author: SCHOTT, Judge.

text:
    Clarence J. ALOMBRO, Jr. v. CAMPBELL “66” EXPRESS, INC. and International B. F. Goodrich Company.
    No. 8626.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 1977.

      Bienvenu, Poster, Ryan, & O’Bannon and H. F. Foster, III, New Orleans, for defendant-appellee.
    Gertler & Gertler and M. H. Gertler, New Orleans, for plaintiff-appellant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This is before us on a motion by Campbell “66” Express, Inc. to be relieved of appeal costs.

The judgment of the District Court dismissed plaintiff’s suit against mover on the main demand and dismissed mover’s third party demands as moot.

Plaintiff filed a timely application for rehearing, but mover did not. Near the deadline for mover’s taking a devolutive appeal, it filed a petition for a devolutive appeal specifically reciting that the appeal was being taken as a protective measure to guard against the contingency of plaintiff taking an appeal and securing a reversal on appeal of the judgment of the trial court dismissing his demand against mover.

Pursuant to Act 708 of 1976, LSA-C.C.P. Art. 2126, the clerk of the district court gave notice to mover that its estimated appeal costs were $10, which mover paid.

Thereafter, plaintiff took a devolutive appeal from the judgment against him and the clerk on March 1, 1977, gave notice to plaintiff pursuant to Act 708 of 1976 that estimated appeal costs of $260 were due. On March 10, 1977, however, the clerk sent amended notices to plaintiff and mover advising that they were each to pay estimated costs of $130, thereby splitting the estimated costs previously billed to plaintiff.

We decline to entertain the motion in this court, not because we think that it has no merit but because we have resolved that the district court has jurisdiction over the issue involved.

In Acosta v. Masters, 336 So.2d 948 (La.App.4th Cir. 1976) we considered whether this court or the district court had jurisdiction over a rule filed by the appellant to obtain relief from transcript cost relative to his appeal. We held that under C.C.P. Art. 2088, which divests the trial court of jurisdiction “over all matters in the case reviewable under the appeal,’’ the district court retained jurisdiction over that rule because the question was not one reviewable under the appeal. The same rationale dictates that this question of relief by mover from what it considers to be an excessive estimate of appeal costs, pursuant to Act 708 of 1976, is likewise a matter not reviewable under the appeal, so that the district court has original jurisdiction over this motion. We accordingly transfer this motion to the district court.

The district court has already granted an extension of the 20-day time limit provided by Art. 2126 for the payment of the costs by mover, and the article specifically limits the trial court to one such extension. In order to protect mover’s right, we exercise our supervisory jurisdiction and order suspension of the 20-day time limit pending action by the trial court on this motion which we hereby transfer.

MOTION TRANSFERRED TO DISTRICT COURT, TIME LIMIT FOR PAYMENT OF COSTS SUSPENDED.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Pauline LYONS, Plaintiff-Appellant, v. Donald Ray FONTENOT, Defendant-Appellee.
    No. 5789.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      A. J. Plaisance, Lafayette, for plaintiff-appellant.
    Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

This action was instituted by Mrs. Pauline Lyons against Donald Ray Fontenot. Plaintiff seeks to annul an earlier judgment which decreed a divorce between the parties, and following that annulment she demands judgment in her favor decreeing a divorce between her and defendant, awarding her the custody of her two minor children, and condemning defendant to pay alimony and child support. The trial court rendered judgment maintaining an exception of prescription, an exception of no right or cause of action and an exception of res judicata, all filed by defendant. Plaintiff appealed.

The issues presented on this appeal are whether the trial court erred in maintaining any or all of the above exceptions.

On April 30, 1973, Donald Ray Fontenot filed a suit for divorce against Pauline Lyons, alleging as grounds therefor that the parties had been living separate and apart for more than two years. Fontenot also alleged that one child, Kevin Ray Fon-tenot, had been born of that union. No answer was filed by the defendant, and on May 30, 1973, a default judgment was rendered by the district court in favor of Fon-tenot, decreeing an absolute divorce between the parties, granting Mrs. Lyons the custody of the minor child, Kevin Ray Fon-tenot, and ordering Fontenot to pay child support of $50.00 per month.

