitution by releasing incumbent service providers, from obligations owed to local governmental subdivisions under existing franchise agreements. Louisiana Constitution article VII, § 15, provides, in pertinent part:

The legislature shall have no power to release, extinguish, or authorize the releasing or extinguishing of any indebtedness, liability, or obligation of a corporation or individual to the state, a parish, or a municipality.

The quoted language has been in our state constitutions since at least 1879. See historical notes for LSA-Const. art. VII, § 15; art. IV, § 13 of the 1921 constitution; art. 59 of the 1913 constitution; art. 59 of the 1898 constitution; and art. 57 of the 1879 constitution. See also McNamara v. Bayou State Oil Corp., 589 So.2d 1099, 1109 (La.App. 2 Cir.1991), writ denied, 592 So.2d 1335 (La.1992).

Whether a legislative act is constitutional is a question of law, to be reviewed de novo, without deference to the legal conclusions of the district court. City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 986 So.2d at 12; Cleco Evangeline, LLC v. Louisiana Tax Com’n, 01-2162 (La.4/3/02), 813 So.2d 351, 353.

Defendants and intervenors point out that plaintiffs have not provided any authority that LSA-Const. art. VII, § 15 precludes the legislature from releasing contractual obligations that might be due the state, a parish, or a municipality in the future. To the contrary, defendants and intervenors maintain that the jurisprudence interpreting LSA-Const. art. VII, § 15 precludes the release of financial obligations that are accrued, due, and owing, with no limitation on obligations that would accrue sometime in the future. See Unwired Telecom Corp. v. Parish of Calcasieu, 02-839 (La.App. 3 Cir. 2/5/03), 838 So.2d 854, 859, aff'd in part and rev’d in part on other grounds, 03-0732 (La.1/19/05), 903 So.2d 392, 398 and 407 (on rehearing) (where LSA-Const. art. VII, § 15 was analyzed in the context of a statute found to be unconstitutional because it extinguished existing tax obligations that were owed prior to the enactment of the new law.) We agree with defendants and intervenors, and find that plaintiffs have not clearly and convincingly shown that the constitutional aim of LSA-Const. art. VII, § 15 was to deny the legislature the power to release future obligations owed to the state, a parish, or a municipality such as the local governmental subdivisions affected by Act 433. The constitutional issue arises only if the statute releases obligations that are due and owing to the state, a parish, or a municipality prior to the enactment of the statute, not | inafter. Cf. State ex rel. Tulane Homestead Ass’n v. Montgomery, 185 La. 777, 171 So. 28, 30-31 (1936); State ex rel. McGregor v. Diamond, 167 So. 760, 770 (La.App. 2 Cir.1936).

The legislature was obviously aware of the constitutional constraint preventing the release of accrued, due, and owing obligations addressed in the jurisprudence interpreting LSA-Const. art. VII, § 15, because it specifically mandated in several places in Act 433 that incumbent service providers “shall remain, under the terms and conditions of the terminated franchise, subject to and obligated for any indebtedness, liability, or obligation that is accrued, due, and owing to a local governmental subdivision at the time the incumbent service provider terminates the existing franchise previously issued by said local governmental subdivision.” LSA-R.S. 45:1365 B(2) (emphasis added). See also LSA-R.S. 45:1362 E and LSA-R.S. 45:1365 B(3). The legislature further expressly stated that “[njothing in this [Act 433] shall be construed to release an incumbent service provider exercising the option to terminate from any such accrued, due and owing indebtedness, liability, or obligation.” LSA-R.S. 45:1365 B(2). Additionally, in a section entitled “Legislative findings,” the legislature specifically provided:

“The Legislature of Louisiana does not intend that the “opt-in” right afforded by [LSA] R.S. 45:1365 shall release any indebtedness, liability or obligation that is owed to the state, a parish, or a municipality at the time that an incumbent service provider exercises those rights. If a court should determine that [LSA] R.S. 45:1365 has the effect of releasing an indebtedness, liability or obligation in contravention of [a]rticle VII, [s]ection 15 of the Constitution of Louisiana, then it is the intent of the legislature that [LSA] R.S. 45:1365 be severed from this [Act 433] so that the remaining provisions can remain in full force and effect.”

LSA-R.S. 45:1362 E (emphasis added).

InThe function of the court in construing a constitutional provision is to ascertain and give effect to the intent of the people who adopted it. Radiofone, Inc. v. City of New Orleans, 93-0962 (La.1/14/94), 630 So.2d 694, 698. In seeking to discover the constitutional intent, the court is generally guided by the same rules it follows in interpreting laws and written instruments. When a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be applied as written without further interpretation in search of its intent. Every provision must be interpreted in light of the purpose of the provision and the interests it furthers and resolves. When the provision is susceptible of different meanings, it is interpreted by examining the context and the text in which it occurs as a whole and by giving it the meaning that best conforms to its purpose. Provisions on the same subject matter are interpreted in reference to each other. Id.; see also LSA-C.C. arts. 9-13. And when analyzing legislative history, it is presumed the legislature’s actions in crafting a law were knowing and intentional. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16, 27.

Interpreting LSA-Const. art. VII, § 15 with these precepts in mind, it is clear that the opt-in provision in LSA-R.S. 45:1365 B was intended to allow incumbent service providers the right to terminate existing local franchises in order to equally compete and participate in the state franchising procedure, while concurrently preventing the release of debts, liabilities, and obligations that had already accrued, and were due and owing by the incumbent service providers to the local governmental subdivisions. The constitutional prohibition is silent regarding the release of future obligations that have not yet accrued and are not yet due and owing. The words | ^“indebtedness” and “liability” used in the text of LSA-Const. art. VII, § 15, reference that which is already accrued and owing. Only the term “obligation” could possibly apply in the future, but an obligation in this sense would be a contractual obligation that is not afforded constitutional protection since the obligation is owed to the state, in this case, in the form of a local governmental subdivision. Because the legislature specifically considered and clearly provided that Act 433 was not intended to release any indebtedness, liability, or obligation that is owed to the state, a parish, or a municipality at the time that an incumbent service provider exercises its right to “opt-in” to a state franchise, we find that the legislative limitation in LSA-Const. art. VII, § 15 is not violated. In our view, plaintiffs failed to meet their high burden of clearly and convincingly refuting the presumed constitutionality of Act 433, applied as plainly written; therefore, we hold that Act 433 is constitutional.

1 ^CONCLUSION

Considering the foregoing, we find that the district court did not err in declaring the entirety of Act 433, including specifically LSA-R.S. 45:1365 B, to be constitutional and in denying plaintiffs’ demands for injunctive and declaratory relief. The district court judgment dated January 15, 2009, is hereby affirmed. Costs of this appeal are equally assessed to plaintiffs/appellants, the Police Jury Association of Louisiana, Inc. and the Louisiana Municipal Association.

