author: JjBROWN, C.J.

text:
    Charles A. CULOTTA, Plaintiff-Appellee, v. A.L. & W. MOORE TRUCKING COMPANY, Defendant-Appellant.
    No. 35,344-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Joseph B. Stamey, Natchitoches, for Appellant.
    David P. Daye, Shreveport, for Appellee.
    Before BROWN, GASKINS, and KOSTELKA (Pro Tempore), JJ.
   JjBROWN, C.J.

Defendant, A.L. & W. Moore Trucking Company (“A.L. & W. Moore”), appeals from a judgment awarding plaintiff, Charles A. Culotta, supplemental earnings benefits (“SEB”), penalties and attorney fees, and ordering defendant to pay for plaintiffs back surgery. For the reasons set forth below, we affirm in part and reverse in part.

Facts

Charles A. Culotta was in the course and scope of his employment as a truck driver for A.L. & W. Moore when he was involved in an accident on or about March 21, 1996, in downtown Houston, Texas. Mr. Culotta was taken to a local hospital, X-rayed and released. He returned to Shreveport the following day and sought medical treatment for lower back pain from Dr. Austin Gleason, a specialist in orthopedics. Dr. Gleason began a program of intensive physical therapy.

Mr. Culotta began receiving temporary total disability (“TTD”) benefits after his accident at a rate of $265.40 per week. Mr. Culotta had worked for A.L. & W. Moore for five years. His pay consisted of 25% of the fee collected for each load that he hauled. The TTD benefits calculation was made by a third party administrator, Sonia Barnett. The $265.40 represents two-thirds of Mr. Culotta’s average weekly wage, based upon his $15,127.80 earnings for 26 weeks prior to the accident. Ms. Barnett obtained Mr. Culotta’s average weekly wage by dividing $15,127.80 by 152 days of work and multiplying by four according to La.R.S. 23:1021(10)(d). Mr. Cu-lotta contested this calculation because he disagreed with the number of days worked.

| ?While Mr. Culotta was collecting TTD benefits, he began working at Culotta Pallet, a pallet recycling business allegedly owned by Mr. Culotta’s three sons. Videotape was introduced into evidence showing Mr. Culotta lifting and stacking pallets, which weigh 20 to 40 pounds, driving a forklift and a truck. Mr. Culotta admitted that he spends his days at the facility and drives loads of pallets in town and on occasions, out of town, but he claimed that he does not do significant work. During his testimony, he frequently referred to the business as though it were his business, but claimed that he had no ownership interest in the business. He insisted that he was not paid for his efforts at the pallet company. He did have authority to sign checks for the business and take money as needed. He testified that his sons, who owned the business, did not receive regular paychecks for their work and only took money from the business as needed. Mr. Culotta testified that he received from his sons approximately $700 per month to pay off his credit cards. He stated that he lived with his mother and did not pay rent or other household or living expenses.

On October 17, 1997, A.L. & W. Moore suspended compensation benefits due to Mr. Culotta’s alleged failure to give notice of his employment at the pallet company. Mr. Culotta filed a disputed compensation claim contesting the termination of benefits and demanding payment for surgery and penalties and attorney fees. Trial did not take place until June and August of 2000.

The workers’ compensation judge (“WCJ”) found that Mr. Culotta needed back surgery as recommended by Dr. Marco Ramos, one of his | .-¡treating physicians, but did not award penalties and attorney fees on that issue, finding it to be reasonably contested. The WCJ concluded that A.L. & W. Moore had underpaid benefits and raised the compensation rate from $264.40 to $283.86. The WCJ further found that A.L. & W. Moore had acted arbitrarily and capriciously in failing to recalculate the benefits when Mr. Culotta contested the calculation and awarded him $2,000 in penalties and $2,500 in attorney fees.

The WCJ also concluded that on November 16, 1996, Mr. Culotta began earning at least $750 per month at Culotta Pallet, although he was not capable of earning 90% of his pre-injury wages. Accordingly, she awarded TTD benefits at the corrected amount from the date of the accident through November 16, 1996 and SEB subsequent to that date, giving credit to A.L. & W. Moore for benefits it had paid until October 17, 1997. No penalties or attorney fees were awarded on this claim. Costs were assessed against A.L. & W. Moore. It is from this judgment that A.L. & W. Moore has appealed.

Discussion

On appeal, A.L. & W. Moore disputes several factual findings of the WCJ, including the finding that Mr. Culotta was entitled to SEB, the computation of Mr. Culot-ta’s average weekly wage under La.R.S. 23:1021(10)(d), the award of penalties and attorney fees and the finding that Mr. Culotta needs back surgery.

| ¿Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.02/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530. (La.01/14/94), 630 So.2d 733. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra; Stobart v. State, 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, supra. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Claimant’s Entitlement to SEB

The WCJ concluded that Mr. Culotta was working at Culotta Pallet Company as of November 16, 1996, earning $750 per month, and awarded SEB from that date until the present time. She also gave A.L. & W. Moore credit for $20,733, representing TTD benefits paid through October 17, 1997. A.L. & W. Moore contends that Mr. Culotta is not entitled to SEB.

The burdens of proof in an SEB workers’ compensation case were set out by the Louisiana Supreme Court in Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.07/01/97), 696 So.2d 551, 556, as follows:

ls“The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). An employee is entitled to receive supplemental earnings benefits (SEBs) if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman, supra. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009. Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008, 1014-15 (La.App. 3d Cir.1992). The amount of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a).

Thus, determination of whether an injured employee is entitled to SEB involves a shifting burden of proof. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that, as a result of a work-related accident, he is unable to earn at least 90 percent of his pre-injury salary. Once the employee has met his burden of proof, the burden shifts to the employer to defeat the employee’s claim for SEB, or “to establish the employee’s earning capacity.” Banks, supra at 556. In order to do that, the employer is required to prove “that the employee is physically able to perform a certain job and that the job was offered to the employee or |fithat the job was available to the employee in his or the employer’s community or reasonable geographic region.” Id.

A.L. & W. Moore contends that the WCJ erred in finding that Mr. Culotta showed by a preponderance of the evidence that he was unable to earn 90% of his previous wages and was therefore entitled to SEB. A.L. & W. Moore introduced video surveillance of Mr. Culotta actively working for several days in February, March, August and September of 1999. He was videotaped driving a forklift, helping secure loads, lifting and stacking pallets and other activities at Culotta Pallet Company, a company Mr. Culotta contends is owned by his sons. Mr. Culotta claimed that he received no compensation for his work, although his sons apparently covered any credit card charges he incurred. While testifying, Mr. Culotta made statements that implied that he is the owner or manager of the business. For example, he referred to “his customers” and stated, “I’ve got pallet builders-” A.L. & W. Moore contends that Mr. Culotta is the true owner of Culotta Pallet Company.

Mr. Culotta continued to see Dr. Gleason on into early 1997. Dr. Gleason believed that Mr. Culotta could work, but could not return to his previous job as a truck driver if it required heavy lifting, such as covering the load with an 80-pound tarp or climbing and crawling. In June of 1997, Mr. Thomas Mathews, a vocational rehabilitation counselor, attempted to contact Mr. Culotta at his home, but was told he was at work. He eventually interviewed Mr. Culotta about his interests, abilities and possible employment opportunities. He referred Mr. Cu-lotta to several job openings. 17Mr. Culot-ta applied for a job as a driving instructor at Diesel Driving Academy. However, even though he has driven a truck for 34 years and once taught truck driving at USA Truck, Mr. Culotta testified that he failed the driving test. Mr. Mathews testified that he learned in an e-mail that a Diesel Driving Academy representative said that Mr. Culotta was not hired because he was not serious about the job.

Mr. Culotta testified that he also looked into the possibility of driving a school bus, but there was apparently a waiting list. He did not follow up on that or any of other jobs mentioned by Mr. Mathews, stating:

I am just not going to go from a “30,000 a year job to a 5 or $6,000 a year job. I’m just not going to do it.”

After retaining counsel, Mr. Culotta was referred to Dr. Ramos, a neurosurgeon. Mr. Culotta made no further effort to seek employment, stating that Dr. Ramos said that he could not work.

The WCJ concluded that Mr. Culotta could work based upon his “active employment at Culotta Pallet,” and could earn at least $750 per month, which was the projected salary he would have earned working part-time at Diesel Driving Academy.

