Eric J. Elliott VS Carrie Barber Elliott
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CU 0755 ERIC J ELLIOTT VERSUS CARRIE BARBER ELLIOTT Judgment Rendered September 10 2010 3 EMEMEMM Appealed from the Eighteenth Judicial District Court In and for the Parish of Pointe Coupee Louisiana Trial Court Number 35 557 Honorable James J Best Judge C Jerome D Aquila Attorney for New Roads LA Plaintiff Appellee Eric J Elliott M Therese Nagem Kathryn Flynn Simino Baton Rouge LA Attorneys for Defendant Appellant Carrie Barber Elliott BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Carrie Barber Elliott appeals a judgment modifying the joint custody implementation plan previously agreed to between her and Eric J Elliott For reasons that follow we affirm the judgment of the trial court FACTUAL AND PROCEDURAL HISTORY The factual and procedural history of this case is more fully set forth in this s court earlier opinion Elliott v Elliott 2005 0181 La App 0 Cir 5 05 11 916 So 221 writ denied 2005 1547 La 7 905 So 293 2d 05 12 2d In sum following the trial court denial of Carrie Elliott request to relocate the s s s children residence to Natchitoches Louisiana the trial court modified the parties stipulated custodial arrangement by designating Eric Elliott as the s children domiciliary parent and decreasing Carrie Elliott allocation of physical s custody with the children Carrie Elliott appealed the modification of the physical custody allocation but did not challenge the ruling denying her request to relocate the children residence s On appeal this court held among other things that Carrie Elliott notice to Eric Elliott of her proposed relocation with the children to s Natchitoches was not a change in circumstances materially affecting the welfare of the children that would allow the court to revisit custody and remeasure the best interest of the child Additionally this court held that there was insufficient evidence in the record establishing that it was in the best interest of the children to alter the physical custodial arrangement so as to reduce the amount of time the children spent with their mother Accordingly this court reversed the judgment of the trial court insofar as it modified custody and vacated the joint custody implementation plan rendered in furtherance of that judgment Following this court decision Carrie Elliott moved to Natchitoches s without the children On June 8 2006 the parties stipulated to a modification of their joint custody implementation plan The stipulated June 8 2006 joint custody 2 implementation plan provided that the parties would share joint legal custody of the minor children that Eric Elliott would be designated as the domiciliary parent of the children and that Carrie Elliott would have specific custodial periods Essentially Carrie Elliott regular custodial periods consisted of two consecutive s weekends which was followed by Eric Elliot having custody of the children for one weekend and then the cycle would repeat On the consecutive weekends Carrie Elliott custodial periods would begin when school was dismissed on the s day school adjourned for the weekend until Sunday or until the day prior to school resuming Carrie Elliott was responsible for picking the children up from school and returning the children for exchange at the Livonia Police Station Carrie Elliott was also entitled to visit with the children in Pointe Coupee Parish one afternoon each week from 3 p until 8 p depending on their school 00 m 00 m schedule Additionally Carrie Elliott was awarded specific custodial periods during the Thanksgiving holidays the Christmas holidays Spring Break Easter Weekend Mother Day Weekend the Mardi Gras holidays the children s s birthdays and the summer With regard to the exchange of the minor children the joint custody implementation plan provided that except when Carrie Elliot picked up the children from school on all holidays summertime and the first of Carrie Elliott s consecutive weekends she would exchange the children with Eric Elliott at the Texaco stationconvenience store on Louisiana Highway 71 in LeCompte Louisiana and on the second of her consecutive weekends any midweek visitations and any occasional early pick up of the children to begin holiday visitation she would exchange the children with Eric Elliott at the Livonia Police Station in Livonia Louisiana After this plan was put into effect Carrie Elliot who had remarried moved to Lindale Texas due to her husband employment In response to Carrie Elliott s s C move to Texas on June 13 2008 Eric Elliott filed a rule to modify custody plan asserting that there was a sufficient change in circumstances warranting a modification of the custody plan because of Carrie Elliott change in domicile and s that the present plan was not in the best interest of the children considering the distance between the domiciles of the parties Eric Elliott further asserted that it was in the best interest of the children that he be granted sole custody that the custody plan be modified and that Carrie Elliott visitation schedule be adjusted s In response Carrie Elliott filed a peremptory exception raising the objection of no cause of action with respect to Eric Elliott request and a motion for a custody s evaluation A contradictory hearing was held on March 17 2009 At the beginning