author: It EZELL, J.

text:
    STATE of Louisiana v. Samuel BUCKLEY.
    No. 02-1288.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Richard Phillip Ieyoub, Attorney General, Burton P. Guidry, Assistant District Attorney, Baton Rouge, LA, for State of Louisiana.
    Mack Irvin Frank, Attorney at Law, Opelousas, LA, for defendant, Samuel Buckley.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   It EZELL, J.

On July 31, 1996, Defendant, Samuel Buckley, was indicted for distribution of cocaine, in violation of La.R.S. 40:967. Defendant appeared for arraignment and pled not guilty on October 24, 1996. The court set a trial date of April 21, 1997. On February 18, 1997, Defendant appeared and the court appointed counsel for him. On April 21, 1997, Defendant failed to appear for trial and the court issued a bench warrant. Subsequently, on February 11, 2002, Defendant appeared after an arrest pursuant to the bench warrant. On July 22, 2002, Defendant appeared with counsel. After hearing argument on a defense motion to quash, the court deferred ruling. After proceeding through jury selection, the court reconvened the hearing on the motion to quash. After reviewing transcripts of earlier proceedings, the court denied the motion.

On July 23, 2002, Defendant’s trial by jury began. On July 24, Defendant made a motion for mistrial, which the court denied. Defendant then entered a guilty plea, but preserved for appeal the issues related to his motion to quash and his motion for mistrial. Defendant now appeals the trial court’s ruling on said motions.

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, the court finds there is one error patent.

The Defendant was sentenced to serve seven years at hard labor, the first five of which are to be served without benefit of parole, probation, or suspension of sentence. However, at the time of the commission of the offense, the penalty for distribution of cocaine was five to thirty years at hard labor and a possible fine of not more than fifty thousand dollars. See La. R.S. 40:967(B)(1). Thus, restriction on benefits eligibility renders the sentence illegal.

In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court held the trial court imposed an illegal sentence when it ordered the defendant to participate in a substance abuse evaluation and to follow the resulting recommendations. In determining the appropriate remedy to correct the error, this court stated:

An illegal sentence may be corrected at any time by an appellate court on review. La.Code Crim.P. art. 882(A).
[Wjhen correction of an illegal sentence does not involve the exercise of sentencing discretion, there is no reason why the appellate court should not simply amend the sentence_How-ever, if correction involves the exercise of sentencing discretion ... the case must be remanded for the trial court to perform that function.
Fraser, 484 So.2d at 124 n. 5.
In State v. Prince, 97-0727 (La.9/26/07); 701 So.2d 965, the supreme court simply amended the sentence imposed by the trial court to delete the requirement of restitution where restitution was not authorized by statute. Also, in State v. Lee, 94-0814 (La.6/17/94); 641 So.2d 206, the supreme court simply amended a sentence to delete the requirement of restitution where restitution was not authorized by statute. In State v. Yancy, 93-2798 (La.5/31/96); 673 So.2d 1018, the supreme court amended the sentence to delete only that portion denying the defendant eligibility for parole where at the time of the crime there was no requirement of parole ineligibility. In State v. Yarbrough, 596 So.2d 311 (La.App. 3 Cir.), writ denied, 599 So.2d 317 (La.1992), the third circuit amended the portion of the defendant’s sentence that precluded parole, probation, or suspension of sentence where the preclusion of those benefits was not authorized by statute.
We note that in State v. Narcisse, 97-3161 (La.6/26/98); 714 So.2d 698, the supreme court vacated a sentence and remanded to the trial court for resen-tencing where the trial court erroneously required restitution and denied the defendant eligibility for good-time credits. In Na/rcisse, the supreme court did not state that it was required to remand the sentence because the case involved the exercise of sentencing discretion. Rather, it appears that the supreme court may have been exercising its own discretion in remanding the case, because La.Code Crim.P. art. 882(A) does not require that an appellate court correct an illegal sentence but provides that the appellate court “may” correct an illegal sentence on review.
|3We find the instant case is analogous to Prince, Lee, Yancy, and Yarbrough such that the correction does not involve the exercise of sentencing discretion. Therefore, we amend the sentence imposed by the trial court to delete that portion requiring participation in substance abuse evaluations and the following of the recommendations resulting from them.

Gregrich, 745 So.2d at 696 (alteration in original).

We find that correction of this error does not involve the exercise of sentencing discretion. Thus, we will amend the sentence to delete the portion of the sentence requiring that the first five years be served without benefit of parole.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant argues the lower court erred in denying his motion to quash, which alleged that the time limitation for “instituting prosecution” had expired. As with the appeal, in his oral argument below, Defendant was actually focusing on the time limit for commencing trial, not the time limit for instituting prosecution.

On appeal, Defendant cites La.Code Crim.P. art. 578, which states, in pertinent part: “Except as otherwise provided in this Chapter, no trial shall be commenced ... [i]n other felony cases after two years from the date of institution of the prosecution....”

The basic analysis under Article 578 is well-settled: “Once the accused shows that the state has failed to bring him to trial within the time periods specified by La.C.Cr.P. art. 578, the state bears a heavy burden of demonstrating that either an interruption or a suspension of the time limit tolled prescription.” State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205.

This court observes that the appellate briefs, like the proceedings below, focus upon whether Defendant received actual notice of the trial date. In the case sub judice, the State instituted prosecution by indictment on July 31, 1996. As mentioned Lin the procedural history above, Defendant failed to appear for trial on April 21, 1997. Defendant’s jury trial did not begin until July 22, 2002. Defendant changed his plea to guilty, pursuant to a plea agreement, on July 24, 2002. Clearly, more than two years had elapsed. However, the record reveals Defendant received actual notice of the April 21,1997 date in open court on February 18,1997.

Regarding interruption, the State highlights La.Code Crim.P. art. 579(A)(3): “The period of limitation established by Article 578 shall be interrupted if ... [t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.”

The record indicates Defendant received actual notice of his court date and did not appear. Defendant contends that he was at the courthouse on April 21, 1997, but that “it appeared to him that court was not being held.” He further contends that “someone from the District Attorney’s office” told him there would not be a trial that day. The Defendant’s own argument presented in brief indicates he actually knew of his trial date, although the record of actual notice needs no such support. His contention regarding what he was told is not supported by testimony or any other evidence in the record. Further, he did not include this argument in his written motion to quash, his oral argument on the motion, or in his objection to the court’s ruling on the motion. Thus, it is not proper for Defendant to raise this argument for the first time on appeal. State v. Mansion, 98-992 (La.App. 5 Cir. 4/27/99), 733 So.2d 1212, writ denied, 99-1545 (La.11/5/99), 751 So.2d 231; La.Code Crim.P. art. 841. In any case, it is clear that Article 579(A)(3) applies to this case.

There are but a few cases found by the court discussing Article 579(A)(3). However, in State v. King, 98-446 (La.App. 3 Cir. 10/7/98), 720 So.2d 103, this court observed that pursuant to Article 579(A)(3), the defendant’s failure to appear on his | Rtrial date constituted an interruption of the prescriptive period set forth by Article 578. Since the defendant pled guilty in 1997, well within two years of the interruption, this court held the case had not prescribed under Articles 578 and 579(B), which state that prescription begins anew “from the date the cause of the interruption no longer exists.” The court observed that the issue of whether time had began to run again was not before it, due to the defendant’s plea within two years of the interruption. King, 720 So.2d 103.

In the present case, the latter issue of when time began to run again was not addressed. However, this issue is an integral part of the analysis, as shown by State v. Malone, 610 So.2d 148, 150-51 (La.App. 2 Cir.1992), a case King cited.

The period of limitation in Art. 578 begins to run anew when the State knows or should know of a criminal defendant’s whereabouts, where the defendant can be served or arrested. After the period of limitation has run on its face, the burden of proving, on the hearing of a motion to quash, the duration of any interruption of the period is on the State. This burden can be met by evidence that the defendant was attempting to avoid detection and service at given addresses or that the State had made reasonable, though unsuccessful, efforts to locate defendant at addresses he had given. See cases cited supra, [State v.] Taylor[, 439 So.2d 410 (La.1983)], [State v.] Amarena[, 426 So.2d 613 (La.1983)], [State v.] Nations[, 420 So.2d 967 (La.1982)], and Guidry.
In Taylor, supra, the court observed the defendant did not notify the court of two different changes of address, but this singular fact, standing alone, was not sufficient proof of an intent to elude authorities. There, the court held the state failed to prove that the defendant was not amenable to service even though the state made at least two attempts to serve him.
In Nations, the court held that the state failed to establish that the defendant absented himself from his usual place of abode to avoid prosecution even though defendant had twice changed apartments and could not be served at his given residence. The holding was founded on the finding that defendant had notified his bonding company of each change of address, had filed a change of address form with the post office, and had maintained a correct listing of his name, number and address with the telephone company. Nations was a DWI misdemeanor case.
In another DWI case, the defendant changed residences before service was attempted. Service was later attempted at his first address |fiand then at the changed address. A bench warrant issued and notice of bond forfeiture was ordered served on defendant’s surety. The court held that the state failed to meet its heavy burden of showing legal cause sufficient to interrupt the time for commencement of trial because the state failed to follow up on the notice to the surety for almost two years. State v. Guidry, 395 So.2d 764 (La.1981).
Each case, of course, must stand on its own facts. Here the State did not make any effort after March 1990 to contact applicant or his attorney. The telephone contact at applicant's correct number had produced some information that applicant lived on Cortez street. A deputy marshal went there. The record does not suggest that the deputy thought the residence was vacant or abandoned. He left a “card” at that address. We do not know what the card “said,” if anything.
The State has not shown that applicant was attempting to avoid detection and service at either of the two addresses given them, at one of which no service whatsoever was attempted. The State showed only two attempts to contact applicant in March 1990, while the State’s witness said, “on the average,” the state made in the neighborhood of four attempts to contact a defendant on a DWI charge.
CONCLUSION
“Indifference” by a criminal defendant who has an attorney of record, whose correct number is listed in the telephone directory, and who does not otherwise attempt to avoid detection and service at given addresses, is not sufficient to prevent the Art. 578 period of limitation from running anew after interruption by a bench warrant. Such a defendant may be as “indifferent” as he chooses because the responsibility or burden is to respond to the authority of the arresting officer or to appear when ordered to do so. That responsibility or burden is on the State to have such defendant’s case placed back on the court docket for trial or to have the bench warrant served, or to show, on the hearing of a motion to quash, that it made reasonable, although unsuccessful, efforts to contact or serve the warrant on the defendant, so as to allow the conclusion that defendant had been avoiding the state’s reasonable attempts to locate and serve or arrest him.