We conclude that the WCJ was clearly wrong in concluding that Mr. Culotta carried his burden by a preponderance of the evidence that he could not earn 90% of his pre-injury wages. In fact, the evidence is quite substantial that Mr. Culotta is capable of working full-time in gainful employment, as evidenced by the work he performs at Culotta Pallet Company. Mr. Culotta presented evidence that he was not making 90% of his pre-injury wages working for his sons, but he failed to produce evidence | Rthat he could not earn 90% of his pre-injury wages. In fact, his testimony indicated that he was quite happy with the working arrangement he had with his sons and had no desire to seek employment elsewhere. Even the WCJ concluded that Mr. Culotta was quite capable of working. Unfortunately, she did not require Mr. Culotta to carry his burden by a preponderance of the evidence as required by Banks, supra. Accordingly, Mr. Culotta is not entitled to SEB.

Recalculation of Benefíts under La. R.S. 23:1021(10) (d)

A.L. & W. Moore paid Mr. Culotta TTD benefits until October 17, 1997, when it “suspended” payment of benefíts because of Mr. Culotta’s failure to report his employment with Culotta Pallet. The WCJ concluded that Ms. Barnett, the adjuster who calculated Mr. Culotta’s benefits, arbitrarily and capriciously miscalculated the number of days Mr. Culotta worked by ten days; rather than 152 days worked, the actual number of days worked was 142. Based upon this miscalculation, the WCJ assessed penalties and attorney fees against A.L. & W. Moore.

At the time of Mr. Culotta’s accident, La.R.S. 23:1021(10) provided in pertinent part:

“Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
* * *
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; however, if | c)Such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four.

Ms. Barnett testified that she included in her calculation of days worked those days that Mr. Culotta was waiting out of town to bring a new load to another destination. She stated it was customary in the industry to include these days as work days. This custom applies to worker’s “standing-by” on the premises for purposes of establishing whether an accident occurs in the course and scope of employment. See H. Alston Johnston, 13 Louisiana Civil Law Treatise: Worker’s Compensation, § 162 (West 1994). However, we find no compelling reason to apply this rule to the calculation of the average weekly wage. Mr. Culotta was not compensated while he was “off duty” and therefore the WCJ correctly excluded those days from the payment calculation.

Mr. Culotta contends that the trial court erred in counting fractional work days as full days in the wage calculation. The WCJ expressly rejected Mr. Culotta’s argument that partial workdays should not be considered as Ml work days. Under the specific circumstances of this case, we cannot say this finding is clearly wrong or constitutes an error of law. Accordingly, we affirm that portion of the WCJ’s judgment holding A.L. & W. Moore liable for underpayment of TTD benefits from March 80, 1996, until November 15, 1996, the date upon which the WCJ found that Mr. Culotta was entitled to SEB. Because we find that Mr. Culotta failed to show that he is entitled to SEB, there is no question of underpayment beyond November 15,1996.

| penalties and Attorney Fees

The facts in this case do not support an award of penalties and attorney fees. Mr. Culotta did not contest the calculation of his benefits until September of 1997, almost a year after the WCJ found that he had been working at Culotta Pallet. We conclude that the WCJ erred in imposing penalties and attorney fees in this instance.

Entitlement to Back Surgery

In its final assignment of error, A.L. & W. Moore contests the finding that Mr. Culotta needs surgery. Defendant argues that the two orthopedists who examined Mr. Culotta, Drs. Gleason and Goodman, did not believe that back surgery on the herniated disks would help claimant’s back. The WCJ apparently gave more weight to the testimony of Dr. Ramos, a neurosurgeon.

The record contains the deposition testimony of the four physicians Mr. Culotta saw regarding his lower back pain. Initially, he saw Dr. Gleason, who started physical therapy treatment three times per week. Because Mr. Culotta was dissatisfied with the progress of his treatment, Dr. Gleason referred him to a chiropractor, Dr. K.E. Wojeik. Mr. Culotta subsequently returned to Dr, Gleason for more physical therapy. Mr. Culotta continued to complain about pain in his lower back and discussed surgery with Dr. Gleason, who did not recommend surgery, stating that Mr. Culotta’s degenerative and bulging disk was a nonsurgical situation. Dr. J^Gleason released Mr. Culotta, stating that Mr. Culotta could return to some gainful occupation, although he could not do some of the functions of his previous job description.

Mr. Culotta sought treatment from other physicians. Approximately three months after the accident, he saw Dr. Carl Goodman, an orthopedic surgeon, complaining of low back and right hip pain. Dr. Goodman examined and tested Mr. Culotta, but did not order X-rays or an MRI. He recorded that Mr. Culotta was a normal appearing male who walked without a limp and was able to stand on his heels and toes without weakness. Mr. Cu-lotta showed limited movement on bending forward and backward. Movement in both his legs and his leg strength were normal. His reflexes at the knee and ankle were normal and there was no evidence of spinal compression. Dr. Goodman told Mr. Cu-lotta that exercise therapy would probably get him well and that he should be able to return to work as a truck driver in three or four weeks. This was the only time that Dr. Goodman saw Mr. Culotta.

In the Fall and Winter of 1997, Mr. Culotta saw Dr. Marco A. Ramos and Dr. Anil Nanda, both neurosurgeons. Mr. Cu-lotta saw Dr. Ramos for the first time on October 1, 1997. Mr. Culotta complained of excruciating pain in his lower back. Dr. Ramos examined an MRI conducted in 1996 at Dr. Gleason’s request and ordered a new MRI, which was performed on October 20, 1996. Dr. Ramos concluded by comparing the two MRIs that Mr. Culotta had two herniated disks at L4-5 and L5-S1 and that the “moderate” congenital spinal canal stenosis (narrowing) visible in the first |12MRI was “marked” spinal stenosis. Dr. Ramos equivocated, however, when he was asked whether the second radiological reading indicated that the stenosis was greater. He did indicate that the stenosis was not due to trauma, but was secondary to the herniated disk problem. Dr. Ramos discussed surgery as an option for Mr. Culotta. He recommended a microdiskec-tomy, that is, removal of the herniated nucleus pulposus; basically, according to Dr. Ramos, a laminectomy. Dr. Ramos believed that the surgery would not necessarily improve Mr. Culotta’s pain situation, but would improve his functional capabilities for walking and lifting.

Mr. Culotta saw Dr. Nanda, professor and chairman of the Department of Neurosurgery at the LSU School of Medicine in December of 1997. In a letter dated December 9, 1997, addressed “To Whom It May Concern,” Dr. Nanda stated that review of Mr. Culotta’s MRI “showed moderate stenosis at L4-5 and L5-S1 and an old compression fracture at L2.” Dr. Nanda farther stated that he was “not sure if his pain is secondary to the old fracture since the lumbar stenosis at L4-5 and L5-S1 may not be contributing to his pain.” Dr. Nanda stated in the letter that he did not feel that a laminectomy was indicated for pure back pain and that Mr. Culotta was not very pleased about that. Dr. Nanda had a CAT scan done which confirmed the stenosis, but he felt that surgery presented only a 50% chance of improvement.

A.L. & W. Moore points out that while Mr. Culotta was complaining of pain and severe physical limitations to Dr. Ramos, he was actually running a pallet business and doing physical labor that contradicts his^claims to the neurosurgeon. A.L. & W. Moore also notes that claimant’s complaints to Dr. Ramos of excruciating pain and physical impairment were not consistent with his complaints to Dr. Nanda, whose opinion was that surgery had only a 50/50 chance of success.

The WCJ concluded that Mr. Culotta should be allowed to go forward with the surgery based upon the testimony of Dr. Ramos. Based upon our review of the record, we conclude that the WCJ did not commit manifest error in determining that Mr. Culotta was entitled to back surgery.

Conclusion

For the reasons stated, the judgment of this court is as follows:

Those portions of the WCJ’s judgment: (1) awarding SEB from November 16, 1996, until the present; and (2) imposing penalties and attorney fees are REVERSED. The recalculated award of TTD benefits from March 21, 1996, through November 16, 1996, is AFFIRMED. In all other respects, the judgment of the WCJ is AFFIRMED.

Each party is hereby ordered to pay its own costs of appeal.

      . Mr. Culotta filed a brief which included an answer to the appeal, arguing that the judgment of the WCJ was correct and requesting dismissal of the appeal at defendant’s cost.