of the hearing and after argument of counsel the trial court denied Carrie Elliott s motion for a custody evaluation and sustained her peremptory exception raising the objection of no cause of action as to Eric Elliott request for sole custody After s evidence was introduced and the matter submitted the trial court modified the parties existing joint custody implementation plan to provide Carrie Elliott visitation with the children every other weekend with one weekend visitation per month being allowed to take place in Lindale Texas and on the alternate weekend Carrie Elliott visitation was to take place in Maringouin Louisiana or s its surrounding area or in Natchitoches or its surrounding area The trial court denied Carrie Elliott request for makeup days for the time she lost with her s children due to the modification and ordered that the transportation exchange point would remain the same as set forth in the August 16 2004 custody plan and that for weekend visitation Eric Elliott would meet Carrie Elliott at the exchange point every other time that Carrie Elliott had weekend visitation A judgment in accordance with the trial court ruling was signed on December 1 2009 and it is s from this judgment that Carrie Elliott has appealed 11 ASSIGNMENTS OF ERROR On appeal Carrie Elliott asserts that the trial court erred in 1 denying her motion for a custody evaluation 2 failing to determine whether a change in circumstances materially affecting the welfare of the children had taken place 3 finding that the modification of the parties joint custody implementation plan was in the best interest of the children 4 ordering that Carrie Elliott have visitation with the children every other weekend with only one of two weekends in the rotation being allowed to take place in Lindale Texas 5 denying Carrie Elliott any additional visitation days to makeup for the visitation lost due to the modification of her weekend visitation and 6 determining that the extended weekend time should be considered a weekend visitation and not a holiday visitation for the purposes of transportation exchange points CUSTODY EVALUATION In Carrie Elliott first assignment of error she contends that the trial court s erred in denying her motion for a custody evaluation by a mental health professional Her motion requested the evaluation on the basis that it was necessary to help determine if the children were affected by her move to Texas and what was in the best interest of the children Louisiana Revised Statutes 9 provides 331 A The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown The evaluation shall be made by a mental health professional selected by the parties or by the court The court may render judgment for costs of the evaluation or any part thereof against any party or parties as it may consider equitable B The court may order a party or the child to submit to and cooperate in the evaluation testing or interview by the mental health professional The mental health professional shall provide the court and the parties with a written report The mental health professional shall serve as the witness of the court subject to cross examination by a party Based on the use of the term may in this statute it is clear that evaluations 5 of parties or children by a mental health professional in a custody proceeding are permissive not mandatory See Silbernagel v Silbernagel 20060879 p 11 La App 5 Cir 4 958 So 13 20 As such the decision of whether an 07 11 2d evaluation should be ordered lies within the trial court discretion Scott v Scott s 95 0816 p 11 La App I Cir 12 665 So 760 767 writ denied 96 95 15 2d 0181 La 2 666 So 1106 The trial court ruling in this regard will not 96 2d s be disturbed on appeal absent an abuse of that discretion See Silbernagel 2006 0879 p 11 12 958 So at 20 2d In this case the trial court determined that an evaluation was not necessary because the only issue for it to determine was whether or not it was in the best interest of the children that they should be placed on the road under the present implementation plan for five hours plus each time they travel to visit with the m The court noted that because it was not concerned with any other modification of the designation of the domiciliary parent but rather whether Carrie Elliott physical custodial periods should be modified because she moved s further away it was not a situation where the c could not make a ourt decision Thus the trial court apparently concluded that good cause to order the evaluation was not shown because it could render a decision on the particular issue before it without input from a mental health professional Based on the record before us we cannot say that the trial court abused its discretion in declining to order an evaluation of the parties and children MODIFICATION OF CARRIE ELLIOTT S PHYSICAL CUSTODIAL PERIODS General Legal Precepts Every child custody case must be viewed in light of its own particular set of facts and circumstances Elliott 2005 0181 at p 7 916 So at 226 2d The paramount consideration in any determination of child custody is the best interest 0 of the child Evans v Lungrin 970541 970577 p 12 La 2 708 So 98 6 2d 731 738 La C art 131 Thus the trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances Accordingly a trial court determination of custody is entitled to