We find that the majority’s reasoning in Malone does not appear to be congruent with Article 579(A)(3), as it appears to require the State to prove it searched for defendants who have failed to appear. This apparent incongruence was discussed in Judge Victory’s dissent:

All of the cases cited in the majority opinion were decided prior to the 1984 Legislative amendment adding subsection A(3) to LSA-C.Cr.P. Art. 579, and dealt with interruptions under Art. 579A(1) and (2), i.e., flight or hiding by the defendant with the intent to avoid prosecution, or the state’s inability to secure his presence for trial by legal process. In those cases, the cause of the interruption was held to no longer exist when the state found out where the defendant was, or failed to take reasonable steps to locate him.
In my view, the cause of the interruption under Art. 579A(3) no longer exists when the defendant again appears in court, or the defendant is arrested, is in custody on the warrant and the state is aware of it, or his whereabouts are known to the state. Once the state shows the interruption, i.e., the failure of the defendant to appear in court after notice in the record, the defendant should then have to the cause of the interruption no longer existed. Here, the defendant did not appear in court until after he filed his Motion to Quash in January of 1992 and was never arrested on the bench warrant and taken into custody. prove that
... Although the defendant may have been living on Cortez Street in March of 1990, he failed to show the state knew it at the time. Hindsight is 20/20, and it is easy to now say the state should have known it because the defendant later testifies it is true. The defendant should not unjustly benefit from his failure to appear for trial and to give the arresting officer, his bondsman, and the state his correct address.

Malone, 610 So.2d at 151-52 (emphasis supplied).

We are aware that the jurisprudence indicates the majority view from Malone has prevailed in cases applying Article 578. In State v. Chadbourne, 98-1998 (La.1/8/99), 728 So.2d 832, the supreme court squarely stated the prosecution’s burden under Article 578 includes proving it searched for a non-appearing defendant. However, Chadbourne is not a case that discussed Article 579(A)(3).

Again, few cases discuss Article 579(A)(3). Other than King and Malone, we have found only State v. Mack, 30,795,-30,796 (La.App. 2 Cir. 6/24/98), 716 So.2d 137 and State v. Ward, 36,545 (La.App. 2 Cir. 11/13/02), 830 So.2d 1135. Although Mack did not specifically cite Article 579(A)(3), it dealt with an actual-notice situation. However, it is not helpful to the current analysis, because the defendants appeared in court a mere seven days after their non-appearance. Ward is similarly since the State in that case failed to issue a bench warrant, and the defendant presented evidence of an informal agreement to reset the court date. ^inapposite,

Regarding Article 579(A)(3) and the present case, we find that the Malone dissent is more logical, in light of the language of the article. In our view, a defendant who has chosen to ignore actual notice, should not receive any benefit from his action; by the same token, the State should not bear the burden of finding and re-serving (or arresting) such defendants and holds that the trial court properly denied Defendant’s motion to quash.

On appeal, Defendant also attempts to argue his federal constitutional right to a speedy trial was violated by the delay between the indictment and the commencement of trial. However, he did not raise this argument below; therefore, it will not be considered. Mansion, 733 So.2d 1212. We note State v. Williams, 02-1030, 02-898 (La.10/15/02), 830 So.2d 984, in which the court stated that generally issues not argued at trial will not be reviewed on appeal. “Constitutional issues are no exception.” Id. at 988. However, we have found no cases specifically stating whether a failure to raise constitutional speedy trail rights at trial preclude a defendant from raising the issue on appeal. Further, Williams and Mansion both dealt with attacks on the constitutionality of statutes, thus, they may not be on all fours with the present case. Therefore, we will review the claim out of an abundance of caution.

This court has explained:

Further, in Barker v. Wingo, [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),] the United States Supreme Court identified four factors to determine whether a particular defendant had been deprived of his right to a speedy trial; namely, (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; (4) prejudice to the defendant.

State v. M.M., 00-1296, p. 35 (La.App. 3 Cir. 8/29/01), 802 So.2d 43, 69, writ denied, 01-3370 (La.10/4/02), 826 So.2d 1121 (footnote omitted).

|flFirst, the length of the delay in this case was just over five years. Although a cursory survey of Louisiana cases reveals that lesser delays have been considered presumptively prejudicial, in Barker itself, the Supreme Court observed that an approximately five-year delay, viewed separately, was “too long a period.” However, there are three other factors to consider; the second focuses upon the reason for the delay.

In the present case, it is clear from the facts already stated that any delay that occurred in beginning the trial is attributable to Defendant himself. In State v. Dewey, 408 So.2d 1255 (La.1982), the court held that defendant’s incarceration in federal prisons outside Louisiana was a valid reason for trial delays. In State v. James, 394 So.2d 1197 (La.1981), the court held the defendant’s absconding from custody was a valid reason for delay of his trial. See also State v. Howard, 325 So.2d 812 (La.1976), in which defendant escaped twice while trial was pending. Thus, the court noted that much of the delay was attributable to him. In light of these cases, we find that the reason for the delay in the present case is attributable to the Defendant.

Regarding the third Barker factor, the record indicates Defendant failed to assert his constitutional right to a speedy trial in the court below, as already discussed. On appeal, Defendant fails to argue the fourth and final Barker factor. His brief makes no attempt to demonstrate prejudice, pursuant to Barker.

Thus, in viewing the record before the court, the Defendant’s constitutional speedy trial rights were not violated. Although the delay was fairly lengthy, it is attributable to Defendant; also he makes no showing regarding the third and fourth Barker factors. Defendant’s speedy trial argument is without merit and for the reasons discussed, this assignment lacks merit.

| t (ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant alleges the State violated its discovery obligations via late disclosure of a videotape of the transaction. More specifically, Defendant argues the tape that he was provided in discovery was shorter and of lower quality than the videotaped evidence the State introduced at trial. Thus, he argues, he was “lulled into a misapprehension of the strength of the [s]tate’s case.” State v. Williams, 448 So.2d 659 (La.1984). Although the State argues this issue was mooted by the plea, the court notes Defendant preserved this issue, as part of his plea agreement.

The trial court heard argument on the discovery issue outside the jury’s presence. The court ruled that a discovery violation had taken place, but that Defendant had failed to show prejudice. The court advised Defendant he would be free to raise the prejudice issue again, if he observed such prejudice during the course of trial. Our review of the record indicates Defendant did not subsequently raise a specific instance of prejudice. He objected to the introduction of the tapes but relied on his arguments made at the hearing.

One witness, informant John Wayne Jones, testified about the drug transaction. The tapes were introduced and viewed during his testimony. After a recess, Defendant entered his guilty plea, reserving the mistrial issue and the motion to quash issue for appeal.

The State introduced the drug surveillance videos as S-1A, S-1B and S-1C. The record indicates Defendant did not introduce the allegedly lower-quality tape he received, either as an exhibit or a proffer. The Defendant has neither preserved nor provided a means to assess his argument. The record is simply incomplete on this issue. Thus, Defendant has failed to make a showing of prejudice.

In Any other discovery-related issues Defendant mentions were not raised at the hearing before the trial judge. Further, they were not preserved as part of Defendant’s plea. Therefore, the Court finds no need to discuss them. For the reasons discussed, this assignment lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: | GREMILLION, Judge. It COOKS, J.,

license: Public Domain

text:
    William Lee LAWRENCE v. Judith Menard LAWRENCE.
    No. 02-1066.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      David Sterling Fitzgerald Jr., Lafayette, LA, for Plaintiff/Appellant, William Lee Lawrence.
    Martha Josephine Bush Chandler, Dan K. Kennison, Lafayette, LA, for Defendant/Appellee, Judith Menard Lawrence.
    Judith Menard Lawrence, Milton, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC. T. AMY, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   | GREMILLION, Judge.

The plaintiff, William Lee Lawrence, appeals the judgment of the trial court granting a permanent injunction prohibiting him from coming within five hundred feet of the defendant, Judith Menard Lawrence. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

William and Judith were married on December 24, 1994. William filed for divorce from Judith on November 13, 1997. On November 19, 1997, Judith was served with a temporary restraining order prohibiting her from harassing or contacting William. On November 26, 1997, a temporary restraining order was granted prohibiting William from harassing or contacting Judith. On July 6, 1998, William and Judith were granted a divorce pursuant to La.Civ. Code art. 106. The divorce judgment was silent as to any injunction under La.R.S. 9:372. On December 6, 2001, Judith filed a rule for contempt, and permanent injunction. On January 18, 2002, William filed a rule to show cause for contempt, sanctions, attorney’s fees, court costs, and for injunc-tive relief. After a hearing on February 7, 2002, the trial court denied William’s rule for contempt, and granted Judith’s, finding that William had harassed her in violation of the court’s orders. Subsequently, on April 16, 2002, the trial court executed a judgment ordering that a permanent injunction be issued under La.R.S. 9:372. William timely appealed to this court.

ISSUES

William argues it was an error of law for the trial court to grant a permanent injunction pursuant to La.R.S. 9:372, because the parties had been [ ^divorced for over three years at the time it was issued.

Appellate review of a question of law is simply a decision as to whether the trial court’s decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. If the trial court’s decision was based on its erroneous application of law, its decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). When an appellate court finds that a reversible error of law was made in the lower court, it must redetermine the facts de novo from the entire record and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

La.R.S. 9:372(A) states (emphasis added):

In a proceeding for divorce, a court may grant an injunction prohibiting a spouse from harassing or physically or sexually abusing the other spouse or a child of either of the parties.