      . Dr. Gleason testified that Mr. Culotta could not understand why his condition did not call for surgery. Dr. Gleason explained that 80 to 90% of patients with similar conditions are treated without surgery.


source: Caselaw Access Project

author: h CARAWAY, J.

license: Public Domain

text:
    Roger Ray FLANAGAN, Plaintiff-Appellee, v. Michelle Beatrice Liner FLANAGAN, Defendant-Appellant.
    No. 36,852-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Sule Douglas Busari, Scherrineewana Guidry, Esq., for Appellant.
    Alan James Norris, for Appellee.
    Before BROWN, CARAWAY and PEATROSS, JJ.
   h CARAWAY, J.

After five years of primary custody of the children with the father, the mother moved to modify the custody agreement which had resulted from a previously stipulated consent judgment. The trial court ruled that a change in custody was not in the best interests of the children, and the mother appeals. Finding no material change in circumstances that would justify a change in custody, we affirm the trial court’s ruling.

Facts

Michelle Liner Flanagan Murdock (“Michelle”) and Roger Flanagan (“Roger”) were married in Ouachita Parish in 1986. Three children were born of the marriage, Patricia, on February 14, 1988, Ashley, on July 29, 1990, and Jessica, on January 3, 1992. The parents separated in June, 1995, and divorced on March 6, 1996. Roger obtained the divorce on the ground of adultery.

The judgment of divorce placed temporary custody of the minor children with Roger, and ordered home studies conducted for each parent. At that time, both parties lived in mobile homes. Michelle’s home study disclosed that she lived with Paul Murdock, was unemployed, and depended on him for financial support. When Michelle and Roger were divorced, Michelle had only completed school through the eighth grade. She now has a G.E.D. Michelle’s criminal record consisted of one conviction for shoplifting a bottle of head lice shampoo in 1994. Although Paul Murdock denied having a criminal record, the home study report listed five criminal charges for him between 1988 and 1993.

|?As a result of Michelle’s unemployment and financial dependence on Paul Mur-dock, the Department of Social Services did not recommend placement of the children with Michelle, noting also that the children were already in Roger’s custody. Accordingly, the parties entered a stipulated judgment on May 7, 1996, awarding joint legal custody to Roger and Michelle, and designating Roger as the primary custodial parent. Michelle exercises visitation every other weekend, alternating holidays and during three months in the summer. This custodial arrangement was in place for more than five years when Michelle filed a petition to modify custody. Trial testimony showed that as a whole, the arrangement worked out well for both parents. On one occasion, for a day trip, Michelle, Roger and the girls all visited Vicksburg together.

Michelle’s petition alleged that the best interests of the children would be better served by naming her as the custodial parent. She alleged that Roger failed to obtain routine dental and medical checkups for the girls, failed to provide for their nutritional needs, failed to adequately supervise them, and failed to help them with homework. Michelle is now living in Tal-lulah and is divorced from Paul Murdock.

While the trial testimony showed that the two older girls performed poorly in school, and each had failed a grade level, their academic problems were also attributable to either unwillingness to do school work (Patricia) or dyslexia (Ashley). Family witnesses who testified at trial largely attributed the problematic nature of Patricia’s relationship with her father to her teenager status. Roger admitted that on one occasion, he grabbed Patricia 13by the hair to restrain her from fighting with her sisters. “I have to put my hand around her neck to show dominance over her. She has a very strong attitude.” Patricia’s own testimony corroborated this one incident. Ashley and Patricia both testified that they wanted to live with their mother.

At trial, Patricia’s teacher, Sonya Dill-ingham, testified that the girls were well-cared for and well-adjusted, and that Roger was a good father. Ashley’s teacher, Nancy Moore, testified that Roger was “very involved” and “very loving,” and was interested in knowing how he could help Ashley perform better in school. Roger’s sisters, Debra McGough and Cheryl Flanagan, both testified that the girls were stable, happy, and well-cared for in a good environment. Roger’s mother, Harriette, testified that her six grandchildren had frequent contact with each other and with other children in her extended family, who all lived in West Monroe.

Roger testified that he did not have home telephone service and used his cell phone exclusively. In case of an emergency, the girls could use a neighbor’s telephone. The girls do not have a regular pediatrician nor did he take them for any dental check-ups between 1996 and 1999. In case of an accident, Roger’s sister, a registered nurse, would provide them aid. A month before she turned nine, Ashley accidentally burned her foot with hot grease while cooking on the stove. Roger testified that although it was a blistering burn, he did not take her for medical attention. Michelle took her to the doctor two or three days later, and Ashley was diagnosed with a first or second degree burn. Roger testified that he cleaned the burn and “you just had to let it heal.” When Patricia fell off of her bicycle and required | ¿stitches to close her knee, Roger removed the stitches himself instead of having them removed at a doctor’s office. He testified that “it’s very, very easy to do and I saw no danger in doing it.”

Michelle testified that since her divorce from Roger, she obtained a G.E.D. and has worked in the same office for three years. She lives in a town about fifty miles from Roger’s home in West Monroe, and has resided in the same house for two years. Although Michelle has been active in the girls’ lives, and frequently arranges for doctor and dental appointments and vision screening, she does not pay Roger any child support. Roger testified that since she does not pay any support, he expected her to help him with those sorts of things.

Another issue presented at trial was the cluttered condition of Roger’s house compared to Michelle’s situation and Roger’s disinclination for cooking compared to Michelle, who testified that she cooked fresh food every day. In its ruling, the trial court noted that photographs introduced as evidence revealed that Roger’s house, “at times, resembles a pigsty.” Nevertheless, the trial court observed that Roger “has done a very good job of rearing the children.” Finally, the trial court concluded that although both parents were fit to have custody, there was no need to alter the current custodial situation. Accordingly, it denied Michelle’s petition for sole custody. It is from this judgment that Michelle appeals.

Discussion

The paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Hoskins v. Hoskins, 36,031 (La.App.2d Cir.4/5/02), 814 So.2d 773; Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196; writ denied, 01-3096 (La.12/7/01), 803 So.2d 975. In cases where the original custody decree is a stipulated judgment and the rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) is inapplicable, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans, supra; Shaw v. Shaw, 30,613 (La.App.2d Cir.6/24/98), 714 So.2d 906; writ denied, 98-2414 (La.11/20/98), 729 So.2d 556; writ denied, 98-2426 (La.11/20/98), 729 So.2d 558.

La. C.C. art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interests of the child. The consideration of all relevant factors launder Article 134 should be followed in actions to change custody, as well as in those to fix custody initially. La. C.C. art. 134, comment (d).

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Hoskins, supra. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

A court of appeal may not set aside the trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dep’t of Transp. & Development, 617 So.2d 880 (La.1993); Major v. Major, 02-2131 (La.App. 1st Cir.2/14/03), 2003 WL 343029, - So.2d -. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’ testimony must be given great deference by the appellate court. A trial court’s determination of custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of that discretion. Rosell v. ESCO, 549 So.2d 840 (La.1989); Major, supra; Lee v. Lee, 34,025 (La.App.2d Cir.8/25/00), 766 So.2d 723; writ denied, 00-2680 (La.11/13/00), 774 So.2d 150.

|7Michelle’s rule generally asserts two grounds as the material changes of circumstances. She first asserts that her educational and economic circumstances have improved since the entry of the stipulated judgment. Secondly, she alleges that Roger’s care for meeting the physical and emotional needs of the children has become deficient.

This court has held that the improvement of the non-domieiliary parent’s educational and economic circumstances is not a material change of circumstance which may justify a change in the previous custody arrangement. Shaw, supra; Bailey v. Bailey, 527 So.2d 1030 (La.App. 2d Cir.1988), writ denied, 528 So.2d 565 (La.1988). On the other hand, a persistent failure on the part of the domiciliary parent to provide for the physical and emotional needs of his children would present a material change of circumstances. In this case, the trial court did not find that Michelle proved that Roger had failed in those vital parental duties. From our review of the record, we agree with the trial court.