great weight and will not be s reversed on appeal unless an abuse of discretion is clearly shown Elliott 2005 0181 at p 7 916 So at 226 2d Change in Custody Carrie Elliot main contention on appeal is that the trial court erred in its s modification of the allocation of physical custody of the children Specifically in her second and third assignments of error she contends that the trial court legally erred in determining whether a change in circumstances materially affecting the welfare of the children had taken place since the June 8 2006 stipulated joint custody implementation plan and in finding that the modification of the parties joint custody implementation plan was in the best interest of the children Eric Elliott motion to modify custody was based solely on Carrie Elliott s s move to Lindale Texas In his motion he requested that that the appropriate modifications be made to Carrie Elliott visitation or physical custodial schedule s in light of her move Since the parties share joint custody of the children and because Eric Elliott sought a modification of the allocation of physical custody this case must be considered a modification of custody See Cedotal v Cedotal 2005 1524 p 5 La App 0 Cir 11 927 So 433 436 05 4 2d I Eric Elliott and Carrie Elliot share joint custody of their children However we note that both Eric Elliott and the trial court used the term visitation Visitation as provided for in La C art 136 applies only when a parent does not have custody or joint custody The time that parents with joint legal custody share with their children is more properly described as physical custody allocation of a joint custody plan rather than as visitation La R 9 Cedotal v S 335 Cedotal 20051524 p 5 La App 0 Cir 1114105 927 So 433 436 see Evans v Lungrin 2d 97 0541 pp 10 11 La 2 708 So 731 737 98 6 2d 2 Eric Elliott also requested that he be awarded sole custody of the minor children However as previously noted the trial court dismissed this request pursuant to a peremptory exception raising the objection of no cause of action filed by Carrie Elliott No issues have been raised on appeal with regard to this ruling by the trial court 7 There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and that needed to change a custody plan ordered pursuant to a non considered decree or stipulated judgment See Evans 97 0541 at pp 1213 708 So at 738 A considered decree is an 2d award of permanent custody in which the trial court receives evidence of parental fitness to exercise care custody and control of children Id Elliott 2005 0181 at p 8 916 So at 227 By contrast a non considered decree is one in which no 2d evidence is presented as to the fitness of the parents such as one that is entered by default by stipulation or consent of the parties or is otherwise not contested Id Once a considered decree of permanent custody has been rendered by a court the proponent of the change bears the heavy burden of proving that a change in circumstances has occurred such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child Bergeron v Bergeron 492 So 2d 1193 1200 La 1986 However in cases where the underlying custody decree is a stipulated judgment and the parties have consented to a custodial arrangement with no evidence as to parental fitness the heavy burden of proof rule enunciated in Bergeron is inapplicable Evans 97 0541 at p 13 708 So at 738 Elliott 2d 2005 0181 at pp 8 9 916 So at 227 Rather a party seeking a modification of 2d a consent decree must prove that there has been a change in circumstances materially affecting the welfare of the child since the original or previous custody decree was entered and that the proposed modification is in the best interest of the child Richard v Richard 20090299 p 7 La App I Cir 6 20 So 09 12 3d 1061 1066 Evans 97 0541 at p 13 708 So at 738 Elliott 2005 0181 at p 9 2d 916 So at 227 2d In this case the underlying custody decree is the June 8 2006 stipulated M joint custody implementation plan In order to modify that custody plan or decree as requested by Eric Elliott he had to prove and the trial court had to find that 1 a change in circumstances materially affecting the welfare of the children had occurred since the rendition of the June 8 2006 joint custody implementation plan and 2 the modification proposed by Eric Elliott that appropriate e i modifications be made to Carrie Elliott physical custodial schedule in light of her s movewas in the best interest of the children At trial Eric Elliott testified that his primary concern with regard to the current joint custody implementation plan was the distance that the children were required to travel when their mother had physical custody of them Specifically on a physical custodial weekend with Carrie Elliott the children spend approximately eleven and a half to twelve hours traveling during a fortyeight hour weekend He acknowledged that while both children enjoy seeing their mother the length of the drive to Lindale Texas is long Carrie Elliott testified that she moved to Texas because of her husband job s which enabled her to stay at home She stated that she did not expect anything to change with regard to her physical custody of the children and she knew that the driving would be her responsibility With regard to her weekend time she testified her intent was to take the children