AFFIRMED.

GUIDRY, J., concurs.

      . Act 433 defines a "cable service provider" to mean any person or entity that provides cable service (the one-way transmission of video programming to subscribers) over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or who otherwise controls or is responsible for the management and operation of such system. See LSA-R.S. 45:1363(1) and (2).

      . Act 433 defines “franchise” to mean authorization issued by a franchising authority for the construction and operation of a cable system, or other wireline facilities used to distribute video programming services in the public rights of way LSA-R.S. 45:1363(6).

      . Act 433 defines “local governmental subdivision” to mean any parish or municipality. LSA-R.S. 45:1363(10).

      . An “incumbent service provider” means any cable or video service provider providing cable or video service in a particular municipality or unincorporated area of a parish on August 15, 2008, the effective date of Act 433. See LSA-R.S. 45:1363(9).

      . Louisiana Revised Statutes 45:1365 B allows an "opt-in” right, specifically providing as follows:
      B. Any incumbent service provider shall have the option to terminate an existing franchise previously issued by a local governmental subdivision and may instead offer cable service or video service in such local governmental subdivision under a certificate of state franchise issued by the secretary of state in accordance with the provisions of [LSA] R.S. 45:1364, provided the following requirements are satisfied by any such incumbent service provider;
      (1) An incumbent service provider exercising its termination option shall file a statement of termination with the secretary of state in the form of an affidavit containing the information required by [LSA] R.S. 45:1364(B) and submit copies of such filing with any affected local governmental subdivision. Termination of existing franchises is effective immediately upon the effective date of the certificate of state franchise issued by the secretary of state.
      (2) An incumbent service provider shall remain, under the terms and conditions of the terminated franchise, subject to and obligated for any indebtedness, liability, or obligation that is accrued, due, and owing to a local governmental subdivision at the time the incumbent service provider terminates the existing franchise previously issued by said local governmental subdivision. Nothing in this Chapter shall be construed to release an incumbent service provider exercising the option to terminate from any such accrued, due and owing indebtedness, liability or obligation.
      (3) An incumbent service provider that elects to terminate its existing franchise for a local governmental subdivision shall remain subject to the contractual rights, duties, and obligations incurred by the incumbent service provider under the terms and conditions of the terminated local franchise that are owed to any private person, including a subscriber. [Emphasis added.]

      . Jurisprudence interpreting LSA-Const. art. VII, § 15 is sparse. In general, the few cases discussing this constitutional provision focus on the unconstitutionality of various tax collection statutes that release or extinguish tax liability or debt found to be due and owing prior to the effective date of each statute. See Unwired, supra; Fontenot v. Hurwitz-Mintz Furniture Co., 200 La. 210, 7 So.2d 712, 716 (1942); McNamara, 589 So.2d at 1112.

      . Mirriam-Webster’s Collegiate Dictionary, 590 (10th ed.1995), defines “indebtedness” as “something (as an amount of money) that is owed [.]” Similarly, “liability” is defined as “something for which one is liable ... [a] pecuniary obligation ... debt[.]” Id. at 670.

      . See LSA-Const. art. I, § 23, which prohibits the enactment of laws impairing the contractual obligations of private citizens, but not those of the state or local governmental subdivisions. Louisiana Public Facilities Authority, 795 So.2d at 293; see also Morial v. Smith & Wesson Corp., 00-1132 (La.4/3/01), 785 So.2d 1, 13, cert. denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001).

      . Further, we find that Act 433 does not violate LSA-Const. art. I, § 23, because the legislature may constitutionally enact laws that waive or impair the state's own rights or those of its governmental subdivisions, as long as private rights are not infringed Louisiana Public Facilities Authority, 795 So.2d at 293; Rousselle v. Plaquemines Parish School Bd., 93-1916 (La.2/28/94), 633 So.2d 1235, 1246-1247. The plaintiffs and the local governmental subdivisions in this case are not private citizens. Therefore we find no error in the district court's analysis and reasoning regarding the application of LSA-Const. art. I, § 23. We likewise find no merit to the plaintiffs’ argument that the district court’s reasons are inconsistent with the final judgment. In both, the district court clearly ruled that Act 433 is constitutional.


author: GUIDRY, J. PETTIGREW, J.,

text:
    FIA CARD SERVICES, N.A. v. William F. WEAVER.
    No. 2009 CA 1464.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.
    Rehearing Denied May 12, 2010.
    Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Baton Rouge, LA, Counsel for Plaintifí/Appellee, FIA Card Service, N.A.
    Garth J. Ridge, Baton Rouge, LA, William G. Cherbonnier, Jr., Gretna LA, Steve R. Conley, Covington LA, Counsel for Defendant/Appellant William F. Weaver.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2A credit card debtor appeals a judgment confirming an arbitration award. Finding no error in the ruling of the district court, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the arbitration claim, and documentation submitted in conjunction therewith, FIA Card Services, N.A. (FIA Card Services), formerly known as MBNA America Bank, N.A., provided a credit account to William F. Weaver, and despite repeated demands for payment, Mr. Weaver did not pay the amounts due on the account. The credit agreement between the parties contained a mandatory arbitration provision requiring that any dispute regarding the credit account be resolved in the National Arbitration Forum (NAF) under the NAF Code of Procedure. A copy of the credit agreement was attached to the arbitration claim.

Two separate notices regarding the arbitration proceedings were mailed to Mr. Weaver at an address in Baton Rouge, Louisiana, to which he did not respond. On July 24, 2007, the NAF issued an award in favor of FIA Card Services after making the following findings: (1) that the claim was properly served on Mr. Weaver in accordance with the rules of the NAF; (2) that the claim involved interstate commerce and therefore the Federal Arbitration Act, 9 U.S.C. §§ 1-16(FAA), governed the arbitration; (8) that on or before February 22, 2007, the parties had entered into a valid, enforceable, written agreement to arbitrate that governed all the issues in dispute and no party had asserted that the arbitration agreement was invalid or unenforceable; and (4) that the evidence and applicable substantive law supported the award issued in favor of FIA Card Services.

