author: McClendon, j.

text:
    Carolyn ELLISON v. Randall ELLISON.
    No. 2006 CA 0944.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Anthony T. Marshall, Gonzales, Counsel for Plaintiff/Appellant Carolyn Ellison.
    Ronnie J. Berthelot, Baton Rouge, Counsel for Defendant/Appellee Randall Ellison.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

|2Plaintiff, Carolyn Ellison, appealed the trial court’s judgment in favor of defendant, Randall Ellison, which dismissed plaintiffs action for nullity of a prior judgment based on fraud or ill practice. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Mr. Ellison and Ms. Ellison were divorced by judgment signed on June 28, 1996. On October 23, 1996, Ms. Ellison, represented by Mr. Ronnie Palmer, filed a pleading praying for various actions, including a partition of the community property. Admittedly, Ms. Ellison resided in Georgia for the majority of a three year period from 1997 through 2000, and neither she nor Mr. Ellison had contact with each other. While she was working in Georgia, she took periodic trips back to the former marital residence in Louisiana (marital home), where her sister also resided for a period of time.

On March 15, 1999, Mr. Ellison filed a petition for settlement of the community property. At some point during the proceedings, Mr. Ellison claimed that he did not know the whereabouts of Ms. Ellison, and asked the court to appoint Ms. Ellison’s attorney of record, Mr. Palmer, as a curator ad hoe. It is undisputed that the appointment was made, and Mr. Palmer was served with Mr. Ellison’s petition on March 23, 1999. On July 26, 1999, Mr. Palmer died. While Ms. Ellison was in Louisiana, she saw the Palmer obituary, but did not contact Mr. Palmer’s office to determine the status of her suit. Subsequently, another curator was appointed to replace Mr. Palmer. Mr. Ellison provided the curator with the same last known address for Ms. Ellison that he had given to Mr. Palmer, that is, Baton Rouge, LA. However, the specific municipal address for the marital home was not given by Mr. Ellison. The second curator reported that he was unable to locate |sMs. Ellison. After a trial on the merits on the partitioning of the community, a judgment, awarding Mr. Ellison the marital home and furnishings, was signed on June 13, 2000.

On January 29, 2004, more than four years after the service of Mr. Ellison’s petition on Mr. Palmer, Ms. Ellison filed a petition to annul the 2000 judgment. She asserted that the judgment awarding Mr. Ellison the marital home was obtained through fraud or ill practice. Specifically, she alleged that: she was unaware of the 2000 judgment until she was evicted from the marital home in 2003; she did not receive notice of the 1999 petition to settle the community; she was not an absentee; and Mr. Ellison, who had actual knowledge that she resided at the former marital residence, intentionally failed to advise either Mr. Palmer or the second curator of that address. In response, Mr. Ellison filed several exceptions, including the peremptory exception raising the objection of prescription.

After a hearing on the exceptions, the trial court took the matter under advisement. In the trial court’s reasons for judgment, the court found that Ms. Ellison had not met her burden to show that she was readily available to be personally served in Louisiana, noted that her attorney had been served, and granted the exception of prescription. A judgment dismissing Ms. Ellison’s petition to annul was signed on May 30, 2006.

Ms. Ellison appealed and assigned error to the trial court’s grant of the exception of prescription. Thus, the issue is whether the petition was timely filed.

■APPLICABLE LEGAL PRECEPTS

“A final judgment obtained by fraud or ill practices may be annulled.” LSA-C.C.P. art. 2004 A. However, the action “must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill Rpractices.” LSA-C.C.P. art. 2004 B. The one year limitation to file an action to annul is a period of peremption.

The burden of proof to show that a nullity action was brought within one year of the discovery of the fraud or ill practice is upon the plaintiff. Gennuso v. State, 339 So.2d 335, 338 (La.1976); Zatzkis v. Zatzkis, 632 So.2d 307, 316 (La.App. 4 Cir.1993), writs denied, 94-0157, 94-0159, 94-0160 & 94-0976 (La.6/24/94), 640 So.2d 1340 and 94-0993 (La.6/24/94), 640 So.2d 1341. The date of discovery is the .date on which a plaintiff either knew, or should have known through the exercise of reasonable diligence, of facts sufficient to “excite attention and put the [plaintiff] on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead.” Campo v. Correa, 2001-2707, p. 12 (La.6/21/02), 828 So.2d 502, 510-11; Kambitsis v. Schwegmann Giant Supermarkets, Inc., 95-478, pp. 4-5 (La.App. 5 Cir. 11/15/95), 665 So.2d 500, 502, writ denied, 95-3016 (La.2/9/96), 667 So.2d 540, cert. denied, 519 U.S. 907, 117 S.Ct. 268, 136 L.Ed.2d 191 (1996). However, a “plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription” or per-emption. Campo, 2001-2707 at p. 12, 828 So.2d at 511. Thus, the primary issue is the reasonableness of the plaintiffs action or inaction. Id.; Miley v. Consolidated Gravity Drainage District No. 1, 98-1321, p. 9 (La.App. 1 Cir. 9/12/94), 642 So.2d 693, 698.

| ^ANALYSIS

The burden of proof was on the plaintiff, Ms. Ellison. Even assuming for the sake of argument that Mr. Ellison’s failure to provide the municipal address, and his request to have Ms. Ellison’s attorney of record appointed as a curator, were fraud or ill practice, we cannot say that the trial court erred in finding that the nullity action was not timely filed. By July or early August of 1999, Ms. Ellison had knowledge of facts sufficient to excite a further investigation. She knew that her rule to partition the community had been pending since 1996, she knew that she had been primarily residing out of Louisiana from 1997 until 2000, and she was aware in late July or early August that her attorney, who represented her in the divorce proceedings and filed the action requesting partition, had died on July 26, 1999. Despite that knowledge, she did not contact Mr. Palmer’s office to inquire about the status of the community property or her pending action. By the time that she admittedly read her attorney’s obituary, he had been served as the curator ad hoc with Mr. Ellison’s petition to settle the community. Thus, the trial court could have reasonably found that, for more than one year prior to her filing the petition to annul, Ms. Ellison had sufficient knowledge to excite further inquiry and a reasonable opportunity to discover Mr. Ellison’s failure to provide the municipal address of the marital home, and eventually, to discover the judgment partitioning the marital home.

For these reasons, we find no error in the judgment of the trial court dismissing the nullity action, and we affirm. The costs of the appeal are assessed to plaintiff-appellant, Ms. Carolyn Ellison.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . The time limitation governing LSA-C.C.P. art.2004 is a peremptive period, not a prescriptive one. A.S. v. M.C., 96-0948, p. 9 n. 5 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, 648 n. 5, writ denied, 97-0213 (La.3/14/97), 690 So.2d 38. However, the outcome of the suit is not affected. Whether analyzed as prescription or peremption, the principles of the discovery rule and the analysis are the same.


source: Caselaw Access Project

license: Public Domain

text:
    Jules MOITY v. FIREFIGHTERS’ RETIREMENT SYSTEM.
    No. 2006 CA 0775.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Richard A. Tonry, Michael C. Ginart, Kim C. Jones, Cullen A. Tonry, Chalmette, Daniel A. Claitor, Baton Rouge, Counsel for PlaintiffiAppellee Jules Moity.
    Steven S. Stockstill, Baton Rouge, Counsel for Defendant/Appellant Firefighters’ Retirement System.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

| ¡.This appeal challenges a district court’s reversal of a decision of the Firefighters’ Retirement System denying an application for disability retirement. We amend the judgment, and affirm as amended.

BACKGROUND

The record reflects that in 1976, when he was thirteen years old, Jules Moity was involved in a motorcycle accident and, as a result, fractured his right hip. He underwent surgery in which pins were inserted and later removed. Approximately fifteen years later, in 1991, Mr. Moity was hired as a firefighter by the St. Bernard Parish Fire Department. He passed a pre-em-ployment physical examination on February 20, 1991. The report of that examination contains a notation of the 1976 right hip fracture and resulting surgery. On March 4,1991, Mr. Moity applied for membership in the Firefighters’ Retirement System (FRS). His application for membership was approved by FRS’ Board of Trustees (Board) on June 28,1991.

Mr. Moity performed the requirements of his job as a firefighter until December 10, 2003; however, he exhausted all of his sick and annual leave by December 31, 2004. On January 15, 2004, at the request of his employer, Mr. Moity underwent an orthopedic evaluation performed by Dr. Robert Ruel, Jr. According to Dr. Ruel’s report, x-rays obtained that day revealed a severe deformity of the right femoral head of the right hip with disalignment, severe joint space narrowing and severe arthritic changes. Dr. Ruel diagnosed Mr. Moity as suffering from severe arthritis, post-traumatic right hip, and noted the probability that Mr. Moity will require a total hip replacement surgery in the future to alleviate his arthritic pain. Dr. Ruel opined that Mr. Moity was unable to carry out his firefighting duties with the hip in its present condition. He also noted that Mr. Moity had a chemical ^dependency on pain medication, which Dr. Ruel described as a disability in itself and one that prevented Mr. Moity from being an operator. Dr. Ruel felt that Mr. Moity was capable of doing sedentary to light duty jobs at the fire station.

In April of 2004, Mr. Moity applied to the FRS for disability retirement. He claimed in his application that he suffered from degenerative hip disease that resulted from the physical demands of being a firefighter over the course of his employment. In connection with the application, Mr. Moity submitted medical records of his treatment for hip pain by Dr. Kenneth Adatto and Dr. John Watermeier. Dr. Adatto’s 2002 report reflected that Mr. Moity has end-stage arthritis of the hip, which he treated with anti-inflammatory and pain medications.