to Texas at times and stay in the Maringouin or Baton Rouge area at other times She stated that although she knew the drive was long for the girls they did not mind the drive because they were used to traveling and they were spending time with her In oral reasons for judgment the trial court stated The Court finds by a preponderance of the evidence that the increased distance to Lindale from Natchitoches which is approximately twice the distance of where now Carrie Elliott lived before is a reason to modify the joint custody implementation plan s Tjhat the only thing I find that convinces this court that I need to make a modification E Carrie Elliott contends that the trial court erred in modifying the physical custodial allocation because the trial court failed to determine whether a change in circumstances materially affecting the welfare of the children had occurred and further that her move to Lindale Texas was not a change in circumstances materially affecting the welfare of the children citing in support Bonnecarrere v Bonnecarrere 20091647 p 7 La App 0 Cir 4 37 So 1038 1044 10 14 3d writ denied 20091639 La 8 2010 11 So3d wherein another panel of this court held that a interstate move by a non domiciliary parent does not per n se establish such a change In Bonnecarrere 2009 1647 at pp 78 37 So at 10441045 the parties 3d shared joint custody of the parties two children with the mother designated as the domiciliary parent subject to specific custodial periods every other weekend holiday time and extended time during the summer to be exercised by the father Thereafter the father moved to Minnesota and sought to have his visitation or physical custodial schedule modified to ensure that he had frequent and continuing contact with his children In requesting the modification of the physical custodial schedule the father asserted that his move to Minnesota constituted a change in circumstances because the distance made the prior arrangement wherein he enjoyed custody of the children every other weekend unworkable This court noting that the father was not only required to show a change in circumstances but also that the material change in circumstances affected the welfare of the children concluded in a plurality decision that an interstate move by a non domiciliary parent did not per se establish such a change This court reasoned that although the father moved to Minnesota the children were remaining in their home in Louisiana with their mother and maternal grandparents and were close to their paternal grandparents Further this court noted that although the children would have less contact with their father absent some evidence in the record that the 10 s children welfare was affected by the father move to Minnesota the evidence s was insufficient to meet the father burden in seeking a modification of the s custody judgment Bonnecarrere 20091647 at pp 8 9 37 So at 1045 3d Although Bonnecarrere is similar to the case before usin that the non domiciliary parent has moved out of statewe find it distinguishable Bearing in mind that the focus must always be on the effect the change in circumstances has on the children in Bonnecarrere it was the non domiciliary parent the father who sought the modification of custody based on his own move outofstate because the plan in place became unworkable for him because of the distance that he moved Due to the distance that either the father or the children or both would necessarily have to travel as a result of the move in order for the father to exercise physical custody the father was unable to exercise his regular alternating weekend visitation Although the father move resulted in a decrease in the time that the s children would be in the physical custody of their father this court found that such evidence did not demonstrate that the father move had an effect on the welfare of s the children And thus the father interstate move was notin and of itselfa s change in circumstances materially affecting the welfare of the children However in this case it is the domiciliary parent who is seeking the modification of custody The basis for the request for a modification was not based on the plan becoming unworkable due to the move or the distance itself that Carrie Elliot moved but rather that despite the distance that she moved Carrie Elliott expected the physical custodial schedule to remain the same Unlike the non domiciliary parent in Bonnecarrere Carrie Elliott still intended to and did exercise her regular physical custodial periods In exercising her regular physical custodial weekends the children were being subjected to significant travel time approximately one quarter of the weekend several weekends per month This significant travel time has an effect on the welfare of the children and therefore 11 we find that that Carrie Elliott move to Lindale Texas was a change in s circumstances materially affecting the welfare of the children We recognize under Bonnecarrere that although an interstate move by a non domiciliary parent may not per se establish a change in circumstances materially affecting the welfare of the child when as in this case the trial court finds that the non domiciliary parent has moved a significant distance still intends to exercise physical custodial time and subjects the children to extensive