Michelle’s case against Roger was based upon certain isolated incidents that arguably may not have been the best course of action on Roger’s part for attending to his daughters’ needs. Nevertheless, the children’s medical and dental needs are being met, and Roger’s reliance upon Michelle for aid in those matters is appropriate. Cf. La. R.S. 9:315.4 and 315.5. Michelle is now employed, yet Roger has sought no child support payments from her. Likewise, while Patricia has had difficulties in school, the children’s teachers testified that Roger did not neglect his children’s educational needs. The youngest daughter, Jessica, is performing | «well in school. Finally, the family home life, as revealed by the testimony of other persons and the photos of Roger and the children, was not shown to be detrimental to the children’s well being and appears to be wholesome. Accordingly, we do not find that Michelle met her burden of proof in demonstrating that a material change of circumstance has occurred.

In conclusion, the trial court’s written ruling also stressed the overriding fact that Roger has now maintained the existing custodial home for over six years. The children’s best interest factors under Article 134 regarding the permanence of the existing custodial home as the family unit and the desirability of maintaining continuity of that environment were most important in this case, and we affirm the trial court’s ruling.

Costs of appeal are assessed to appellant.

AFFIRMED.

      . La. C.C. art. 134 provides: The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.


author: JjPEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Gary Wayne BROOKS, Appellant.
    No. 36,855-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, D. Brian Harkins, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   JjPEATROSS, J.

Defendant, Gary Wayne Brooks, was charged with second degree murder in violation of La. R.S. 14:30.1. Defendant was tried by a jury and convicted as charged. He was subsequently sentenced to serve life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction, arguing that the evidence presented at trial was insufficient to convict him of second degree murder. For the reasons stated herein, we affirm.

FACTS

In the early morning hours of May 29, 1999, Defendant shot and killed Melvin Fuller (“Fuller”). At the time of the shooting, Fuller was sitting in his vehicle outside the American Legion Hall in Monroe, Louisiana. In the vehicle, along with Fuller, were Robbie Nell Jenkins (“Jenkins”), Linda Bursey (“Bursey”) and Sheila Ford (“Ford”), Fuller’s sister. Defendant was Burse/s estranged husband, who was living apart from her at the time of the incident. The four vehicle occupants had earlier attended a dance at the American Legion Hall and were about to leave when the shooting occurred. Defendant had also been at the dance, but had caused no earlier trouble with Bursey.

Jenkins, Bursey and Ford gave consistent statements to the police investigators, and later at trial, which implicated Defendant as the person who shot Fuller. Further, they each testified that he had committed the shooting without any provocation. The testimony at trial established that Defendant approached Fuller’s vehicle as it was about to drive off. Defendant first opened the right rear passenger door where Bursey was | ¡.sitting, attempting to talk to her. Bursey asked Defendant not to cause a scene, to leave and to call her later at home. Ford told Defendant to shut the door because she had to go to work the next day. Defendant left and the car remained stationary while Fuller adjusted his CD player.

Only moments after Defendant left the vehicle, the four vehicle occupants became startled by a noise at the rear of the vehicle. Defendant had fired a shot at the back of the vehicle, hitting the trunk. Defendant then came to the front driver’s side of the vehicle and began shooting into the vehicle at Fuller, hitting him with a shot to his chest. Attempting to get away from Defendant, Fuller got out of the vehicle and ran back toward the American Legion Hall. Fuller died a short time later from the gunshot wound. After shooting into the vehicle, Defendant immediately fled the scene, but was later apprehended by Monroe police at his mother’s residence. Defendant was transported to the Monroe Police Department where he gave two conflicting statements to the police.

In his first statement to the police, Defendant claimed he shot Fuller in self-defense because he thought Fuller was pulling a gun on him. In his second statement, however, taken after police investigators told him no gun was found on the victim or in the victim’s car, Defendant said he shot Fuller because Fuller told him to leave his wife alone. Also in the second statement, Defendant admitted that he did not see Fuller holding a gun and that he shot several times into the vehicle at Fuller. Defendant was charged with second degree murder pursuant to a superseding bill of indictment filed on January 17, 2001; and, he was convicted as charged by the jury on ¡^February 6, 2002. On April 26, 2002, Defendant was sentenced by the trial judge to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This appeal ensued.

DISCUSSION

Defendant argues that there is insufficient evidence that he possessed the specific intent to kill or inflict great bodily harm, as is required to convict him of second degree murder. Defendant argues that his own statement to the police is the only evidence that can be used to indicate what his state of mind was at the time of the shooting. He asserts that this statement is evidence that he acted in immediate, sudden passion or heat of blood caused by provocation sufficient to deprive the average person of sound reason. Based on this rationale, Defendant urges that the evidence in the instant case can only support a finding that he committed the lesser crime of manslaughter. We do not agree.

The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986). The principal criterion of a Jackson v. Virginia review is rationality. State v. Mussall, 523 So.2d 1305 (La.1988). Due process demands that a criminal conviction cannot constitutionally stand if it is based on a record from which no rational trier of fact could find guilt beyond a reasonable doubt. Id.

|4In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all of the evidence, and the actual trier of fact is presumed to have acted rationally until it appears otherwise. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra.

Manslaughter

Defendant argues that, when he shot Fuller, he acted in immediate, sudden passion or heat of blood because Fuller provoked him. He insists that his statements to the police are evidence that he was provoked and that this evidence supports a finding that he committed the lesser crime of manslaughter rather than second degree murder. La. R.S. 14:31 defines manslaughter as follows:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

“Sudden passion” and “heat of blood” have been found not to be separate elements of the offense, but are mitigating factors that may show less culpability than when a homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). Provocation is a question of fact to be determined by the trier of fact. In order to be entitled to the lesser verdict of manslaughter, a defendant is required to prove mitigatory factors by a | ^preponderance of the evidence. State v. Mackens, 35,350 (La.App.2d Cir.12/28/01) 803 So.2d 454; State v. Lombard, supra.

Fuller was unarmed when he was shot and killed by Defendant. Defendant claims that he was provoked when the victim told him to leave his wife alone. Whether the victim, however, said anything at all to Defendant is in doubt. The only evidence to support that the victim said anything to the Defendant was Defendant’s own statement to police investigators. Jenkins, Bursey and Ford, all of whom witnessed the shooting, each denied that the victim said anything at all to Defendant. These same witnesses testified that none of the vehicle occupants engaged in any type of confrontation or heated argument with Defendant prior to the shooting. Confronted with this inconsistency, the jury was free to draw its own conclusion and disregard Defendant’s statements as evidence of any mitigation of Defendant’s conduct.

Even if the jury determined that the victim told Defendant to leave his wife alone, it could reasonably conclude that the victim’s actions were not sufficient to mitigate Defendant’s action from second degree murder to manslaughter. Provocative acts held to rise to the level of mitigating conduct have involved physical threats or actions on the part of the victim. See State v. Lombard, supra, and State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64 and 65 (La.1987). Moreover, our courts have not derogated from the principle that “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988); State v. Conerly, 48 La. Ann. 1561, 21 So. 192 (La.1896). Considering the totality of the record before us, a rational trier of fact could have concluded that Defendant did not establish the mitigating factors for manslaughter, reasonableness of provocation and heat of blood, by a preponderance of the evidence.

Second Degree Murder

La. R.S. 14:30.1 defines second degree murder as follows:

The killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act.

La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993). Pointing a gun at the victim and firing the gun has been ruled sufficient evidence to infer specific intent to kill or do great bodily harm in State v. Procell, 365 So.2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). The law is that the discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Maxey, 527 So.2d 551 (La.App. 3d Cir.1988), writ denied, 541 So.2d 868 (La.1989).

In the case sub judice, Defendant made two statements to the police during the investigation admitting in both statements that he shot at the victim. Jenkins, Bur-sey and Ford testified that, while they were in the vehicle, they saw Defendant shoot the victim at close range. In addition, as previously discussed herein, Defendant did not prove by a preponderance of the evidence that Fuller provoked him. Viewed in a light most favorable to the prosecution, we find that the testimony and evidence were legally sufficient and would justify any rational jury’s finding that Defendant had the specific intent to kill or inflict great bodily harm, without provocation, when he fired his weapon at Fuller at close range. Defendant’s assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction of Gary Wayne Brooks is affirmed.

