author: FORET, Judge.

text:
    Hardy P. BULLOCK et al., Plaintiff-Appellant, v. LOUISIANA INDUSTRIES, a Division of Texas Industries, Inc., Defendant-Appellee.
    No. 6913.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a suit by the grantor of a mineral lease option against the optionee seeking to have the option agreement set aside. The optionee reconvened, seeking specific performance under the option agreement. The trial court rejected plaintiffs’ demands, held the option agreement was valid, and granted defendant’s reconventional demand requiring plaintiffs to specifically perform their obligations under the option. From such adverse judgment plaintiffs have perfected this appeal.

The facts of this case are essentially undisputed. Hardy P. Bullock was the owner of an undivided 31/ioth interest in a certain piece of property in Rapides Parish, Louisiana, and had a usufruct of the other 9/«th interest, the naked ownership of which was held by his children. On May 10, 1977, he executed the disputed option agreement with defendant, Louisiana Industries, entitling it to explore and test on the property for sand and gravel and giving it the option to enter into a mineral lease to mine the property. On July 26, 1977, Hardy P. Bullock donated his interest in the property to his children. After defendant made several exploratory drill holes on the property, plaintiffs contacted defendant with certain demands which culminated in the filing of the present suit on September 27, 1977. Louisiana Industries subsequently attempted to exercise its option to lease the property, but performance was refused by Hardy Bullock and his children.

Plaintiffs’ suit seeks to set aside the option agreement; defendant’s reconventional demand seeks specific performance under that agreement. The trial court rejected plaintiffs’ demands and upheld defendant’s reconventional demand. On appeal, plaintiffs urge three errors by the trial court:

(1) The court was in error in holding that the proposed lease is not a unilateral contract;
(2) The court erred in failing to hold that the proposed lease does not contain certain potestative conditions which would make the lease void;
(3) The court erred in failing to hold that the lease was unconscionable.

We will treat these specifications of error in the order given.

Plaintiffs allege that the contract in question is void as a unilateral contract, arguing that only Mr. Bullock is bound to perform under it (to execute the mineral lease). This contention is untenable as it is obvious that both parties are bound. Mr. Bullock is bound to execute the mineral lease upon exercise by defendant of its option, and defendant is bound to make rental and royalty payments to him.

The second contention of plaintiff is that the agreement in question contains potestative conditions, urging first that defendant is not bound to mine for sand and gravel. It is true that defendant does not have to mine under the agreement, however it is clear that defendant is bound to pay a rental fee on the property until actual production starts, after which it is bound to pay royalties. This provision does not invalidate the contract. See Thibodeaux v. Boeuf Land Company, Inc., 303 So.2d 576 (La.App. 1 Cir. 1974) and Lee Lumber Company Ltd. v. International Paper Co., 321 So.2d 42 (La.App. 3 Cir. 1975).

Plaintiffs also allege that the unilateral right of defendant to terminate the lease on a 20-day notice constitutes an invalidating potestative condition. As the trial court correctly stated:

“This is not a purely potestative condition and thus does not render the lease null because defendant will be losing their time and money invested in drilling for sand and gravel. Nabors Oil Corp. v. Samuels, 170 La. 57, 127 So. 363 (1930).”

See also McCain v. Continental Can Co., Inc. 299 So.2d 454 (La.App. 2 Cir. 1974), writ refused, 302 So.2d 308 (La.1974) where a timber lease provision (alleged to be potestative) provided that if the lessee failed to pay the annual taxes on all or any part of the land involved, that portion of the land on which taxes were not paid would be released from the lease agreement. This Court held that this stipulation which would allow defendant to terminate the contract partially or wholly at its desire did not create a potestative condition which would invalidate the contract.

In the case of Lee Lumber Co. Ltd. v. International Paper Co., supra, this Court followed that prior reasoning in holding that a lease provision that gave the lessee the right to cancel the contract as to all or any part of the land did not invalidate the contract. In that case, we noted that the provision in question came under La.Civil Code Article 2036 as a resolutory condition specifically allowed and not a purely potes-tative condition as envisioned by Articles 2034 and 2035. The condition in the present case requires the same conclusion. See also 47 Tulane Law Rev. 284.

The third objection raised by plaintiffs on appeal is basically that this contract was inequitable in that defendant took advantage of the lack of knowledge of Mr. Bullock as to the amount of royalties he should receive. We agree with the trial judge’s holding and reasoning in this matter where he stated (after quoting the Civil Code articles on Equity 13 and 21):

“In this case the law is express as it relates to each allegation of invalidity put forth by the plaintiff and the court feels constrained to follow it. The cases which plaintiffs cite in support of their equitable argument deal with incidents in which serious consideration could not be found. In those cases, the consideration was almost nothing and the agreements were properly set aside. However, in this case as discussed above, the consideration was serious and the option and lease agreement cannot be set aside on the basis of lack of seriousness.”

The competency of Mr. Bullock was not at issue and neither was his negotiating ability. While the price he received is perhaps not the highest he could have received, neither is it so low as to enable this Court to interfere with a valid business transaction.

RECONVENTIONAL DEMAND

We quote with approval the trial judge’s reasons for judgment:

“In addition to answering plaintiffs’ petition, defendants filed a reconventional demand asking that the option agreement be specifically enforced against the plaintiffs. An option agreement is subject to specific performance. J. F. Auderer Laboratories, Inc. v. Deas, 223 La. 923, 67 So.2d 179 (La.1953); Fontenot v. Manuel, 281 So.2d 156 (La.App. 3 Cir. 1973). The Court has found that the option agreement and accompanying lease are valid and it is stipulated that the defendant properly exercised the option, therefore, Hardy P. Bullock must specifically perform the terms of the option agreement by executing the accompanying lease. The other defendants in reeonvention must also specifically perform the agreement to the extent of their interest [31/io ths] gained through the donation to them by Mr. Bullock.”

We note parenthetically that defendants-in-reconvention are not bound by this agreement as to the undivided 9/ioth naked ownership which they previously held. We also note that:

(1) A usufructuary of land (as Mr. Bullock was of an undivided %oth interest) by Article 188 of the Mineral Code, does not have the land owners’ rights in minerals and thus Mr. Bullock had no right to lease the %oth interest in the minerals which belonged to the naked owners (the children);
(2) As a co-owner of the property, he could (and did) execute a mineral lease as to his undivided interest in the land but a “lessee may not execute his rights thereunder without consent of the other co-owners of the land”. La.Mineral Code Article 166. See the Official Comments under Articles 164 and 166. See also Sun Oil Co. v. State Mineral Board, 231 La. 689, 92 So.2d 583 (1956); GMB Gas Corp. v. Cox, 340 So.2d 638 (La.App. 2 Cir. 1976); Gulf Refining Co. v. Carroll, 145 La. 299, 82 So. 277 (1919).