travel time such a move can establish a change in circumstances materially affecting the welfare of the children Having concluded that Eric Elliott met the first prong of his burden of proof in his request to modify custody we must next consider whether the proposed modification was in the best interest of the children In determining the best interest of the child La C art 134 enumerates twelve non exclusive factors to be considered by the trial court which include 1 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 12 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 12 The responsibility for the care and rearing of the child previously exercised by each party The list of factors set forth in this article is non exclusive and the determination as to the weight to be given each factor is left to the discretion of the trial court La C art 134 comment b As previously noted the evidence at trial focused on the distance between Eric Elliott residence in Maringouin and Carrie Elliott new residence in s s Lindale Texas and the length of timefive to five and a half hoursthat it took to travel that distance Carrie Elliott testified that they did not travel to Lindale Texas every weekend but on occasion would travel to her parent home in s Hemphill Texas near Natchitoches Louisiana area or to her grandparent home s in Gulfport Mississippi Additionally Eric Elliott during his testimony expressed his concern that Carrie Elliott did not compromise with him on issues regarding the s children extracurricular activities and he testified to a few specific examples where she refused to compromise However he also acknowledged that there were other occasions where she had accommodated the children extracurricular s activities as he requested After reviewing the evidence and testimony from the hearing the only relevant factors discussed were factors 8 10 and 11 The children have become involved in various extracurricular activities such as dancing and volleyball which have regularly scheduled events and games on weekends According to the June 8 2006 joint custody implementation plan Carrie Elliott had physical custody of the children three and sometimes four weekends per 13 month and the children ability to participate in extracurricular activities has been s affected by the physical custodial allocation particularly given the distance between the residences of the parties Although the children relationship with s Carrie Elliott is of utmost importance the physical custody allocation should also consider the children daily activities Therefore when considering these factors s and the testimony at trial we find that Eric Elliott sufficiently established that the s children best interest was served by a modification of the parties joint custody implementation plan Because we have concluded that Eric Elliott satisfied his burden of proving both a change in circumstances materially affecting the welfare of the children and that it was in the children best interest to modify the joint custody s implementation plan we cannot say that the trial court abused its discretion in its ultimate determination that a modification of Carrie Elliott allocation of physical s custody was warranted Carrie Elliott Physical Custodial Periods s In Carrie Elliott remaining assignments of error she complains about the s specific provisions made by the trial court in its modification of the joint custody implementation plan In assignment of error number four Carrie Elliott contends that the trial 3 As pointed out by Carrie Elliott in her brief to this court the trial court oral reasons for s judgment did not specifically articulate a factual finding that a change in circumstances materially affecting the welfare of the children had occurred or whether the proposed modification was in the best interest of the children Instead the trial court merely stated the increased distance warranted a modification of the joint custody implementation plan Carrie Elliott contends that the trial court failure in this regard was legal error warranting a de novo s review of this matter We disagree Although from its reasons for judgment we cannot determine what legal standard the trial court applied in this matter it is well settled that appeals are taken from the judgment ofthe trial court not its written reasons for judgment and if the trial court reached the proper result the judgment should be affirmed See Schulingkamp v Ochsner Clinic 99 558 p 8 La App 5 Cir 1 752 So 275 279 writ denied 2000 th 00 25 2d 0618 La 4 760 So 348 Accordingly because the trial court determination of 00 20 2d s custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown and because we find based on the record that Eric Elliott met his burden of proof we conclude that the trial court did not abuse its discretion in its determination that a modification of the physical custodial allocation was warranted 14 court erred in ordering that only one of her two alternating weekends of physical custodial periods could take place in Lindale Texas and that the other weekend custodial period had to take place in the area of Maringouin or in the area of Natchitoches Carrie Elliott argues that the reason her weekend physical custodial periods were modified from consecutive weekends to every other weekend was to eliminate the children being on the