AFFIRMED.


author: J^PICKETT, J. li SULLIVAN, J.,

text:
    Debra JACKSON v. CONAGRA POULTRY COMPANY.
    No. 02-492.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      George A. Flournoy, Flournoy, Doggett & Losavio, Lafayette, LA, for Plaintiff/Appellant Debra Jackson.
    John B. Saye, Hayes, Harkey, Smith, Cascio, Monroe, LA, for Defendant/Appel-lee Conagra Poultry Company.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, GLENN B. GREMILLION and ELIZABETH A. PICKETT, Judges.
   J^PICKETT, J.

FACTS

Debra Jackson began working for ConA-gra Poultry Company in September 1996. Her job consisted of removing bones and fat from chicken thighs with heavy scissors approximately eight or nine inches long. She performed this job eight hours each night.

On February 4, 1997, while performing her job duties, her right arm and hand became swollen and painful. She reported this to her supervisor who sent her to see the night nurse, Debra Walker. Ms. Walker applied an ice pack for fifteen minutes, gave her some ibuprofen, and instructed her to return to her work area.

The next night, Ms. Jackson’s arm and hand again became swollen and painful. She again reported to the night nurse who referred her to the day nurse, Joanne Dowden. Ms. Dowden gave her ibuprofen. Ms. Jackson asked Ms. Dowden for permission to see a doctor. Ms. Dowden denied that request, stating there were other things she wanted to do for Ms. Jackson before she saw a doctor.

Ms. Jackson’s problems continued. She continued to see Ms. Dowden for the same complaint — her arm and hand would become swollen. She saw Ms. Dowden approximately six more times between her initial complaint of February 4, 1997, and April 1997. She kept asking permission to see a doctor, but this was denied. It was her understanding if she saw a doctor on her own she would be fired. Ms. Dowden finally referred her to Dr. James Knecht.

Ms. Jackson saw Dr. Knecht on April 30, 1997, complaining of pain in the right shoulder and hand, with the right hand “going to sleep” at times. His findings revealed a normal neurological exam, but he noted mild spasm over the right trapez-ius muscle and mild swelling and tenderness of the flexor tendons of the right 1 ¿wrist. He diagnosed spasm and inflammation of the right trapezius muscle, right wrist flexor tendinitis, and suggested ruling out early right median nerve irritation. He prescribed wrist splints for both hands along with medication, and restricted her to light duty work with restricted use of the right upper extremity for two weeks.

Dr. Knecht ultimately referred Ms. Jackson to Dr. Michael Haynie, an orthopedic doctor in Shreveport. Dr. Haynie believed Ms. Jackson could have carpal tunnel syndrome. He recommended she see Dr. Marion Milstead, an orthopedic specialist. Dr. Milstead detected a positive Tinel’s sign over the supra and infra clavicular regions and over the cubital tunnel and the carpal tunnel, as well as a positive Adson’s test bilaterally. He noted all electromyographic (EMG) tests were normal. Dr. Milstead found evidence of mild ulnar nerve neuritis at the elbow and thoracic outlet syndrome. He believed her condition was permanent. He recommended she avoid elevation of the arms and use of the hands above shoulder height. He placed her on light duty.

Having received work restrictions from Dr. Knecht and later from Dr. Milstead, ConAgra removed Ms. Jackson from her deboning position and assigned her to various light duty positions. Ms. Jackson was first placed in the cafeteria where her duties were to clean the cafeteria and the restrooms. Later, Ms. Jackson worked as a manifestor, a job she could perform without the use of her right hand. When that position was phased out, she worked as a scanner. She continued working light duty positions until her employment was terminated on January 5, 2001. At that time, ConAgra informed her that she, along with other employees, was being laid-off. She asked to be reassigned to the paw room. That request was denied. There is no evidence ConAgra offered any type of vocational rehabilitation. ConAgra never goffered assistance to help her find other employment. Ms. Jackson has been unable to find work since that time.

We note the position Ms. Jackson held as a scanner was not abolished. Another employee replaced Ms. Jackson in that position.

Following a trial on the merits, the workers’ compensation judge found that Ms. Jackson failed to prove her condition was the result of either a work-related accident or an occupational disease. A motion for new trial was denied. It is from this judgment Ms. Jackson appeals.

ASSIGNMENTS OF ERROR

The appellant sets forth two assignments of error:

1) Because the facts were not disputed, i.e., visible signs of a right arm injurious condition had appeared during the course and scope of her employment and continued and all treating physicians agreed that the right arm condition was disabling and restricted her work to light duty, the hearing officer erred, as a matter of law, by ignoring the presumption of causation under these circumstances and/or by refusing to infer reasonably from the records that the work environment had brought on plaintiffs occupational disease, which, in turn, had caused plaintiffs disability.
2) The hearing officer erred in denying plaintiffs motion for new trial and refusing to consider the proffered reports of the treating physicians concerning causation.

DISCUSSION

To recover workers’ compensation benefits, the appellant bears the burden of proving that she either sustained personal injury as the result of an accident arising out of, and in the course and scope of, her employment or that she contracted an occupational disease. La.R.S. 23:1031 and 23:1031.1. Ms. Jackson did not prove she sustained a “personal injury by accident.” Under La.R.S. 23:1021(1), an accident is defied as “an unexpected or unforseen actual, identifiable, precipitous event ^happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. ” (Emphasis added.)

Notwithstanding this definition, it has been recognized that La.R.S. 23:1021(1) does not exclude from coverage those workers “who are worn down by their work rather than immediately crippled by it.” Dyson v. State Employees Group Benefits Program, 610 So.2d 953, 956 (La.App. 1 Cir.1992). However, the claimant must still “identify the event marking the time when one can identify an injury.” Id at 955.

In her disputed claim for compensation, Ms. Jackson did not allege any facts suggesting an accident. She alleged she was disabled by the “gradual onset of carpal tunnel both hands/wrists — worse in right hand.” No evidence was presented regarding a specific, employment-related event that precipitated her symptoms. Accordingly, we find no error in the trial court’s conclusion that she failed to prove a “personal injury by accident.”

We disagree, however, with the finding by the worker’s compensation judge that Ms. Jackson has failed to carry her burden of proving her disability was caused by an occupational disease. La. R.S. 23:1031.1(B), in part, defines an occupational disease as “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. Occupational disease shall include injuries due to work-related carpal tunnel syndrome.”

A claimant who proves a disabling occupational disease is entitled to workers’ compensation benefits in the same manner as one who has sustained a personal injury by accident arising out of and in the course of his employment. La.R.S. L23:1031.1(A).

Because Ms. Jackson’s symptoms occurred within the first twelve months of her employment with ConAgra, she must overcome the statutory presumption set forth in La.R.S. 23:1031.1(D), that her employment did not cause her condition. Although that statute was amended by Acts 2001, No. 1189 § 1, of the legislature, the provisions applicable to Ms. Jackson are those in place prior to the amendment. Prior to the amendment, La.R.S. 23:1031.1(D) read as follows:

Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-ocmpational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so 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 an overwhelming preponderance of the evidence.

Whether the claimant has proved the existence of a disabling, occupational disease is a question of fact subject to the manifestly erroneous or clearly wrong standard of review. Peck v. Procter and Gamble Mfg. Co., 586 So.2d 714 (La.App. 3 Cir.); writ denied, 590 So.2d 86 (La.1991). We find the worker’s compensation judge erred in concluding Ms. Jackson failed to carry her burden of proving her disability is a result of an occupational disease.

The unrefuted evidence in this case established that the scissors Ms. Jackson used to de-bone the chicken and strip the fat were long and heavy. She used them eight hours a night, every night. She had no problem with her arm or hand prior to her employment with ConAgra as a deboner. The problem with the swelling and pain in her arm manifested itself while she was on the job, using these heavy scissors | (¡repetitively. She never had problems with the pain and swelling except through the use of the scissors at work.

The medical records established Ms. Jackson does have a disabling physical injury. The worker’s compensation judge was correct in his conclusion that no doctor diagnosed carpal tunnel syndrome. There was, however, a diagnosis of a disabling injury.

Dr. Knecht diagnosed spasm and inflammation of the right trapezius muscle, right wrist flexor tendinitis, and suggested ruling out early right median nerve irritation. He referred Ms. Jackson to Dr. Haynie, who suspected, but did not diagnose, carpal tunnel syndrome. Ms. Jackson was seen by Dr. Milstead who found evidence of mild ulnar nerve neuritis at the elbow and also thoracic outlet syndrome. Dr. Milstead made objective findings of injury. Dr. Milstead deemed this condition permanent. Dr. Genoff ordered an EMG, which was normal, but found abnormal findings in the nerve conduction study. He ultimately found a slowing of the median nerve across the elbow.