On November 5, 2007, FIA Card Services filed a petition to confirm the arbitration award rendered against Mr. Weaver in the Nineteenth Judicial District Court. Mr. Weaver answered the petition to admit that he had received notice of the arbitration proceedings, but declared that the proceedings were conducted in an | .^inconvenient forum that held no personal jurisdiction over him. Mr. Weaver further denied the remaining allegations of the petition, and specifically denied that he had ever entered into any type of contractual agreement with FIA Card Services. Thereafter, FIA Card Services filed a motion for issuance of a rule to show cause why judgment should not be rendered in its favor recognizing and confirming the arbitration, or in the alternative, to show cause why Mr. Weaver should not be compelled to answer all outstanding discovery. Following a hearing on the rule, the district court rendered judgment in favor of FIA Card Services against Mr. Weaver in the amount of the arbitration award plus interest. Following the denial of his motion for new trial, Mr. Weaver appealed.

DISCUSSION

It is undisputed that the credit card agreement in this matter involves interstate commerce and therefore is subject to the FAA, to the extent that a provision exists in the credit agreement to submit to arbitration any controversy arising out of the agreement. See 9 U.S.C. § 2. Relying on recent jurisprudence out the second and fifth circuit courts of appeal, Mr. Weaver asserts that the evidence introduced at trial does not support the judgment appealed because no proof was presented that he entered into an arbitration agreement with FIA Card Services. As a preliminary matter, we must first determine whether the district court could even consider Mr. Weaver’s claim that a valid agreement to arbitrate did not exist between the parties.

In Chase Bank USA, N.A. v. Leggio, 43,751, pp. 4-5 (La.App.2d Cir.12/3/08), 999 So.2d 155, 158; Chase Bank USA, N.A. v. Leggio, 43,567, pp. 2-3 (La.App.2d Cir.11/19/08), 997 So.2d 887, 889; and NCO Portfolio Management Inc. v. Gougisha, 07-604, p. 7 (La.App. 5th Cir.4/29/08), 985 So.2d 731, 734 (on rehearing), writ denied, 08-1146 (La.9/26/08), 992 So.2d 986, the second and fifth circuits both found that a debtor’s failure to adhere to the time limit imposed in the FAA to vacate, modify, or correct an arbitration award did not bar the confirming court’s consideration of whether a valid written agreement to arbitrate existed between the parties. Those courts held that the determination of whether a valid written agreement to arbitrate the controversy exists is a first and crucial step in any confirmation proceeding. We decline to follow those decisions.

While we agree that a party should not be compelled to submit a dispute to arbitration when he has not agreed to do so, we find that Mr. Weaver’s failure to timely and properly assert his objection to the arbitration proceedings precluded the district court from considering the objection in the proceeding to confirm the arbitration award in this matter, as shall be explained.

In his answer to the petition and to discovery propounded of him, Mr. Weaver admitted that he received notice of the arbitration proceedings and award, but based on his belief that the forum in which the proceedings were conducted was inconvenient and lacked authority to exercise personal jurisdiction over him, he failed to respond to or participate in the arbitration proceedings.

15While the FAA clearly grants a party a right to challenge an arbitration award, the grounds on which the challenge can be asserted are severely limited when a party waits until an award has been rendered to assert the challenge. Specifically, 9 U.S.C. § 9 provides that once a party applies to a court for an order confirming an arbitration award, “the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of’ title 9 of the United States Code. Section 10 provides the limited grounds by which an arbitration award may be vacated as:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C § 10(a).

Moreover, 9 U.S.C. § 12 provides that notice of the motion to vacate must be “served upon the adverse party or his attorney within three months after the award is filed or delivered.” Like the third circuit in NCO Portfolio Management, Inc. v. Walker, 08-1011, p. 11 (La.App. 3d Cir.2/4/09), 3 So.3d 628, 635, we question a debtor’s delayed challenge to the validity of and his consent to an arbitration agreement until after arbitration proceedings are held, an award is issued, and confirmation is sought, as the very purpose of arbitration is to relieve the courts of unnecessary litigation. We hold that because the arbitration award had not been vacated, modified or corrected, as provided for in 9 U.S.C. §§ 10-11, |fithe district court was required to confirm the award in accordance with 9 U.S.C. § 9. Furthermore, we observe that had Mr. Weaver raised the objection that a valid agreement to arbitrate did not exist during arbitration proceedings and his objection had been rejected, a basis would have been provided under 9 U.S.C. § 10 for filing a motion to vacate the award. See Morrison v. Amway Corporation, 517 F.3d 248, 251-252 and 258 (5th Cir.2008) (wherein the parties challenging the arbitration award had asserted that there was no valid agreement to arbitrate in both the federal district court and in the arbitration proceedings at the time arbitration was invoked and later filed a motion with the federal district court to vacate the arbitration award rendered on the same basis. The appellate court later reversed the district court’s judgment denying the motion to vacate after concluding that a valid agreement to arbitrate did not exist). Accordingly, we find no error in the judgment confirming the arbitration award herein.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court confirming the arbitration award in favor of FIA Card Services. All costs of this appeal are cast to the appellant, William F. Weaver.

AFFIRMED.

PETTIGREW, J., Dissents and Assigns Reasons.

PETTIGREW, J.,

dissenting.

hi must respectfully dissent. After reviewing the record in this proceeding, I find no evidence of a signed or initialed loan application, credit agreement, or arbitration agreement by William F. Weaver. I would follow the reasoning of Chase Bank USA, N.A. v. Leggio, 48,751, pp. 4-5 (La.App. 2 Cir. 12/3/08), 999 So.2d 155, 158; Chase Bank USA, N.A. v. Leggio, 43,567, pp. 2-3 (La.App. 2 Cir. 11/19/08), 997 So.2d 887, 889; and NCO Portfolio Management, Inc. v. Gougisha, 07-604, p. 7 (La.App. 5 Cir. 4/29/08), 985 So.2d 731, 734 (on rehearing), writ denied, 08-1146 (La.9/26/08), 992 So.2d 986.

      . In the original petition to confirm the arbitration award, FIA Card Services stated that it "elects to proceed by ordinary process, reserving all right to summary proceedings as authorized by [La.] R.S. 9:4209."

      . Specifically, 9 U.S.C. § 12 states that notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.

      . The cited cases rely on MCI Telecommunications Corp. v. Exalon Industries, Inc., 138 F.3d 426 (1st Cir.1998) to support the legal conclusions reached in the opinions.

      . Notably, according to the notice sent to Mr. Weaver, he had the option of requesting a "document hearing” or a "participatory hearing” and could further request that the hearing be conducted "on-line or by telephone.” Although the notice provided that “an In-person Participatory Hearing” would be held in the federal judicial district where Mr. Weaver resided or did business, unless he agreed “otherwise,” according to the arbitration provision contained in the credit agreement, such a hearing was designated to “take place within the federal judicial district that includes [Mr. Weaver's] billing address at the time the Claim is filed.” Mr. Weaver’s billing address for FIA Card Services was in Baton Rouge, Louisiana; however, in an affidavit that he submitted to the district court at the confirmation hearing, Mr. Weaver stated that he had resided in Clearfield, Pennsylvania since 1988, but had used his father’s Baton Rouge, Louisiana address as a mailing address for some of his bills at "certain times.”