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      .Art. 2036. Conditions depending upon will of obligee
      Art. 2036. An obligation may also be made, by consent of the parties, to depend on the will of the obligee for its duration. Thus a lease may be made during the will of the lessor, and a sale may be made conditioned to be void, if the vendor chooses to redeem the property sold.

      .Art. 2034. Nullity of obligation based on potestative condition
      Art. 2034. Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.
      Art. 2035. Conditions depending upon will of obligor
      Art. 2035. The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.

      .“Article 13: When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.
      Article 21: In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Gerald I. HEBERT, Plaintiff-Appellant, v. Edmond D. KNOLL, Defendant-Appellee.
    No. 6917.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Seidel & Bailey, Fred K. Bailey, Lafayette, for plaintiff-appellant.
    Knoll & Knoll, J. Edward Knoll, Marks-ville, for defendant-appellee.
    Before CULPEPPER, CUTRER, and STOKER, JJ.
   STOKER, Judge.

This is a suit for the specific performance of a contract to sell land brought by plaintiff-vendee against defendant-vendor. The issue presented herein is: Did the trial court err in denying plaintiff’s prayer for the specific performance of the contract to sell.

Plaintiff, Gerald Hebert, entered into an agreement to purchase a certain tract of land from the defendant, Edmond Knoll, on June 27, 1975. Under the terms of the agreement, a $500.00 deposit was given to a third party, as a down payment on the purchase price. The contract specifically provided that this deposit was not to be considered as earnest money and granted the parties the right to demand specific performance. The vendor agreed to deliver a valid title to the plaintiff and the agreement called for the act of sale to be passed by September 25, 1975.

On September 24,1975, the vendor’s wife died. At that time, the purchaser had made no request or arrangement with the defendant for passing the act of sale. In fact, he had manifested no inclination or ability to finalize the sale. The following day, the time for execution of the agreement passed without any demand by the plaintiff for completion of the act of sale. It was not until November 19, 1975, that the plaintiff asked for the consummation of the sale. Defendant refused, asserting that his obligation to deliver the property was extinguished by plaintiff’s failure to demand performance within the terms of the agreement.

The plaintiff placed defendant in default on this agreement on December 3, 1975. This suit for specific performance was brought immediately thereafter, but the trial was not held until June of 1978. The trial court denied plaintiff’s request for specific performance and plaintiff now appeals. Defendant answered plaintiff’s appeal, asking that the trial court’s judgment be affirmed in its entirety and that the plaintiff be held liable for damages for maintaining a frivolous appeal.

Appellant’s primary contention is that the death of the defendant’s wife in some manner extended his time within which to execute the act of sale. The plaintiff argues that defendant had to open the succession of his deceased wife before he would be able to deliver a valid title to the plaintiff, since the property in question was owned by the community and under LSA-R.S. 47:2413, inheritance tax must first be paid on this property before the defendant could transfer valid title. However, the vendor and his two children testified that they were prepared to honor the agreement at all times during its term but there was never any request made by the plaintiff to pass a final act of sale.

With respect to the alleged invalidity of title based on non-payment of inheritance taxes, the jurisprudence is to the contrary. Despite the apparent meaning of the language of LSA-R.S. 47:2411 and 47:2418, it has been interpreted as not prohibiting heirs from alienating property pri- or to payment of the inheritance. Under the judicial gloss, the meaning of these statutes is that the property may be alienated but the alienation is subject to the State’s right to collect the tax. Bonvillain v. Richaud, 153 La. 431, 96 So. 21 (1923); Barbarich v. Meyer, 154 La. 325, 97 So. 459 (1923); Green v. W. G. Ragley Lumber Company, 154 La. 965, 98 So. 544 (1923) and Prieto v. Faure, 169 La. 75, 124 So. 150 (1929).

It has generally been held that where a prospective purchaser seeks to enforce his rights under a contract for the purchase of land, but has failed to appear before a notary for the purpose of executing the sale within the delay provided in the purchase agreement, then that purchaser is not entitled to specific performance of the agreement. Transcontinental Development Corporation v. Bruning, 195 So.2d 430 (La.App. 4th Cir. 1967); Reine v. Kirn, 102 So.2d 66 (La.App. Orleans 1958); Rabin v. Whitney, 347 So.2d 1253 (La.App. 1st Cir. 1977). This issue was specifically addressed in DiCristina v. Weiser, 215 La. 1115, 42 So.2d 868 (1949). In that case, the contract provided that the parties had the right to specific performance if the sale was executed within a certain term. The court ruled that the failure to take title within the delay provided barred the purchaser’s right to specific performance. Furthermore, the court held that any extension of time for performance had to be written. See also: Bellestri v. Clark, 239 La. 713, 119 So.2d 836 (1960); Ezell v. Loucks, 167 So.2d 452 (La.App. 1st Cir. 1964); LSA-C.C. Arts. 1913 and 2462.

Plaintiff relies solely on the case of Hammond Asphalt Co., Inc. v. Ponder, 303 So.2d 851 (La.App. 1st Cir. 1974), application denied, 307 So.2d 628 (1975), as authority for the proposition that where a vendor is aware of a defect in his title, and it is impossible for him to deliver valid title within the term, the purchaser does not have to demand execution within the delay provided. We find the Hammond Asphalt case inapposite to the present proceedings for the following reasons. In Hammond Asphalt, the purchaser made numerous attempts to effect the sale, and was ready, willing and able to accept delivery of title. Additionally, it was shown that the purchaser had made every effort to work with the vendor in curing the defect. Despite these efforts, vendor would not execute the sale. In this regard, the court in Hammond Asphalt stated at page 854:

In this instance, the specified date for passage of the sale was not a condition precedent to passage, but rather constituted a term to which the parties mutually agreed. If the sale were not passed by the time stated, either or both parties would have been in violation of the contract. It is clear that Purchaser was not in violation or default inasmuch as Purchaser was ready, willing and able to accept title according to the provisions of the agreement. The fault in this case lies with Vendor who breached the provision of the contract requiring Vendor to tender merchantable title. In this instance Vendor was put on notice by discussions with Purchaser, and also by Purchaser’s letter of January 14, 1972.

Hence, it can be seen that the reason the court granted the purchaser specific performance of the contract to sell was that the delay in the execution of the contract was the fault of the vendor.

In the present proceeding, on the other hand, the facts are much different in nature. Here, as noted earlier, plaintiff-vendee never showed the slightest inclination to perfect the sale during the 90 day term provided. In fact, the first notice that Mr. Knoll received that the plaintiff desired to execute the sale was approximately two months subsequent to the expiration of the term. Therefore, in this case, it was the vendee, Gerald Hebert, who must be faulted for the sale never taking place.

We hold, therefore, that the failure of plaintiff to make demand upon the defendant within the period prescribed by the contract was a forfeiture of plaintiff’s right to specific performance. Since we hold as we do, we will pretermit consideration of defendant’s argument that there was no defect in the title. The basis of this argument is that the heirs of Mrs. Knoll were seized of right of their mother’s property and the vendee could have therefore made demand upon them.