On May 12, 2004, Danny Menesses, the Chief Administrative Officer for the St. Bernard Parish government, wrote a letter to the FRS to offer these facts: (1) at the time Mr. Moity was hired by the parish, he passed a comprehensive, pre-employment physical examination performed by the parish’s medical staff; (2) Mr. Moity made Ml disclosure of the motorcycle accident that left him with the right hip fracture and some residual discomfort in that joint; however, that injury did not affect Mr. Moity’s job performance or training for a number of years; (3) it was the opinion of outside medical specialists that the rigors and physical stress of the firefighter position led to the deterioration of his right hip; and (4) Mr. Moity maintained an exemplary working record for the parish and was well respected by his peers.

On October 14, 2004, at the request of FRS, Mr. Moity was evaluated by Dr. Larry Ferachi, an orthopedist who was FRS’ appointed physician to the State Medical Disability Board. Dr. Ferachi stated that x-rays revealed Radvanced os-teoarthritic changes of the right hip, with a complete collapse of the femoral head and no joint space maintained. Dr. Ferachi opined that Mr. Moity has advanced osteoarthritis of his right hip secondary to the 1976 traumatic fracture, end-stage arthritis, and is in need of a total hip arthro-plasty. Given these physical findings, the doctor stated, Mr. Moity is unable to return to any type of employment as a firefighter.

Shortly thereafter, FRS sent Dr. Fera-chi a letter requesting clarification of preexisting disability status. Dr. Ferachi was asked whether, based on the medical records he reviewed and his October 14, 2004 examination, Mr. Moity’s advanced osteoarthritis of his right hip was a result of the 1976 motorcycle accident and resulting right hip fracture. The question was followed with spaces to answer “Yes” and “No.” Dr. Ferachi checked both the yes and no spaces, commenting, “Read the report!!” Dr. Ferachi wrote that the fracture was the primary cause of Mr. Moity’s advanced osteoarthritis of the right hip, but that the stress and habits of a firefighter increased the risk to develop osteoarthritis of the hip.

At its November 18, 2004 regularly scheduled monthly business meeting, the Board considered Mr. Moity’s disability retirement application. Dr. Ferachi’s report was presented to the Board, along with the statutory language on preexisting conditions found in La. R.S. 11:216. That provision reads as follows: “[a]ny disability claimed by a member of a state or statewide retirement system must have been incurred after commencement of service in the system with which the claim is filed. Disability claims shall not be honored in the case of preexisting conditions.” Thereafter, the Board denied Mr. Moity’s application, notifying Mr. Moity of its decision by letter dated November 23, 2004. Therein, FRS Benefit Analyst Jason Starns noted that after reviewing the evidence and based upon Dr. Ferachi’s report, it was 1 ^determined that the medical condition upon which Mr. Moity based his claim for disability was a preexisting condition for which disability retirement benefits were not available in light of La. R.S. 11:216.

On November 29, 2004, Mr. Moity notified FRS that he intended to appeal the decision of the Board. Pursuant to La. R.S. 11:218, FRS arranged for Mr. Moity to be examined by Dr. Thad Broussard, a second State Medical Disability Board doctor. In a letter to Dr. Broussard, the FRS benefit analyst sought assistance on the question of causation, stressing that the Board was focusing on whether Mr. Moity’s- right hip condition preexisted his membership in FRS. The question posed to Dr. Broussard by FRS was whether Mr. Moity’s right hip condition arose before or after the date of his membership in FRS (March 4,1991).

In a second opinion rendered by Dr. Broussard on December 21, 2004, Dr. Broussard noted that x-rays taken in his office showed severe osteoarthritic changes with deformity of the hip. He opined that Mr. Moity could not continue to work in any way as a firefighter with his hip in its present condition. Regarding the question of causation, in his report, Dr. Broussard wrote:

I do not, however, believe that these changes in the hip are solely the result of his activities as a fire fighter. I believe that the hip fracture most likely began this degenerative process, and in the course of his duties as a fire fighter and placing more stress across the hip joint in that position that ultimately resulted in the joint that he now has. I do not believe, based on the patient’s history, that he was disabled before he joined the fire fighting system, but certainly had pre-existing trauma that was aggravated during the course of his employment, which subsequently has lead [sic] to his disabled condition at this time.

On January 13, 2005, the Board considered Mr. Moity’s appeal, and the reports of Drs. Ferachi and Broussard were presented. The Board voted to uphold its previous decision and denied benefits upon finding that Mr. |fiMoity’s degenerative hip condition was caused by the pre-employment accident. In so doing, the Board observed that it was adhering to the opinions of the State Medical Disability Board doctors. The Board notified Mr. Moity of its decision by letter dated January 14, 2005, stating therein that it was determined that the medical condition for which he based his claim for a disability retirement was a preexisting condition.

On February 7, 2005, Mr. Moity filed this petition for judicial review of the FRS’ denial of his claim for disability retirement benefits. The district court held that the Board’s ruling was unreasonable, arbitrary and capricious, and was manifestly erroneous under the facts of the case. The court stressed that both of the State Medical Disability Board doctors acknowledged the prior hip injury, but found that the trauma Mr. Moity was exposed to during his years as a firefighter disabled his hip. The court also stressed that the fracture for which the Board denied benefits occurred 27 years prior to Mr. Moity’s current disabling condition, that the fracture had healed, and that Mr. Moity easily passed his pre-employment physical. Moreover, the court observed, in denying benefits the Board failed to consider the physical demands on Mr. Moity in his job or his exemplary service as a fireman. The district court ordered the Board to pay Mr. Moity his “job related disability benefits.”

This appeal, taken by FRS, followed. Mr. Moity answered the appeal, urging that even if the Board correctly found that he had a preexisting condition, he is still entitled to retirement benefits pursuant to La. R.S. 11:2258(B).

^DISCUSSION

At the outset, the parties debate the appropriate standard of judicial review governing the Board’s determination of Mr. Moity’s disability status. Mr. Moity urges that the judicial review provision of the Louisiana Administrative Procedure Act (LAPA) applies, pursuant to which the district court owed no deference to the Board’s ruling and was authorized to make its own determination by a preponderance of the evidence. La. R.S. 49:964(G)(6). FRS contends that the LAPA does not govern the scope of judicial review of the Board’s ruling because there has been no “adjudication” as that term is defined in the LAPA. FRS submits that the traditional standard of review accorded to administrative decisions applies in this case, which limits a court to determining whether the agency action was unreasonable, arbitrary and capricious, or whether it amounted to an abuse of discretion.

We agree with FRS’s position. Judicial review is available under the LAPA only when there is a “final decision or order in an adjudication proceeding.” La. R.S. 49:964(A). The LAPA defines an “adjudication” as an “agency process for the formulation of a decision or order.” La. R.S. 49:951(1). A “decision” or “order” is defined in the LAPA as “the final disposition ... of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing....” La. R.S. 49:951(3).

It is well settled that an “adjudication” for the purpose of the LAPA means an agency proceeding that results in a disposition that is required to be made, by constitution or statute, after notice is given and a hearing is held. Delta Bank & Trust Company v. Lassiter, 383 So.2d 330, 333 (La.1980). Thus, unless some statute or the constitution requires a hearing, an 18agency action is not an adjudication for the purpose of the LAPA. Id.; Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185, p. 9 n. 7 (La.10/16/01), 797 So.2d 656, 662 n. 7; Government Computer Sales, Inc. v. State through Division of Administration, 98-0224, p. 5 (La.App. 1 Cir. 9/25/98), 720 So.2d 53, 56.

There has been no showing that the Board is constitutionally or statutorily required to hold a hearing for the benefit of a disability retirement applicant. Moreover, no adjudication proceeding was, in fact, conducted before the Board in connection with Mr. Moity’s disability retirement application. Therefore, we find that there was no “adjudication” by the Board so as to trigger the applicability of the LAPA’s judicial review provision. However, it is well settled that the right of judicial review of administrative proceedings is presumed to exist. Delta Bank & Trust Company, 383 So.2d at 335. The scope of review of administrative agencies in the performance of a discretionary duty is restricted to a determination of whether the agency’s action can be deemed to have been unreasonable, arbitrary or capricious, or whether it amounted to an abuse of power. Delta Bank & Trust Company, 383 So.2d at 335. See also Gibson v. Firefighters’ Retirement System, 2001-1585, p. 2 n. 1 (La.App. 1 Cir. 6/21/02), 822 So.2d 98, 99 n. 1 (finding a disability determination by the Firefighters’ Retirement System’s Board of Trustees was in error under this lesser standard of review, and pretermitting whether the LAPA applied.)

Employing the proper standard of review, we nevertheless find that the Board was unreasonable and arbitrary in finding that Mr. Moity is not entitled to disability retirement under La. R.S. 11:215 and La. R.S. |flll:2258(B). Louisiana Revised Statutes 11:215(A), provides as follows:

A member who becomes disabled, and who files for disability benefits while in service, and who upon medical examination and certification as provided for elsewhere in this Subpart, is found to be totally disabled solely as the result of injuries sustained in the performance of his official duties, or for any cause, provided the member has at least five years of creditable service and provided that the disability was incurred while the member was an active contributing member in active service, shall be entitled to disability benefits under the provisions of R.S. 11:2258(B). (Emphasis added).