      . Section 11 provides the grounds for seeking modification or correction of an arbitration award.


text:
    Renee Michelle HARANG v. Jimmy PONDER.
    No. 2009 CU 2182.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.
    Writ Denied May 19, 2010.

      Donald F. Harang, Jr., Larose, LA, for Plaintiff/2nd Appellant, Renee Michelle Harang.
    Robert P. Cuccia, Houma, LA, for Defendant/lst Appellant, Jimmy N. Ponder, Jr.
    Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.
   CARTER, C.J.

|2In this modification of custody and child support action, the father, Dr. Jimmy N. Ponder, Jr., sought modification of an existing consent judgment, asking for more visitation/physical custody time with his two-year-old son. He also requested that the mother, Renee M. Harang, make an accounting of the child support payments and that she establish a spendthrift trust with a portion of the child support payments. Ms. Harang also sought modification of the consent judgment, by requesting an increase in Dr. Ponder’s $5,000 per month basic child support obligation and a decrease in Dr. Ponder’s visitation/physical custody time with the child.

After a three-day trial, the trial court found that modification of the custody arrangement was warranted and awarded shared joint custody to the parties with an alternating Friday-to-Friday weekly physical custody schedule and a detailed holiday schedule. The trial court further ordered that Ms. Harang continue to be designated as the domiciliary parent and ordered Dr. Ponder to pay an increased amount, $8,250 per month, in basic child support, plus 100% of the medical expenses and health insurance, 100% of the educational expenses, and 75% of the cost of any extracurricular activities. Additionally, the trial court denied Dr. Ponder’s request for an accounting and the establishment of a spendthrift trust. Both parties appealed. For the following reasons, we affirm the trial court judgment in part and vacate in part.

FACTS AND PROCEDURAL HISTORY

Dr. Ponder and Ms. Harang are the parents of JHP, who was born on December 18, 2006. Dr. Ponder and Ms. Harang were never married, and during JHP’s first seven months of life, he lived exclusively with his mother. |sAt that time, JHP had very limited contact with his father. Dr. Ponder is a medical doctor, living and practicing medicine in Thibo-daux, Louisiana. Ms. Harang is a stay-at-home mother, living with JHP and her mother in Houma, Louisiana. A few days after JHP was born, Ms. Harang filed a petition seeking sole custody of JHP, child support from Dr. Ponder, and specified visitation rights for Dr. Ponder. After his initial pleadings, Dr. Ponder filed an amended answer and reconventional demand on March 22, 2007, requesting joint custody and the primary domiciliary parent designation. In the alternative, Dr. Ponder requested shared fifty-fifty joint physical custody of JHP and co-domiciliary status.

At a hearing on July 8, 2007, the parties stipulated to a consent judgment, which was read into the record. The consent judgment provided, in pertinent part, that Dr. Ponder and Ms. Harang were awarded joint custody of JHP, who was almost seven-months-old at the time of the stipulation. The consent judgment further designated Ms. Harang as the primary physical custodian and domiciliary parent and outlined specific visitation/physical custody in favor of Dr. Ponder, which was intended to be flexible and allowed for a gradual increase in time so that by January 2008, Dr. Ponder would have physical custody of JHP on alternating weekends from Thursday evening until Sunday evening and Thursday nights during the alternate week. A specific holiday and summer schedule was also outlined in the consent judgment. Additionally, the consent judgment ordered Dr. Ponder to pay $5,000 per month to Ms. Harang for basic child support, plus 100% of JHP’s medical/hospitalization insurance and all | uncovered medical expenses, 100% of any reasonable work-related day care expenses, and 100% of any mutually agreed upon extracurricular activity expenses for JHP.

On September 80, 2008, Dr. Ponder filed a motion requesting increased visitation/physical custody time with JHP, who was almost two-years-old, as well as a request for an accounting from Ms. Har-ang of the child support payments and the establishment of a spendthrift trust with a portion of the $5,000 monthly child support payments for the future educational and/or medical needs of JHP. Shortly thereafter on October 31, 2008, Ms. Har-ang filed a separate motion for increased child support and decreased visitation/physical custody time for Dr. Ponder. The parties opposed each other’s motions, and each party asserted that there had been a material change in circumstances since the consent judgment was rendered, which entitled each of them to their respective requests.

A three-day trial on the merits was held March 24-26, 2009, after which the trial court found that modification of the custody arrangement and child support was warranted. On May 26, 2009, the trial court signed a judgment awarding fifty-fifty shared physical custody of two-year-old JHP to the parties on an alternating Friday-to-Friday schedule, with a detailed schedule outlining an equal sharing of the holidays. The trial court maintained Ms. Harang as the domiciliary parent, but it ordered that all medical, religious, and school decisions were to be mutually agreed upon by both parties. Further, the trial court denied Dr. Ponder’s requests to order Ms. Harang to account for the child support payments and to deposit a | sportion of the child support payments into a spendthrift trust. Additionally, the trial court increased the child support obligation, ordering that Dr. Ponder pay Ms. Harang $8,250 per month for JHP’s basic child support, plus 100% of JHP’s medical insurance, 100% of JHP’s uncovered medical expenses, 100% of JHP’s educational expenses, and 75% of JHP’s extracurricular activities, which could be unilaterally decided by Ms. Harang.

Ms. Harang moved for a new trial, which the trial court denied on July 23, 2009, and both parties timely filed separate appeals, each raising multiple assignments of error. All of the parties’ alleged errors essentially challenge the trial court’s decision to modify custody and child support; we will discuss each of those issues and the related arguments separately.

MODIFICATION OF CUSTODY

Generally, the trial court is vested with broad discretion in deciding child custody cases. Great deference is accorded to the decision of the trial court, because it has a better opportunity to evaluate the credibility of witnesses. Martello v. Martello, 06-0594 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 191. Every custody case must be considered within its own particular set of facts and circumstances. Major v. Major, 02-2131 (La.App. 1 Cir. 2/14/03), 849 So.2d 547, 550. And the trial court is in the best position to ascertain the best interests of the child, which is the paramount consideration in determining child custody, given the unique set of circumstances involved in each case. LSA-C.C. art. 131; Evans v. Lungrin, 97—0541 (La.2/6/98), 708 So.2d 731, 738; Major, 849 So.2d at 550. Accordingly, the trial court’s determination regarding child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Major, 849 So.2d at 550; Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 357, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

A trial court’s determination of a child’s best interests is usually based heavily on factual findings. Henry v. Henry, 08-0689 (La.App. 1 Cir. 9/23/08), 995 So.2d 643, 645. It is well settled that an appellate court cannot set aside a trial court’s factual findings in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record clearly establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced it would have weighed the evidence differently had it been the trier of fact. Rosell, 549 So.2d at 844.