As noted earlier, defendant asks that plaintiff-appellant be condemned to pay damages for maintaining a frivolous appeal. Under Article 2164 of the Louisiana Code of Civil Procedure, this court does have the authority to award such damages. However, appeals are favored, and the imposition of these penalties will not be granted unless clearly due. Franklin v. Franlkin, 338 So.2d 1199 (La.App. 3rd Cir. 1976); Guidry v. Carmouche, 320 So.2d 267 (La.App. 3rd Cir. 1975). We feel that in this case the appellant seriously believed in the view of the law he advocated and that such view was not entirely unreasonable. Hence, we deny defendant-appellee’s claim for damages for frivolous appeal.

For the foregoing reasons, the judgment of the district court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


author: SWIFT, Judge.

text:
    Louis CULPEPPER, Plaintiff-Appellee, v. Don RACHAL, Defendant-Appellant.
    No. 6920.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Gravel, Roy & Burnes by Robert L. Roy-er, Alexandria, for defendant-appellant.

      Watson, Murchison, Crews, Arthur & Cor kern by Ronald E. Corkern, Natchitoch-es, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

This is a suit for a preliminary and a permanent injunction brought by the plaintiff, Louis L. Culpepper, seeking to enjoin the defendant, Don Rachal, from allowing his cattle to trespass upon the plaintiff’s property. The sole issue presented on appeal is whether the trial court erred in concluding that the plaintiff’s fences were sufficient to keep out the “ordinary run of livestock”, thus resulting in judgment for the plaintiff.

Louis Culpepper is the owner of a large tract of land in Natchitoches Parish, Louisiana. His property is bordered on the north by an elementary school; on the east by a bayou; on the south by property owned by Mrs. Evelyn Cardino, and on the west by tracts of several landowners, including Mrs. Daisy Cardino Lattier. At the time this suit was brought the land was leased to Danny Methvin for the duration of the 1978 agricultural year.

Don Rachal had rented the properties of Mrs. Evelyn Cardino and Mrs. Daisy C. Lat-tier on which to graze his cattle. Initially, defendant’s cattle were placed on the Evelyn Cardino land and got on the plaintiff’s property through gaps in the fence between the two tracts. The fence was repaired and thereafter the cattle were unable to trespass upon plaintiff’s land from the south. Later, however, the defendant moved some or all of his cattle to the Lattier tract on the west from which the animals strayed onto plaintiff’s property.

The record indicates that the Culpepper tract was fenced only on its western and southern boundaries. Defendant contends that his livestock journeyed upon plaintiff’s estate through the school land on the north. However, there was no testimony that the cattle had ever been seen entering plaintiff’s land from this direction. On the other hand, none of the witnesses at the trial actually saw the defendant’s cattle go through the fence on the east of Mrs. Lattier’s land. The trial judge concluded the animals got on the plaintiff’s property through the fence between it and the Lattier tract, not from the north. He further concluded that under the circumstances, the fact that the plaintiff’s land was not completely enclosed by fence would not preclude injunctive relief.

Mr. Culpepper repaired his fence on several occasions before and after this suit was instituted on March 3,1978. He has rebuilt about one half of each fence separating his property from the Cardino and Lattier tracts. Despite the plaintiff’s efforts, the defendant’s cattle have continued to get on his land.

The plaintiff and his witnesses testified the fences were adequate to keep out the ordinary run of livestock, when they saw them within a month before the trial on May 10, 1978. The defendant and his witnesses testified this fence was in bad shape at all times and could easily be crossed by any cow. However, nearly all of them had not observed the condition of the fences since January or early February, 1978.

In granting plaintiff’s request for a permanent injunction, the trial court ruled that the Culpepper tract and its adjacent lands are located in an “open range” area. This is where there is no stock law or ordinance prohibiting an owner from allowing his domestic animals to roam at large. Fall v. Manuel, 228 So.2d 494 (La.App. 3d Cir. 1969). In such an area the owner is under no duty to keep his animals enclosed. Harrington v. Upchurch, 331 So.2d 506 (La. App. 3rd Cir. 1976); Flores v. Commercial Union Insurance Company, 337 So.2d 264 (La.App. 2nd Cir. 1976).

The record contains a proclamation by the local police jury to the effect that after an official canvas of the votes cast in an election held on April 14,1970, a proposition to prohibit animals from roaming at large on the public highways of the ward in which the property involved in this suit is located was defeated. There being no evidence on the subject to the contrary, it is clear this area is “open range” where owners of livestock are free to allow ordinary cattle to run at large. Leger v. Delano Plantation, Inc., 352 So.2d 743 (La.App. 3rd Cir. 1977); Parrott v. Babb, 132 So. 377 (La.App. 2nd Cir. 1931).

Where property is located in an “open range”, in order to prevail in a suit the burden is one the plaintiff landowner to prove that his property was enclosed by a fence sufficient to keep out ordinary cattle. Under this test, if the property owner desires to keep cattle off his property, he has the duty to enclose his land with a fence “adequate to keep out the ordinary run of livestock.” Bryant v. McCann, 297 So.2d 262, 265 (La.App. 3rd Cir. 1974). In the Bryant decision, this court noted that the mere fact that cattle may be able to get through or over a fence does not necessarily indicate that the fence is inadequate to keep out the “ordinary run of livestock.” Such evidence may with equal force establish that the particular cattle are “extraordinary”.

Although he did not say so in the exact words, the trial judge unquestionably determined that the plaintiff’s fences at the time of the trial were adequate to keep out the ordinary run of livestock. He specifically noted that defendant’s cattle were part Brahma and less manageable than common grade cattle, an indication that he believed they were “extraordinary” and likely to pass over or through a fence that was adequate to keep out ordinary cattle. Thus, he concluded that the plaintiff sustained his burden of proof and was entitled to injunc-tive relief.

The defendant strenuously contends that the trial judge was manifestly in error, because the plaintiff’s property is not completely enclosed by fence, there being none of its north and east sides. Although there exists a natural barrier, a bayou, on the eastern side, there is nothing on the north to prevent cattle from entering the Culpep-per tract through the adjacent school yard there. Actually, some of defendant’s cattle were observed in the school yard one evening by a witness for the plaintiff. However, the latter contends they strayed there from his property after entering through the fence between it and the Lattier land.

As pointed out above, the plaintiff bears the burden of proving that his property is sufficiently enclosed by fencing adequate to keep out the ordinary run of livestock. Since there is no fence or barrier at all to prevent cattle from entering the plaintiff’s tract from the north, we are unable to logically conclude that the plaintiff has complied with the requirement of law with respect to adequate fencing despite there being no evidence that any cattle had ever been seen entering plaintiff’s property from the north. This is particularly true in view of the undisputed fact that the presence of defendant’s cattle on the school land was observed on at least one occasion. In our opinion it is clear the plaintiff has failed to satisfy the required burden of proof to establish that his land was sufficiently enclosed on the north to keep out the ordinary run of livestock. Although we are reluctant to do so, it is our duty to reverse the trial judge when we conclude from our review of the evidence that he was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

For the above and foregoing reasons, the judgment of the trial court is reversed and judgment is rendered herein in favor of the defendant and against the plaintiff rejecting the latter’s demands for injunctive relief at his costs, including those of the appeal.