Louisiana Revised Statutes ll:2268(B)(l)(c) <& (d) provide for the following disability retirements:

(c) Any member who is totally disabled from an injury received in the line of duty, even though the member may have less than five years of creditable service, shall be paid, on a monthly basis, an annual pension of sixty percent of the average final compensation being received at the time of disability.
(d) Any member of the system who has become disabled or incapacitated because of a continued illness or as a result of any injury received, even though not in the line of duty, and who has five years of creditable service, but is not eligible for retirement under the provision of R.S. 11:2256 may apply for retirement under the provision of this Section and shall be retired on seventy-five percent of the retirement salary to which he would be entitled under R.S. 11:2256 if he were eligible thereunder or twenty-five percent of the member’s average salary, whichever is greater.

Read in conjunction, these provisions set forth two types of service-connected disability retirements: (1) an “in the line of duty” benefit for a disability resulting solely from injuries sustained in the performance of the employee’s official duties (La. R.S. 11:215 and La. R.S. ll:2258(B)(l)(c)); and (2) a benefit for disabilities because of a “continued illness” or as a result of an injury received outside the line of duty, despite the cause thereof, provided that the disability was incurred while the member was an active contributing member in active service (La. R.S. 11:215 and La. R.S. ll:2258(B)(l)(d)).

| min Guillory v. State Police Retirement Board) 402 So.2d 161 (La.App. 1 Cir.), writ denied, 404 So.2d 1260 (La.1981), involving the retirement provisions at issue, the court distinguished between “in the line of duty” disability retirement and a disability retirement because of a “continued illness.” As in the present case, the percentage of salary at which a disabled police officer retired differed considerably depending on whether the disability was “in the line of duty” or resulted from a “continued illness.” At issue before this court was whether a state police officer, whose heart condition was aggravated over a period of many years, partly as a result of his employment as a police officer, was entitled to a disability retirement as one who sustained an injury “in the line of duty” or as one who was disabled as a result of a “continued illness.” The court held that a serious heart disease, aggravated over a period of many years, partly as a result of the performance of one’s work, constituted a “continued illness.” In reaching this conclusion, this court set forth the following test to determine whether a disability constitutes an “injury” or a “continued illness”:

There must be a cut-off point, however, at which an injury is so insubstantially, slowly or imperceptibly received or sustained as a result of the employment that it is not an “injury” in and of itself, but a “continued illness.” An aggravation of a preexisting condition in cases of more precipitous development of the illness falls under [La. R.S. 40:1428](B)(2) as an “injury”, and in cases in which the development was more gradual and less directly related to employment (or not related at all) falls under [La. R.S. 40:1428](B)(3) as a “continued illness”.

Guillory, 402 So.2d at 163.

Considering the facts of this case, the district court clearly' was correct in finding that Mr. Moity is entitled to service-connected disability [ ^ retirement benefits. Two physicians, when questioned by the Board on the issue of causation, certified that Mr. Moity’s advanced osteoarthritis of his hip resulted in part because of the rigors of his job as a firefighter, and that the preexisting trauma to his hip was aggravated over the course of his employment, which subsequently led to Mr. .Moity’s present disabled condition. Dr. Broussard attested that Mr. Moity’s disabled condition did not pre-date his employment. Therefore, based on the specific facts and medical evidence presented in this case, the Board erroneously applied La. R.S. 11:216 to deny Mr. Moity disability retirement benefits. Because Mr. Moity’s disability occurred during the time he was actively employed as a firefighter, he is entitled to a service-connected disability retirement under La. R.S. 11:215 and La. R.S. 11:2258(B).

Although we agree that the district court correctly ordered FRS to pay Mr. Moity disability benefits, the district court did not determine the type of disability benefit to which Mr. Moity is entitled. The district court merely stated that Mr. Moity was entitled to “job related disability benefits”; however, benefits under either La. R.S. ll:2258(B)(l)(c) or (d) could be “job related.” We find no need to remand the case to the district court to clarify the judgment. The evidence established that one of the causes of Mr. Moity’s disabling hip condition was an old fracture that did not .occur in the line of duty. Moreover, his disabling hip condition developed gradually over a 14-year period. The combination of the preexisting degenerative process caused by the old fracture and the demands of his job led to Mr. Moity’s disabling condition. Under these circumstances, we find that Mr. Moity’s degenerative hip disease is a “continued illness” for which he is entitled to a disability retirement under La. R.S. ll:2258(B)(l)(d). Accordingly, FRS is [^ordered to pay Mr. Moity disability retirement benefits in accordance with this provision.

CONCLUSION

For the foregoing reasons, the judgment appealed from is amended to order FRS to pay Mr. Moity disability retirement benefits under La. R.S. 11:215 and La. R.S. ll:2258(B)(l)(d). As amended, the judgment is affirmed. All costs of this appeal, in the amount of $455.84, are assessed to appellant, Firefighters’ Retirement System.

AMENDED AND AS AMENDED, AFFIRMED.

GUIDRY, J., concurs in the result.

      . The first judgment signed by the district court did not contain appropriate decretal language concerning Mr. Moity’s claim. In response to a show cause order issued by this court, an amended judgment was signed by the district court that rendered judgment in favor of Mr. Moity and against FRS, ordering FRS to pay Mr. Moity his job-related disability benefits. Thereafter, this court maintained the appeal.

      . Mr. Moity's estimated benefit amount for a “job related” disability is $1,725.45, as opposed to a "non-job related” maximum of $993.02 and minimum of $718.94.


author: GAIDRY, J.

text:
    Peggy SHARP, Tommie Jane Dunaway, and Henry Sharp v. BELLE MAISON NURSING HOME, INC., North Oaks Medical Center, Gregory Allen, M.D., and Tangipahoa Parish Coroner, Richard Wayne Foster.
    No. 2006 CA 1107.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Carol E. Parker, Charles J. Fulda, IV, Ponchatoula, Counsel for Plaintiffs/Appellants Peggy Sharp, Tommie Jane Duna-way, and Henry Sharp.
    Carey J. Guglielmo, Valerie A. Judice, Baton Rouge, Counsel for Defendant/Ap-pellee Richard Wayne Foster.
    Charles A. Schutte, Jr., Baton Rouge, Counsel for Defendant Belle Maison Nursing Home.
    Alton B. Lewis, Hammond, Counsel for Defendant North Oaks Medical Center.
    James R. Strain, Jr., Slidell, Counsel for Defendant Gregory Allen, M.D.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

|¡«This.appeal challenges the action of the trial court in sustaining a peremptory exception raising the objection of no cause of action. We affirm.

BACKGROUND

On July 29, 2004, plaintiffs, Peggy Sharp, Henry Sharp and Tommie Jane Dunaway, the surviving children of Neva Sharp, filed this lawsuit against Belle Mai-son Nursing Home, Inc. (Belle Maison), North Oaks Medical Center, Dr. Gregory Allen, and the Tangipahoa Parish Coroner, Dr. Richard Wayne Foster. Plaintiffs asserted that on July 28, 2003, their 92-year old mother, a resident of Belle Maison, was negligently dropped to the 'floor by a Belle Maison nurse’s aide, which caused her to suffer an injury to her left leg and other bodily injury.

In their petition, plaintiffs made the following allegations: Mrs. Sharp’s daughter, Peggy Sharp, was present when her mother was dropped by the nurse’s aide and demanded that nursing home personnel call Dr. Gregory. Allen, her mother’s primary care physician. Peggy. Sharp was informed that her mother would be seeing another doctor later that afternoon for a previously scheduled appointment. During the day, Peggy Sharp repeatedly requested that the staff contact Dr. Allen and arrange for an x-ray of her mother’s left leg; however, Mrs. Sharp did not receive medical attention for the leg injury that day.

The following day, Mrs. Sharp was taken to North Oaks Medical Center complaining of chest pains. Peggy Sharp’s request that hospital personnel take an x-ray of her mother’s left leg was denied. While in the hospital, Mrs. Sharp continued to complain of pain in her left knee. Later that evening, Mrs. Sharp died. Following her mother’s death, Peggy Sharp | c.demanded that Dr. Allen obtain an x-ray of her mother’s leg, but he refused, stating that Mrs. Sharp died from a heart attack, not a leg injury.

Mrs. Sharp’s body was moved to a funeral home, and Peggy Sharp telephoned the Tangipahoa Parish Coroner’s Office in an attempt to have someone investigate her mother’s knee injury. An investigator from the coroner’s office went to the funeral home and confirmed that Mrs. Sharp’s knee was in fact bruised and swollen. Peggy Sharp requested that the investigator arrange for an x-ray of her mother’s leg or for an autopsy. However, the investigator refused the request on the basis that Dr. Allen had reported that Mrs. Sharp died from a heart attack, not a leg injury.

Plaintiffs averred that the pain suffered by their mother as a result of the fall and lack of medical attention for over twenty-four hours caused or precipitated her heart attack. They levied numerous allegations of negligence as to the nursing home, the hospital, and Dr. Men, based on their mother’s fall and the lack of medical treatment for her knee injury. They alleged that the coroner, Dr. Richard Foster, was negligent in: (1) failing to take an x-ray of Mrs. Sharp’s injured knee, despite repeated requests by her daughter; (2) failing to order and/or conduct an autopsy on Mrs. Sharp, despite her daughter’s request; (3) failing to hire, train and supervise assistants to respect the reasonable wishes of the grieving relatives of the deceased; and (4) failing to preserve evidence, including but not limited to x-rays of the injuries, evidence of the fall, the extent of the injuries sustained, the effect of the injuries on Mrs. Sharp’s well-being, the effect of the fall precipitating the heart attack, and the cause of the heart attack.