The nature of the original custody award dictates the burden of proof a party has when seeking to modify a prior permanent custody award. When the original custody decree is a stipulated or consensual judgment, wherein the parties consent to a custodial arrangement, any party seeking the modification of custody must prove that there has been a material change in circumstances (also referred to as a change in circumstances materially 17affecting the welfare of the child) since the original decree, as well as prove that the proposed modification is in the best interest of the child. Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, 436.

The parties in this case were subject to a stipulated joint custody decree, and both parties requested a change in physical custody (Dr. Ponder sought more physical time with JHP and Ms. Harang sought a reduction in the father’s physical time with JHP). Therefore, the burden of proof to change the consensual agreement regarding JHP’s physical custody fell on each party to show that (1) there had been a material change of circumstances affecting JHP’s welfare since the original custody decree was entered and (2) their particular proposed modification was in the best interest of JHP.

We find no merit to Ms. Harang’s initial argument that neither party brought the issue of modifying custody before the trial court. To the contrary, both parties expressly requested a modification in the “visitation” time that Dr. Ponder was exercising under the joint custody plan implemented in the consent judgment. The parties’ use of the term “visitation” in then-requests to modify Dr. Ponder’s physical custody time and in the language of both judgments was misleading. The trial court also used the misleading term “visitation” in its oral reasons for judgment, as well as the judgment, when describing Dr. Ponder’s physical custody of JHP. But the parties have continuously shared joint legal custody of JHP since the rendering and signing of the consent judgment. The time that parents with joint legal custody share with their child is more properly described as a “physical” or “actual” custody allocation of a joint custody plan, rather than visitation. LSA-R.S. 9:335(A); Cedotal, 927 So.2d at 436. |sThe typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child of frequent and continuing contact with both parents. Evans v. Lungrin, 708 So.2d at 737. Therefore, we find that the trial court did not err in considering the physical custody modification issue.

Additionally, we find that the trial court applied the proper burden of proof to modify the physical custody arrangement (whether a change in circumstances materially affecting JHP had occurred and whether the proposed modification was in the best interest of JHP) even though the trial court used the term “substantial” rather than “material” change in circumstances in its oral reasons for judgment. When ruling on Ms. Harang’s motion for new trial, the trial court clarified everything it had considered before ruling on the modification of physical custody, including the factors listed in LSA-C.C. arts. 132 and 134. Considering the record in its entirety, we are satisfied that the trial court applied the proper burden of proof before modifying the physical custody consent decree, and we therefore, find no merit to Ms. Harang’s assertion that the trial court legally erred in its application of the burden of proof.

In the absence of an agreement, the trial court shall award custody to the parents jointly. LSA-C.C. art. 132. Joint custody determinations are governed by LSA-R.S. 9:335 which provides, in pertinent part, that:

(A)(1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except lafor 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 [child] should be shared equally. [Emphasis added.]

While “shared custody” is defined as “a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time[,]” a joint custody arrangement does not necessarily require an equal fifty-fifty sharing of physical custody. See LSA-R.S. 9:315.9(A)(1); Martello, 960 So.2d at 190-191. The trial court’s allocation of the physical time for each parent should focus on substantial time rather than strict equality of time, so as to assure that the child has frequent and continuing contact with both parents, and always keeping the paramount goal of reaching a decision which is in the best interests of the child. Martello, 960 So.2d at 191; Ketchum v. Ketchum, 39,082 (La.App. 2 Cir. 9/1/04), 882 So.2d 631, 636. Only if it can be shown that a fifty-fifty shared physical custody arrangement is feasible and in the best interest of the child, can such an order can be implemented. Stephens v. Stephens, 02-0402 (La.App. 1 Cir. 6/21/02), 822 So.2d 770, 778. Each case will depend on the child’s age, the parents’ situations, and other factors relevant to that particular custody dispute. Brazan v. Brazan, 93-2369 (La.App. 1 Cir. 6/24/94), 638 So.2d 1176, 1179. And every joint custody decree should include the designation of 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).

One of Dr. Ponder’s challenges to the trial court’s ruling is that the trial court erred in designating Ms. Harang as the domiciliary parent instead of awarding co-domiciliary status to both parents. However, the record |lf)reveals that while Dr. Ponder has been the primary financial supporter of JHP, Ms. Harang has been the primary caretaker for JHP throughout his entire life, and she has unilaterally made most of the decisions regarding medical and educational options for JHP. The trial court took into consideration Dr. Ponder’s desire to be involved in all major decisions for JHP, specifically including decisions regarding medical, religious, and educational matters, when it ordered that the parties must now mutually agree on such decisions. And the trial court awarded Ms. Harang sole responsibility for any decision regarding JHP’s extra-curricular activities. While Dr. Ponder indicated that he may have questioned some of the decisions made by Ms. Harang, he did not necessarily disagree with any of her decisions. He also testified that he had no complaints about Ms. Harang’s guidance and care of JHP. The parties had previously agreed that Ms. Harang was to be the designated domiciliary parent in the original implementation plan outlined in the consent judgment, and the record does not reveal a good cause for her removal. There is no evidence in the record that Ms. Harang acted inappropriately as the domiciliary parent. Based on these circumstances, we cannot find that the trial court abused its discretion or was manifestly erroneous in its decision to maintain Ms. Harang as the designated domiciliary parent.

The primary consideration in our analysis of a child custody determination is always the best interest of the child. LSA-C.C. art. 131. To determine the best interest of the child for a feasible sharing arrangement under LSA-R.S. 9:335(A)(2)(b), the trial court must weigh and balance twelve nonexclusive factors that are enumerated in LSA-C.C. art. 134:

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

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSA-C.C. art. 134, but should decide each case on its own facts in light of those factors. Moreover, the trial court is not bound to give more weight to one factor over another; and, when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Ketchum, 882 So.2d at 636. The factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Further, in determining what the best interest of the child is in a change of custody case, courts must examine all relevant factors including stability of environment, standard of living each parent can provide and the prior history of the child’s custody. Ketchum, 882 So.2d at 637. | ^Continuity and stability of environment are also important factors to consider in determining what is in the child’s best interest. A change from a stable environment should not be made absent a compelling reason. Id.