In Steele v. Steele, 591 So.2d 810 (La.App. 3 Cir.1991), the plaintiff appealed the trial court’s denial of her rule for contempt against the defendant for violating injunctions issued prior to the divorce decree. Neither the judgment of separation nor judgment of divorce, rendered in March 1989, mentioned the injunction. In December 1989, the plaintiff filed a complaint requesting that the defendant be held in contempt. The trial court dismissed the plaintiffs rule, based upon Walters v. Walters, 540 So.2d 1026 (La.App. 2 Cir.1989). We affirmed, quoting with approval Walters, stating:

Unlike the provisions in Title 46, LRS 9:306 does not specify or limit the duration of the injunction prohibiting physical or sexual abuse of a “petitioning spouse.” This statute, however, clearly treats such an injunction as incidental to the filing of the separation or divorce action \Rby a petitioning spouse.
Being incidental to the separation action, an injunction derived from LRS 9:306 which is ordered in a separation judgment must be held ineffective and unenforceable where it is not expressly continued or ordered in the later divorce judgment. Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (La.1956).

Steele, 591 So.2d at 812, quoting, Walters, 540 So.2d at 1029. We went on to hold that, because the injunction was not mentioned in either the separation or divorce judgment, it was extinguished by law.

Furthermore, by the clear wording of the this statute, the legislature intended that a spouse, who is being physically or sexually abused during the pendency of the divorce proceeding, be able to obtain injunctive relief. Numerous other statutes dealing with divorce proceedings clearly refer to the time within which the parties can act and state: “In a proceeding for divorce or thereafter,” thus indicating a time period beyond the rendering of the judgment of divorce. We, therefore, can only conclude that the legislature intended that the injunctive relief provided for in La.R.S. 9:372 must be instituted by the victim-spouse during the pendency of the divorce proceedings. Thus, the trial court erred in granting Judith a permanent injunction under this article, some three years following the completion of the proceeding for divorce when the divorce decree was silent as to any injunctions.

CONCLUSION

The ruling of the trial court is reversed. Costs of this appeal are assessed equally between the plaintiff, William Lee Lawrence, and the defendant, Judith |4Menard Lawrence.

REVERSED.

COOKS, J., Dissents, with written reasons.

It COOKS, J.,

dissenting.

The majority cites Steele v. Steele, 591 So.2d 810 (La.App. 3 Cir.1991) which affirmed the trial court’s denial of the plaintiffs rule for contempt against her former husband for violating injunctions issued prior to the divorce decree. In Steele, neither the judgment of separation nor judgment of divorce mentioned the injunction.

I agree with the decision in Steele. However, the holding of Steele does not apply to the facts of this case. For that reason, I must disagree with the majority opinion.

Judith and William Lawrence were divorced on July 6, 1998 and it is true the judgment of divorce does not mention an injunction. However, on May 8, 2001 Judith filed a Petition for Possession of Community Immovable alleging among other things “Defendant has in the past physically accosted and harmed her. She is therefore entitled to an injunction without bond prohibiting the Defendant from any contact with the Plaintiff.” On July 5, 2001, the district judge signed a Rule to Show Cause why an injunction should not issue prohibiting William from going near Judith.

On July 16, 2001 Stipulated Judgment was signed by both parties which stated: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that William Lee Lawrence and Judith Menard Lawrence shall be enjoined from abuse and harassment of each other.” William did not appeal this judgment and it, therefore, became final. On December 6, 2001, Judith filed a Rule for Contempt and for Permanent Injunction | ¡¡alleging William violated the Stipulated Judgment of July 16, 2000. On January 18, 2002, William followed suit with his own Rule to Show Cause for Contempt, Sanctions, Attorney’s Fees, Court Costs and for Injunctive Relief. He alleged in his petition Judith violated the “Stipulated Judgment rendered on June 19, 2001 and signed by the Court on July 16, 2001” by contacting “his employer both by mail and by telephone in an effort to jeopardize his employment which constitutes abject harassment on her part ....” A hearing was held on both petitions on February 7, 2002. The trial court held:

The Court has — what we have is two rules for contempt, one filed by Mr. Lawrence, which the Court denies, since there was no proof of contempt of the Court by her. As to Ms. Lawrence’s rule for contempt, the Court finds in her favor and finds that Mr. Lawrence, based on the testimony of the witnesses here today, has violated the previous order of this Court, several orders of the Court, but that basically being July 16, 2001, where he was enjoined from abuse and harassment of her. The Court finds, based on the testimony of these people, all of the witnesses, that he has conducted a system of harassment of her, therefore, the Court finds him in contempt of Court and orders him to serve 60 days in the parish jail.

(Emphasis added)

Judgment based on the hearing was signed April 16, 2001, which judgment William now appeals. While it is true the April 16, 2001 judgment cites La.R.S. 9:372 as the basis for issuing the injunction, it is clear from the record the judgment which was actually enforced is the Stipulated Judgment of July 16, 2001, not the Judgment of Divorce. William neither appealed nor filed to annul the Stipulated Judgment of July 16, 2001. It became a final judgment and, in fact, he sought to enforce it. While the April 16, 2001 judgment cites the incorrect article as the basis for the decision, it is clear, from the record, the decision of the trial court is correct and should be affirmed.

In other words, William,. through this appeal, is attempting to nullify the July 16, 2001 judgment he stipulated to and which he is now barred from attacking in any proceeding. The present appeal is nothing more than a disguised attempt to prevent ^^enforcement of the Stipulated Judgment of July 16, 2001. I concede William has done a pretty good job of keeping us focused on the April 16, 2002 judgment and trying to convince us that judgment is somehow a “new” judgment which provides him opportunity to rely on the holding in Steele to prevent its enforcement.

The July 16, 2001 judgment may have been improvidently issued in this proceeding subsequent to the divorce, however, it is well settled law that a judgment which is final may be premised on “bad jurisprudence” or “rendered without codal or statutory mandate” but once it becomes final only those “defects” found in the nullity provisions will bar its enforcement. Here, William had full opportunity to protest the signing of the judgment he actually stipulated to by filing an appeal with this Court. He failed to do so and therefore failed to urge, when he should have, that the holding in Steele bars enforcement of the July 16, 2001 judgment. As a consequence of his own failure, the law presumes he waived this right and his belated attempt to voice objection to the judge’s authority under La.R.S. 9:372 to enforce his previous judgment comes too late. Although the April 16, 2002 judgment cites 9:372, the judge’s oral reasons makes clear it is nothing more than an order enforcing the July 16, 2001 judgment which is final and non-appeal-able. It is also well settled law if there exists any basis in law to uphold a judgment, though the judge may articulate insufficient grounds for its maintenance, we may take liberty only to remark “for different reasons ... we affirm.” Ample basis exists in this case to affirm the order which merely seeks to enforce a final judgment.

      . The former La.R.S. 9:306 is now La.R.S. 9:372.

      . See La.Civ.Code arts. 111, 131, and 121.


author: _JjEZELL, J.

text:
    Jason J. DUGAS v. AARON RENTS, INC.
    No. 02-1276.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Craig Alan Davis, Lafayette, LA, for Plaintiff/Appellee, Jason J. Dugas.
    Michael Brent Hicks, Juston M. O’Brien, McGlinchey, Stafford, Baton Rouge, LA, for Defendant/Appellant, Aaron Rents, Inc.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   _JjEZELL, J.

This wage dispute case raises issues on appeal concerning the applicability of La. R.S. 23:631 and whether quarterly payments to an employee are “wages.” For the following reasons, we affirm.

FACTS

Jason Dugas went to work for Aaron Rents, Inc., on April 1, 1998, as general manager of its store in Lafayette on Ambassador Caffery. Dugas received a salary of $4,000 a month, paid in equal installments on the first and fifteenth of the month. This salary was considered a “draw.” He also received a quarterly commission adjustment.

On October 24, 2001, Dugas gave two-weeks notice of resignation effective November 3, 2001, to the regional manager, Dave Bogan. Dugas testified that he received his monthly draw but failed to receive the third quarter commission adjustment.

Dugas filed a petition against Aaron Rents for unpaid wages in the amount of $4,389.16, penalties, and attorney’s fees pursuant to La.R.S. 23:631. In the alternative, he made a claim pursuant to quantum meruit. Aaron Rents filed exceptions of no cause of action, improper use of summary proceedings, and improper cu-mulation of actions.

A hearing was held on June 3, 2002, with the trial court overruling Aaron Rents’ exceptions at the outset. The trial court found in favor of Dugas and awarded him $4,389.16 in unpaid wages, $18,136.80 in penalties, and $3,000 in attorney’s fees. Aaron Rents appealed the judgment.

[.PAST DUE COMPENSATION

Aaron Rents claims that the trial court erred in finding that it violated the La.R.S. 23:631 by failing to pay Dugas a “wage” as defined by the Act. Aaron Rents claims that the additional compensation sought by Dugas was not a “wage” as defined by the Act because it was paid quarterly and was not a fixed sum. Louisiana law requires the employer to settle up with his former employee “on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.” La.R.S. 23:631(A)(l)(b). This protection extends to any “employee of any kind whatever” and affords the employee relief “whether the employment is by the hour, day, week, or month.... ” Id. Commissions are considered wages for purposes of the statute. Brown v. Navarre Chevrolet, Inc., 610 So.2d 165 (La.App. 3 Cir.1992). In the event of a dispute, the employer must pay the undisputed portion of the claimed wage within the time as provided by subsection A of La.R.S. 23:631. La.R.S. 23:631(B). The employee has the right to file an action to enforce his claim for unpaid wages by summary proceeding. Id.