The instant suit was filed by Pauline Lyons on June 25, 1976. In her original petition, plaintiff did not seek to have the divorce decree annulled. She alleged that two children were born of her marriage to defendant, one of whom was Kevin Ray Fontenot, who was then nine years of age, and the other was Lauri Fontenot, who was five years of age. Plaintiff demanded judgment awarding her the custody of the younger child (she previously having obtained custody of the older one), support for that child, and alimony and attorney’s fees. In response to that original petition, defendant Fontenot filed, among other pleadings, an exception of res judicata, seeking the dismissal of “that portion of her petition which seeks to declare that an additional child was born of their marriage.”

Shortly after the above exception was filed, plaintiff Lyons filed a supplemental petition in which she demands judgment in her favor and against defendant Fontenot (1) annulling the divorce decree which was rendered in the earlier suit on May 30,1973, (2) decreeing an absolute divorce between plaintiff and defendant, (3) awarding plaintiff the custody of both of her minor children, and (4) condemning defendant to pay alimony and child support. Alternatively, plaintiff prays for the relief which she sought in her original petition.

In response to that supplemental petition, defendant Fontenot filed several pleadings, including (1) an exception of no cause and no right of action, and (2) an exception of prescription. The minutes of the court show that “arguments of counsel” were heard on July 23, 1976, and that the trial court then rendered judgment maintaining the three above mentioned exceptions. The record indicates that no evidence was introduced at the hearing held on July 23.

Following the above arguments, a formal judgment was read and signed by the trial judge on August 12, 1976, the pertinent parts of which read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that defendant’s exception of prescription to plaintiff’s suit for nullity of a divorcé judgment for vices in substance be maintained.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant’s exception of no right or cause of action to plaintiff’s suit to annul a judgment due to vices of form is maintained.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant’s exception of res judicata regarding the number of children born of the marriage of Donald Ray Fontenot and Pauline Lyons is maintained.”

Plaintiff appealed from that judgment, and it is that appeal which is before us now.

We consider first the question of whether the trial court erred in maintaining the exception of no right or no cause of action filed by defendant.

Exception of No Right or No Cause, of Action

In the exception of no right or no cause of action which Fontenot filed to plaintiff’s supplemental petition, he prayed that the action be dismissed only as to “that part of her petition which seeks to declare the judgment ... a nullity because of vices in form, in particular, lack of jurisdiction.” The trial judge rendered judgment maintaining that exception. He did not assign reasons for that judgment, but we assume that he felt that the exception should be maintained on the grounds alleged in the pleadings.

We have decided that the exception of no cause of action was properly maintained by the trial court, but we prefer to base that decision on grounds different from those which we assume were relied on by the trial judge.

One of the principal demands contained in plaintiff’s supplemental petition is that the default judgment of divorce, which was rendered in a separate suit on May 30,1973, be decreed to be null and void under LSA-C.C.P. arts. 2001-2006, on grounds that it was obtained by fraud or ill practices. She alleges the following facts to support that demand:

“5. The above stated judgment should be annulled because of vices of form in that this Court did not have jurisdiction because Donald Ray Fontenot was not residing in St. Landry Parish, Louisiana when the alleged grounds for the divorce took place.
“6. Plaintiff has never voluntarily acquiesced in the judgment because she was not informed of the fact that the judgment of divorce had been rendered until her undersigned attorney advised her by letter dated May 24, 1976.
“6. Further, the judgment of divorce should be annulled for vices of substance, in that it was obtained by Donald Ray Fontenot by fraud or illegal practices in that he alleged in the divorce petition and testified that he and plaintiff herein had not resided together since the month of March, 1969, when in fact he had lived with plaintiff in Lafayette Parish, Louisiana, where plaintiff and defendant lived together as husband and wife, as late as nine (9) months prior to the birth of Lauri Fontenot.”

There are no allegations in any of the pleadings filed in the instant suit to the effect that Mrs. Lyons was prevented from asserting a defense to the original divorce action. We have searched the record of this appeal and find nothing in it which we think would or could excuse her from timely presenting the defense which she now claims she had to that divorce action.