The coroner filed a peremptory exception raising the objection of no cause of action, maintaining that he was under no duty to assist the family by preserving evidence of alleged negligence of other health care providers, | ¿including taking a postmortem x-ray. Furthermore, he asserted, the allegations of the petition demonstrated that an investigator with the coroner’s office did view the body, noted the condition of the left knee and determined the cause of death was a heart attack. The coroner also claimed that he did not owe a duty to perform an autopsy on Mrs. Sharp, as the evidence showed that she died from a heart attack, and there was no allegation that the violation of a criminal statute contributed to her death.

Following a hearing, the trial court sustained the exception of no cause of action. This appeal, taken by plaintiffs, followed.

DISCUSSION

The peremptory exception raising the objection of no cause of action is a procedural device used to determine the sufficiency in law of the petition. LeJeune v. Causey, 93-0455 (La.App. 1 Cir. 3/11/94), 634 So.2d 34, 36. The exception tests whether, under the allegations of the petition, the law affords the plaintiff any remedy for the grievance asserted and is triable on the face of the pleadings. In ruling on the exception of no cause of action, a court must accept all allegations of the petition as true, and no evidence may be introduced to support or controvert the objection. Id.

Louisiana Revised Statutes 33:1551 et seq. set forth the duties and responsibilities of a coroner. In certain cases, a coroner has a duty to either view the body or make an investigation into the cause and manner of death, such as where the death is suspicious, unexpected, or unusual. La. R.S. 33:1563(A)(1). However, when there is a reasonable probability that the violation of a criminal statute contributed to the death, the coroner is | Brequired to perform an autopsy. La. R.S. 33:1563(B)(1); LeJeune, 634 So.2d at 36-37.

Plaintiffs insist that the coroner was legally obligated to perform an autopsy under La. R.S. 33:1563(B)(1) because there was a reasonable probability that the violation of a criminal statute by the nursing home staff contributed to Mrs. Sharp’s death. Although they did not point to any criminal violations in their petition, .plaintiffs contend that the factual allegations contained therein support a finding that the nursing home staff violated La. R.S. 14:93.3(A), which provides criminal penalties for acts of cruelty to the infirmed. Further, they insist, the staff was guilty, among other things, of criminal negligence under La. R.S. 14:12 and negligent homicide under La. R.S. 14:32(A). Thus, plaintiffs insist, the allegations of the petition state a viable cause of action for damages against the coroner.

The coroner, on the other hand, asserts that he did not owe a duty to plaintiffs to perform an autopsy of Mrs. Sharp or investigate her death. He points to LeJeune, 634 So.2d at 37, wherein another panel of this court stressed that the coroner’s primary duty under the legislative scheme is to determine the possibility of violations of criminal law or the existence of public health hazards in certain cases of death. In LeJeune, this court stated that the duty statutorily imposed on the coroner is for the benefit of the sovereign, and not the private individual or the individual’s private interest. Id.

Moreover, the coroner asserts, the allegations of the petition do not support plaintiffs’ claim that there existed a reasonable probability that a violation of a criminal code violation contributed to Mrs. Sharp’s death, and therefore, he had no statutory duty to perform an autopsy. In support of this claim, the coroner stresses that: (1) plaintiffs alleged only negligent conduct Lin the petition; (2) Mrs. Sharp died in a hospital while being attended to by medical personnel; (3) Mrs. Sharp’s primary care physician opined that she died of a heart attack; and (4) an investigator with the coroner’s office conducted an examination and did not determine that a reasonable probability existed that criminal conduct contributed to Mrs. Sharp’s death.

We agree with the coroner’s position and hold that the allegations of the petition do not give rise to any cause of action against Dr. Foster, in his capacity as the Coroner for the Parish of Tangipahoa, for which the law provides a remedy. Louisiana Revised Statutes 33:1563(B)(1) does not impose a duty on the coroner to conduct an autopsy for the benefit of private individuals, and therefore, the failure to conduct an autopsy does not give rise to a cause of action for damages to private individuals such as plaintiffs. Furthermore, even if the statute could be read to extend a remedy to private persons • against a coroner, we find that the facts alleged do not support a conclusion that the- coroner had a duty to perform an autopsy under La. R.S. 33:1563(B)(1).

In this case, accepting the facts alleged as true, a 92-year old female died in a hospital after sustaining a heart attack. The coroner’s agent investigated her death, noted the condition of her left leg, and was apprised that Mrs. Sharp’s physician concluded she died from a heart attack. Plaintiffs failed to allege facts to show that there was a basis for the coroner to believe that there was a reasonable probability that the violation of a criminal statute contributed to Mrs. Sharp’s death.

|7For the foregoing reasons, the judgment of the trial court sustaining the peremptory exception raising the objection of no cause of action is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.

      . At the outset, we note that plaintiffs claim La. R.S. 33:1563(A) is unconstitutionally vague. Plaintiffs did not specifically plead the unconstitutionality of this provision, but did raise the issue in a memorandum in opposition to the exception of no cause of action. Even if we were to find the constitutional issue was properly raised, it is clear that the constitutionality of La. R.S. 33:1563(A) has absolutely no relevance to a cause of action asserted against the coroner under an entirely different provision, La. R.S. 33:1563(B)(1), and we decline to address this matter-further.

      . Because plaintiffs cannot cure the defect of failing to state a cause of action against Dr. Foster by simply amending their petition to set forth with specificity those criminal statutes the nursing home staff may have violated, the trial court did not err 'in not giving plaintiffs an opportunity to amend the petition.


text:
    STATE of Louisiana v. Roderick D. JACKSON.
    No. 2006 KA 1904.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.
    Walter P. Reed, District Attorney, Cov-ington, Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, Counsel for Appellee State of Louisiana.
    Mary E. Roper, Baton Rouge, Counsel for Defendant/Appellant Roderick D. Jackson.

      Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

| ^Defendant, Roderick Jackson, was charged by bill of information with being a convicted felon in possession of a firearm, a violation of LSA-R.S. 14:95.1 (Count 1), and possession of more than 400 grams of cocaine, a violation of LSA-R.S. 40:967(F)(l)(c) (Count 2). Defendant entered a plea of not guilty and was tried before a jury. The jury determined defendant was guilty as charged on both counts. The trial court sentenced defendant to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence on Count l, and to twenty years at hard labor without benefit of probation, parole, or suspension of sentence on Count 2, with these sentences to run concurrently-

The state instituted habitual offender felony proceedings against defendant. Following a hearing, the trial court adjudicated defendant as a fourth felony habitual offender. After vacating the previously imposed sentence on Count 2, the . trial court sentenced defendant to life in prison without benefit of probation, parole, or suspension of sentence on Count 2.

Defendant appeals. Following our review of his appeal, we' affirm his convictions, habitual offender adjudication, and sentences.

FACTS

On June 2, 2005, Detective Steve Gaudet of the St. Tammany Parish Sheriffs Office was cleaning out his personal storage unit at Liberty Storage located at 70521 Highway 21 in Covington. Detective Gaudet, who was a twenty-eight year veteran narcotics officer with the New Orleans Police Department prior to joining the St. Tammany Parish Sheriffs Office, |snoticed a black male drive up to unit 132 in a white vehicle with tinted windows. The man, later identified as defendant, got out of his vehicle and appeared to be speaking on a cell phone while looking around. Once the unit door was opened, defendant backed his vehicle all the way into the unit. Defendant stayed in the unit briefly and then left. Detective Gaudet reported these observations to the narcotics division of the St. Tammany Parish Sheriffs Office.

Upon receiving this information, Detective Allen Schulknes obtained information from Liberty Storage regarding who was renting that particular storage unit. Detective Schulknes learned that the unit was registered to a black female and the rent was timely paid in cash by this black female or a black male. Detective Schulknes then obtained permission from the manager of the storage facility to bring a drug detection dog onto the property in order for the dog to determine if there was a scent of narcotics associated with unit 132. The dog’s handler, Detective James McIntosh, brought the dog, Susie, to the facility. Detective McIntosh made two passes in front of the unit with the canine and each time the dog alerted to the lock at the bottom of the door on unit 132. Based on this information, Detective Schulknes obtained a search warrant for unit 132.

Prior to executing the search warrant, Detective Schulknes set up a surveillance of unit 132. After a short period of time, defendant arrived at the unit and opened it. The police identified themselves and approached defendant to inform him they were executing the search warrant.

Detective McIntosh brought the canine into the storage unit. According to Detective McIntosh, once he got two to three feet inside the unit, he could personally detect the odor of cocaine. The canine alerted to the presence of narcotics, at a box fifteen to eighteen feet inside the unit. The |4box contained thirty-two ounces of cocaine. A firearm (.357 Magnum) was also discovered in the unit.

Following his arrest, defendant told the officers that he could assist them in additional arrests. While in police custody, defendant waived his rights and provided a videotaped confession.

MOTION TO SUPPRESS

In his first assignment of error, defendant argues the trial court erred in denying his motion to suppress the evidence and the confession. Defendant specifically argues that the information used to obtain the search warrant in this case did not rise to the level of probable cause. Defendant further argues that his statements following his arrest should have been suppressed as fruit of the poisonous tree. '

A defendant who seeks suppression of evidence seized pursuant to a warrant has the burden of proving the grounds of his motion. The Louisiana C.Cr.P. art. 703(D); State v. McCutcheon, 93-0488 (La. App. 1 Cir. 3/11/94), 633 So.2d 1338, 1342, writ denied, 94-0834 (La.6/17/94), 638 So.2d 1093.