This court in Brown, 610 So.2d 165, 169 quoted, with approval, Rubenstein Bros. v. LaForte, 320 So.2d 303, 306 (La.App. 4 Cir.1975), which stated:

The application of the statute is not governed by the type of salary or payment received by the employee but rather by the terms of the employment itself. In this case, the trial court found that the employment was by the week, because the employee had a weekly draw of $180.00 per week. In view of the fact that the days per week that such salesman could work were regulated by the employer, we have no quarrel with this finding, although we note that the weekly draw was not a guaranteed salary, but was subject to adjustment and accounting one way or another based upon the amount of goods sold, goods returned, et cetera once each month. In any event, we find that La-Forte does come within the provisions of the statute cited above.

|sThe Aaron Rents’ compensation plan introduced into evidence indicated that the base draw would be “paid according to the average monthly rental revenue for the previous quarter.... ” “Actual earnings” are “calculated monthly, paid quarterly as an adjustment to the draw.” The earned compensation, or commission, is based on the rental revenue and profit for the three-month quarter. There were also bonuses available for monthly goals, quarterly goals, and referrals. Later, in the “Compensation Notes,” Note 1 provides, in pertinent part: “A GM must have completed the full quarter to qualify for any commission adjustment. In the event of employment termination, all commission rights mil be forfeited. Adjustment checks will be issued after the P & L results for the last month after each quarter.”

The evidence in the record indicates that Dugas was employed on a monthly basis. His base draw was paid on a monthly basis but subject to an increase based on the monthly rental and profit. While this amount may have been paid quarterly, it was calculated on a monthly basis as indicated by general manager commission reports admitted into evidence. Furthermore, Dugas did complete the third quarter which ended in September. He continued working the entire month of October. Therefore, we find that the trial court was correct in finding that Dugas’ claim falls under La.R.S. 23:631.

Aaron Rents also appealed the trial court’s overruling of its exceptions of no cause of action and improper use of summary proceedings and the award of penalties and attorney’s fees on the basis that La.R.S. 23:631 does not apply. Since we agree that La.R.S. 23:631 applies to Dugas’ claim, we find no merit to these assignments of error.

JJMPROPER CUMULATION

In addition to filing a claim pursuant to La.R.S. 23:631, Dugas also filed a claim for quantum meruit. Aaron Rents alleged that this was an improper cumulation of these actions because they utilize two different forms of procedure; Claims for compensation under the Act may be brought summarily pursuant to La.R.S. 23:631 while claims for quantum meruit must be brought by ordinary proceeding.

This is true. However, La.Code Civ.P. art. 462 provides, in pertinent part, “[e]x-cept as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same judicial demand if pleaded in the alternative.” Du-gas did plead his claim for quantum meruit in the alternative. Therefore, the trial court was correct in overruling the exception of improper cumulation.

ATTORNEY’S FEES

In his brief Dugas asks for additional attorney’s fees for the work done on appeal. However, he did not file his own appeal nor answer the appeal, so he is not entitled to additional attorney’s fees for the work performed on the appeal. La.Code Civ.P. art. 2133; Chance v. Chance, 01-1605 (La.App. 3 Cir. 5/15/02), 817 So.2d 492.

For the above reasons, the judgment* of the trial court is affirmed. Costs of this appeal are assessed to Aaron Rents, Inc.

AFFIRMED.


author: JjMOORE, J.

text:
    Lillie BALL, Plaintiff-Appellee v. WENDY’S INTERNATIONAL, INC., Defendant-Appellant. Lillie Ball, Plaintiff-Appellee v. McDonald’s Hamburgers, Defendant-Appellant.
    No. 36,922-WCA, 36,923-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      John J. Rabalais, Covington, Rabalais, Unland & Lorio, Counsel for Appellant Wendy’s.
    Eskridge E. Smith, Jr., Eskridge E. Smith, Jr. Law Corp., Bossier City, Counsel for Appellant McDonald’s.
    David P. Daye, Daye, Bowie & Beresko, Shreveport, Counsel for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   JjMOORE, J.

Both employers, McDonald’s Hamburgers (“McDonald’s”) and Wendy’s International (“Wendy’s”), appeal a judgment finding that the claimant, Lillie Ball, sustained occupational diseases and a work-related accident. The judgment awarded her indemnity benefits (temporary total disability and supplemental earnings benefits), casting McDonald’s and Wendy’s as joint obligors each liable for 50% of all such benefits accruing after September 30, 2000. It also ordered Wendy’s to authorize medical treatment for a ganglion cyst.

We affirm the finding that Ms. Ball sustained occupational diseases while employed at McDonald’s and was disabled as a result. We reverse the finding that she was disabled by the accident at Wendy’s. We therefore amend the judgment to make McDonald’s solely liable for Ms. Ball’s indemnity benefits and to delete the award of medical expenses against Wendy’s.

Factual background

Ms. Ball began working at a McDonald’s in 1973. She testified that for about the first 10 years she was a grill cook, pressing and flipping each frozen patty individually on a griddle. After about 10 years, she was promoted to crew trainer, and then to manager; these jobs required her to work in any and all “pit” positions, but none of them regularly. By the early 1990s, McDonald’s converted to clam-shell shaped grills that do not require the cook to press burgers manually. In early 1997, Larry and Susan Chrisman bought the franchise that included the Airline Drive SPOD (special point of distribution, a reduced-size McDonald’s) in a Chevron gas ^station where Ms. Ball was working. By 2000, Ms. Ball was earning $2,200 a month.

Although she was not precise about the time frame, Ms. Ball testified that between 1997 and 1999 she began to suffer from pain in both wrists. She never missed any work because of this. In May 2000, however, she decided to quit McDonald’s because the Chrismans would not give her leave to attend her grandmother’s funeral. Then, on the night of May 23, the pain got so bad in her right wrist that she went to the emergency room at Willis-Knighton hospital the next day. She testified that her wrist felt like she had “sprung” it, but she told the E/R doctor that she struck it on a rack at work. Hospital records also indicate that she sought treatment for her left wrist, but she was certain it was the right. Doctors gave her a splint and pain medication, and advised her to see an orthopedist. She missed no work for this emergency room visit, which she charged to her McDonald’s group health insurance funded entirely by McDonald’s.

Ms. Ball’s last day at McDonald’s was June 2, 2000. On June 26, she began a new job as assistant manager-in-training at the Wendy’s on Bert Kouns, earning $1,019 every two weeks. The four-week training period included two weeks in which she had to work daily 40-minute shifts at the grill. Wendy’s still uses a flat grill; the cook must manually press and flip each patty. Ms. Ball told her district manager that she had pre-existing problems with her hands and wrists; according to the district manager, she said it was carpal tunnel syndrome (“CTS”). She testified that the burger flipping and other job activities made her wrists hurt, and on occasion she | ¡¡wore the splint to work. However, she always performed her job duties.

Ms. Ball saw Dr. Atchison, an orthopedic surgeon, on August 1, 2000 (she testified this was the earliest she could schedule an appointment). She complained of pain in both wrists and a cyst on her right wrist. The doctor ordered tests that showed severe CTS in both wrists, but worse on the right, so severe that some denervation, or loss of nerve function, was already present. Dr. Atchison advised prompt surgery, which Ms. Ball underwent on August 24 to release the right carpal tunnel and remove the cyst. Ms. Ball charged this operation and Dr. Atchison’s bills to Wendy’s group insurance, funded 70% by Wendy’s. He released her to return to work on September 17.

On her second day back at Wendy’s, September 19, 2000, Ms. Ball was trying to wring a mop in a bucket when the wringer handle suddenly released and struck her in the right wrist, directly on the site where the ganglion had been removed. She testified that she fell to the floor doubled in pain, and that the impact raised a welt on the incision site. The next day, however, Dr. Atchison examined her and did not notice any bump or welt other than normal post-operative swelling. Ms. Ball testified that she worked two more days at Wendy’s but then was in too much pain to perform all her job duties. She told the district manager that she needed more time to recover from her operation, although she did mention striking her wrist on the mop handle. She has not worked since. At trial in March 2002, the district manager testified that he still considered Ms. Ball an employee on leave.

|4In October 2000, Ms. Ball was still complaining of pain in both wrists; based on her history, Dr. Atchison ascribed this to housework. Nevertheless, he sought a second opinion from one of his partners, Dr. Marion Milstead, whom Ms. Ball now considers to be her treating physician. On November 13, Dr. Milstead noted that a keloid scar had formed over the ganglion incision. He also recommended that she have surgery on her left wrist to release the carpal tunnel, as well as to treat de Quervain’s disease, an inflammation of the tendons around the thumb. On December 7, Ms. Ball underwent surgery on her left wrist with Dr. Jones, another of Dr. Atchi-son’s partners. Dr. Jones performed this endoscopically to avoid making an incision that might result in another keloid scar.

In early 2001, Dr. Milstead ordered an EMG which found only mild CTS in Ms. Ball’s right wrist, but no nerve damage. He concluded that the surgery had yielded considerable improvement. He later reported that she reached maximum medical improvement of her right wrist by July 16, 2001, and of her left wrist by September 6, 2001. He restricted her from any work involving repetitive flexion or extension of her wrist or fingers, and from lifting any weight over 15 lbs. on an intermittent basis. Ms. Ball testified that she now has “trigger finger,” or a stiffening and tightness in the joints of her left middle finger. She added that she cannot do the job she was hired for at Wendy’s or her last job at McDonald’s, but if these jobs were modified, she felt she could handle them.

In March 2001, Ms. Ball filed a disputed claim against Wendy’s, alleging the mop-handle incident as a work-related accident and claiming ^indemnity and medical benefits, penalties and attorney fees. In May 2001, she filed a disputed claim against McDonald’s, urging that because of repetitive motion she developed occupational diseases of the hands. She also claimed indemnity and medical benefits, penalties and attorney fees. The cases were consolidated in the OWC.

McDonald’s filed a third party demand against Wendy’s, urging that Ms. Ball’s work at Wendy’s was her “last injurious exposure” to the conditions that caused her CTS. Citing Gales v. Gold Bond Building Products, 493 So.2d 611 (La.1986), it argued that as the last successive employer to expose her to an occupational disease, Wendy’s should be fully responsible for all compensation due. Wendy’s urged, however, that Gales did not apply, as it was based on the concept of solidary liability that was repealed by the 1996 amendments to La. C.C. arts. 2323 and 2324.