With these principles in mind, we turn to the evidence presented at the trial on the modification of custody in this case. Since the parties were not married when JHP was born, Dr. Ponder had, very limited contact with JHP until the time of the consent judgment. Ms. Harang was always JHP’s primary caretaker, and she has not worked outside of her home so she could care for him. Ms. Harang lives with JHP and her mother in a two-bedroom, two-bathroom apartment, in which she shares a bedroom with JHP where he has a portable crib. Ms. Harang testified that her mother helps her care for JHP at times, and that he has a loving relationship with her parents. At the time of trial, JHP had never attended daycare or preschool, but he was enrolled to begin preschool three days a week in the fall of 2009.

When JHP was almost seven months old, the consent judgment was rendered granting the parties joint custody. Dr. Ponder commenced exercising regular physical custody time that began slowly with a mere four hours once a week, but then gradually progressed to three full days and nights, Thursday through Sunday evenings, on alternating weeks, including one overnight visit on the alternate week. This schedule was in place from the time that JHP was one-year-old until the trial court rendered the modified custody judgment when he was almost two-and-a-half years old. During Dr. Ponder’s physical custody time, he cares for JHP alone at his house where JHP has his own bedroom. They regularly play outside and visit with Dr. Ponder’s sister and her two young children, who live close to Dr. Ponder’s residence. Dr. Ponder testified that JHP loves spending time 113with his cousins, his aunt, and his grandparents. Dr. Ponder arranged his work schedule so that he is off work during the time that JHP is at his house. Dr. Ponder stated that he rarely hires a babysitter, he usually takes JHP with him everywhere he goes, and he has handled a variety of situations while caretaking for JHP without ever having to call someone for help.

The evidence presented to the trial court revealed that JHP is a loving, happy, typical two (now three)-year-old boy, and that both parents have developed a close and loving relationship with him. JHP is able to recognize and tell both parents that he loves them. Dr. Ponder testified that his bonding with JHP has drastically increased over time and that he would like to spend as much time as possible with JHP so their relationship can become even closer. Dr. Ponder stated that he felt his relationship with his son was just as important as Ms. Harang’s relationship with JHP, and he desired an equal week-to-week schedule for his physical custody time. Dr. Ponder testified that a week-to-week schedule would enable him to develop the most loving relationship possible with his son, and it would help alleviate the problems the parties have had in making up missed visitation time.

Ms. Harang testified that she is opposed to the week-to-week schedule, because it would interfere with JHP’s established routine with her, and he would be in the care of someone other than her while Dr. Ponder was working. In fact, Ms. Harang requested less time for Dr. Ponder to have physical custody of JHP, because it would conflict with JHP’s preschool routine and because Dr. Ponder worked on some Fridays. Dr. Ponder clarified that he occasionally works on some Fridays, but not on the Fridays that JHP is in his physical custody. Dr. Ponder candidly acknowledged that his luwork schedule would be the biggest problem with the week-to-week custody schedule, but he was confident that he could easily make arrangements to care for JHP while he was working. Dr. Ponder believed that he would be able to adequately provide care for JHP while he was at work with the help of extended family and hired babysitters, and possibly Ms. Harang’s help as well, when JHP was not at preschool. Additionally, Dr. Ponder testified that on the weeks that JHP was living with him, he would alter his work schedule to the hours of 8:00 a.m. to 4:30 p.m. on Monday through Thursday so he would be available to care for JHP as much as possible while still maintaining his medical practice. Dr. Ponder also indicated that he would make sure that JHP attended the preschool program where he was enrolled, and that he supported Ms. Harang’s decision that JHP start preschool.

After listening to three days of testimony, the trial court determined that Dr. Ponder had proven a material change in circumstances since the time of the consent judgment primarily because now that JHP was older, he and Dr. Ponder had developed a closer and more loving relationship. The trial court expressed that Dr. Ponder had fully embraced his fatherhood role since the original consent decree. The trial court, in its oral reasons for judgment, focused on JHP’s older age, emphasizing the significant difference between the infant and toddler stages of childhood, and recognized that JHP and Dr. Ponder currently enjoyed a substantially different, close, and loving relationship, which was very unlike the tentative, distant, and practically non-existent relationship that they had when JHP was an infant, at the time of the consent judgment. And in determining whether Dr. Ponder had proved that it was in JHP’s best interest to modify custody to |,.^shared fifty-fifty physical custody, the trial court found both parties to be equal on many factors listed in LSA-C.C. art. 134. The trial court concluded that both parents were loving, capable, and caring, with both having the capacity and disposition to give JHP love, affection, and guidance; that they both were capable of providing JHP with food, clothing, shelter, medical, and material needs; that both parties were morally fit; that they both were physically and mentally healthy; and that they both had been sharing responsibility for caring and rearing JHP while he was in their physical custody.

The trial court was particularly struck by Dr. Ponder’s testimony regarding his sincere desire to spend more time with his son and that he had learned to appreciate his special time with his son, making it a priority in his life. The trial court discussed Dr. Ponder’s financial ability and capacity to care for JHP and provide a permanent, loving home with a separate bedroom and bathroom for JHP, while Ms. Harang shared a bedroom and bathroom in an apartment with JHP. Additionally, the trial court took into consideration that Ms. Harang had occasionally denied Dr. Ponder additional visitation time with JHP and she had not been as willing to facilitate, accommodate, or encourage extra or makeup visitation time for Dr. Ponder to spend with JHP. The trial court recognized that JHP had lived with his mother since his birth, but concluded that it was in JHP’s “best interest to expand his relationship with his father.”

After reviewing the record in its entirety and the applicable jurisprudence, we conclude that the trial court did not abuse its discretion in finding that Dr. Ponder satisfied his burden of proving both a change in circumstances materially affecting JHP’s welfare and that JHP’s best 11fiinterests are served by modifying the joint custody decree to shared fifty-fifty physical custody, on a Friday-to-Friday schedule, with Ms. Harang designated as the domiciliary parent. We further find no manifest error in the trial court’s factual findings that were based upon evaluations of witness credibility. Therefore, we would affirm that portion of the trial court judgment modifying physical custody, as well as the trial court’s denial of Ms. Harang’s motion for new trial.

MODIFICATION OF CHILD SUPPORT

In addition to modifying the physical custody in this case, the trial court considered Ms. Harang’s request for an increase in Dr. Ponder’s $5,000 basic child support obligation due to an alleged substantial improvement in Dr. Ponder’s lifestyle and standard of living since the consent judgment had been rendered. Ms. Harang maintained that Dr. Ponder’s lifestyle had increased significantly, which was evidenced by his cash payment for a new million dollar home. Dr. Ponder denied any change in his lifestyle and testified at trial that the cash payment for his new home came from his savings. Dr. Ponder did not request any change in the basic child support obligation; instead, he asked that the trial court order Ms. Harang to make an accounting of the child support payments and to establish a spendthrift trust for the future educational and/or medical needs of JHP with a portion of the child support payments that she receives.