LSA-C.Cr.P. art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

Detective Schulknes testified that his affidavit supporting his request for a search warrant contained the information reported from Detective Gaudet regarding the suspicious activity observed at the storage unit, the information the police had learned indicating the rent on the unit was always timely paid in cash by a black male or female, and that the canine had given two alerts to the odor of illegal narcotics at unit 132.

| .^Defendant argues that the police officers presented misleading information to the judge who signed the warrant. At trial, Detective McIntosh testified that a canine would alert for the presence of narcotics, even if narcotics were no longer present in the area. Detective McIntosh also admitted that many times they were unable to locate any narcotics after searching the area of a canine alert. Defendant believes that not advising the judge who signed the warrant of such facts equates to a fraud upon the court.

We disagree. It has been recognized that a canine alert in a public place or area is not a “search” within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 707; 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); see also State v. Gant, 93-2895, pp. 1-2 (La.5/20/94), 637 So.2d 396, 397(per curiam). Moreover, a canine alert has been held to be sufficient to establish probable cause to obtain a search warrant. See State v. $107,156 U.S. Currency Seized from Marlin Morton and Richard Woods, 41,090, p. 7 (La.App. 2 Cir. 6/30/06), 935 So.2d 827, 832, writ denied, 2006-2271 (La.11/22/06), 942 So.2d 557; State v. Addison, 94-2431, p. 5 (La. App. 4 Cir. 11/30/95), 665 So.2d 1224, 1227.

The showing of probable cause sufficient for issuance of a search warrant requires much less evidence than proof beyond a reasonable doubt; magistrates and courts must test and interpret affidavits in support of search warrants in a common sense and realistic fashion. See State v. Profit, 2000-1174, p. 5 (La.1/29/01), 778 So.2d 1127, 1130 (per curiam). The trial court’s ruling on a motion to suppress evidence is entitled to great weight, because the trial court is in a position to observe the witnesses and weigh the credibility of their testimony. See State v. Jones, 2001-0908, p. 4 (La. App. 1 Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La.4/21/03), 841 So.2d 791.

| (¡In the present case, we cannot say the trial court erred in denying defendant’s motion to suppress evidence. Following the testimony that the presence of narcotics did not always follow an alert, the officer added that follow-up investigations revealed narcotics had previously been in the location of the alert. From our review, we do not find that the general possibility of canine error rendered the alert in this case invalid as a basis for probable cause to issue the search warrant. The affidavit here contained sufficient information to establish probable cause for the search warrant.

Citing the doctrine known as “the fruit of the poisonous tree,” defendant further contends that the trial court erred in denying his motion to suppress statements he made to the police. Missouri v. Seibert, 542 U.S. 600, 612 n. 4, 124 S.Ct. 2601, 2610 n. 4, 159 L.Ed.2d 643 (2004). Because we have found that the search warrant was properly issued, defendant’s statements cannot be excluded by the doctrine. Moreover, the state submitted evidence that defendant’s statements were freely and voluntarily given and that defendant signed a waiver of rights form before giving his videotaped statement. Under these circumstances, we cannot say the trial court erred in denying defendant’s motion to suppress his statements.

This assignment of error is without merit.

JURY INSTRUCTIONS

In his second assignment of error, defendant argues that the trial court erred in reading the instructions to the jury. The defendant complains that the court incorrectly indicated that defendant was charged with possession of cocaine with intent to distribute, when defendant was actually charged with possession of cocaine.

The bill of information reflects defendant was charged with being a convicted felon in possession of a firearm (Count 1) and possession of 17cocaine by knowingly and intentionally possessing four hundred grams or more of cocaine (Count 2). When the trial court began reading the charges to the jury, it stated with regard to Count 2 that “defendant is charged with possession of cocaine with the intent to distribute.” Subsequently, the trial court correctly stated that the defendant was charged with “possession of four hundred grams or more of cocaine” and then properly instructed the jury on the law pertaining to that crime.

Despite the initial error, the record indicates that defendant failed to object to the portion of the jury instructions of which he now complains. Under LSA-C.Cr.P. arts. 801(C) and 841, there had to be a contemporaneous objection to the error to preserve it as an issue for appeal. Thus, defendant’s failure to object to this portion of the jury instructions waived any such claim on appeal. See State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694, 695 (per curiam).

Accordingly, this assignment of error was not properly preserved for review.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

      . The sentencing provision in LSA-R.S. 14:95.1 B provides for a fine of not less than $1,000 nor more than $5,000. The trial court failed to institute any fine in this case. Based on State v. Price, 2005-2514 (La.App. 1 Cir. 12/28/04), 952 So.2d 112 (en banc), we hereby exercise our discretion and decline to correct the illegally lenient sentence on appeal.


author: PARRO, J. McDONALD, J., HUGHES, J.,

text:
    Janet Hall RAY v. Glen Phil RAY.
    No. 2005 CA 0873.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Carol J. Greenfield, Barnes and Greenfield, Baton Rouge, for Plaintiff-Appellee Janet Hall Ray.
    Brian L. Williams, Baton Rouge, for Defendant-Appellant Glen Phil Ray.
    Before: WHIPPLE, PARRO, GUIDRY, McDonald, and HUGHES, JJ.
   PARRO, J.

| ¡/This case involves a rule to eliminate spousal support by Glen Phil Ray and a rule for contempt by Janet Hall Ray. From a judgment denying his motion to eliminate spousal support and ordering an accounting and transfer of certain assets, Mr. Ray appealed. For the following reasons, we affirm in part and reverse in part.

Facts and Procedural History

After being married for approximately 39 years, Janet Hall Ray and Glen Phil Ray were divorced by a consent judgment dated November 17, 1997. At the time of the divorce, Ms. Ray was suffering from a cerebral hemorrhage and was unable to work. Stipulations addressing the division of all investment, retirement, and annuity accounts, spousal support, and a health insurance plan for Ms. Ray were incorporated into the November 17, 1997 consent judgment. The pertinent provisions stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered herein awarding unto the parties an equal division of all investment, retirement and annuity accounts presently identified as the Sun America in Anchor National Life Insurance Company and Westvaco Pension Account; and that the parties shall immediately execute any and all documents, including any Qualified Domestic Relations Order, necessary to effectuate the transfers of said accounts.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered herein awarding unto the petitioner, JANET HALL RAY, spousal support and permanent alimony thereafter in the amount of ONE THOUSAND SIX HUNDRED AND NO/IOO’S ($1,600.00) DOLLARS per month, retroactive to August 8, 1996, and that the parties have previously divided the retirement and investment accounts of the parties and that each party shall receive a monthly annuity/retirement check. GLEN PHIL RAY shall pay, in the form of alimony, , any and all sums which makes up the difference between the monthly retirement check received by petitioner and the amount of ONE THOUSAND SIX HUNDRED AND NO/IOO’S ($1,600.00) DOLLARS. Petitioner, JANET HALL RAY, shall notify defendant, GLEN PHIL RAY, of the monthly amount received and the difference in said amount shall be paid within fifteen (15) days of the receipt of the monthly annuity/retirement check by petitioner, JANET HALL RAY.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered herein that it is recognizable that the principal of the investment, retirement and annuity accounts shall be available to petitioner; that the parties acknowledge that the spousal support payable by defendant unto petitioner is based upon the difference between the monthly investment, retirement and annuity proceeds and the sum of $1,600.00 per month; therefore, in the event of reduction of the principal amount by petitioner, such reduction' shall create a change in circumstances and defendant shall be allowed to relitigate the issue of spousal support.

|aThe judgment further obligated Mr. Ray to pay for Ms. Ray’s health insurance premiums, 90 percent of her medical expenses that were not covered by insurance, and the insurance premium on her vehicle that belonged to the former community of ac-quets and gains.

On May 25, 2001, Ms. Ray filed a petition for partition, seeking an accounting and alleging that she no longer wished to remain co-owners in indivisión with Mr. Ray of the property that belonged to the former community of acquets and gains between the parties. In his answer, Mr. Ray averred that the property in question formerly belonging to the community had been previously partitioned via the consent judgment and constituted their separate property as of November 17, 1997. According to his allegations, Ms. Ray’s share of the balance of the investment, retirement, and annuity accounts equaled $115,682.80, and each was entitled to $451.85 of the monthly proceeds from the Westvaco pension fund annuity.

On August 27, 2002, Mr. Ray filed a rule to eliminate spousal support, based on allegations of a change of circumstances due to his looming unemployment. Shortly thereafter, Ms. Ray filed a rule for contempt, alleging that Mr. Ray had violated the terms of the consent judgment by failing to reimburse her for $5,075.22 in medical and prescription expenses, by failing to equally divide all investment, retirement, and annuity accounts, and by failing to make the principal amounts in these accounts available to her. In his answer to her rule, Mr. Ray averred that all rights and interests in the retirement/annuity accounts had been transferred to Ms. Ray.

Following a hearing on January 27 and 29, 2003, on these matters, the trial court made the following pertinent findings. The terms of the November 1997 consent judgment amounted to a bargained-for arrangement, in essence a contract. Such an arrangement was enforceable, although it precluded an adjustment in spousal support even where there had been a change of circumstances. Finding that the wording of the stipulations in the judgment was ambiguous and unclear, the trial court considered parol evidence to determine the intent of the parties. Based on the testimony presented, the trial court found that the parties, with the advice of a financial planner, had intended that Ms. Ray receive $1,600 per month in spousal support indefinitely, |4due to her physical infirmities and her inability to work. Pursuant to the terms of the consent judgment, the funds to cover her spousal support obligation were first generated by the monies received from her share of the investment, retirement, and annuity accounts. If these amounts were less than $1,600 in any given month, Mr. Ray was obligated to pay the deficiency. In the event that Ms. Ray invaded the principal amount of her accounts, Mr. Ray would then, and only then, be allowed to relitigate the amount of the permanent support. Accordingly, the trial court found that the intent of the parties was for the amount of spousal support to remain the same, regardless of any change in circumstances, unless the change was the one specifically mentioned in the stipulation.