The pleadings which were filed in the original divorce proceeding were not introduced in evidence in the instant suit, and the record of that divorce action does not constitute a part of the record of this appeal. We note, however, that on August 3, 1976, Mrs. Lyons filed in this court, in connection with the instant suit, an application for writs of certiorari, prohibition and mandamus, and she attached to that application a certified copy of the petition which was filed in the earlier divorce suit, a certified copy of the citation which was issued and the sheriff’s return of that citation, and a certified copy of the default judgment which was rendered on May 30, 1973, in that suit. We take judicial notice of that application for writs and of the documents which are attached to it. See Pennison v. Provident Life and Accident Insurance Company, 154 So.2d 617 (La.App. 4 Cir. 1963). We have examined the above application and the documents attached to it to determine whether those pleadings show that Mrs. Lyons might have been prevented from asserting a defense to the divorce action, or whether reasons exist for excusing her from doing so.

The documents attached to the above application for writs show that Mrs. Lyons was served personally with citation and a copy of the petition in the divorce suit on May 9, 1973. She did not answer or make an appearance in that suit, and a preliminary default was entered on May 25, 1973. That default was confirmed on May 30, 1973, and judgment was rendered on that date by the trial court decreeing a divorce “a vinculo matrimonii” between the parties.

In the original petition for divorce, Fon-tenot alleged clearly that he was residing in St. Landry Parish when the alleged grounds for the divorce took place, and that he and the defendant in that suit, Mrs. Lyons, “have lived separate and apart since March, 1969, or over two years.” Since Mrs. Lyons was served personally with a copy of that petition, she obviously knew before the default judgment was obtained that Fontenot had alleged facts which she claims were not true. We find nothing in any of the pleadings or documents before us which can be construed as showing that Mrs. Lyons was deceived or misled, or that she was incapacitated or prevented in any way from presenting a defense to the divorce action.

The law is settled that, in the absence of a valid and sufficient reason for a defendant’s failure to defend a suit on which a default judgment has been taken, such a defendant cannot maintain an action for nullity of the default judgment based on alleged defenses of fraud or ill practices which could and should have been pleaded in the original suit. Steele v. Ruiz, 202 So.2d 376 (La.App. 4 Cir. 1967); GECC Leasing Corporation v. Lakeside Rambler Sales, Inc., 277 So.2d 249 (La.App. 1 Cir. 1972); Jones v. Decuers, 320 So.2d 348 (La.App. 4 Cir. 1975); Wadsworth v. Wadsworth, 328 So.2d 719 (La.App. 4 Cir. 1976).

Since Plaintiff in the instant suit, Pauline Lyons, has failed to show a valid and sufficient reason for her failure to defend the original divorce action, we conclude that she cannot now maintain an action to annul the default judgment which was rendered in that case, based on allegations of fraud or ill practice which could have been pleaded as a defense in the original suit.

We have considered the allegation in Article 6 of the supplemental petition filed in the instant suit, that plaintiff was not informed of the fact that the judgment of divorce had been rendered until her attorney advised her of that fact in May, 1976. It is immaterial to the issue presented here, however, when plaintiff was advised of the rendering of the default judgment. The circumstance that she did not know until recently that such a judgment had been rendered did not prevent or excuse her from timely presenting her available defense to the divorce action before that default judgment was rendered.

Our conclusion is that plaintiff has failed to allege a cause of action for the annulment of the divorce decree which was rendered on May 30, 1973. There is no error, therefore, in that part of the trial court judgment which maintains the exception of no cause of action filed by defendant to the action to annul.

Exception of Prescription

Defendant Fontenot filed an exception of prescription asserting that plaintiffs action to annul the earlier divorce decree has prescribed under the provisions of LSA-C.C.P. art. 2004.

In view of our finding that the supplemental petition filed by plaintiff fails to state a cause of action for the annulment of the default judgment of divorce, it is unnecessary for us to consider the argument of defendant that the action for annulment has prescribed:

Exception of Res Judicata

In the exception of res judicata which defendant Fontenot filed to plaintiff’s original petition, he alleges that the judgment of divorce rendered on May 30,1973, is “res judicata with regard to the number of children born of the marriage of Donald Ray Fontenot and Pauline Lyons.”

Fontenot alleged in the petition for divorce which he filed in 1973 that of his marriage to Pauline Lyons “one child was born, Kevin Ray Fontenot, age 6.” The default judgment rendered in that suit decreed an absolute divorce between the parties, and with reference to the child it decreed that “Defendant Pauline Lyons be granted the permanent care, custody and control of the minor child, Kevin Ray Fon-tenot, with reasonable visiting rights granted to petitioner, and petitioner to continue to pay child support in the amount of $50.00 per month.”