All the physicians who examined Ms. Jackson agreed she was limited to light duty with restricted use of her upper right extremity. When placed on light duty, and not required to use her right arm, Ms. Jackson was able to perform her job requirements.

After reviewing the totality of the evidence, we find Ms. Jackson has overcome the presumption of La.R.S. 23:1031.1(D) and established by overwhelming evidence a disabling occupational disease arising from her employment with ConAgra.

In order to be entitled to Supplemental Earnings Benefits, the claimant must prove her inability to earn 90% of her pre-injury wages. The appellee argues Ms. |7Jackson can clearly earn 90% of her pre-injury wage because she returned to work at a light duty position. The appellee’s argument is misplaced.

In the matter before us, Ms. Jackson’s employment was terminated January 5, 2001. The light duty position she held was given to another employee. The employer argues that this was the result of a lay-off. We note, however, the employer refused to offer her a position available in the paw room which she could perform. Ms. Jackson was willing to move from the day shift to the night shift to accept this position.

The employer offered no evidence that a position was offered to Ms. Jackson that she could perform but she refused that position. The employer has offered no vocational rehabilitation to assist Ms. Jackson in returning to work. There has been no showing of any type of work in the geographical region that Ms. Jackson can perform. Although she has made an effort to return to work, she has been unable to secure a job within her restrictions.

It has clearly been established that, because of her employment related disability, Ms. Jackson is unable to earn 90% of her pre-injury wages. The parties stipulated that her average monthly wages were $1,175.94. She is entitled to receive SEB benefits from January 5, 2001, in the amount of $180.91 per week.

We further find Ms. Jackson is entitled to both penalties and attorney fees for ConAgra’s failure to timely pay benefits pursuant to La.R.S. 23:1201(F). We award penalties in the amount of $2,000.00 and attorney fees in the amount of $5,000.00 for work done at the trial and in this appeal.

DECREE

ConAgra is ordered to pay to Ms. Jackson SEB benefits in the amount of |s$180.91 per week beginning on January 5, 2001, plus interest. Further, they are ordered to pay a penalty in the amount of $2,000.00, and attorney fees in the amount of $5,000. Costs of this appeal are assessed against ConAgra.

REVERSED AND RENDERED.

SULLIVAN, J., dissents and assigns written reasons.

li SULLIVAN, J.,

dissenting.

I respectfully dissent from the majority opinion. I do not find manifest error in the trial court’s ruling that claimant failed to overcome the presumption of La.R.S. 23:1031.1(D) by proving that she suffered an occupational disease arising out of her employment. None of the medical evidence introduced at trial related claimant’s symptoms to her work activities.


author: | j DECUIR, Judge.

text:
    Darryl GEORGE v. Alfredia M. NERO.
    No. 02-1140.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Lloyd Dangerfield, Keller & Dangerfield, Lafayette, LA, For Defendant/Appellant, Alfredia M. Nero.
    Darryl George, Oakland, CA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   | j DECUIR, Judge.

In this ongoing dispute over the custody, child support, and visitation rights concerning their child, Darryl George filed what the district court considered to be a rule for contempt, change of custody, and costs against Alfredia Nero. After informal proceedings involving sworn testimony via telephone by George and live testimony by Nero, Nero was found in contempt, ordered to pay a fine to George, sentenced to ten days in jail, and denied future child support payments. She appeals. Finding manifest error in the judgment of the trial court, we reverse.

Carletta George was born in 1991 in Oakland, California, to Darryl George and Alfredia Nero, an unmarried couple. After the child’s birth, Nero moved to Georgia, then to Louisiana, then back to Georgia. George remained in California. For some period of time early in Carletta’s life, George was incarcerated in California. He was ordered to pay child support which was collected by a child support enforcement agency in California. He was granted visitation rights by a Louisiana court, which court also ordered the parties to share the cost of the child’s travel for visits with her father. The record is unclear as to how often visitation has occurred and at whose expense.

The present controversy arose with a letter written by George in December of 2001 to the district judge of the Louisiana court which had heard his case in September of 2000. In the letter, George complained that Nero had again “denied [his] visitation this past summer without any justification.” He asserted, “Ms Nero left California to keep me away from my child, now she has left Louisiana without notifying me of her intentions and how it might effect my visitation order.” He requested that “custody be transferred to me as well as support be suspended until she stops harboring my child.” On the bottom of the letter is a handwritten judicial order dated March 6, 2002, setting the matter for hearing “on the next available rule docket Lper telephone conference.” The court then took this letter to be a rule for contempt and request for change of custody, although no contempt hearing was requested.

Nero was then issued a summons to appear for an intake conference before a hearing officer and for a hearing on a rule to show cause before a judge, both scheduled for May 15, 2002. She appeared on the specified date, unrepresented by counsel, and George called in from California, also without legal representation. There is no indication in the record that an intake conference was conducted. The judge swore the parties in, then heard each of them talk. George essentially gave some very general complaints about Nero failing to contact him about the past summer’s visitation and trying to hurt his relationship with their child. The judge asked George if he had other testimony to present; he replied in the negative. Nero, however, had two family members with her, but neither testified on her behalf. The transcript was unclear as to whether Nero wanted them to testify or not. Nero apparently had phone records with her also, which she referred to in her testimony in an effort to refute George’s allegations that she never contacted him about visitation; the records were not offered into evidence. Finally, Nero commented that she expected George to send a plane ticket for the child to make the trip to California, but he never did. In a previous judgment, George was ordered to pay all travel costs which was offset by a reduction in his child support payments.

At the end of the hearing, Nero was found in contempt “for failing to allow summer visitation.” She was ordered to serve ten days in jail, which sentence began immediately. She was also ordered to pay $500.00 to George “to offset his expenses,” and was assessed all court costs. The visitation schedule, which had been implemented by a September 25, 2000 judgment, was modified, and George’s child support obligation was “suspended until further orders of this Court, due to her Iscontemptuous behavior.” The court ordered psychological testing to be done in Louisiana to determine if a change of custody might be in order.

Contempt proceedings are governed by the Louisiana Code of Civil Procedure. They are formal proceedings and are conducted to determine if a wilful violation of a court’s direct order has occurred. The rules are codified at La.Code Civ.P. arts. 221-227 and La.R.S.13:4611. Article 224 provides in part:

A constructive contempt of court is any contempt other than a direct one.
Any of the following acts constitutes a constructive contempt of court:
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court[.]

Additionally, Article 227 provides:

A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law.
The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in R.S. 13:4611.

Finally, the penalty statute, La.R.S. 13:4611, contains the following provisions:

(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows.
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.
(e) In addition to or in lieu of the above penalties, when a parent has violated a visitation order, the court may order any or all of the following:
|4(i) Require one or both parents to allow additional visitation days to replace those denied the noncustodial parent.
(ii) Require one or both parents to attend a parent education course.
(iii) Require one or both parents to attend counseling or mediation.

In Brunet v. Magnolia Quarterboats, Inc., 97-187 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343, cert. denied, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999), the court gave a thorough explanation of contempt procedure:

To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. In making this determination, the trial court is vested with great discretion. City of Kenner v. Jan P. Jumonville, Placide Jumonville, p. 5-6, 97-125 (La.App. 5th Cir.8/27/97), 701 So.2d 223; Reeves v. Thompson, 95-0321 (La.App. 4th Cir.12/11/96), 685 So.2d 575, 579. Proceedings for contempt must be strictly construed, and the law does not favor extending their scope. Estate of Graham v. Levy, 93-0636, 93-0134 (La.App. 1st Cir.4/8/94), 636 So.2d 287, 290, writ denied, 94-1202 (La.7/1/94), 639 So.2d 1167.
Constructive contempt may be found on a rule to show cause, with defendant being allowed at least forty-eight hours, from the date he or she receives notice, to prepare a defense. La. C.C.P. art. 225. The motion for the rule may issue on the court’s own motion or on motion of a party and shall state the facts alleged to constitute the contempt. Id. The due process limitations on summary contempt procedures were discussed in State v. Watson, 465 So.2d 685, 687 (La.1985); the court stated:
In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) discusses the due process limitations on summary contempt procedures:
Except for a narrowly limited category of contempts, due process of law as explained in the Cooke Case requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other | ¿witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority’ before the public. If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires ... that the accused be accorded notice and a fair hearing as above set out. 333 U.S. at 275, 276, 68 S.Ct. at 508, 509, 92 L.Ed. at 695.
Pittman Const. Co., Inc. v. Pittman, 96-1079 (La.App. 4th Cir.3/12/97), 691 So.2d 268, 273.
Furthermore, a contempt proceeding is designed for the vindication of the dignity of the court rather than for the benefit of a litigant. Nungesser v. Nungesser, 558 So.2d 695, 701 (La.App. 1st Cir.1990). Thus, the court cannot order a fine or penalty to be paid to a litigant because such payment does not vindicate the court. City of Kenner v. Jan P. Jumonville, Placide Jumonville, p. 8, 701 So.2d 223. The fine must be made payable to the court itself. Id.