Trial was held in March 2002. Without assigning reasons, the WCJ rendered judgment finding that Ms. Ball sustained occupational diseases while employed at McDonald’s, but these were not related to her work at Wendy’s. It therefore cast McDonald’s for the bulk of Ms. Ball’s medical expenses, subject to certain credits and reductions, and for temporary total disability benefits of $338.43 a week from August 24 through September 17, 2000. It further found that Ms. Ball sustained an accident at Wendy’s on September 19, 2000, and ordered Wendy’s to authorize and pay for medical treatment recommended by Dr. Milstead for the cyst.

[¿The WCJ awarded Ms. Ball temporary total disability benefits of $338.43 a week from September 30, 2000 through September 6, 2001, and supplemental earnings benefits from September 7, 2001 onward, in accord with La. R.S. 23:1221(3). The WCJ further ruled that indemnity benefits accruing after September 30, 2000, were joint obligations of which McDonald’s and Wendy’s each owed 50%. The WCJ denied McDonald’s third party demand against Wendy’s and rejected Ms. Ball’s claims for penalties and attorney fees.

McDonald’s appeals, listing nine assignments of error but presenting three arguments. Wendy’s also appeals, advancing five assignments of error in three arguments. Ms. Ball has filed a brief urging that the judgment should be affirmed.

Discussion: Occupational disease at McDonald’s

By its first argument, McDonald’s urges that Ms. Ball did not prove by a preponderance of the evidence that her CTS and other occupational diseases resulted from conditions peculiar to her employment at McDonald’s with the Chris-mans. It argues that according to Dr. Milstead, manually flipping and pressing burgers is the only work in the fast-food industry that could cause CTS, but that Ms. Ball had quit working as a grill cook long before the Chrismans bought the franchise in 1997. It also challenges Dr. Milstead’s opinion that these activities cause CTS, as based |7on casual observation rather than scientific study.

A claimant asserting an occupational disease must prove by a preponderance of the evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment and that the disease is a result of the work performed. Fite v. Louisiana Title Co., 36,393 (La.App. 2 Cir. 9/18/02), 828 So.2d 165, and citations therein. An occupational disease means “only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La. R.S. 23:1031.1 B. This means that the disease must originate from conditions in the employment that result in a hazard that distinguishes the employment in character from the general run of occupations. Fite v. Louisiana Title, supra. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused it. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir. 10/30/96), 682 So.2d 871. Expert testimony is required to support a finding of an occupational disease. Fite v. Louisiana Title, supra. The WCJ’s factual findings are subject to manifest error review. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207.

Ms. Ball testified that after working some 10 years exclusively as a grill cook, she was promoted to crew trainer and then to manager. She was Rclear, however, that even managers may be required to perform any and all crew-type activities on a daily basis. She admitted that she had symptoms for at least a year before she went to the emergency room in May 2000. Dr. Milstead corroborated, based on personal observation, that all the activities of fast-food workers (flipping burgers, opening buns, squirting ketchup) may be repetitive, and that he had many CTS cases from their ranks. Based on Ms. Ball’s work history, Dr. Milstead concluded that her CTS came on gradually from working at McDonald’s, and the problem continued until aggravated by a minor trauma, such as striking her hand on a rack before the emergency room visit. In light of Dr. Milstead’s testimony, the case is not devoid of expert medical evidence, as occurred in Fite and Hymes, supra. His opinion is sufficient to prove causation by a reasonable preponderance of the evidence. Admittedly, Dr. Atchison declined to say that Ms. Ball’s work caused her CTS and the related conditions, but he apparently was not as informed about her work history as Dr. Milstead.

For these reasons, the WCJ was entitled to find that Ms. Ball proved by a preponderance of the evidence that she contracted CTS during the course of her employment at McDonald’s and that the disease was the result of the work performed. McDonald’s first argument lacks merit.

Occupational disease at Wendy’s

By its second and third arguments, McDonald’s urges the WCJ erred in finding that Ms. Ball’s occupational diseases were not related to her work at Wendy’s. It argues that in 23 years at McDonald’s, Ms. Ball never missed a day of work because of CTS symptoms, but when she began at RWendy’s she was required to perform tasks that made her condition symptomatic and disabling. McDonald’s contends that Ms. Ball’s short term of work at Wendy’s qualified as her “last injurious exposure” to the occupational disease; for this reason Wendy’s is solely responsible for her compensation under Gales v. Gold Bond Building Products, supra. McDonald’s further argues that the “last injurious exposure” is still valid despite the 1996 amendments to La. C.C. arts. 2323 and 2324 that abrogated solidary liability.

By its first argument, Wendy’s responds that the evidence clearly supports the WCJ’s finding. It contends that because Ms. Ball worked at Wendy’s less than 12 months, her occupational disease is not presumed to be related to that employment. La. R.S. 23:1031.1 D. It argues that Ms. Ball did not rebut the presumption: according to both Dr. Milstead and Dr. Atchison, repetitive motion diseases such as CTS and de Quervain’s disease take a long time to develop, and could not result from three months of work at Wendy’s. It also cites Ms. Ball’s testimony that symptoms had arisen at least a year before May 2000. Wendy’s concludes that without proof of causation, there is no application of the “last injurious exposure” rule and no basis for assigning any liability, joint or solidary, for Ms. Ball’s compensation benefits.

The presumption of causation applicable to occupational disease claims is stated in R.S. 23:1031.1 D, as amended by 2001 La. Acts No. 1189, effective June 29, 2001:

Any occupational disease contracted by an employee while performing work for a particular employer in which he |1flhas been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of the evidence.

This subsection creates a statutory presumption (or “predicate fact”) regarding the causation or contraction of an occupational disease. Davies v. Johnson Controls Inc., 36,498 (La.App. 2 Cir. 10/23/02), 830 So.2d 462. The claimant may show by medical and other relevant evidence that she contracted the disease as a result of employment that lasted under 12 months, or that the disease did not predate that employment. However, this proof must be by a preponderance of the evidence. Id.

Ms. Ball began work at Wendy’s on June 26, 2000; on August 24 she began a medical leave for surgery on her right wrist with Dr. Atchison; she returned to Wendy’s on September 18 and worked three days before taking another medical leave. Her actual work history at Wendy’s was therefore approximately two months, activating the presumption that her occupational diseases were not caused by that employment. R.S. 23:1031.1 D.

As noted, Dr. Milstead described her condition as arising from 23 years of work at McDonald’s, gradually worsening over time; he regarded her move to Wendy’s as “coincidental,” and her symptoms a continuation of the pre-existing disease. Even Ms. Ball testified, on several occasions, that working at Wendy’s did not make her wrist pain any worse. “It was just Instill hurting.” R. p. 376. This evidence supports the finding that Ms. Ball’s CTS and other repetitive motion diseases existed before and did not result from her employment at Wendy’s. The WCJ was not plainly wrong to find that neither Ms. Ball nor McDonald’s rebutted the presumption of R.S. 23:1031.1 D that her occupational diseases were not related to her work at Wendy’s.

In Gales v. Gold Bond, supra, the court interpreted R.S. 23:1031.1 as “open textured and ambiguous” on the subject of multiple employer liability because it “alternately links the employer’s obligation with the employee’s contraction of or exposure to disease during employment.” Citing the law of solidarity, the court held that when successive employers “contribute to an employee’s occupational disease,” they are solidarily liable to the claimant. Noting special policy considerations, the court further held that the last obligor during whose employment the employee was injuriously exposed to a cause of disease is liable for the whole compensation obligation. McDonald’s vigorously argues that this principle mandates a finding that Wendy’s is solely responsible for Ms. Ball’s compensation.

The court’s analysis in Gales, however, presupposes that the final employer caused or contributed to the occupational disease. The claimant in Gales, an asbestosis sufferer, had worked two years for his final employer and the opinion states that he was exposed to airborne asbestos during that time. In short, the record showed that the final employer contributed to the disease. In Davies v. Johnson Controls, supra, this court carefully considered a claim based on CTS allegedly contracted on a job at which the | ^claimant had worked for less than four months. The evidence showed that the claimant’s condition predated his work at Johnson Controls. This court affirmed a judgment of involuntary dismissal against the final employer. Although we did not specifically address the last injurious exposure rule, we concluded that a finding of causation was requisite to any compensation liability. After close review of Gales, we reiterate the rationale of Davies and find that the instant case does not implicate the last injurious exposure rule.

Wendy’s urges that without proof of causation, there is no basis for assigning it any liability, joint or solidary, for Ms. Ball’s compensation. We agree, on the basis of Davies v. Johnson Controls, supra. The judgment, to the extent that it casts Wendy’s as jointly liable for 50% of Ms. Ball’s indemnity benefits after September 30, 2000, is reversed. The judgment is amended to cast McDonald’s for all indemnity benefits.

Work-related accident at Wendy’s

By its second and third arguments, Wendy’s urges that Ms. Ball failed to prove that her cyst was caused by her employment at Wendy’s or that the cyst was responsible for any of her current disability. It cites Ms. Ball’s undisputed testimony that the cyst first appeared during her employment with McDonald’s; that the day after the mop bucket incident, Dr. Atchison did not notice that the cyst had reappeared; that neither he nor Dr. Milstead ascribed its later recurrence to the mop bucket incident; and that both doctors said cysts could simply recur. Wendy’s further argues that no medical evidence shows that the cyst, as opposed to the residual effect of 113her CTS and de Quervain’s disease, caused her current disability. Wendy’s concludes that this evidence provides no basis to hold it liable for her indemnity benefits or any medical treatment related to the cyst.