Defendant contends that since he alleged in his action for divorce that one child was born of the marriage and his wife filed no responsive pleadings, the default judgment rendered in that suit is final as to the number of children born of that marriage. He argues that Pauline Lyons “cannot now be heard to claim that another child was born of this marriage” and that she “can no longer seek to have this question reopened.” Defendant’s argument, in effect, is that the action for divorce filed in 1973 must be treated also as an action to disavow the younger child, and that the judgment of divorce rendered in that suit should be regarded as a judgment decreeing that he is not the father of Lauri Fontenot. We are unable to agree with that argument for several reasons.

First, the pleadings indicate that Lauri Fontenot was born while plaintiff and defendant were married to each other. Defendant, in fact, concedes in his brief that the child was about two years of age when the judgment of divorce was rendered on May 30, 1973. Under those circumstances, a strong legal presumption exists that defendant is the father of the child. LSA-C.C. art. 184; Lewis v. Powell, 178 So.2d 769 (La.App. 2 Cir. 1965). We think the judgment of divorce, which simply decrees that the mother is granted the care, custody and control of “the minor child, Kevin Ray Fontenot,” does not constitute a final judicial determination that defendant is not the father of another child whose identity is not given in the divorce proceedings.

Second, in Enterkin v. Devaux, 266 So.2d 721 (La.App. 3 Cir. 1972), we held that an attorney must be appointed to represent the child in an action en desaveu. No attorney was appointed to represent Lauri Fontenot in the 1973 divorce proceeding, and we think that indicates that the trial court did not consider that action as being one to determine whether Fontenot was the father of the child.

Finally, LSA-C.C. art. 2286 provides that the authority of the thing adjudged takes place only with respect to what was the object of the judgment. We find that the “object” of the 1973 divorce judgment was to decree a divorce between the parties. It was not the “object” of that judgment to determine the legitimacy of the younger child, Lauri Fontenot. The name of Lauri Fontenot was not mentioned in the petition for divorce or in the judgment granting the divorce, and no issue was presented in that action relating to the paternity of that child.

We conclude that the judgment of divorce rendered on May 30, 1973, did not determine the issue of whether Lauri Fon-tenot was born of the marriage of plaintiff and defendant, or the question of whether defendant is the father of that child. There thus is no merit to defendant’s exception of res judicata.

Conclusion

Our conclusion is that the trial court erred in maintaining the exception of res judicata which was filed by defendant, and that judgment should be rendered overruling that exception. There is no error in that part of the trial court judgment which maintains the exception of no cause of action filed by defendant to plaintiff’s demand that the divorce decree be annulled. The exception of prescription filed by defendant need not be considered, since the petition does not state a cause of action for annulment of the divorce decree, and the judgment appealed from should be amended to dismiss that exception.

For the reasons assigned, the judgment appealed from is reversed insofar as it maintains the exception of res judicata filed by defendant, and judgment is hereby rendered overruling that exception. We affirm that part of the judgment of the trial court which maintains the exception of no cause of action filed by defendant insofar only as that exception relates to plaintiff’s demand for the annulment of the divorce decree dated May 30, 1973. That part of the judgment appealed from which maintains the exception of prescription filed by defendant is amended to decree that that exception is moot and is thus dismissed. The case is remanded to the trial court for further proceedings consistent with the views herein expressed. The costs of this appeal are assessed to defendant-appellee.

AMENDED AND AFFIRMED.


author: WATSON, Judge.

text:
    Ottis BRANAM, etc., Plaintiff-Appellee, v. TRADERS AND GENERAL INSURANCE COMPANY, Defendant-Appellant.
    No. 5837.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for defendant-appellant.
    Stafford, Randow, O’Neal & Smith by Hodge O’Neal, III, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Defendant, Traders and General Insurance Company, has appealed from a $10,000 trial court judgment in favor of plaintiff, Ottis Branam, individually, and on behalf of the minor, Dane Branam. Traders is the liability insurer of Levoie Branam’s 1970 Ford half-ton pickup truck with $5,000 policy limits for each person. Traders also insured Kerry Branam, Levoie’s major son, and his 1974 Opal automobile under another policy with the same limits. Dane Branam, grandson of Levoie, was injured in an accident, while riding in the pickup with his uncle Kerry driving. Traders paid $5,000 under Levoie’s policy on the pickup but denied coverage for the accident under Kerry’s policy. Thus, only $5,000 of the $10,000 judgment was litigated.