In the resulting judgment signed on July 16, 2003, Mr. Ray was found to be in constructive contempt of court for his failure to divide the community property. Additionally, Mr. Ray’s rule to eliminate spousal support was denied, despite the fact that the evidence showed that Mr. Ray had been laid off, had incurred a large amount of credit card debt, and was depleting the principal portion of his retirement account. Each party’s portion of the principal of the investment, retirement, and annuity accounts was declared to be $115,692, and Ms. Ray’s request for past interest on her portion of the investment accounts was denied.

From the judgment denying his motion to eliminate spousal support, Mr. Ray filed a motion for a new trial. The motion was granted as to the following issues: whether permanent spousal support should be terminated or modified, whether Ms. Ray had received her portion of the investment funds, whether Mr. Ray was entitled to receive any amount remaining after Ms. Ray’s portion was paid to her, and whether Mr. Ray should be ordered to continue paying automobile insurance premiums for Ms. Ray.

The new trial was held on May 27, 2004. In its reasons for judgment, the trial court reaffirmed its prior ruling that Mr. Ray was not entitled to a termination of his spousal support obligation. The provision allowing for relitigation of the issue of spousal support in the event that Ms. Ray depleted the principal was found to be tantamount to a non-modification clause. Furthermore, the trial court ruled that the parties did not contemplate a reduction in spousal support for monthly social security | ¡^payments of $627, which Ms. Ray began receiving approximately four years after the judgment of divorce. Thus, the receipt of social security benefits was not to be considered in calculating the amount owed by Mr. Ray. According to the reasons for judgment, Mr. Ray’s monthly spousal support obligation of $1,600 was subject to reduction by the monthly earnings on Ms. Ray’s investment funds of $115,682.80 and the payments she received monthly from the Westvaco pension fund annuity. In connection with Ms. Ray’s rule for contempt, the trial court ordered an accounting of the interest gained on the investment accounts owned jointly by the Rays between the termination of the community and the division of the various accounts. The trial court also ruled that Mr. Ray was no longer obligated to pay automobile insurance premiums for Ms. Ray.

Mr. Ray appealed, contending that the trial court erred in finding that the spousal support obligation could not be modified due to a self-limiting non-modification clause contained in the consent judgment, in finding that he had not shown that he was entitled to have his spousal support obligation terminated or modified, and in ordering that he render an accounting of all interest gained during the time between the termination of the community and the division of the various accounts, without awarding him that interest.

Termination or Modiñcation of Spousal Support Obligation

Whether the amount of spousal support awarded through a consent judgment can be modified depends on the specific terms of the judgment. Twichell v. Twichell, 00-1248 (La.App. 5th Cir.11/28/00), 772 So.2d 956, 959, writs denied, 01-0133 (La.3/23/01), 788 So.2d 428, and 01-0206 (La.3/23/01), 788 So.2d 429; Bland v. Bland, 97-0329 (La.App. 1st Cir.12/29/97), 705 So.2d 1158, 1161. To bar subsequent modification of the duration and/or amount of spousal support, the consent judgment |fimust evidence a clear intent of the parties to do so. Bland, 705 So.2d at 1161. The mere listing of events which will terminate spousal support does not evidence a clear intent that the amount of spousal support can never be changed. Id. If the intent is not clear on the face of the judgment, other evidence, including but not limited to the testimony of the parties, a community property settlement, or a written stipulation, is admissible to determine the intent of the parties. Id. at 1163.

The issue to be resolved in this case is whether Mr. Ray, the obligor spouse bargained away, in part, his statutory right to have his spousal support obligation reduced or terminated due to a change in circumstances. See LSA-C.C. art. 112(A)(4) (1991); LSA-R.S. 9:311 (1997). Such a determination requires a thorough examination of the specific terms of the consent judgment for the intent of the parties.

The consent judgment in this case awarded “spousal support and permanent alimony” to Ms. Ray of $1,600 per month. Mr. Ray was ordered to pay, “in the form of alimony, any and all sums which makes up the difference. between the monthly |7retirement check received” by Ms. Ray and $1,600. The next provision in the consent judgment clarified that “the spousal support payable by [Mr. Ray] unto [Ms. Ray] is based upon the difference between the monthly investment, retirement and annuity proceeds and the sum of $1,600.00 per month.” These particular provisions did not restrict the parties’ statutorily-provided rights to modify the spousal support award, either as to duration or amount. Rather, they set forth the manner in which Mr. Ray’s monthly spousal support obligation was to be calculated. However, because Ms. Ray had the power to adversely affect the amount of her monthly investment, retirement, and annuity proceeds by reducing the principal in her account(s), thus increasing, in effect, Mr. Ray’s spousal support obligation, the consent judgment expressly stated, at Mr. Ray’s request, that a reduction by Ms. Ray of the principal amount was tantamount to a change in circumstances that would allow Mr. Ray to relitigate the issue of spousal support.

At the hearings on this matter, counsel freely questioned the witnesses called by Mr. Ray concerning the intent of the parties as to the amount and duration of the spousal support award. After reviewing the provisions of the consent judgment and deciding that they were ambiguous as to the duration and amount of the spousal support award, the trial court resorted to parol evidence in determining their intent. The trial court’s actions in this regard have not been challenged on appeal. Thus, we must determine if the parol evidence provides reasonable support for the trial court’s finding that the parties intended that Ms. Ray’s monthly spousal support award permanently remain at $1,600, absent a reduction in the principal amount of the money that she held in the investment, retirement, and annuity accounts.

The attorneys that represented Mr. Ray and Ms. Ray at the time the stipulated judgment was entered testified that Ms. Ray was to receive $1,600 per month in permanent support. The sum would be comprised of the checks from the various Raccounts and, if necessary to total $1,600, money from Mr. Ray. A financial planner, who had worked with the Rays in connection with Mr. Ray’s contemplated retirement, testified that he worked with, both parties to calculate how much Ms. Ray would need to live. According to the financial planner, a larger amount had been suggested, but the more bare-bone figure of $1,600 a month was agreed to by the parties after substantial bargaining. The testimony that Ms. Ray required $1,600 per month in order to live was uncontro-verted. Also uncontroverted was the testimony that the parties intended for Ms. Ray to receive $1,600 per month due to her physical infirmities and her inability to work. According to Ms. Ray, payment of the $1,600 was never intended to change. She testified that she would never have agreed to refrain from touching her share of the principal amount if the amount of her spousal support would have been subject to change.

Considering her medical condition, the trial court found it hard to imagine that Ms. Ray would have agreed to a lower figure if she believed her spousal support could be reduced as she aged. In fight of the evidence presented, we are unable to find manifest error as to the trial court’s finding that the parties intended that the $1,600 monthly spousal support award in Ms. Ray’s favor be permanent and subject to change only in the event that she caused a reduction in the principal amount of the specified funds. Based on this evidence as to the intent of the parties, we are unable to find error in the trial court’s finding that, pursuant to the terms of the consent judgment, Mr. Ray’s spousal support obligation would not be subject to modification as to amount or duration unless the change of circumstances fisted in that judgment occurred.

Calculation of Spousal Support

Mr. Ray sought to have the trial court recognize his right to a reduction in his spousal support obligation for the amount Ms. Ray received monthly in social security benefits. The trial court found that he was not entitled to such a reduction, since it had not been contemplated by the parties.

Although Mr. Ray testified that they discussed social security benefits being a part of the calculation of his support obligation, we recognize that the consent judgment provides for the manner in which the $1,600 would be derived. The $1,600 | a award was to be reduced by the monthly retirement check to which Ms. Ray was entitled in determining Mr. Ray’s monthly obligation. Thus, the “check” represented the proceeds to which Ms. Ray was entitled from the annuity, retirement, and investment accounts of the parties that had supposedly been divided. During the testimony of the financial planner and Ms. Ray’s former attorney, neither mentioned social security benefits as being discussed as part of the spousal support obligation. Instead, they specifically referred to the Vanguard Fiduciary Trust Company (Vanguard) check in the amount of $101,141.61, the Georgia-Pacific Salaried Employee Retirement Plan (Georgia-Pacific) check in the amount of $130,224, and the Westvaco pension fund annuity which paid out a total of $903.69 monthly. Ms. Ray confirmed that there had never been any discussion about the subtraction of future social security benefits that she might receive from the amount of spousal support to which she was entitled. Notably, Ms. Ray did not begin receiving social security benefits until approximately four years after the 1997 consent judgment. Since a reduction for receipt of such benefits was clearly not contemplated by the parties, we are unable to find error in the trial court’s determination that Ms. Ray’s monthly social security benefits were not to be used in calculating Mr. Ray’s actual spousal support obligation. Although we recognize that this holding results in a windfall to Ms. Ray, we note that the consent judgment is binding on both parties.. See LSA-C.C. art. 3078. Just as Ms. Ray would not be entitled to benefit from a windfall that might occur in the future to Mr. Ray, he is not entitled to benefit from this windfall in her favor. Had the parties intended to have future social security benefits payable to Ms. Ray considered in determining Mr. Ray’s spousal support obligation, they would have included a provision to that effect in the paragraph that expressly sets forth the manner in which Mr. Ray’s monthly spousal support obligation would be calculated. Such a result illustrates the importance of considering and covering all known or possible eventualities when negotiating and arriving at a stipulation regarding spousal support.