After hearing all of the testimony and considering the evidence, the trial court found that an increase in the basic child support order was necessary because JHP was. entitled to share in the current income of his parents, and the trial court believed that the initial $5,000 child support award in the consent decree “was undervalued.” Therefore, the trial court |17ordered Dr. Ponder to pay an increased basic child support obligation of $8,250 per month, plus 100% of JHP’s health insurance, uncovered medical expenses, and educational expenses, and 75% of JHP’s extracurricular activities.

On appeal, Dr. Ponder attacks the increased amount of the basic child support obligation, arguing that the trial court erred in increasing the award without proof of a material change in circumstances or proof that the basic financial needs of JHP had changed since the consent judgment was rendered. Dr. Ponder also contends that the trial court failed to consider the increased physical custody time that he will have with JHP under the modified fifty-fifty shared physical custody arrangement. Conversely, Ms. Harang contends that the trial court abused its discretion in failing to set the basic child support obligation at an even higher amount ranging from $10,000 to $11,350 per month, which is more in line with the current living expenses of Dr. Ponder.

We first consider the accounting and spendthrift issues, concluding that the trial court did not abuse its discretion in denying Dr. Ponder’s requests. Dr. Ponder did not provide evidence of Ms. Harang’s expenditures for the six months immediately preceding the filing of his motion for the accounting, as required by LSA-R.S. 9:312(A). Thus, there was no evidence for the trial court to consider whether the child support payments had not been used to benefit JHP in the form of clothing, housing, food, toys, household furnishings, or recreation. Without proof of good cause for the accounting, the trial court did not err in denying the request. Ms. Harang testified that she uses the full amount of the $5,000 per month child support to care for JHP and to meet his needs. Without proof that the child support Inpayments were misused in some way or were not necessary for JHP’s support, we find that the trial court did not abuse its discretion in denying Dr. Ponder’s request that a portion of the monthly child support payment be placed in a spendthrift trust pursuant to LSA-R.S. 9:315.13(B)(2) and LSA-R.S. 9:315.1(C)(l)(b).

Next, we address the issue of the child support modification. Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Campbell v. Campbell, 95-1711 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 316. The statutory guidelines for calculating child support are set forth in LSA-R.S. 9:315 to LSA-R.S. 9:315.20. Deviations by the trial court from the child support guidelines are permissible when the combined adjusted gross income of the parties is not within the amounts shown on the schedule found in LSA-R.S. 9:315.19, and the trial court provides oral or written reasons for the deviation. LSA-R.S. 9:S15.1(B)(1) and (C)(1); Campbell, 682 So.2d at 316. Deviations by the trial court shall not be disturbed on appeal absent a finding of manifest error. LSA-R.S. 9:315.17.

Child support is a continuous obligation of both parents; children are entitled to share in the current income of both parents and should not be the economic victims of divorce or out-of-wedlock birth. LSA-R.S. 9:315(A). And if the combined adjusted income of the parties exceeds the highest amount provided in the schedule for child support guidelines, the trial court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interests of the child and the circumstances of each parent as provided in LSA-C.C. art. 141. In no ease, however, may the amount awarded be less than the highest amount specified |1flin the schedule. LSA-R.S. 9:315.13(B)(1). The highest level of adjusted gross monthly income specified in the schedule is $30,000. At that level, for one child, the basic support amount is $2,653. See LSA-R.S. 9:315.19, as amended and re-enacted by Louisiana Act 585, § 1, 2008 Regular Session.

The overriding factor in determining the amount of child support is the best interests of the child. The amount of support should be determined on a case-by-case basis. A parent’s ability to pay and the lifestyle that the child would have enjoyed if the parents were together are important considerations. Earle v. Earle, 43,925 (La.App. 2 Cir. 12/3/08), 998 So.2d 828, 834, writ denied, 09-0117 (La.2/13/09), 999 So.2d 1151. And a child should not be denied the opportunity of a certain lifestyle that would have been available if the child was born of a legal union between the parents. See Hector v. Raymond, 96-972 (La.App. 3 Cir. 4/2/97), 692 So.2d 1284, 1287-1288, writ denied, 97-1134 (La.6/13/97), 695 So.2d 978.

Louisiana Civil Code article 141 also governs the award of child support, requiring that child support be determined based on the needs of the child, as measured by the standard of living enjoyed by a child while living with his intact family and upon the ability of each parent to pay. Furthermore, the standard for modification of a child support award is set forth in LSA-C.C. art. 142 and LSA-R.S. 9:311(A)(1). Louisiana Civil Code article 142 provides that:

An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary. [Emphasis added.]

And LSA-R.S. 9:311(A)(1) provides that:

An award for support shall not be modified unless the party seeking the modification shows a material change in [gpcircumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award. [Emphasis added.]

Thus in this case, as the party seeking modification of the child support obligation, Ms. Harang had the burden of proving that either she or Dr. Ponder or JHP had a material change in circumstances since the time of the previous award in the consent judgment. See Folse v. Folse, 01-0946 (La.5/10/02), 818 So.2d 923, 925. What constitutes a change in circumstances is determined on a case-by-case basis and falls within the great discretion of the trial court. Id. (Citing Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, 770). On appeal, a trial court’s child support order will not be reversed except for abuse of discretion. However, as in any other case, on appellate review of a trial court’s factual findings, those findings of fact are subject to the manifest error/clearly wrong standard of review. State, Dept. of Social Services, Support Enforcement Services v. Taylor, 00-2048 (La.App. 1 Cir. 2/15/02), 807 So.2d 1156, 1162.

In its oral reasons, the trial court outlined its factual findings regarding Dr. Ponder’s adjusted gross income at the time of the consent judgment and at the time of trial, determining that Dr. Ponder’s earnings for 2006 were approximately 5.4 million dollars; his earnings for 2007 were approximately 5.3 million dollars; and his estimated earnings for 2008 were approximately 4 million dollars. We find no manifest error in those factual determinations. Based on those determinations, the trial court ordered Dr. Ponder to pay “child support[,] [commensurate] with your earnings.” Because the trial court believed that the $5,000 monthly child support awarded in the consent judgment was undervalued, the trial court decided that $8,250 per month would be more appropriate. The trial court noted in its oral reasons that Dr. |⅞1 Ponder’s monthly income clearly far exceeded the highest amount reflected in the Louisiana Child Support Guidelines. See LSA-R.S. 9:315.19. Therefore, the trial court had discretion to set the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent. LSA-R.S. 9:315.13(B)(1). Understood in the application of discretion is the realization that there is no universal mathematical formula that can be applied. In arriving at an award, the totality of the circumstances must be considered. As each case turns on the unique facts presented, the trial court’s reasons for its decision are necessary and helpful to the reviewing court. Verges v. Verges, 01-0208 (La.App. 1 Cir. 3/28/02), 815 So.2d 356, 364, writ denied, 02-1528 (La.9/20/02), 825 So.2d 1179.