711 So.2d 308, 313.

In Havener v. Havener, 29,785 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, the appellate court determined that a contempt judgment was improperly rendered because of the trial court’s failure to recite the facts upon which the finding of contempt was based:

The provisions of C.C.P. art. 225(B) are mandatory and must be strictly construed. Brown v. Brown, 493 So.2d 671 (La.App. 2d Cir.1986). The failure of a trial court to recite facts constituting contempt mandates a reversal of a judgment of contempt. Brown, supra.
While we cannot say the trial judge was incorrect in finding that the “lack of communications” between the parties caused problems, we |fido not believe that this statement alone is sufficient to meet the recitation of facts required for a finding of contempt. The contempt statutes must be strictly construed. Brown, supra. Accordingly, we amend the trial court judgment to vacate the finding contempt on the part of Mr. Havener.

700 So.2d 533, 538. (Footnote omitted.)

Our review of the record reveals manifest error in the proceedings conducted below. George’s letter to the court, which was styled as a “rule for contempt” by court personnel, does not request a contempt hearing or service on Nero, nor does it set forth explicit and precise allegations of disobedience to a visitation order. In David Peterson Contracting v. Webster Speedway, Inc., 27,427, p. 3 (La.App. 2 Cir. 9/27/95), 661 So.2d 654, 656, the court held that “alleged instances of noncompliance with a previous court order must be correctly, precisely and explicitly set forth in the rule for contempt.” To the extent that the finding of contempt may have also been based in part on Nero’s failure to pay a previously ordered fine or court costs, we note, first, the September 25, 2000 judgment specifically stated that the fine was suspended, contrary to the comments made by the trial judge at the May 15, 2002 hearing in chambers, and second, there was no formal allegation made against Nero for failing to make such payments, as due process requires.

Our law does not provide for testimony via telephone in a proceeding as consequential as a contempt hearing. The trial court’s intention may have been to conduct an informal intake conference in accordance with local rules; if so, its transformation of the proceeding into a trial on contempt charges was wholly improper.

Additionally, the trial court’s punishment of Nero went well beyond the scope of La.R.S. 13:4611(d) and (e). The assessment of a fine to be paid to George, rather than to the court was in error and in violation of the purposes of contempt |7proceedings. The indefinite discontinuance of child support payments was unauthorized, illegal, and harmful to the child, the rightful beneficiary of support payments. The trial court further abused its discretion in requiring the immediate imprisonment of Nero, a Georgia resident with a child for whom she must provide supervision and support. The court gave Nero no time to seek review of its decision or otherwise obtain guidance or counsel on the matters at hand. We find the trial court abused its discretion in imposing sentence upon Nero.

Our review of the transcript reveals very little evidence to support the factual findings of the trial court. However, because we are reversing the finding of contempt on the part of Nero based on procedural irregularities, we need not address whether the evidence was sufficient to support the conclusions reached by the trial court on the merits of the contempt proceedings. Nevertheless, we do find a complete lack of factual support for the air fare assessment to Nero for the child’s visits with her father, given the fact that his child support payments were previously reduced so that he could cover the travel expenses. We also find no evidence of a need for psychological evaluations in this case.

For the above and foregoing reasons, the judgment of the trial court is reversed. Costs of the appeal are assessed to Darryl George.

REVERSED.


author: JjPICKETT, Judge.

text:
    Dolores Massad MOWAD, et al. v. GENERAL MOTORS CORPORATION, et al.
    No. 02-1189.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      B. Scott Andrews, Baton Rouge, LA, for Plaintiffs/Appellees: Dolores Massad Mowad, et al.
    Carl J. Giffin, Jr., Metairie, LA, Paul V. Cassisa, Jr., Oxford, MS, for Defendant/Appellant: General Motors Corporation, et al.
    Court composed of NED E. DOUCET, JR., Chief Judge, ULYSSES GENE THIBODEAUX and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

On September 18, 2000, Dr. George Mowad was killed when his 2001 GM Cadillac Deville crossed the center line and collided with a 1989 Nissan Truck being driven by Katherine Slaughter. Ms. Slaughter also died as a result of the collision.

The accident occurred in Rapides Parish. Dr. Mowad was a resident of Oak-dale, which is located in Allen Parish.

Doctor Mowad’s widow, Dolores Massad Mowad, and their surviving children, filed suit in both Allen and Rapides Parish against General Motors Corporation and Boyd Buick-Cadillac-Chevrolet-Pontiac-Oldsmobile-GMC Truck, Inc. General Motors Corporation (GM) filed a declinatory exception of improper venue as to the suit filed in Allen Parish. The exception was denied.

On March 8, 2002, plaintiffs filed a motion to dismiss the suit filed in Rapides Parish without prejudice. Following a hearing on April 22, 2002, the motion was granted, and the trial court dismissed the Rapides Parish suit without prejudice. It is from this dismissal that the defendants appeal.

DISCUSSION

The defendant asserts that the issue for review on appeal is whether the trial court committed legal error in granting plaintiffs’ motion to dismiss without prejudice where the defendant had filed an answer and conducted discovery in the Ninth Judicial District Court proceedings before the plaintiffs filed their Motion to Dismiss. GM points out that a third suit brought on behalf of the other driver’s family was also pending in Rapides Parish. GM had filed a Motion to Consolidate the two cases.

The defendant argues that under La. Code Civ.P. art. 1671, a plaintiff may not voluntarily dismiss a suit without prejudice after a defendant has filed an answer. li>The defendant’s argument is misplaced. Article 1671 provides:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

(Emphasis added)

“After the defendant has appeared, the trial judge has wide discretion to dismiss without prejudice, and such a decision will not be set aside absent clear abuse of discretion.” LaRocca v. Bailey, 01-0618, p. 11 (La.App. 8 Cir. 11/7/01); 799 So.2d 1263, 1270 citing Borrello v. City of Kenner, 99-420 (La.App. 5 Cir. 11/30/99); 750 So.2d 230. Article 1671 leaves to the discretion of the trial court the decision to dismiss without prejudice. Turner v. Leslie, 96-2288 (La.12/6/96); 684 So.2d 395.

Sanders v. Travelers Ins. Co., 271 So.2d 298 (La.App. 3 Cir.1972) and Melancon v. Swift Agr. Chemical Corp., 289 So.2d 578 (La.App. 3 Cir.1974) establish the only rule which must be followed by the court in the exercise of its discretion. The court cannot dismiss an action without prejudice, after the defendants have made an appearance of record, if substantive rights of the defendant would be lost by the dismissal or if the dismissal would deprive the defendant of a just defense.

The defendant has failed to demonstrate any substantive rights it has lost as a result of this dismissal without prejudice. Further, the defendant has failed to show that this dismissal will deprive it of a just defense.

DECREE

Whether to dismiss this case with or without prejudice was clearly at the discretion of the trial 13court. We find no abuse of discretion on the part of the trial court in dismissing this matter without prejudice. Accordingly, we affirm the judgment of the trial court. Costs of this appeal are to be borne by the defendant.

AFFIRMED.


author: _LJ)OUCET, Chief Judge.

text:
    Arney V. ANDERSON v. Marcia Ann Irving ANDERSON.
    No. 02-1226.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Frank C. Miller, III, Lake Charles, LA, for Plaintiff/Appellant: Arney V. Anderson.
    Henry H. Lemoine, Jr., Pineville, LA, for Defendant/Appellee: Marcia Ann Irving Anderson.
    Court composed of NED E. DOUCET, JR., Chief Judge, ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   _LJ)OUCET, Chief Judge.