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of her employment. La. R.S. 23:1031. The claimant bears the initial burden of establishing a causal connection between the disability and the work-related accident by a preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but must show by a preponderance of proof that the accident had a causal connection with the disability. Quinones v. U.S. F. & G., 93-1648 (La.1/14/94), 630 So.2d 1303; Pearce v. Medallion Const., 36,351 (La.App. 2 Cir. 11/6/02), 830 So.2d 576. The claimant’s testimony alone may be sufficient to discharge this burden, but it is inadequate when (1) other evidence discredits or casts serious doubt upon the worker’s version of the incident, or (2) the claimant’s testimony is not corroborated by the circumstances following the alleged incident. Pearce v. Medallion Const., supra. Compensation is due for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the claimant herself. La. R.S. 23:1317 A.

The record supports the WCJ’s finding that Ms. Ball sustained a work-related accident on September 19, 2000. Aside from her own testimony, however, the evidence does not preponderate to show that the accident caused the cyst to reappear. Notably, the day after the mop bucket [^incident, Dr. Atchison observed some swelling over the ganglion site, but no worse than two weeks earlier; he considered it only normal post-op swelling. Several weeks later, Dr. Milstead found a keloid scar over the cyst incision, but he did not notice a recurrent ganglion cyst until April 10, 2001, almost seven months after the mop bucket incident. He explained that if the cyst had reappeared within two weeks of the trauma, he could ascribe it to that trauma, but he refused to say what caused this one to recur. Likewise, Dr. Atchison stated that the recurrent cyst “probably had nothing to do with the actual trauma.” Atchison’s Dep., 44. In short, objective medical findings cast doubt on Ms. Ball’s impression that the mop bucket incident caused the cyst to recur.

Moreover, Dr. Milstead reported that Ms. Ball’s current work restrictions result from de Quervain’s disease, related to her work at McDonald’s, and not from the cyst. We are constrained to find that Ms. Ball failed to prove, by a preponderance of the evidence, that her work-related accident at Wendy’s caused the ganglion cyst to recur or resulted in any of her current disability. For these reasons, the portion of the judgment ordering Wendy’s to pay part of Ms. Ball’s indemnity benefits and to authorize further treatment of the cyst will be reversed.

Finally, we note that the judgment recites that Ms. Ball “is awarded medical treatment recommended by Dr. Marion Milstead for the volar ganglion cyst to be authorized and paid for by the defendant, Wendy’s International, Inc.” However, in his final progress note, September 6, 2001, Dr. Milstead stated that she was at maximum medical improvement, and in|1fihis deposition, February 21, 2002, he did not recommend any further medical treatment. Since there is not one scintilla of evidence to support this portion of the award, it will be reversed. La. R.S. 23:1203 A; Chitman v. Davison Trucking, 28,073 (La.App. 2 Cir. 2/28/96), 669 So.2d 671.

Conclusion

For the reasons expressed, we affirm the judgment insofar as it finds that Ms. Ball sustained occupational diseases at McDonald’s and was disabled as a result. We reverse the judgment insofar as it casts Wendy’s for any portion of Ms. Ball’s indemnity benefits, as well as the provision for Wendy’s to provide medical treatment for the ganglion cyst. The judgment is amended to cast McDonald’s for all indemnity benefits. Costs are assessed to the appellant, McDonald’s Corporation.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.

      . The credits and reductions are not contested on appeal.

      . Ms. Ball actually answered the appeal, contesting the denial of mileage, penalties and attorney fees. This court rejected the answer to appeal as untimely, but has considered her arguments in support of the WCJ's judgment.

      . McDonald's also argues that Ms. Ball's CTS did not manifest itself until her subsequent work at Wendy's, so Wendy's either caused the occupational disease or created her last injurious exposure to it, making Wendy’s solely liable under Gales v. Gold Bond Building Products, supra. We will discuss this contention as part of McDonald's second and third arguments.

      . The amendment, changing the burden of proof from an "overwhelming preponderance” to a mere preponderance of the evidence, is retroactive. Davies v. Johnson Controls Inc., 36,498 (La.App. 2 Cir. 10/23/02), 830 So.2d 462.


author: h CARAWAY, J.

text:
    Connie L. MOSLEY individually, and Vicel Smith on behalf of her Minor Children Teron White, Cleandrew Barden, and Katrina Smith, Plaintiffs-Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY d/b/a Union Pacific Railroad Company, Chester T. Gates, Wendell E. Pugh, Parish of Morehouse, Town of Bonita, Defendants-Appellee.
    No. 36,907-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Hester & Waters, APLC by Rena L. Hester, Baton Rouge, for Plaintiffs-Appellants.
    Gold, Weems, Bruser, Sues & Rundell by Samuel N. Poole, Jr., Brandon A. Sues, Alexandria, for Appellee, Morehouse Parish Police Jury.
    William C. Henry, for Missouri Pacific Railroad Co.
    Before BROWN, CARAWAY and PEATROSS, JJ.
   h CARAWAY, J.

The plaintiffs in this case participated in discovery with other defendants without actively prosecuting their claims against the police jury. The discovery actions were not filed in the suit record, and the police jury received no service or notice of the discovery. Following three years of the absence of pleadings in the suit record, the police jury moved for abandonment of the action. After a contradictory hearing, the trial court granted this motion and dismissed plaintiffs’ suit as to the police jury. For the following reasons, we affirm the trial court’s ruling.

Facts

According to the petition, Markey L. Smith was fatally injured on May 12, 1995, in an accident between an automobile and a locomotive owned by Missouri Pacific Railroad Company (“MPRR”). The accident occurred in the Town of Bonita in Morehouse Parish. On May 6, 1996, the decedent’s survivors filed suit against the Town of Bonita, the Morehouse Parish Police Jury (“Police Jury”), MPRR, the train’s engineer, Chester T. Gates (“Gates”) and the train’s conductor, Wendell E. Pugh (“Pugh”). An amended petition was filed on July 16, 1997. Both pleadings requested that service be withheld. Service was subsequently requested by the plaintiffs and the returns, indicating that service had been accomplished on the defendants, were filed in the record on September 19,1997.

On October 18, 2000, the Police Jury was served with plaintiffs’ interrogatories and requests for production of documents. On November 2, 2000, it filed a motion to have the suit dismissed on the basis of | ¡.abandonment. The trial court denied the issuance of an ex-parte order and set the matter for hearing. At the hearing, the following facts were undisputed:

1. The petition was filed on May 6, 1996, and the amended petition was filed on July 16, 1997. Both pleadings were served on the defendants no later than September 19,1997.

2. The Police Jury never filed an answer to the petition.

3. Plaintiffs never propounded discovery to the Police Jury.

4. No formal, “on-the-record” steps were taken in either the prosecution or defense of the lawsuit.

5. Plaintiffs and MPRR engaged in discovery in 1998 through interrogatories and depositions. Counsel for plaintiffs stipulated that the Police Jury did not receive copies of these interrogatories, the responses thereto, or the notices of depositions.

6. On August 24,1999, plaintiffs’ claims against MPRR, Gates and Pugh were mediated. At the dismissal for abandonment hearing, counsel for plaintiffs also stipulated that the mediator’s pre-mediation instructions attached to plaintiffs’ opposition to the abandonment were not received by the Police Jury.

The Police Jury submitted evidence that it was unaware of either the above-mentioned exchange of discovery or any other activity in the suit until the receipt of plaintiffs’ discovery on October 18, 2000. Plaintiffs’ counsel did not contradict this assertion either through oral argument or by the presentation of evidence.

13At the conclusion of the hearing, the trial court granted the motion to dismiss the suit on the basis of abandonment, effectively dismissing the Police Jury from the lawsuit. A judgment to that effect was signed on June 5, 2002. The instant appeal followed.

Discussion

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561(A). The Code of Civil Procedure allows for certain informal discovery, including interrogatories, to amount to a step in the prosecution of an action, as follows:

La. C.C.P. art. 1474
B. Interrogatories and the answers thereto, requests for production or inspection, and requests for admissions and the responses thereto authorized by Article 1421 shall be served upon other counsel or parties, but shall not be filed in the record of the proceedings, ...
C.(4) The serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings.

The above provision of Article 1474 concerning abandonment was added to the law by Acts 1989, No. 388, § 1. The 1989 act also provided a similar rule pertaining to discovery depositions permitting off-the-record actions to be considered a step in the prosecution of the case for the purpose of interrupting abandonment. La. C.C.P. art. 1446(D). Prior to these 1989 amendments, the supreme court in Chevron v. Traigle, 436 So.2d 530, 532 (La.1983), held that formal action “before the court and on the record” was necessary for a “step” in the prosecution. “In this way, examination of the record will reveal the status of litigation with certainty and without resort to extrinsic evidence.” Id. La. C.C.P. arts. 1446 and 1474 now embody exceptions to this rule, and the presentation of extrinsic evidence of informal discovery may establish a “step” in the proceeding which interrupts the abandonment period.

In 1997, the legislature added Paragraph B to La. C.C.P. art. 561 to acknowledge the effect of the 1989 amendments to the discovery articles on abandonment. Paragraph B of Article 561 provides:

Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Prior to these changes in the law, the Louisiana Supreme Court dealt with the effect of discovery interrogatories upon the issue of abandonment in Delta Development Co., Inc. v. Jurgens, 456 So.2d 145 (La.1984). In that case involving multiple defendants, the plaintiffs sole “step” during the five-year abandonment period prescribed under the former law was the filing of interrogatories directed to and served only on one of the defendants. Rejecting the other defendants’ argument that no step had been taken to interrupt abandonment of the action as to them, the court ruled that “[w]hen any party to a lawsuit takes formal action in the trial court, it is effective as to all parties.” Id. at 146 (emphasis added).

The present action is distinguished from Delta Development because of the informal, off-the-record discovery which was not directed to all | ..¡defendants. The extrinsic evidence concerning the 1998 discovery actions contains certificates of service signed by various counsel purporting to effect service by mail on all parties through their counsel of record. Nevertheless, in 1998 those certificates were not filed in the record pursuant to La. C.C.P. art. 1313(B), and the Police Jury, which had not answered the suit, had no counsel of record and therefore received no notice of such discovery.