road for approximately eleven hours on consecutive weekends Therefore once the consecutive weekend physical custodial periods were eliminated there was no reason for the trial court to order that only one of her alternating weekends could be spent in Lindale Texas In assignment of error number five Carrie Elliott also contends that the trial court erred in failing to award her additional days during the year Le during holidays and the summer in order to makeup for the periods of physical custody that she lost as a result of the trial court decision to modify her weekend custodial s periods When parents share joint custody of children La R 9 requires an S 335 implementation order to be rendered except for good cause shown which allocates each party physical custodial time periods as well as the legal authority s and responsibility of the parents Louisiana Revised Statutes 9 and a 2 A 335 b requires frequent and continuing contact with both parents and to the extent that it is feasible and in the best interest of the children that physical custody of the children be shared equally The trial court is imbued with much discretion in the determination of what constitutes feasible reasonable time periods of physical custody of the children Caro v Caro 95 0173 p 4 La App I Cir 10 95 6 671 So 516 519 2d After reviewing the allocation of physical custody made by the trial court 4 Given the distance between the residences of the parties there is no dispute that equal sharing is not feasible in this case 15 and the geographical restriction imposed by the trial court with regard to Carrie s Elliott alternating weekend custodial periods we cannot say that the trial court abused its discretion This geographical restriction on the alternating weekend ensures that the children have regular and frequent contact with their mother but that they only travel the long distance approximately once a month It also takes into consideration the extracurricular activities that the children may have on the weekends in the area of their domiciliary home With regard to Carrie Elliott request for additional days during the s holidays and summer to makeup for the days of physical custody she lost on the weekends we note that the trial court modification of the allocation of physical s custody was limited to the regular weekend custodial periods and not the holiday and summer physical custody allocations Thus the trial court apparently concluded it was not in the children best interest to modify those custodial times s While it is unfortunate that the distance Carrie Elliott moved has resulted in a decrease in the amount of time that the children will be in her physical custody the trial court apparently determined that an award of extra days during the holidays or summer was not feasible to correct that loss and would result in a loss of most if not all of Eric Elliott already limited time during the holidays and the summer s Accordingly we do not find that the trial court abused its discretion in failing to award Carrie Elliott additional makeup days In Carrie Elliott last assignment of error she contends that the trial court s erred with regard to setting the transportation point for the children exchange specifically during extended weekend custodial periods She contends that the exchange transportation point should have remained the same as provided for in the June 8 2006 joint custody implementation plan The judgment reflects that the trial court changed the transportation point to the provisions set forth in exchange the August 16 2004 joint custody implementation plan and that for weekend 16 visitation Eric Elliott was to meet Carrie Elliott at the exchange point every other time that Carrie Elliott had weekend visitation Again we note that the trial court is vested with much discretion when determining what is reasonable in the allocation of physical custody and in the allocation of the legal authority and responsibility of the parents which would include issues such as transportation and exchanges points to facilitate each party custodial time At the hearing in this s matter Carrie Elliott testified that when she moved she knew the extra driving was going to be her responsibility and the extra driving did not bother her because she was accustomed to it However Eric Elliott testified that the current exchange transportation point provisions were a hardship on him due to changes in his work schedule which occurred after the parties entered into the June 8 2006 stipulated joint custody implementation plan Given this evidence we cannot say that the trial court abused its discretion in modifying the transportation and exchange point provisions CONCLUSION For all of the above and foregoing reasons the December 1 2009 judgment of the trial court is hereby affirmed All costs of these proceedings are assessed to the defendant Carrie Barber Elliott appellant AFFIRMED 5 We note that in Elliott 2005 0181 at p 15 916 So at 231 the August 16 2004 joint 2d custody implementation plan was vacated by this court Additionally the specific exchange transportation point provisions of the August 16 2004 judgment are not set forth in the record before us However it appears that both parties are aware of the specific details of those provisions 17
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