Plaintiff, Arney V. Anderson, appeals a judgment of the trial court finding his ex-wife, Appellee, Marcia Ann Irving Anderson, free from fault in the break-up of their marriage and awarding Ms. Anderson $1,000.00 per month in alimony. We affirm the judgment of the trial court. FACTS

The Andersons were married on December 7, 1987, in Rapides Parish and subsequently established their matrimonial domicile in Sabine Parish at Toledo Bend. Mrs. Anderson was working when the couple married, but she left the work force after the couple moved to Toledo Bend. The Andersons’ original residence was next door to a camp owned by Mr. Anderson’s parents. Because Mrs. Anderson did not get along with her in-laws, she and her husband sold that home, bought two adjacent lots in another location and built a “spec” house on one of the lots. According to Mr. Anderson, the couple planned to sell the “spec” house and use the proceeds to build a smaller house for themselves on the lot next door. Shortly after these plans were finalized, the real estate market softened and the Andersons were unable to sell the “spec” house. This situation began the Andersons’ financial difficulties which contributed to the dissolution of their marriage. Although finances were tight, Mrs. Anderson refused to return to the work force.

During most of the marriage, Mr. Anderson worked for Alford Motors, IncJAlford) in Leesville. The record indicates that the Andersons’ marital problems escalated when Pam Cohen went to work for Alford. Mrs. Anderson became convinced that Mr. Anderson and Ms. Cohen were having an affair after the two attended a business seminar in Florida in December 2000. Around this same time, | aMr. Anderson began working longer hours, both during the week and on weekends. Beginning in April 2001, Mr. Anderson did not come home, most weekends. Also, Ms. Cohen and her husband separated in April 2001. On May 15, 2001, Mr. Anderson abandoned the matrimonial domicile, and on May 31, 2001, he filed a petition for divorce. A judgment of divorce was granted on January 2, 2002. The proceeding which gave rise to this appeal, a Rule for Spousal Support was heard on May 7, 2002, and in a judgment read, rendered and signed July 29, 2002, Mrs. Anderson was awarded $1,000.00 per month as periodic spousal support.

LAW AND DISCUSSION

On appeal Mr. Anderson claims the trial court specifically erred in finding Mrs. Anderson free from fault; in the amount of support awarded; and in failing to give Mr. Anderson credit for community funds secreted by Mrs. Anderson in a separate checking account. Generally, Mr. Anderson alleges that the judgment of the trial court is not supported by the law and facts.

The laws dealing with periodic spousal support were changed, effective January 1, 1998. The award or denial of periodic support is currently covered by La.Civ. Code arts. 111 and 112.

La.Civ.Code art. 111 states:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles.

In Jones v. Jones, 35,502, pp. 4, 5 (La.App. 2 Cir. 12/5/01); 804 So.2d 161, 164-65, our brethren of the second circuit observed:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support |3to a party free from fault prior to the fifing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. La. C.C. art. 111. A spouse seeking final spousal support must be without fault and the burden of proof is upon the claimant. Lyons v. Lyons, 33,237 (La.App.2d Cir.10/10/00), 768 So.2d 853, writ denied, 2000-3089 (La.1/5/01), 778 So.2d 1142. Since the statutory law does not specify fault which would deny final periodic spousal support, legal fault must be determined according to prior jurisprudential criteria. Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359. Legal fault consists of serious misconduct which is a cause of the dissolution of the marriage. To be legally at fault, a spouse must be guilty of cruel treatment or excesses which compel a separation because the marriage is insupportable. A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Lyons v. Lyons, supra.
The unjustifiable persistent refusal of sexual intercourse to one’s spouse is cruel treatment constituting fault. Broussard v. Broussard, 462 So.2d 1386 (La.App. 3d Cir.1985). While mere bickering and fussing cannot constitute cruel treatment for purposes of denying alimony, a continued pattern of mental harassment, nagging and griping by one spouse directed at the other can constitute cruel treatment. Lyons v. Lyons, supra.
A party is not deprived of alimony due to a reasonably justifiable response to the other spouse’s initial acts. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The suspicion of adultery causes the break up and not the reaction. A spouse who reacts should not be precluded from receiving alimony solely because of his or her own response. Lyons v. Lyons, supra.

In Desai v. Desai, 01-1325, p. 3 (La.App. 5 Cir. 4/10/02); 817 So.2d 230, 231, the fifth circuit commented as follows:

In Simon v. Simon, [96-876 (La.App. 5 Cir. 5/14/97), 696 So.2d 68, 73] we noted the jurisprudential criteria that a court should use in determining legal fault for these types of cases.
Legal fault consists of serious misconduct, which is a cause of the marriage’s dissolution ... Petty quarrels between husband and wife do not rise to the level of legal fault; to be legally at fault, a spouse must be guilty of cruel treatment or excesses which compel a separation because the marriage is insupportable ... Fault contemplates conduct 14or substantial acts of commission or omission by a spouse violative of his or her marital duties or responsibilities.
Under Louisiana law and jurisprudence, a continued pattern of mental harassment, nagging and griping by one spouse directed at the other can constitute cruel treatment; whereas mutual incompatibility, fussing and bickering cannot ...
When the degree of spousal fussing and bickering, however, allows the finding of a pattern of harassment, upbraiding, nagging and griping, a determination by the trial court of cruel treatment has been found supported by the record. Each case must rest on its own facts. [Citations omitted].

Appellant argues that the trial court erred in finding Mrs. Anderson free from legal fault and thus eligible for periodic spousal support. Mr. Anderson testified that it was only because Mrs. Anderson didn’t get along with his parents that they moved and built a house they really couldn’t afford. Mrs. Anderson stated that building the house was Mr. Anderson’s idea. According to both parties it was a downturn in the real estate market which caused them financial difficulties. WTiile this may have been so, it does not appear that the bickering over finances rose to a level which would constitute legal fault.

Mr. Anderson also claims that the couple had not shared a bedroom for a couple of years and that they had no sex life. Mrs. Anderson agreed that they slept in separate bedrooms; however she was adamant, that the couple maintained a sexual relationship.

The trial judge found Mr. Anderson to be at fault for maintaining an adulterous relationship and in abandoning the family domicile. Mr. Anderson admitted both acts. However, he claimed that the affair with Ms. Cohen did not become physical until after he moved out of the family home. The following is well settled:

I /The trial judge’s finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence that is to be resolved primarily on the basis of the credibility of witnesses.

Desai, 01-1325, pp. 3-4; 817 So.2d at 231-32. We find no error in the trial judge’s ruling on this issue.

As to the award of $1,000.00 per month to Mrs. Anderson, we find no clear error. Mr. Anderson’s tax records establish that he made almost $60,000.00 in 2001. At the hearing on Mrs. Anderson’s rule for periodic spousal support on May 7, 2002, Mr. Anderson testified that he had recently become unemployed. He stated that he had not applied for unemployment and that he was diligently seeking employment. His employment history makes it clear that he was capable of earning sufficient income to justify an award to Mrs. Anderson of $1,000.00 per month. Furthermore, Mrs. Anderson’s circumstances showed her to be in need of financial support. She had been out of the work force for about ten years, had no college degree, was working as a companion to a physically impaired woman and was living with her daughter because she could not afford a place of her own. If either Mr. Anderson or Mrs. Anderson find employment which would justify a change in or termination of the trial court’s initial award, the parties are free to return to court to seek modification or termination of the support payments. “The trial court is vested with great discretion in making alimony determinations, and its judgment will not be disturbed absent a manifest abuse of discretion.” Goodnight v. Goodnight, 98-1892, p. 7 (La.App. 3 Cir. 5/5/99); 735 So.2d 809, 814, quoting Faltynowicz v. Faltynowicz, 30,605, p. 6 (La.App. 2 Cir. 6/24/98); 715 So.2d 90, 94.

|fiMr. Anderson also claims the trial court erred in not giving him credit for money secreted by Mrs. Anderson in a separate checking account. Mrs. Anderson testified that she used this money to pay community obligations. There was no evidence introduced or testimony adduced to contravene Mrs. Anderson’s explanation. Thus, we find no merit in this alleged error.

In sum, our review of the record, as a whole, reveals no error of law or fact. Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Appellant, Arney V. Anderson.

AFFIRMED.