[ Recounting

In connection with Ms. Ray’s rule for contempt, the trial court ordered an accounting of the interest gained on the investment accounts owned jointly by the Rays between the termination of the community and the division of the various accounts. In its reasons for judgment, the trial court found that as of May 27, 2004, the parties had executed a Qualified Domestic Relations Order to have the West-vaco pension fund annuity payments divided and that Mr. Ray had transferred control in January 2003 of approximately $115,682.80 to Ms. Ray. This amount represented her one-half share of the $101,141.61 and the $130,224 checks that Mr. Ray received from Vanguard and Georgia-Pacific, respectively.

Although it recognized that the parties had stipulated in the consent judgment that all retirement and investment accounts were to be divided equally, the trial court observed that nothing in the consent judgment suggested that the division of the principal amount was a settlement of their community property. Finding that this property still belonged to the former community, the trial court, relying on LSA-C.C. art. 2338, declared that the earnings on these accounts were community property. The trial court rationalized that it would be inequitable to penalize Ms. Ray for Mr. Ray’s contemptuous behavior in failing to timely divide the retirement accounts. Accordingly, the court ordered that an accounting be made of the interest gained and that the various accounts be divided within three months of the signing of the judgment.

Notably, the consent judgment, which granted a divorce in favor of Ms. Ray, awarded the parties “an equal division of all investment, retirement and annuity accounts presently identified as the Sun America in Anchor National Life Insurance Company and Westvaco Pension Account.” The judgment required that the parties immediately execute any and all documents necessary to effectuate the transfer of said accounts.

In light of Mr. Ray’s failure to effectuate the transfer of Ms. Ray’s portion of the money, as directed in the November 1997 consent judgment, Ms. Ray filed a petition for partition on May 25, 2001. In his response to the petition for partition, Mr. Ray averred that the property in question had been previously partitioned by the consent Injudgment and constituted their separate property as of November 17, 1997. He maintained that Ms. Ray had been receiving, on a monthly basis in the form of alimony, the entirety of the interest from the investment of her portion of the principal amount, plus her portion of the Westvaco pension fund annuity.

Apparently after recognizing the merit in Mr. Ray’s assertions, Ms. Ray filed a rule for contempt in which she admitted that the consent judgment awarded the parties an equal division of all investment, retirement, and annuity accounts. She urged that Mr. Ray had violated the provisions of the consent judgment by failing to equally divide all investment, retirement, and annuity accounts, since all of these accounts remained under his sole possession and control, and by failing to make the principal of these accounts available to her.

Based on such partition, the investment, retirement, and annuity accounts, then identified as the Sun America in Anchor National Life Insurance Company and Westvaco Pension Account, no longer retained their classification as former community property. Following the partition, the Rays were no longer co-owners of the property, as such property became the separate property of the party to which it was adjudicated. See Drobnak v. Drobnak, 97-0021 (La.App. 1st Cir.2/20/98), 708 So.2d 1162, 1165. Accordingly, the trial court erred in its classification of the civil fruits produced by these accounts. Thus, the earnings on Ms. Ray’s portion of the money constituted her separate property, which should be considered in determining Mr. Ray’s financial obligation for the payment of spousal support under the terms of the consent judgment. The fact that Mr. Ray was allowed to manage Ms. Ray’s portion of the property following the November 1997 consent judgment does not change the classification of this property.

The evidence reveals that Mr. Ray ultimately deposited the funds in question in three accounts with Sun America and that he seemingly had difficulty transferring Ms. |12Ray’s portion of the funds to which she was entitled. Following their separation, Mr. Ray monitored and managed the accounts, without consultation with Ms. Ray. Ms. Ray testified that Mr. Ray did not do anything intentional to prevent the transfer; rather, he just made no effort to have it transferred. Until the filing of her petition for partition on May 25, 2001, and/or motion for contempt in the later part of 2002, she had not sought to enforce her right to obtain the release of her portion of the funds from Mr. Ray’s control.

Although we do not look with favor on Mr. Ray’s noncompliance with the terms of the consent judgment relative to the transfer of these funds, Ms. Ray could have filed an action for the execution of the partition judgment and/or a motion for contempt when Mr. Ray’s non-compliance became apparent to her, rather than waiting until May 25, 2001, or late 2002. See Williams v. Perry, 436 So.2d 1268, 1269-70 (La.App. 1st Cir.1983). Furthermore, as a result of his “contemptuous behavior,” Mr. Ray was held to be in constructive contempt of court for failing to divide the former community property, as required by the terms of the consent judgment, and Ms. Ray was awarded $500. She has not appealed from that judgment, nor has she raised this as an issue in an answer to Mr. Ray’s appeal.

Having determined that the earnings on Ms. Ray’s portion of the funds were her separate property to be used in implementing the terms of the consent judgment, we must consider whether the trial court’s order of an accounting of the interest gained on the investment accounts before a division of the accounts was appropriate under the facts of this ease. Initially, Mr. Ray testified that he did not know how much Ms. Ray’s portion of the invested funds had earned between the signing of the consent judgment and the transfer of $115,682.80 to Ms. Ray in January 2003. Subsequently, he explained that the monthly earnings on Ms. Ray’s portion of the proceeds in the investment accounts did not exceed $1,600, seemingly without consideration being given to her portion of the monthly Westvaco annuity payment, $451.85.

According to Mr. Ray, the money from Vanguard was placed into an annuity account with Sun America which was intended for his benefit and thus managed aggressively, with approximately $94,112 of the funds received from Georgia-Pacific |¡ .¡being placed in a separate fixed rate annuity intended for Ms. Ray. The remainder of the money from Georgia-Pacific was placed into a mutual fund which was owned proportionately by each. Thus, the question becomes whether Ms. Ray’s monthly earnings exceeded $1,148.15, such that Mr. Ray would have had no personal liability for the payment of any portion of the spousal support and Ms. Ray would be entitled to an accounting of the excess earnings.

Mr. Ray offered documentary evidence to show the annual earnings of the three Sun America accounts. The statements from the account with the funds from Vanguard intended for Mr. Ray simply reflect the quarterly change in the account value. The account was opened in September 1996 with $101,197.87. The following changes occurred in the year-end value of the account: $103,265.46 in 1996, $118,965.26 in 1997, $136,952.31 in 1998, $173,398.29 in 1999, $154,933.74 in 2000, $136,730.22 in 2001, and $111,942.98 in 2002. Over the six-year period, this account experienced a net increase in value of $10,745.11.

As to the Sun America annuity account that was intended for Ms. Ray’s benefit, Mr. Ray deposited $94,112 of the funds from Georgia-Pacific in October 1996. Documentary evidence offered by Mr. Ray reflects the following in annual earnings on this account: $6,049 in 1997, $3,912 in 1998, $3,659 in 1999, and $4,620 in 2000. After incurring a surrender penalty, $111,160.88 was withdrawn from this Sun America account in November 2000 and placed into an AmerUs Multi Choice Annuity. The annual earnings on the Ame-rUs account were $757.44 in 2000, $1,559.63 in 2001, and $2,479.05 for the first three quarters of 2002.

The remainder of the Georgia-Pacific funds, $36,112, was rolled over into a mutual fund with Sun America in September 1996. The total earnings produced by this account were $975.91 in 1996, $3,198.21 in 1997, $3,486.54 in 1998, $2,862.73 in 1999, $3,014.66 in 2000, $3,089.74 in 2001, and $2,196.19 in 2002. According to Mr. Ray, he and Ms. Ray shared proportionately in this account. Although an exhibit that |uwas offered at trial shows Ms. Ray as owning a 40.27 percent interest in this mutual fund, it is seemingly Mr. Ray that possessed such an interest, with Ms. Ray owning the other 59.73 percent interest. This observation is being made based on the amounts originally set aside for investment into the two Sun America annuities, $101,141.61 for Mr. Ray’s annuity and $94,112 for Ms. Ray’s annuity. With each being entitled to $115,682.80 of the total funds received from Vanguard and Georgia-Pacific, ownership of the remaining $36,112 would be comprised of $14,541.19 or 40.27 percent in Mr. Ray and $21,570.80 or 59.73 percent in Ms. Ray.

Using the annual earning figures from the annuity intended for Ms. Ray and 59.73 percent of the annual earnings produced by the mutual fund, we arrive at the following average monthly earnings on Ms. Ray’s portion of the funds that were' being managed by Mr. Ray:

Annuity Mutual Fund Total Monthly
(59.73%) Earnings
1997 504.08 159.19 663.27
1998 326.00 173.54 499.54
1999 304.92 142.49 447.41
2000 448.08 150.05 598.13
2001 129.97 153.79 283.76
2002 275.45 109.32 384.77

Clearly the average monthly earnings on the portion of the funds owned by Ms. Ray never reached or exceeded $1,148.15. Therefore, the difference between the $1,148.15 portion of the stipulated spousal support and the monthly earnings attributed to Ms. Ray’s share of the funds was always paid by Mr. Ray from his separate funds. Accordingly, there were no excess earnings for which Ms. Ray was entitled to an accounting. Based on the accounting made by Mr. Ray in this proceeding, we conclude that the trial court erred in ordering a further accounting by Mr. Ray.

Decree

For the foregoing reasons, that portion of the judgment which ordered an accounting of the interest gained on the investment amounts owned jointly by the Rays li.4s reversed. Otherwise, the judgment is affirmed. Costs of this appeal are assessed to Glen Phil Ray.