REVERSED AND RENDERED.


author: CULPEPPER, Judge.

text:
    Leo L. LOWENTRITT, Jr., Plaintiff and Appellee, v. Nancy Oray LOWENTRITT, Defendant and Appellant.
    No. 6922.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Henry B. Bruser, III, of Gold, Little, Simon, Weems & Bruser, Alexandria, for defendant and appellant.
    Gravel, Roy & Burnes, Chris J. Roy and Celia Cangelosi, Alexandria, for plaintiff and appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CULPEPPER, Judge.

The principal issue presented by this appeal is whether the trial judge abused his discretion in severing the trial of the principal demand for divorce from the trial of the incidental actions for child support and visitation rights.

On July 29, 1977, the plaintiff, Leo L. Lowentritt, Jr., obtained a judgment of separation from bed and board against the defendant, Nancy Oray Lowentritt, on the grounds of abandonment. In the judgment of separation, Nancy was awarded custody of the two minor children and alimony pen-dente lite and child support in the sum of $2,000 per month. Leo was granted visitation rights every other week end, on certain holidays and for one month during the summer.

Immediately following the judgment of separation, the parties executed a settlement of the community of acquets and gains, which included an agreement that upon a final divorce rendered to either party the child support would be reduced to $1,500 per month.

On August 1, 1978, Leo filed the present suit for final divorce on the grounds of living separate and apart for one year after the judgment of separation from bed and board. In his petition, Leo also prayed for reduction of the child support payments to $1,500 per month, as agreed upon between the parties, and he asked for certain minor changes in visitation rights.

The defendant wife filed an answer admitting plaintiff’s entitlement to a divorce. The wife also filed a reconventional demand seeking an increase in child support to the sum of $2,500 per month and also seeking certain minor changes in the father’s visitation rights.

On August 30,1978, the plaintiff husband filed a motion to sever the trial of the principal demand for divorce from the trial of the incidental actions regarding child support and visitation. In support of the motion, the husband argued that there was no dispute as to plaintiff’s entitlement to a divorce, that the judgment of divorce would terminate alimony pendente lite to the wife and that the agreement of the parties provided child support of $1,500 per month from the date of divorce. The husband contended it would be manifestly unfair to the husband to delay the trial of the principal demand for divorce and thus continue alimony to the wife. For the reasons urged by the plaintiff husband, the trial judge, at a hearing on September 18, 1978, granted the motion to sever and fixed the trial of the principal demand for divorce on September 28, 1978 as an uncontested matter.

On the date of the trial of the principal demand for divorce, the defendant wife filed an objection to the severance on the grounds that it was an unauthorized use of summary proceedings. The trial judge overruled the wife’s objection and proceeded to hear the testimony of the witnesses. The judgment of divorce was signed on September 28, 1978. The judgment reserved until October 16,1978 the trial of the issues of child support and visitation. The defendant wife appealed from this judgment.

LSA-C.C.P. Article 1038 provides:

“The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits, and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.
“When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interest of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.”

Jurisprudence under Article 1038 has established the rule that the trial judge has much discretion in ordering separate trials of the principal and incidental actions in the interest of fairness, orderly proceedings and avoiding unnecessary delay. TriParish Heating & Air Conditioning v. Brown, 338 So.2d 126 (1st Cir. 1976); Offshore Crew Boats, Inc. v. Harredge, 306 So.2d 774 (4th Cir. 1975); and Viera v. Kwik Home Services, Inc., 266 So.2d 732 (4th Cir. 1972).

Under these rules, we conclude there was clearly no abuse of discretion by the trial judge in granting the severance. The judge’s reasons for granting the severance were that there was no contest as to plaintiff’s entitlement to the divorce, a delay in the judgment of divorce would have required the husband to continue the payment of alimony pendente lite, and there could be no prejudice to the wife who was entitled to child support from the date of divorce under the previous agreement. Additionally, the judgment of divorce on September 28, 1978 reserved until October 16, 1978 the trial of the issues of child support and visitation, and a minute entry in the record on appeal shows that the trial was actually held on October 24,1978, and judgment was entered granting the wife child support in the sum of $1,500 per month “commencing on date of judicial demand”, which was prior to rendition of the judgment of divorce.

On appeal, the defendant wife’s principal argument is that she was prejudiced by the severance because the judgment of divorce terminated the prior award of alimony and child support, citing Dupois v. Breaux, 341 So.2d 68 (3rd Cir. 1976). This argument has no merit. The community property settlement included an agreement that as of the date of the final divorce the wife would receive $1,500 per month child support. Furthermore, the judgment appealed contained a reservation to the wife of her rights to child support, and a minute entry in the record clearly shows that when the wife’s reconventional demand for child support was heard on October 24,1978, she was awarded child support in the sum of $1,500 per month “commencing on date of judicial demand”, which date was before the judgment of divorce. There was no period of time during which the wife did not receive child support, although, of course, alimony pendente lite terminated on the date of the divorce.

The wife also argues that the trial of the divorce was by summary proceedings, contrary to LSA-C.C.P. Article 969, which prohibits the trial of actions for divorce by summary proceedings. This argument has no merit. The principal demand for divorce was filed by ordinary process, an answer was filed, the case was duly fixed for trial as an uncontested matter, and the testimony of witnesses was adduced in open court with counsel for both parties present. This was not a summary proceeding. On the contrary, it was an ordinary proceeding.

The wife’s final argument is that the setting of the principal demand for divorce on Thursday, September 28, 1978 violated the rules of the Ninth Judicial District Court, Rule V(a) which states in part: “Except as where otherwise provided by law, no suit requiring a trial on the merits may be assigned for trial except at a pretrial conference.” The defendant wife contends the trial judge did not assign the case for trial at a pretrial conference. The record shows that at the conclusion of the hearing of plaintiff’s motion for severance on September 18, 1978, the trial judge granted the motion and set the principal demand for divorce for trial as an uncontested matter on Thursday, September 28, 1978. As we understand Rule V (a) of the Ninth District Court, it pertains to the trial on the merits of contested matters. The principal demand in the present case was uncontested. It was properly set for trial as an uncontested matter under Rule 111(d) of the court, which states that on each day except Monday the order of business shall include “confirmation of defaults and disposition of uncontested matters which require proceedings in open court.” Of course, the defendant wife cannot contend that she did not receive adequate notice of the trial, as required by LSA-C.C.P. Article 1571, because counsel was present on September 18, 1978 when the case was set for trial and at the trial ten days later on September 28, 1978.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


text:
    Joseph ANGELLE, Plaintiff and Appellant, v. James B. GRIFFIN and State Farm Mutual Automobile Insurance Company, Defendants and Appellees.
    No. 6925.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Kenneth DeJean and J. Minos Simon, Lafayette, for plaintiff and appellant.
    Roy & Forrest by L. Albert Forrest, New Iberia, for defendants and appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries sustained when the automobile he was driving was struck from the rear by a vehicle driven by the defendant Griffin. The trial judge held defendants liable and awarded plaintiff $17,000 for “pain, suffering, loss of wages, medical expenses, and disability, past, present and future.” Only the plaintiff appealed, seeking an increase in the award.