The rule of Delta Development must also be considered in light of new Article 561(B) which indicates that discovery interrogatories “whether or not filed of record” must be “served on all parties.” Such service may occur by mail. La. C.C.P. arts. 1474 and 1313. The requirement of service is in keeping with the concept of notice which our supreme court has recently addressed as follows:

The rule requiring a party’s action be on the record is designed to protect a defendant. The rule is intended to ensure notice to the defendant of actions taken that interrupt abandonment.

Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, 790.

The defendants in Delta Development who were unserved, nevertheless received notice of plaintiffs efforts to prosecute the action because the discovery interrogatories were formally filed in the suit record. Such “formal action” was not taken in this suit because the interrogatories were not filed in the record. In order for such informal interrogatories to amount to a “step” and effect notice on parties to whom the interrogatories are not directed, Article 561(B) requires that such parties be served with | ¿notice of those interrogatories. Such service and notice to the Police Jury did not occur in this case. Accordingly, we find that the informal discovery conducted by plaintiffs does not amount to a step in the prosecution of the case as to the Police Jury for the purpose of interrupting abandonment. See, also, Benjamin-Jenkins v. Lawson, 00-0958 (La.App. 4th Cir.3/7/01), 781 So.2d 893, writ denied, 01-1546 (La.9/14/01), 796 So.2d 681; Clark v. City of Hammond, 00-0673 (La.App. 1st Cir.8/10/00), 767 So.2d 882.

Regarding the 1999 mediation between plaintiffs and the other defendants, the same rationale regarding the lack of notice to the Police Jury applies. Those mediation steps for settlement did not take place before the court and on the record. It does not amount to informal discovery which can be established by extrinsic evidence as an interruption of the abandonment period. Therefore, those mediation efforts do not toll the running of the abandonment period regarding plaintiffs’ claims against the Police Jury.

Conclusion

For the foregoing reasons, the plaintiffs’ claims against the Police Jury were properly dismissed by the trial court as abandoned. Costs of appeal are assessed to appellants.

AFFIRMED.


author: GASKINS, J.

text:
    Mona Elizabeth Harper MIZELL, Plaintiff-Appellee, v. Jerry Allen MIZELL, Defendant-Appellant.
    No. 37,004-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2003.

      Donald L. Kneipp, Monroe, for Appellant.
    Loomis & Dement, by: Albert E. Loom-is, III, Jeffrey L. Dement, Monroe, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

Jerry Allen Mizell appeals from a' trial court judgment in favor of his former wife, Mona Elizabeth Harper Mizell, which granted her more than $23,000 in past due child support and alimony and awarded her permanent alimony of $2,100 per month for 10 years. The judgment also found him in contempt and awarded her attorney fees of $5,000. We amend the judgment in part and, as amended, affirm.

FACTS

The parties were married in 1972. Three children were born of this marriage: two daughters, Heather, an adult at the time of the divorce, and Shaunté (DOB 8/9/77); and a son, Jerried Ashley (5/21/82). The parties separated in July 1993. In January 1994, Mona filed for divorce. She requested joint custody with the children primarily residing with her. She also sought alimony and child support of $4,200 per month. A divorce was granted in April 1994. Mona was made domiciliary parent under a joint custody plan. She was awarded $2,100 in alimony and $2,100 in child support per month in a judgment signed on April 18,1994.

In October 2000, Mona filed the instant motion for past due alimony and child support. She alleged that Jerry had consistently been behind in his support payments and that he owed $116,012. She asked that Jerry be held in contempt and cast for attorney fees and court costs.

In November 2000, Jerry filed an answer in which he claimed that there was an agreement by which he was paying community debts. He asserted that his child support payments should be reduced by 50% as of June 1996, after Shaunté graduated from high school. He further claimed Lthat Mona had failed to give him credit for some payments he made to her. Jerry also asserted that a five-year prescriptive period applied to bar payment of some of the arrearages. In his reconventional demand, he sought to terminate alimony and to reduce child support because Shaunté turned 18 on August 9, 1995, and graduated from high school in May 1996. In a separate pleading, Jerry sought a partition of community property.

In her December 2001 answer to the request for partition, Mona agreed that there should be a judicial partition of community property. However, should the court determine that Jerry’s payment of the community house mortgage notes constituted alimony payments, she requested reimbursement and credit for the use of her separate funds to discharge a community debt.

Trial was held in December 2001. The parties stipulated that Jerry be given credit against the arrearages for his payments on the first and second mortgages on the family home, as well as a van note that was paid off in 1995. Mona specified that in agreeing to the stipulation, she was not conceding that she had entered into any agreement with Jerry whereby he was to get credit for those payments.

Testimony demonstrated that the parties married when Mona was 20 and Jerry was 23. During their 22-year marriage, Mona — a high school graduate — remained at home to raise the couple’s three children. Her only employment outside of the home was a brief period as a teacher’s assistant. Jerry, a college graduate, served in the U.S. Army during the early years of the marriage and then began a career in construction management. | ¡¡Although he had very brief periods of unemployment, in about 1990 he began working overseas; the projects involved renovations of American embassies and consulates in such places as China, Greece, India and Turkey. While employed in this capacity, his annual salary was in the mid to upper $80,000’s. In 1999, he changed employers and he presently works on yearly contracts. His 2000 federal tax return showed that he earned in excess of $172,000. At the time of trial, he was living in the Ukraine, working for the same employer on a missile dismantlement and elimination project.

Immediately after the April 1994 decree, Jerry paid the full monthly amounts for child support and alimony as set forth in the judgment. However, he testified that when he returned home from China in June 1994, he found that Mona was behind in paying the first and second mortgage notes and the van note, all of which were in his name. (Mona denied that the notes were delinquent and Jerry was unable to provide documentation supporting this claim.) He gave his oldest daughter Heather authority to write checks on his account. He instructed her to pay the notes directly, and he began to reduce Mona’s support payments. Although he testified that Mona agreed to this arrangement, she testified that she did not. Even when the second mortgage and van notes were paid off, he did not increase his payments to Mona.

Jerry also testified that when Shaunté turned 18 in August 1995, he was going to reduce the child support by half but Mona insisted that he continue paying until the girl graduated from high school in May 1996. In |4June 1996, Jerry instructed Heather to reduce the amount of child support he was paying. In August 1996, Mona began working at State Farm as a life and health administrative clerk.

Mona testified that she did not confront Jerry about his failure to pay the full amount owed under the judgment because the children didn’t want her to “rock the boat” with their father and she feared he would make more reductions if she angered him. However, in 1999, she contacted an attorney who wrote to Jerry about the accumulating arrearages and informed him that he could not independently pay third parties sums of money on behalf of the children and claim a credit. Heather also e-mailed her father and informed him about the past due amounts. After receiving the letter from Mona’s attorney, Jerry stopped communicating with Mona and continued making the deductions. Thereafter, he removed Heather from his checking account.

According to the testimony, Jerry then hired a CPA to distribute money for him. Jerry instructs the CPA what and how much to pay. Jerried graduated from high school at age 19 in May 2001 and thereafter enlisted in the Marine Corps. Following his son’s graduation, Jerry ceased paying child support. At the time of trial, he was paying Mona $1288 per month in support and directly paying the house note which was about $812.

On July 30, 2002, the court issued written reasons for judgment. The court declined to give Jerry credit for payments made for Visa payments that accrued during the community. As to child support, the court found that the parties had agreed to a reduction of $1,050 in child support after Shaunté’s graduation. The court found this appropriate in light of the facts that Jerry |Kpaid for his daughter’s wedding and that he was more generous in his support of the children than required under the judgment. Accordingly, child support for Shaunté was deemed terminated as of June 1, 1996. Effective January 1, 2001, child support for Jerried was set at $1,387 per month. However, the court declined to otherwise give Jerry credit for such acts as buying a truck or paying insurance for the children. The court held that the evidence did not support a finding that Mona agreed to allow him to reduce his child support obligation according to the amounts paid at his own election.

As to alimony, the court found that Mona, age 49, was entitled to permanent alimony for a period of 10 years. The court held that, in light of the debt structure demonstrated by Mona at trial, termination of alimony was not appropriate. Other factors considered by the court in awarding alimony were the long-term nature of the marriage and Mona’s position as a housewife who cared for the children during Jerry’s extensive overseas, work-related absences. The court also considered that in 2000, Jerry’s income in construction management was $172,000 whereas Mona’s was in the range of $20,000 and she had significant debt.

The court denied the exception of prescription. It found that Jerry owed Mona a total of $23,792 for past due alimony and child support. On the issue of contempt, the court noted that many of the payments for which Jerry sought credit were rejected by the court as not a proper basis for such reduction. The court also considered his generosity to the children. However, since Mona was obliged to hire counsel and file suit because of | Jus failure to address his delinquency, the court found him in contempt. Jerry was ordered to pay $5,000 in attorney fees, as well as all court costs incurred since October 1, 2000. He was given a sentence of 60 days in jail, suspended for one year on condition he comply with the court’s order. Judgment was signed August 3, 2002.

Jerry appeals.

PAST DUE ALIMONY

Jerry contends that the trial court erred in finding that Mona was entitled to past due alimony. He argues that while the trial court was correct in finding an agreement to reduce child support when the children reached majority, it was manifestly wrong in failing to find a similar agreement to reduce alimony.

Mona corrects Jerry’s assertion in brief that the sum of $23,792 awarded in the judgment was only for alimony; to the contrary, the judgment specifies that it is for “back due child support and alimony.” Mona further disputes Jerry’s assertion that there was evidence of an agreement to reduce her alimony when the second mortgage and van notes were paid off. She maintains that there was no agreement to reduce the payments owed under the April 1994 judgment. She also contends that due to Jerry’s unilateral decision to alter the amount each month she never knew what payment she would receive and that she feared antagonizing him for fear that he would arbitrarily reduce the payments even more.