AFFIRMED IN PART AND REVERSED IN PART.

GUIDRY, J., concurs in the result.

MCDONALD, J., dissents and assigns reasons.

HUGHES, J., dissents with reasons.

McDONALD, J.,

dissenting in part and agreeing in part.

hi agree with the majority opinion except I disagree with their conclusion regarding the existence of a non-modification clause. Whether a provision qualifies as a non-modification clause depends on a careful examination of the specific terms of the consent judgment. I believe the trial court committed error in finding the clause to be ambiguous and, therefore, allowing parol evidence to show the parties’ intent. The parties do not agree as the reason for the introduction of parol evidence at the hearing. Ms. Ray suggests it was to show the parties’ intent and meaning of the clause. Mr. Ray suggests it was to clarify whether or not Ms. Ray was allowed to invade the principal portion of the investment. I do not find any ambiguity in the clause. Further, whether a contract/clause is ambiguous is a question of law. Parties cannot stipulate to the disposition of legal issues. While Ms. Ray was allowed to reduce the principal portion of the investment “such reduction shall create a change in circumstances and defendant shall be allowed to relitigate the issue of spousal support.” While creating one instance that would create a change in circumstances, it certainly does not create the only instance.

A non-modification clause effectively eliminates the rights of a party. Thus, there should be no question whatsoever about whether such a clause exists. The clause should unequivocally set forth the issues involving non-modification. It should demonstrate the clear intent of the parties to bar 12subsequent modifications of the amount of the award. Bland v. Bland, (La.App. 1 Cir. 12/29/97), 705 So.2d 1158, 1161. This clause does not demonstrate such an intent. The majority has cited several cases and the clauses in each are instructive.

In Ellefson v. Ellefson, (La.App. 5 Cir. 3/17/93), 616 So.2d 221, writ denied, 617 So.2d 1183 (La.1993), the child support provision provided, “[T]his contractual amount of child support is not subject to increase or decrease for any reason whatsoever.” Similarly, the amount of alimony also had the same condition, that it “is not subject to increase or decrease for any reason whatsoever.” The trial court denied any attempt to modify the alimony agreement finding it was a non-modification clause and was subject to the law of transaction or compromise. However, the court concluded that child support agreements are always subject to modification upon a showing of a change in circumstances regardless of language to the contrary. The appellate court affirmed both. In the case sub judice the issue is spousal support or alimony and not child support. The language in Ellefson is plain, unambiguous, and clear. There can be no question by either party or by anyone else what the provision means. It plainly states that there will not be an “increase or decrease for any reason whatsoever.” In other words, it will not be modified for any reason whatsoever.

In Megison v. Megison, (La.App. 5 Cir. 9/14/94), 642 So.2d 885, the court upheld the non-modification clause as it pertained to alimony, but remanded the case for a determination of how much of the award was for alimony and how much was for child support since the child support portion was subject to future modification regardless of the language used. The language at issue provided:

Is...said sum to continue until the death or remarriage of Mary Elizabeth Mon-teleone Megison or until a final finding that she is guilty of living in open concubinage as that term is used in LCC art. 160. There are the only termination or modification events. However, in the event that Dr. Megison’s salary falls below $20,000.00 gross per month and $15,000.00 net after tax income per month, then and in that event Dr. Megi-son will pay the defendant one-half (1/2) of his net after tax income per month, with the monthly shortfall between $7,000.00 and the reduced amount to be made up at the end of the year out of bonuses or other funds from his employment if existing.

Unlike the provision in the case at bar, this provision provides very explicitly what the modification events are.

In Bland v. Bland, (LaApp. 1 Cir. 12/29/97), 705 So.2d 1158, 1161, the court found the provision addressed only the duration of the spouse’s entitlement to alimony, not the right of the parties to later seek a modification of the amount. The provision at issue provided that alimony would be paid until Mrs. Bland remarries. Thus, it was not a non-modification clause.

In Stout v. Stout, (La.App. 3 Cir. 10/7/98), 719 So.2d 727, 729, the court held that “[T]he simple fact that a judgment provides that alimony is “payable until death or remarriage” does not evidence a clear intent that the amount of alimony payable is not subject to modification.” Thus, the court, as in Bland, found the phrase was not a non-modification clause.

In Twichell v. Twichell, (La.App. 5 Cir. 11/28/00), 772 So.2d 956 the clause at issue provided that the “payments will continue until she remarries or until defendant retires, whichever event occurs sooner, or as otherwise provided by law.” While neither triggering event had occurred, the court found that the phrase “or as otherwise provided by law” was enough authority to allow for an attempt to modify the amount of alimony that was being paid. Thus, again, this was not clearly an attempt to create a non-modification clause.

Lin the two cases where a non-modification clause was found, the clause is clear and unequivocal. There can be no question about the intent of the parties. I cannot agree that the clause at issue herein provides such a clear, unequivocal intent by the parties to forbid future modifications. Therefore, for the foregoing reasons I respectfully dissent in that portion of the majority opinion affirming the finding of a non-modification clause.

HUGHES, J.,

dissenting.

|,I respectfully dissent.

The clause at issue as a matter of law is not a non-modification clause.

Although some evidence apparently was taken, I think the matter should be remanded so that full evidence, including both parties’ social security, can be taken without the misconception of the non-modification clause limiting the evidence or skewing the application of the correct burden of proof.

      . In 1997, the Louisiana Civil Code articles governing spousal support, including Article 112 pertaining to permanent spousal support, were amended by 1997 La. Acts, No. 1078, § 1, effective January 1, 1998. Ms. Ray filed her petition for divorce and support before this date; therefore, the former substantive support provisions apply. See LSA-C.C. art. 6.

      . Permanent spousal support is not a matter of public order about which couples are forbidden to contract under LSA-C.C. art. 7. Instead, spouses are permitted to contract concerning permanent spousal support at any time before or during marriage, or after divorce. See McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85, 87.

      .In ruling on this matter, we considered the following jurisprudence that has addressed the validity of various non-modification clauses. The consent judgment in Megison v. Megison, 94-152 (La.App. 5th Cir.9/14/94), 642 So.2d 885, 888, writ denied, 94-2823 (La. 1/13/95), 648 So.2d 1344 (abrogated on other grounds), provided for a monthly payment of $7,000 by Dr. John W. Megison for the support of Ms. Megison and his minor child, with such payment "to continue until the death or remarriage of [Ms.] Megison or until a final finding that she is guilty of living in open concubinage as that term is used in LSA-C.C. art. 160." Id. at 886-87. The judgment further provided:
      These are the only termination or modification events. However, in the event that Dr. Megison’s salary falls below $20,000.00 gross per month and $15,000.00 net after tax income per month, then and in that event Dr. Megison will pay the defendant one-half (1/2) of his net after tax income per month, with the monthly shortfall between $7,000.00 and the reduced amount to be made up at the end of the year out of bonuses or other funds from his employment if existing.

        Id. at 887. Following a hearing on a rule to reduce his child support obligation, the court found that to the extent that the $7,000 award, with a non-modification provision, was for spousal support, it was legal, enforceable, and not subject to modification. Id. at 888. Since none of the specified termination or modification events had occurred, the court found that Dr. Megison had failed to state a cause of action for a reduction in spousal support. Id. at 888.
      In Ellefson v. Ellefson, 616 So.2d 221, 222-23 (La.App. 5 Cir.1993), writ denied, 617 So.2d 1183 (La. 1993), a provision for permanent periodic alimony of $6,000 per month for twenty years, "not to be subject to increase or decrease for any reason whatsoever,” was found to contain a specific prohibition against modification, thus amounting to a non-modification clause. Such a contract, even though providing for alimony in excess of one-third of the payor's income, was found not to be in derogation of public law and constituted the law between the parties. Id. at 223.
      Where a stipulation in a consent judgment set forth a schedule of decreasing payments of alimony until the mortgage on the home was paid off, and thereafter specified a sum payable until the payee spouse died or remarried, the court in Stout v. Stout, 97-1508 (La.App. 3rd Cir.10/7/98), 719 So.2d 727, found that the trial court erred in sustaining an exception raising the objection of no cause of action in a rule by the payor spouse to decrease permanent alimony. This finding was based on the fact that the stipulation was silent as to whether the parties intended to prohibit modification based on a change in circumstances and the pleadings raised serious questions about the intent of the parties. Id. at 730.

      . Ms. Ray was required to notify Mr. Ray of the monthly amount received. He was obliged to pay the difference within 15 days of Ms. Ray’s receipt of the monthly annuity/retirement check.

      . Notably, the consent judgment did not expressly provide for the termination of spousal support in accordance with the law. See LSA-C.C. art. 112(A)(4) (1991).

      . The judgment provided that the principal of the investment, retirement, and annuity accounts were to be available to Ms. Ray.

      . While the partition of the community property in question may not have formed a demand of Ms. Ray’s petition for divorce, it was apparently agreed on by the mutual consent of the parties. Therefore, this agreement formed a valid and enforceable portion of the consent judgment. See McLain v. McLain, 486 So.2d 1044, 1047 (La.App. 2nd Cir.1986).

      . -Prior to their separation, Mr. Ray and Ms. Ray worked with their financial advisor and chose Sun America.

      . $1,600 less $451.85 (Westvaco annuity payment) equals $1,148.15.

      . This account was reduced by $12,500 on August 5, 1998, on account of a withdrawal by Mr. Ray.

      . We are confident that the absence of the $12,500 withdrawal by Mr. Ray from the mutual fund in August 1998 would not have resulted in a contrary ruling.