Although the trial judge did not give reasons, plaintiff argues the award of $17,000, which includes approximately $3,000 in past medical expenses, indicates the trial judge rejected plaintiff’s contention that his prior non-disabling coronary arteriosclerosis was aggravated by a coronary contusion sustained in the accident. Plaintiff says this is manifest error and an abuse of discretion.

Defendants contend the trial judge obviously chose to accept the expert medical testimony of the cardiac specialist, Dr. Du-cote, that any coronary contusion sustained could not have aggravated the prior existing coronary arteriosclerosis.

The evidence shows that at the time of the accident on August 22, 1975, plaintiff was 56 years of age and was the owner-president of a tombstone business. In November of 1974, plaintiff had chest pains for which he consulted his family physician, Dr. Louis G. Weinstein, a general practitioner. At that time, Dr. Weinstein referred plaintiff to a heart specialist, Dr. Jacobs, and they diagnosed “hypertensive cardiovascular disease” and prescribed reduced activity and a form of nitroglycerin tablets to alleviate the chest pain.

On August 23, 1975, the day after the accident, plaintiff was seen by Dr. Wein-stein, who diagnosed injuries consisting of a contusion of the heart, a whiplash of the neck, and general bruises and contusions. Dr. Weinstein continued to see and treat plaintiff, but he did not order an EKG, nor did he again refer plaintiff to a heart specialist. Nevertheless, it was Dr. Wein-stein’s opinion that plaintiff received a cardiac contusion in the accident, and that this injury aggravated the prior coronary arteriosclerosis.

Dr. Lester L. Ducote, Jr., a cardiac specialist, examined the plaintiff on November 9,1976 at the request of defendants. However, Dr. Ducote was called as a witness for the plaintiff. This physician testified that, based on the history, his examination of November 9, 1976, a subsequent stress test, and an EKG, it was his opinion that any coronary contusion sustained in the accident could not have aggravated the prior coronary arteriosclerosis. On direct examination, Dr. Ducote stated:

“Cardiac contusions do not produce coronary disease. I think that the man had coronary disease which was responsible for his symptoms. I see no way in the world that you or anyone else can say that the cardiac contusion is responsible for his problem of angina, pain on the treadmill, or the EKG changes.”

As to the lay testimony, plaintiff testified that prior to the accident he was able to perform strenuous physical labor in his tombstone business, and that he led an active life, whereas, after the accident, he had to avoid strenuous physical activity. Mr. Anthony Bourda, plaintiff’s former employee, corroborated this. Also, plaintiff’s son, Gregory Angelle, testified to the same effect.

Defendants point to discrepancies in plaintiff’s testimony which probably were noted by the trial judge. In his testimony at the trial, plaintiff denied taking any of the nitroglycerin tablets which had been prescribed for chest pain in November of 1974. However, Dr. Ducote testified that in the history given to him by plaintiff in 1976, Angelle admitted taking “nitro-bid” capsules twice daily.

Additionally, during plaintiff’s testimony seeking to justify the need for additional employees to do his work after the accident, plaintiff first stated that he had to hire additional employees. However, under cross-examination he admitted that before the accident he had four employees and after the accident he still had four employees.

After carefully considering all of the expert medical and lay testimony, we do not find that the trial judge was manifestly in error or clearly wrong in his apparent finding of fact that plaintiff’s prior heart disease was not aggravated by the accident. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). As to the quantum of the award, we find no abuse of the “much discretion” rule enunciated in Coco v. Winston Industries, 341 So.2d 332 (La.1976).

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Larry CHAPMAN, Jessie D. White, Wilda Chapman and Mildred Easley, Plaintiffs-Appellees, v. J. D. FISHER, Defendant-Appellant.
    No. 6926.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Fredric G. Hayes, Lafayette, for defendant-appellant.
    Lawrence 0. Guillory, Lafayette, for plaintiffs-appellees.

      Before CULPEPPER, CUTRER, and STOKER, JJ.
   STOKER, Judge.

This is a suit for a preliminary injunction. The plaintiffs, residents of the Perez Heights Subdivision of Scott, Louisiana, seek to enjoin the defendant, J. D. Fisher, from conducting commercial activities on his property in violation of certain residential restrictions. The question presented on appeal is whether the trial judge properly issued the preliminary injunction. After the appeal was lodged with this court the plaintiffs filed a Motion to Dismiss the appeal of the defendant-appellant on the grounds that the defendant failed to post an appeal bond under LSA-C.C.P. Art. 3612. The plaintiffs’ Motion to Dismiss was referred to the hearing on the merits of the case.

On May 21, 1962, an Act of Dedication was formally passed, creating the Perez Heights Subdivision in Scott, Louisiana, and making certain residential restrictions applicable to the property contained within that subdivision. Among these restrictions was Covenant C — 1, which provides in part that: “No lot shall be used except for residential purposes.” (Tr. 15) Attached and recorded along with the dedication was a plat of a survey showing those lots contained within the subdivision. This survey includes lot number 69, currently owned by the defendant.

The evidence taken in this case reveals that J. D. Fisher acquired lot number 69 in February of 1974. Shortly after his purchase, defendant had erected a small tin building on his property. Defendant thereafter began to use this building as a welding shop, but ceased this activity after receiving complaints from other landowners in the subdivision. However, in March of 1978, welding activities of a commercial nature recommenced on defendant’s property and led to the instigation of this suit on behalf of the appellees to enjoin this activity.

The trial court found that the defendant’s property was subject to the residential restrictions and that the defendant was in direct violation of these restrictions in conducting commercial operations on the premises which constituted a nuisance to the defendant’s neighbors. Accordingly, the trial judge granted plaintiffs’ request for a preliminary injunction prohibiting the defendant from using his property for any commercial purposes, contingent upon the filing of a $1,000.00 bond by the plaintiffs. Bond was posted and the order was signed on August 4,1978. The trial court rejected plaintiffs’ demands with reference to maintenance of a tin building on defendant’s premises. The reason for the rejection was that the tin building had existed without protest beyond the two year prescriptive period applicable.

Defendant subsequently petitioned for a devolutive appeal from the August 14th judgment and the order granting defendant the appeal was signed August 11, 1978. There was no bond filed with this appeal, nor did the order of appeal make the granting of the appeal contingent upon the posting of any bond. Plaintiffs-appellees subsequently moved to dismiss this appeal due to defendant’s failure to post the appeal bond. An opposition on behalf of the defendant was filed. The appeal is limited to the issue of prohibition of carrying on commercial activities. The issue as to the maintenance of the building is not before this court.