The minor guest passenger, Dane, age 11 at the time, was seriously injured -and no contention is made that the quantum of damages is excessive, if there is coverage under Kerry’s policy.

Traders contends on appeal that: (1) Kerry Branam was not negligent; and (2) coverage under the policy issued to Kerry Bra-nam is excluded because Kerry was a relative residing in the same household as his father Levoie. Kerry’s policy excludes coverage when the insured drives a “non-owned” automobile, here the pickup, which belongs to “ . . . a relative of the named insured who is a resident of the-same household.” (TR. 14)

There is no genuine issue as to Kerry’s negligence.

The accident occurred in Sabine • Parish when the right front tire of the pickup blew out while Kerry was negotiating an uphill curve to the left on Louisiana Highway 476. The 19-year-old driver lost control of the car and it skidded sideways 72 paces across the right-hand ditch before hitting a pine tree. The right front tire was smooth; the tread worn away. The investigating officer estimated that the truck was going 60 miles an hour and exceeding the general speed limit of 55 m.p.h. while approaching the curve. Kerry admitted that his father had warned him to be careful driving the pickup because the front tires were not good. Kerry Branam was negligent in approaching a curve at an excessive rate of speed; driving the pickup with slick tires; and failing to avoid the tree. There is a clear, evidentiary basis for the trial court’s conclusion that this negligence was a cause in fact of the accident.

The serious issue on appeal is whether Kerry and his father were residents of the same household, within the meaning of a standard exclusionary clause in Kerry’s policy.

Both insurance policies give the residence of the named insured as Route 5, Box 66, Many, Sabine Parish, Louisiana, 71449. Kerry’s policy was written on May 8, 1974, just prior to his high school graduation, and the accident occurred on March 22, 1975. The police report gives the address of Le-voie, Kerry and Dane Branam, the owner, driver and occupant, respectively, as Route 5, Many, Louisiana. Plaintiff, Ottis Bra-nam, the father of Dane and brother of Kerry, lives on the Negreet Road about 100 yards from the home of his mother and father.

Kerry graduated from high school May 10, 1974. He had enlisted in the National Guard before graduation and served on active duty at Fort Polk from June 19, 1974 until that October. In January of 1975, Kerry entered college at Northwestern State University in Natchitoches. A National Guard loan paid his tuition and he worked part-time in his father’s construction business to pay other expenses. Kerry was self-supporting and maintained an apartment in Natchitoches with a friend. He had purchased furniture and dishes for the apartment and kept all his clothes there. Although the school used his parents’ address in Many, Kerry testified this was because freshmen were not allowed to live off-campus at that time. Kerry drove back and forth to Many for his part-time work but did not spend the night there except on the weekends that he visited home. According to the witnesses, these weekend visits took place on an average of once a month. Kerry did most of his laundry at the Demon washateria near school but did take dirty clothes to his parents’ home when he visited.

The question of Kerry’s residence is factual and while the facts could be interpreted to establish either that Kerry’s residence was in Natchitoches or that Kerry’s residence was with his father near Many, the trier of fact concluded that it was in Natchitoches. This finding is entitled to great weight and the appellate court is not free to substitute its opinion when the trial court’s judgment is based on a reasonable interpretation of the evidence. Reed v. Henry, 343 So.2d 457 (La.App. 3 Cir. 1977); Mulcahy v. State Department of Corrections, 344 So.2d 509 (La.App. 1 Cir. 1976); Pierre v. Landry, 341 So.2d 891 (La.,1977).

The evidence is sufficient to support a factual determination that Kerry’s residence was in Natchitoches and his father’s in Many.

Were Kerry a minor his domicile would be with his parents, LSA-C.C. art. 39 , although not necessarily his residence. Residence and domicile are not synonymous terms in Louisiana. Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (1965). Taylor is a case which concerns extent of coverage as distinguished from exclusion from coverage. Taylor concluded that a minor child maintained a legal residence in his father’s home in Arkansas while living and working in Louisiana and was covered by his father’s insurance policy.