1 nLaw

The general rule in Louisiana is that an alimony or child support judgment remains in effect until the party liable has it modified or terminated by the court. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977).

The policy reason behind this rule is obvious. The law does not want to encourage those owing alimony or child support to become involved in “self-help” by making their own determinations as to when they have satisfied their alimony or child support obligations by some method other than payment in accordance with the court order. Vallaire v. Vallaire, 433 So.2d 315 (La.App. 1st Cir.1983). There is an exception to this general rule when the evidence shows the parties have clearly agreed to waive or otherwise modify the court-ordered payments. Vallaire, supra. Mere acquiescence in the obligor’s failure to pay the full amount of support is not a waiver. Vallaire, supra; Guidry v. Guidry, 535 So.2d 1272 (La.App. 3d Cir.1988); Weldon v. Weldon, 1998-1173 (La.App. 3d Cir.2/3/99), 737 So.2d 812.

The burden of proof of the existence of the agreement is on the party seeking to modify his obligation under the judgment. Gomez v. Gomez, 421 So.2d 426 (La.App. 1st Cir.1982).

In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Pearce v. Pearce, 348 So.2d 75 (La.1977). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Pearce, supra.

It is hornbook law that the factfinder has a right to accept or reject, in whole or in part, the testimony of any witness. Walden v. Walden, 2000-2911 (La.App. 1st Cir.8/14/02), 835 So.2d 513.

Discussion

Jerry asserted that there were two separate agreements to modify his support payments. The first was allegedly con-fected in about July 1994 during a conversation in their kitchen. He asserted that when he returned home from abroad several months after the April 1994 judgment, he found that Mona had failed to pay several obligations that were in his name. He proposed taking over those recurring expenses and told Mona he was going to reduce her support payment to cover the others he was making directly. According to Jerry’s testimony, she agreed. Mona denied any such agreement and testified that when Jerry returned from China the house and van notes were current. At trial Jerry did not furnish any evidence that Mona had, in fact, been delinquent in payment of the notes. Also, the testimony showed that once the second mortgage and van notes were paid off, Jerry did not increase his monthly payment to Mona.

The second alleged agreement was supposedly reached in September 1995 after Shaunté turned 18 but still had a year in high school. According |9to Jerry, Mona insisted that he continue paying child support for Shaunté until she graduated and he agreed. After her May 1996 graduation, he reduced his child support payment. Mona testified that he reduced the amount without consulting her.

The trial court found that there was an agreement as to reducing child support; however, it further found that there was no agreement to reduce the support payments by direct payments made by Jerry at his own discretion. After a careful review of the evidence, we find no manifest error in the trial court’s great discretion. The trial court was in the best position to judge the credibility of the witnesses and to accept or reject, in whole or in part, their testimony. Its finding that there was no agreement other than the one to reduce child support after Shaunté’s graduation is adequately supported by the record.

CONTEMPT

Jerry asserts that the finding of contempt against him was “gross error” because he didn’t “flout” the judgment or abandon his family. He argues that since he was generous with his children and ultimately paid more than required under the judgment — if one counts the direct payments on the notes and to and on behalf of the children — a finding of contempt was inappropriate. Even if he was mistaken about the alleged agreements, he maintains that he was in good faith. He also argues that the award of attorney fees was not appropriate.

Mona contests Jerry’s assertion of good faith, pointing to the 1999 letter whereby her attorney informed him that he could not independently | inpay third parties sums on behalf of the children and claim a credit against the support obligations.

Law

The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court’s order and its decision will only be reversed when the appellate court can discern an abuse of that discretion. Stephens v. Stephens, 30,498 (La.App.2d Cir.5/13/98), 714 So.2d 115; Sawyer v. Sawyer, 35,583 (La.App.2d Cir.11/2/01), 799 So.2d 1226, writ not considered, 2001-3189 (La.2/8/02), 808 So.2d 349, reconsideration denied, 2001-3189 (La.3/22/02), 811 So.2d 935.

A proceeding for contempt in refusing to obey the court’s orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule. The object of the proceeding is to vindicate the dignity of the court. Stephens v. Stephens, supra.

Discussion

Jerry admitted in his testimony that he was told in 1999 that he could not independently pay third parties sums of money on behalf of the children and claim a credit. However, he still persisted in his belief that he should get a credit because he was meeting “the intent of the law.” Based upon the evidence presented at trial, we cannot say that the trial court was manifestly wrong in finding that Jerry willfully failed to pay to Mona the amount set in the trial court judgment.

InThe award of attorney fees is independent of a finding of contempt of one party. Jones v. Jones, 34,822 (La.App.2d Cir.6/20/01) 793 So.2d 243. La. R.S. 9:375 provides, in relevant part:

A. When the court renders judgment in an action to make executory past-due payments under a spousal or child support award ..., it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.

In the instant case, there was no good cause shown to negate an award of attorney fees payable under the statute. Mona prevailed on the issue of the arrearages and Jerry was found to be in contempt. Thus, the award of attorney fees to Mona was not an abuse of discretion.

ALIMONY

Jerry contends that no permanent alimony is owed or, alternatively, it should be reduced to $500 per month. He argues that since Mona is employed in a job that pays $25,000 per year and all of the children are now majors, she does not need alimony. Jerry contends that the trial court erred in considering the amount of debt she has and that it should have considered the amount she might gain from the eventual partition of community property. On the other hand, Mona argues that she demonstrated a basic need; she also emphasized the extreme earning disparity between her and Jerry.

Law

Permanent alimony is awarded to a former spouse in need and is limited to an amount sufficient for maintenance as opposed to continuing an accustomed style of living. Brewton v. Brewton, 30,134 (La.App.2d Cir.1/21/98), 705 So.2d 799; Gibbs v. Gibbs, 33,169 (La.App.2d Cir. 6/21/00), 764 So.2d 261; Council v. Council, 34,290 (La.App.2d Cir.12/15/00), 775 So.2d 628. Maintenance includes food, shelter, clothing, transportation, medical and drug expenses, utilities, household maintenance and income tax liability generated by alimony payments. Settle v. Settle, 25,643 (La.App.2d Cir.3/30/94), 635 So.2d 456, writ denied, 94-1340 (La.9/16/94), 642 So.2d 194; Gibbs v. Gibbs, supra.

The award of alimony after divorce — or final periodic spousal support, as it is now called — is governed by La. C.C. art. 112 which provides:

A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include:
(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.
B. The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

An award of alimony is never final. Gibbs v. Gibbs, supra; Gilbreath v. Gilbreath, 32,292 (La.App.2d Cir.9/22/99), 743 So.2d 300. An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. La. C.C. art. 114. The party seeking the modification or termination of support carries the burden of proof that circumstances have changed since the original award. Gibbs v. Gibbs, supra; Gilbreath v. Gilbreath, supra.

_JjoA finding of a change in circumstances does not axiomatically result in a modification or termination of support. Such a factual finding does, however, shift the burden to the party opposing the modification or termination of alimony to prove need and the relevant factors as set forth in La. C.C. art. 112, such as earning capacity. Brewton v. Brewton, supra; Gilbreath v. Gilbreath, supra.

The trial court is vested with great discretion in making alimony determinations and its judgment will not be disturbed absent a manifest abuse of that discretion. Council v. Council, supra.

Discussion

At the time the original judgment awarding her $2,100 per month in alimony was signed, Mona was an unemployed, newly divorced housewife with two teenage children living at home. Now she is employed as an administrative clerk at an insurance agency. Living with her at the present time is her oldest child, Heather, an adult who only works parttime and contributes nothing to the major household bills. Jerry pays for Heather’s car note and insurance, as well as her bank note.

At trial, Mona testified that her monthly gross salary was $2,085. She is paid every two weeks. Her deductions per paycheck included $322.42 for her car note and a signature loan. Also deducted from each paycheck was $63.88 for medical coverage for herself and her adult son. The monthly house note was $812.

We note that several of the household costs set forth by Mona at trial included living expenses for two of her children. However, her son is now |14an adult and is enlisted in the Marines; he no longer lives with her. Mona pays for the utilities and food consumed by Heather, her 27-year-old daughter. The jurisprudence clearly does not allow the support of major children to be considered a living expense of one of the spouses. Green v. Green, 432 So.2d 959 (La.App. 4th Cir.1983); Parker v. Parker, 93-817 (La.App. 3d Cir.3/2/94), 634 So.2d 1231; Launey v. Launey, 1998-849 (La.App. 3d Cir.12/9/98), 722 So.2d 406.

We find that Jerry showed a change of circumstances since the original judgment. The burden of proof then shifted to Mona. Since Mona is no longer legally responsible for the expenses of her children — who are now all adults — many of the expenses set forth on her affidavit of income and expenses are no longer valid considerations in setting alimony. After considering the maintenance expenses that are appropriate factors for alimony and removing expenses for the adult children, we find that Mona has shown a continuing need for support; however, a reduction from $2,100 to $1,000 in monthly alimony is appropriate.

Given the circumstances of this case, we remove the 10 year time period placed upon the payment of alimony to Mona. As previously noted, an award of alimony is never final. Over time, circumstances may change such that Mona will be entitled to alimony for less than 10 years. (We note that Mona and Jerry have not completed their community property partition.) However, it is also possible that Mona’s need may extend beyond a period of 10 years.

[^CONCLUSION

We amend the portion of the trial court judgment that awarded Mona permanent alimony of $2,100 per month for a period of 10 years to reduce the monthly amount to $1,000 per month for an unspecified period of time. In all other respects, we affirm the trial court judgment.

Costs of this appeal are assessed equally between the parties.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Jerry relies in part upon a letter he wrote to Mona’s lawyer in December 1993 in which he stated that he would like for the support obligations to be adjusted after various bills were paid in full; these included the second mortgage and some credit card bills. In his response, the attorney stated that if Mona did not cooperate with Jerry in reducing the monthly support at a later date, Jerry "would be at liberty to have the amount reduced based on her needs.” However, the record shows that Jerry did not go to court to have the amount reduced.