ON THE MOTION TO DISMISS

Plaintiffs-appellees assert in their motion to dismiss that this court lacks jurisdiction over this appeal due to defendant’s failure to post bond in accordance with LSA-C.C.P. Art. 3612. Paragraph (3) of this article provides:

“An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order of judgment . . . ” (Emphasis added)

Appellees contend that since no bond has been filed in this proceeding, the appeal must be dismissed. This court is of the opinion that since a devolutive appeal no longer requires a bond, the language of Article 3612 should not be construed to defeat such an appeal.

LSA-C.C.P. Art. 2124, as amended by Act 1977, No. 176, provides in part that: “No security is required for a devolutive appeal.” This provision applies to those appeals in which the order of appeal was granted on or after January 1, 1978. Tadlock v. W. H. Hodges & Company, Inc., 357 So.2d 1268 (La.App.3rd Cir. 1978). As the order for appeal in this case was signed on August 11, 1978, the new provision of Article 2124 is clearly applicable.

However, at the time Article 3612 was enacted, a bond for a devolutive appeal was required. It is for this reason that Article 3612 required a bond to be filed. At that time, in order to perfect a devolutive, as well as a suspensive appeal, it was necessary that a bond be furnished. Despite the language of the Article 3612, the jurisprudence interpreting this article indicates that the intention of the legislature in drafting this provision was not to require a bond to be furnished in appeals of this type, but rather to ensure that an appeal brought under Article 3612 was perfected within the 15 day time limitation. This court has repeatedly emphasized that an appeal brought under Article 3612 must be perfected within the given time limitation, and has dismissed an appeal for the failure to post bond only because such failure was indicative of the fact that the appeal had not been properly perfected. State v. Robouche, 332 So.2d 600 (La.App.3rd Cir. 1976); Collins v. Sweazie, 360 So.2d 920 (La.App.3rd Cir. 1978).

Now, under Article 2124 as amended, a devolutive appeal is effective without the necessity of filing a bond. Consequently, as long as the devolutive appeal is granted within the fifteen day time period provided in Article 3612, then the appeal is good. A bond is no longer required for a devolutive appeal from an order or judgment relating to a preliminary injunction. Dispensing with an appeal bond in such cases does not, of course, do away with the injunction bond required by Article 3610 of the Louisiana Code of Civil Procedure.

In this case, the preliminary injunction was issued on August 4, 1978; the devolu-tive appeal was granted on August 11,1978. Since this was within fifteen days of the order granting the preliminary injunction, the appeal was timely effected within the contemplation of LSA-C.C.P. Article 3612, and this court has jurisdiction of this matter.

IRREPARABLE INJURY AND PRESCRIPTION

Defendant contests the issuance of the preliminary injunction by the trial court on the grounds that (1) the plaintiffs have failed to establish the occurrence of any irreparable injury on which basis they would be entitled to injunctive relief and (2) the two-year prescriptive period provided by LSA-R.S. 9:5622 applies, thus barring plaintiffs’ request for an injunction. After a careful consideration of the law and the evidence in this case, it appears that both of these claims by the defendant are without merit.

1. Irreparable Injury Showing Not Necessary.

The jurisprudence of this state has consistently applied the well-settled principle of law that a valid building restriction is enforceable by an injunction. Camelot Citizens Association v. Stevens, 329 So.2d 847 (La.App.1st Cir. 1976); Allen v. Forbess, 345 So.2d 950 (La.App.2nd Cir. 1977). Generally stated, the rule has been that violab-ors of residential restrictions may be forced by injunction to cease activities in contravention of the restrictions or to remove objectionable structures from their premises. Gerde v. Simonson Investments, Inc., 251 La. 893, 207 So.2d 360 (1968); Salerno v. De Lucca, 211 La. 659, 30 So.2d 678 (1947). Clearly then, under the prevailing jurisprudence, an injunction is the legally proper and available remedy in order to prevent the further violation of a building or residential restriction.

However, defendant asserts that irrespective of the propriety of injunctive relief, nevertheless, the party requesting such an injunction must show evidence of some irreparable injury occasioned by the activity of the offending party. Defendant apparently relies upon LSA-C.C.P. Art. 3601, which provides in part that:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law .” (Emphasis added)

This provision authorizes an injunction in two separate instances: First, where the applicant suffers some irreparable injury, and second, in any other case where an injunction is specifically provided as the appropriate remedy. From a clear reading of this article's language, an applicant does not need to establish irreparable injury if the law specifically affords him the remedy of an injunction.

Under LSA-C.C. Art. 779, which became effective on January 1, 1978:

“Building restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.”

This article provides an applicant with in-junctive relief as a specific remedy where a third party is in violation of existing building restrictions. Under the terms of this provision, the limitations of LSA-C.C.P. Art. 3601 do not apply and thus, it is unnecessary for an applicant to show irreparable injury when seeking injunctive relief from a violation of enforceable restrictions.

In this case, plaintiffs seek the issuance of an injunction to force the defendant from engaging in further commercial activities in violation of the existing residential restrictions for the Perez Heights Subdivision. The evidence reveals that these restrictions are valid and attach to defendant’s property. Under the clear provisions of LSA-C.C. Art. 779, the plaintiffs are entitled to injunctive relief and need not show irreparable injury in their application to the court.

2. Prescription Of Right To Injunctive Relief.

Defendant further contends that the two-year prescriptive period provided by LSA-R.S. 9:5622 should apply and that plaintiffs’ request for injunctive relief should be barred by their failure to file within two years of the commencement of defendant’s activity.

LSA-R.S. 9:5622 was repealed by Acts 1977, No. 170, § 8, and replaced by LSA-C.C. Art. 781, effective January 1, 1978. Article 781 provides:

“No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation . . .”

Under the terms of this provision, an action seeking the injunctive relief afforded by LSA-C.C. Art. 779 must be brought within two years from the time in which a violation of a restriction first becomes noticeable, otherwise the action has prescribed.

Plaintiffs in this action sought injunctive relief in the form of (1) an injunction to force the defendant from conducting commercial activities on his property and (2) to remove the tin structure he had placed on his property in violation of the building restrictions. Plaintiff also sought damages allegedly resulting from the violation. The court, recognizing the applicability of LSA-C.C. Art. 781, denied plaintiff’s request for removal of the offending building as that structure had been erected in 1974, and this suit was not filed until June of 1978, more than four years after plaintiffs first had knowledge of the violation.

However, the trial court properly found that the conduct of commercial activities had not commenced until March of 1978, only three months prior to the commencement of this action. Therefore, the libera-tive prescription of Article 781 did not apply to the violation of the subdivision restrictions relating to use for commercial activities. Accordingly, the action for in-junctive relief in this respect was timely filed.