Much closer to the instant case, which concerns exclusion, is Ehrhard v. State Farm Mutual Automobile Ins. Co., 274 So.2d 911 (La.App. 1 Cir. 1973) writ denied 279 So.2d 202 (La.), where a minor child absent in the military on a temporary basis was not excluded from coverage as a resident of his father’s household even though Ms legal domicile remained with his parents. The court in Ehrhard points out that the purpose of such an exclusion is to prevent an insured who pays a premium for one automobile to acquire coverage on other owned automobiles without additional cost, stating:

“Clearly we do not have such a situation now before the Court. In this instance we have two (2) policies issued by the same company. They collected two premiums and issued two policies. The testimony shows that the father’s car was not furnished for the regular use of the son; that is geographically impossible.” 274 So.2d 916.

This reasoning is precisely applicable to the instant case.

Taylor and Ehrhard may appear conflicting but, as pointed out at 26 L.L.R. 726:

“In dealing with policies extending coverage to members of the named insured’s household, the courts have adopted an extremely broad interpretation of the clause; but when dealing with policies which exclude such persons, courts give the same terms a more restricted interpretation. The apparent inconsistency is in reality no inconsistency; it is merely the application of the settled principle that ambiguity in an instrument is resolved against the draftsman.”

In the instant case, as distinguished from both Taylor and Ehrhard, we have a major instead of a minor child. The trial court correctly found that the policy provision did not exclude Kerry from coverage since he was not in fact a resident of his father’s household.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed against defendant-appellant, Traders and General Insurance Company.

AFFIRMED.

      .LSA-C.C. art. 39:
      “Art. 39. A married woman has no other domicile than that of her husband; the domicile of a minor not emancipated is that of his father, mother, or tutor; a person of full age, under interdiction, has his domicile with his curator.”

      . Manuel v. American Employers Insurance, 228 So.2d 321 (La.App. 3 Cir. 1969), relied on by appellant, also involves extent of coverage and not exclusion.

      . Due to the amendment of LSA-C.C. art. 37 to make 18 the age of majority.


text:
    Nora URBAN, Plaintiff-Appellee, v. Jacqueline Denise FARRIS, Defendant-Appellant.
    No. 5843.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      White & Pitre by Marion Overton White, Opelousas, for defendant-appellant.
    Dwight D. Reed, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Defendant, Jacqueline Denise Farris, has appealed from a judgment awarding $773.54 to plaintiff, Nora Urban, for damages to the Urban automobile. A 1967 Dodge Dart owned by Nora Urban and driven by her son, Richard Charles Urban, was stopped at a red light on the corner of Railroad Avenue and Landry Street in Opelousas, on October 26, 1974, when a vehicle driven by defendant Farris struck it in the rear.

The issues are whether there is manifest error in the trial court’s conclusion that the defendant was negligent; and whether the quantum awarded is an abuse of discretion.

By her own admission, Jacqueline Farris realized that the brakes had failed on the automobile she was driving a half block away from the point of impact. (TR. 35) She was going only 10 miles an hour, according to her testimony. However, she failed to apply her emergency brakes. The trial court found her negligent in not applying her emergency brakes when she had an ample opportunity to do so. Sers v. South Central Bell Telephone Company, 304 So.2d 760 (La.App. 3 Cir. 1974). The record amply supports the trial court’s conclusion and there is no manifest error in the finding of negligence.

As to the amount of the award, the damages are established by the repair estimate and the testimony of Louis Gill, body-shop foreman of Bordelon Chevrolet. There is no error.in the amount awarded.

For the reasons assigned, the judgment is affirmed. Costs are taxed against defendant-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Erlene Neal VANIER, Plaintiff and Appellant, v. Jimmy Dale VANIER, Defendant and Appellee.
    No. 5847.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Philip A. LeTard, Vidalia, for plaintiff-appellant.
    James H. Brown, Jr., Ferriday, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

The wife, Erlene Neal Vanier, appeals those portions of a judgment of divorce which reject her demand for permanent alimony and award her child support in the sum of only $150 per month for three minor children.

On July 7, 1976, the wife filed a petition for divorce on the grounds of the husband’s adultery. She also filed a rule for alimony pendente lite, for child custody and for child support. The trial court rendered judgment on the rule awarding the wife custody of the three minor children of the marriage, all boys between the ages of 9 and 12. In addition, the court awarded the wife alimony pendente lite in the amount of $100 per month and set child support at $300 per month. This provisional custody, alimony and child support judgment was rendered on July 21,1976 with the husband’s consent.