The question on appeal is whether the trial court abused its discretion when it increased the child support award in this case. We find that the modification of the basic child support award was an abuse of discretion, because Ms. Harang failed to prove a material change in circumstances for either party or the child as required by LSA-R.S. 9:311(A)(1) and LSA-C.C. art. 142. Our review of the evidence reasonably supports a finding that the financial circumstances of both parties remained basically the same since the time of the consent judgment. The evidence clearly reflected and the trial court reasonably found that any perceived change in Dr. Ponder’s estimated adjusted gross income for 2008 was directly affected by the cash outlay for his new home, as well as a new building, staff, supplies, and equipment for one of his medical facilities. Therefore, throughout the time period since the consent judgment was rendered and signed, Dr. Ponder’s income did not drastically change-the only thing that changed was the way Dr. Ponder 12?allocated his income. In fact, Dr. Ponder’s financial adviser and CPA, who happened to be Dr. Ponder’s father, testified that Dr. Ponder’s lifestyle/standard of living from year-to-year since JHP’s birth had been “pretty stable.” The trial court also acknowledged in the oral reasons that Dr. Ponder lives “a very frugal lifestyle” for the amount of money he earns. There was no evidence that Dr. Ponder’s lifestyle had changed since the rendering of the consent judgment. And there was absolutely no evidence that Ms. Harang’s or JHP’s monthly financial needs had changed or exceeded the original child support award. Thus, we conclude that Ms. Harang failed to prove a material change in circumstances justifying a modification of the child support award.

The trial court emphasized that the reason it was ordering an increase in the child support award was because “the $5,000 was undervalued for the visitation schedule that was in place” at the time of the consent judgment, rather than on a finding that a material change in circumstances had occurred. However, the trial court’s reasons reveal that it had played a part in initially approving the $5,000 amount in the consent judgment, which was well above the highest amount specified in the statutory guidelines, and we find no evidence of a material change in circumstances for either party or the child since that time.

^Additionally, the trial court made a general statement in the oral reasons for judgment that a child in JHP’s circumstances is “entitled to have a mother that has some benefits ... in the financial situation of a father earning four million dollars in a year, a mother who would likely not work[.] ... The [c]ourt is unaware of any other way but to give those funds directly to the mother of the child to have that benefit flow to the child.” The court went on to explain that it believed “a child in [JHP’s] circumstances, the mother would reside in a home where the child would have his own room, not a two-bedroom apartment[.] ... A child in [JHP’s] position would have a home in a nice neighborhood. A child in [JHP’s] position would have a mother who would drive a fairly nice car. To some degree, the mother will get the benefit of [JHP’s] father’s financial position.” We do not disagree that as a stay-at-home mother of a toddler, Ms. Harang will inevitably benefit from the child support that Dr. Ponder pays for JHP, but we question the emphasis that the trial court placed on the benefits flowing to Ms. Harang rather than to JHP. Further, these considerations would have been more proper in the context of the initial determination of the basic child support obligation in the consent judgment rather than in a determination for a modification of child support.

^Absent any evidence in the record of a material change in circumstances of either parent or the child between the time of the consent judgment and the trial for modification of the child support award, we conclude that the trial court abused its discretion when it increased Dr. Ponder’s basic child support obligation. Therefore, we find it necessary to vacate the trial court’s modification of child support. We also conclude that because the record is devoid of evidence of JHP’s specific financial needs or evidence of whether the increased shared physical custody for Dr. Ponder will result in a greater financial burden on him and a lesser financial burden on Ms. Harang, we find that it is proper in this instance to reinstate the original $5,000 per month basic child support award that was initially agreed upon and ordered in the consent decree.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s considered decree except for the cash award of $8,250 per month for basic child support. The basic child support award is vacated, resulting in the reinstatement of the original consent decree for the basic child support award of $5,000 per month. In all other respects the judgment is affirmed. Each party is to bear his or her own costs of this appeal.

AFFIRMED IN PART; VACATED IN PART; AND ORIGINAL BASIC CHILD SUPPORT AWARD REINSTATED.

GUIDRY and PETTIGREW, JJ., concur in the result.

      . The trial court did not sign the consent judgment until a year later, on July 28, 2008.

      . We take judicial notice of the fact that JHP is now three-years-old.

      . We note that Dr. Ponder's order of appeal was granted prematurely before Ms. Harang's timely motion for new trial was disposed of; however, Dr. Ponder’s order of appeal became effective upon the denial of Ms. Har-ang's motion for new trial on July 23, 2009. LSA-C.C.P. art. 2087(D). Thereafter, Ms. Harang's order of appeal was timely granted on August 10, 2009.

      . We also note that in any proceeding for child support, which was at issue in this case, either party may raise any issue relating to custody of or visitation with the child, or both. The trial court may hear and determine that issue, even if custody was not specifically pleaded. See LSA-R.S. 9:315.25.

      . The Louisiana Supreme Court has emphasized the trial court's integral role as gatekeeper in the area of approving proposed stipulations for child support in consent judgments when deviations from the guidelines are warranted. See Stogner 739 So.2d at 768. The record in this case does not contain any evidence concerning the circumstances under which the consent judgment was approved, but it does contain the transcript from the hearing where the stipulations were read into the record. Before the stipulations were read, there was an acknowledgment that the trial court was aware of the extensive pretrial work by the parties prior to reaching their agreement. And in its oral reasons for modifying custody and child support, the trial court explained that it was involved and had some degree of influence over the consent judgment. Without any further evidence, we cannot say that the trial court's initial approval of the stipulated amount of child support was an abuse of discretion.

      . Final child support is to be determined based on the needs of the child, as well as the ability of the parents to provide support, without any focus on the benefit to the parents. LSA-C.C. art. 141. The trial court’s discretion in determining final child support includes consideration of a child's standard of living, as well as the child’s needs. Langley v. Langley, 07-0754 (La.App. 4 Cir. 3/26/08), 982 So.2d 881, 885, writ denied, 08-0873 (La.6/20/08), 983 So.2d 1274. Children are entitled to the same standard of living that they would enjoy if they lived with their father if their father’s financial circumstances are sufficient to permit this. When setting the amount of child support to be paid by a parent, the court should strive to maintain the lifestyle of the child, when possible, while considering the child’s reasonably proven expenses and the parent's ability to provide. Id.