For the foregoing reasons the motion to dismiss the appeal filed in this court by plaintiffs-appellees is denied. The judgment of the trial court granting plaintiffs-appellees injunctive relief is affirmed.

AFFIRMED.

      . Although the petition alleges that the commercial activities are being conducted by lessees of J. D. Fisher in a structure (tin garage type building), these lessees were not made parties to the suit. The answer to the petition admits the lease and that the lessees began conducting commercial activities in the structure.

      . Prior to amendment, Article 2124 read:
      “The security to be furnished for a devolu-tive appeal shall be fixed by the trial court at an amount sufficient to secure the payment of costs . . . ”

      . As noted above, the issue involving the tin structure was decided in defendant’s favor and he limited his appeal to the prohibition against conducting commercial activities on his property.


author: GUIDRY, Judge.

text:
    Evelyn Berry TOLBERT, Individually, etc., Plaintiffs-Appellants, v. STATE of Louisiana, Through the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, Defendant-Appellee.
    No. 6927.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Writ Refused June 11, 1979.
    Broussard, Bolton & Halcomb (Daniel E. Broussard, Jr. and Frank R. Bolton, Jr., Alexandria, for plaintiffs-appellants.
    John DiGiulio, Staff Atty., Baton Rouge, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Evelyn Berry Tolbert instituted this action individually and on behalf of her minor daughter, Mary Tolbert, seeking damages from the State of Louisiana through the Louisiana Health and Human Resources Administration. On May 29, 1976, while Mary Tolbert (then fourteen years of age) was a patient at Central Louisiana State Hospital in Pineville, Louisiana (Central), she and several other patients entered a vacant building on the grounds of Central, where they became intoxicated and engaged in sexual activities. Plaintiff brought suit against the State of Louisiana, alleging that this incident occurred and the damages resulted solely by reason of Central’s failure to adequately supervise and protect its patients. Mrs. Tolbert further alleges that as a direct result of this incident, she has suffered mental anguish and has incurred numerous medical expenses. Prior to trial, Mary Tolbert married James Richard Calendar, and was substituted as a party plaintiff. The district judge rendered judgment in favor of defendant and against Evelyn Berry Tolbert and Mary Tolbert Calendar, and plaintiffs have appealed. The issues raised on appeal are as follows:

1. DID CENTRAL BREACH ITS DUTY OF CARE TO MARY TOL-BERT CALENDAR?

2. DID THE TRIAL COURT ERR IN FINDING THAT EVELYN BERRY TOLBERT COULD NOT RECOVER FOR MENTAL ANGUISH ARISING FROM THIS INCIDENT?

I. DID CENTRAL BREACH ITS DUTY OF CARE TO MARY TOLBERT CALENDAR?

Mary Tolbert was committed to Central on May 25, 1976. The facts giving rise to her commitment are as follows: When Mary was twelve years old, she began to drink alcohol and to sneak out of her home at night against her mother’s will. Mary’s parents were separated, and she resided with her mother. Mrs. Tolbert testified that whenever she permitted Mary to go out, she (Mary) would “go off with” boys. Mary testified that the purpose of her night time excursions was to ride around and drink with her friends. When Mrs. Tolbert was no longer able to discipline her daughter, nor to prevent her from sneaking out of the house at night, she sought the help of a probation officer, Mr. Grier, who agreed to counsel Mary on an informal basis. Mary’s disrespectful attitude nevertheless continued, as did her evening rendezvous. Mrs. Tolbert then sought the aid of a juvenile judge, who placed Mary on probation and (with Mrs. Tolbert’s approval) sent her to the Youth House in Monroe, Louisiana. Mary was admitted to the Youth House in January, 1976. At Youth House, Mary was permitted to attend public school, and to go home on weekends. The records from Youth House indicate that while she was there, Mary had difficulty socializing with other residents, and often engaged in what the staff considered to be “attention getting devices”. The records further reveal that in February, 1976 Mrs. Tolbert went to the Youth House and reported to a staff member that Mary had gotten drunk when she was at home. In March, 1976 Mary and another resident were involved in an incident in which they escaped from Youth House one night, first claiming that they had been running away, and then admitting that they had planned to meet two men for a date. In early May, 1976 Mary told the residents and staff at the Youth House that she believed she was pregnant. When initial medical tests verified her pregnancy, Mrs. Tolbert was contacted and asked to come to the Youth House for a meeting with the staff. The record indicates that at this meeting, and in the presence of her mother, Mary admitted that when she went home on weekends she was engaging in sexual activities. Subsequent medical tests did, however, reveal that Mary was not pregnant. Shortly after this episode, Mary swallowed ten or eleven diet pills which she had gotten from home the prior weekend, and was taken to E. A. Conway Hospital. Her apparent suicide attempt was categorized in the Youth House records as another attention getting device. Mary stated that she had taken the pills because she was mad at a girl at school who liked the same boy that she did. While at E. A. Conway Hospital, Mary cut one of her wrists with a plastic knife, and arrangements were then made to transfer her to Central under a coroner’s commitment dated May 25, 1976.

At the time of Mary’s commitment, Central was under the administration of Dr. Roy Hill, who testified concerning the procedures which were taken at that time to admit and house new patients. Dr. Hill testified that the staff first determined the nature of the patient’s commitment, i. e., whether it was voluntary or involuntary, and then assigned a “treatment team” to the patient, consisting of a psychiatrist, psychologist, nurse and social worker. Then a psychiatric and social history was compiled from information obtained from those accompanying the patient to Central and from the patient himself. The patient was then given a physical examination, and laboratory tests were performed. The treatment team then evaluated the data compiled on the patient, and prescribed a course of treatment. During the period of evaluation the patient was housed at Unit 1.

Unit 1 at Central is a so-called “closed unit”. All new patients enter this unit, segregated by sexes, while recommendations are being made for that patient’s course of treatment. The doors of Unit 1 are locked 24 hours a day, and no patient is permitted outside the unit without the permission and accompaniment of a staff member. While the patient stays at Unit 1, his treatment team makes behavioral observations and the attendants on duty within the unit make periodic reports on the patient’s conduct, attitude, and his adaptation to his environment. It was not Central’s policy at the time of the incident to keep a patient in Unit 1 until all reports were received from all doctors and institutions that might have previously cared for him. When the treatment team determined that a patient’s behavior and known history warranted such action, they would reassign the patient to a less restrictive unit pending receipt of such reports. In the instant case, Mary had been in Unit 1 for two days when her treatment team determined that she was able to be reassigned to a less restrictive area. Accordingly, she was placed in Unit 17. At Unit 17, the doors of the building remained locked from approximately 4:00 p. m. until 6:00 a. m. At other times during the day, the patients housed in this unit are permitted to come and go as they please. The staff asks the patients to sign in and out on a voluntary basis, indicating where they are going and how long they intend to be. Staff members within the unit take a roll call of the patients in the morning and in the afternoon, and make periodic checks on the patients throughout the day. Only female patients are housed at Unit 17.