On October 5, 1976, the trial court rendered judgment granting the wife a divorce based on the husband’s adultery and awarded her the custody of the three minor children of the marriage. However, the divorce judgment set child support at a total of $150 per month, and the wife’s demands for permanent alimony were rejected.

First, we must determine whether the trial court abused its discretion in denying the wife permanent alimony. In pertinent part, Article 160 of the Civil Code provides:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when: (1) The wife obtains a divorce; . . . . ”

Mrs. Vanier obtained the divorce and there is no evidence that she was at fault. Therefore, the only questions regarding her entitlement to alimony after divorce are whether Erlene Vanier had “sufficient means for her support”, and whether the husband had property or earnings with which to pay alimony.

Alimony after divorce is awarded only if the wife proves she had insufficient means for her maintenance. Maintenance includes only the basic necessities of life, such as food, clothing and shelter. The earnings of the wife are considered “means” for her support. Ward v. Ward, 339 So.2d 839 (La.1976).

Plaintiff in the present case failed to prove she was in necessitous circumstances. The record shows plaintiff earned over $300 per month from her job, and did not have to make payments on the home where she lived with her children, nor did she have to make payments on her ear. Under these circumstances, Erlene Vanier had sufficient means to provide the basic necessities of life. Therefore, the trial court did not abuse its discretion in rejecting alimony after divorce.

Plaintiff argues the trial court should not have awarded her less alimony after divorce than the $100 which was awarded as alimony pendente lite because the husband failed at the divorce trial to prove the circumstances of either party had changed. In support of this argument, the wife cites Jordan v. Jordan, 325 So.2d 629 (La.App. 4th Cir. 1976). In Jordan, the court stated the following rule:

“In alimony and child support matters the litigant requesting an adjustment in a prior award must prove changes in the financial condition of either one of the parties. McNeill v. McNeill, 223 So.2d 709 (La.App. 4th Cir. 1969); Vestal v. Vestal, 216 So.2d 386 (La.App. 3rd Cir. 1968); Zara v. Zara, 204 So.2d 76 (La.App. 4th Cir. 1967). This rule also applies where the award in a ‘consent’ judgment is sought to be modified. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).” (Emphasis supplied)

When the court awards less alimony after divorce than was awarded pendente lite, it is not “adjusting” a prior alimony award, but is instead making a new award based on different considerations. Under Article 160, permanent alimony is in the nature of a pension. Alimony pendente lite, LSA-C.C. Article 148, on the other hand, is based on the husband’s obligation to support his wife during marriage. If the husband’s “means” are sufficient he must pay alimony pendente lite in an amount sufficient to maintain the wife in a style comparable to that which she enjoyed before the separation. Ward v. Ward, supra. Since permanent alimony and alimony pen-dente lite are quite different, a lower award of alimony after divorce need not be supported by proof of a change in the circumstances of the parties.

Child support is a different matter. The husband’s obligation to support the children of the marriage is the same before final divorce as it is afterwards. Therefore, the rule from Jordan v. Jordan, quoted above, is applicable, and the husband must show a change in circumstances to justify a reduction in child support payments.

In the present case, the husband introduced no evidence to indicate the circumstances of the children had changed since he consented to a judgment ordering him to pay $300 per month for their support pending the divorce trial. The husband’s consent to payment of the provisional child support is tantamount to a judicial admission on his part that the needs of his three children were at least $300 per month. See Bernhardt v. Bernhardt, supra.

We think an award of $150 per month is far below the amount necessary to support three young boys, and amounts to an abuse of the trial court’s discretion. At a minimum, we think $300 per month is necessary for the support of the three children. The husband earns between $750 and $1,200 per month, and will not be unreasonably burdened by child support payments in the amount of $300 per month. Therefore, we will amend the judgment of the trial court to increase the total amount of child support from $150 to $300 per month.

For the reasons assigned, the judgment of the trial court is amended to increase the total amount of child support payments from $150 to $300 per month. Otherwise, the judgment is affirmed. The costs of this appeal are assessed against the appellee.

AFFIRMED, AS AMENDED.