The incident in dispute occurred on May 29, 1976, two days after Mary was assigned to Unit 17. In a statement prepared for the police by Mary on June 1, 1976, she related the facts concerning the incident as follows:

“. . . On Saturday, 5-29 — 76, I went and got some breakfast and a little later we, Wilson, James, Cynthia and I were out front of Building #17, and Wilson mentioned something about all of us going to Building # 15, which is an empty building. I said, no, that I was going to go inside and get some sleep. I went in and a little while later I did go to sleep. The next thing I remember Cynthia came in and woke me up and said for me to come go with her to Building # 15, that they had something to drink. I said no. Cynthia left and it seemed like about 15 minutes later Cynthia came back and told me that James wanted me to come go with her. Cynthia and I walked towards Building # 15 and we met James and a patient names (sic) Jack. (I don’t know his last name). James and Jack were sitting on the steps playing a radio. Jack and Cynthia walked up to the door of the building and I asked Cynthia where she was going. She said inside, that they had something to drink. James called to them to fix the door, so I would’nt (sic) get locked out. I got up and went into the building (15) with Jack and Cynthia and then James followed us inside. I did not see anyone unlock the door, they just seemed to walk on into the building. When we all got into the building, I laid down by the counter and Jack, Cynthia and James all walked on to the back of the building. I would like to add that prior to James coming into the building, I had kind of stayed up front. Cynthia and Jack walked on to the back, then Cynthia came and got me and I went to the back. While in the back of the building, Cyn thia gave me a cup and fixed me a drink, which was coke and Vodka. I drank some of it and it seemed to be strong. James came in and Cynthia fixed James a drink, and gave it to him. James and I then went to the other side of the room divider (half wall). James and I sit (sic) on the floor and drank our drinks and played the radio. While we were sitting and talking drinking our drinks, I got up and went around the room divider to get some orange juice, I saw Cynthia lying on the floor on her back and she didn’t have on any clothing, nothing at all./ (sic) Jack was sitting up and he didn’t have on any clothes either. He was sitting by Cynthia. I got the orange juice and went back to where James was. James had kissed me some before I went to get the juice. When I got back to James, I fixed me another drink and sat by James. We drank and James started kissing on me. James started taking my clothes off and I let him do it, he took all my clothes off and then he took all his clothes off but his shirt. James then got on top of me and we had sex. After we had sex on the floor, James got up and so did I. I got dressed and so did James. We sat and talked some more and I went to check on Cynthia, but they had already gone. I went back to James, then I remember someone knocking on the back door. James went to see who it was and after that I’m not able to remember to (sic) much. I guess I drank about three strong drinks of Vodka with coke and orange juice. I guess it was about 10:00 a. m. when we went to the building and around 11:00 a. m. some of the nurses came in and got us, Cynthia and I. I guess James and Jack ran off because I remember someone running off but I don’t know who. .
I can state that when I went into the building with James, I kind of knew what might happen, but I wasnt (sic) sure that I would let it happen. After we got in the building and started drinking and James started kissing me and messing around, I knew what was going to happen. I knew James wanted sex with me and I let him, do it. .

The record reflects that it was the arrival of a visitor for Cynthia at 10:15 a. m. which prompted the nurse on duty to commence a search for the girls and to notify hospital security that they were unaccounted for.

Plaintiffs allege that Central’s decision to transfer Mary to Unit 17 constituted a breach of its duty of care to her. It is contended by plaintiffs that Mary should not have been permitted to mingle with adults, particularly adult males, and that Central should have awaited reports from the Youth House and from E. A. Conway Hospital before moving Mary out of Unit 1. Plaintiffs further contend that Mary was a borderline mental retardate who did not have the mental capacity to comprehend what she was doing, or to give knowing consent to an act of sexual intercourse. Plaintiffs likewise assert that Central did not give credence to the standard form of the coroner’s commitment, which contained the following language:

“This certifies that Marv Tolbert is suffering from a mental illness which causes him to be dangerous to himself or others and makes him incapable of caring for himself or his personal safety . . .”

In its written reasons for judgment, the trial court made the following factual findings:

“1. Mary was never shown at the trial to have ever been suffering from any mental illness. The physicians at Central diagnosed her condition as ‘adjustment reaction of adolescence.’ As a layman listening to the technical explanation of this terminology, it appears to cover the situation all too common in life, well familiar to the courts, of juveniles who simply rebel against authority and who adopt a pattern of life in which they do as they please. This is usually in defiance of parents and all other authority.
2. Mary had twice displayed a reckless volition to endanger her life, which she evidently desired to be interpreted as suicide attempts.
3. Mary had often been drunk by her own admission. It was her testimony that she only drank beer because hard liquor would ‘put her out’ rather quickly.
4. Mary was sexually wise. While there is no evidence that she was promis-cious in the broadest sense of the word, her frequent visits with her male friend at Columbia while she was at Youth House established that she had been fairly well introduced to the phenomenon of sex. Her discussion of her fear of pregnancy because she had missed her period after some of these visits shows her knowledge of the consequence of sexual intercourse.
5. Mary seems to be intelligent. Despite the testimony by deposition of Dr. James H. Philips, which the undersigned largely discounts, Mary testified in a manner which was convincing that she was a girl of normal intelligence and the undersigned considered her to be quite bright. Dr. Hugh King of the Central staff, on cross-examination, agreed with Dr. Philips that on the basis of Mary’s IQ score that she was on the border line of mental retardation. Nevertheless, on the questioning Dr. King by the undersigned, he stated that Mary was capable of finishing high school and that many persons of her IQ obtain college degrees. He estimated that, in a rough approximation, 65% of the population would have a higher IQ than Mary.”

The trial court concluded:

.. . From the facts and circumstances set out above in this case and the law applicable to them, it can be seen that the State has not breached the duty it owed to Miss Tolbert, and therefore is not liable for damages to her. Central did take reasonable precautionary measures to prevent its patients from being harmed. As was shown by the testimony of Doctors Hill and King, the hospital followed accepted psychiatric procedures by not confining Mary behind bars. It was also established at trial that Central did take measures to secure the hospital grounds and to protect its patients. If the Court was to hold, based upon the facts and circumstances of the present case, that Central had breached its duty of providing adequate supervision, the Court would, in effect, be making the hospital an insurer of its patient’s safety in violation of the line of cases cited in the quotation from Moreaux given above. Hence, even if the plaintiffs had surmounted all of the factual obstacles, they still could not recover since the State was in no way negligent .
Mary voluntarily got up from her own bed in the ward where she was assigned and went to an empty building to engage in drinking with males and another female. She might have done the same from her own home. For the purposes of drinking she had done this very thing— leaving her mother’s home — on numerous occasions since she was twelve years old. Considering her intelligence and sexual experience, Mary was fully aware of the probable consequences of meeting with the men in question. She so testified. Does the State at institutions such as Central have the duty to impose foolproof restraint with reference to the moral conduct of its inmates? Even as to fourteen year olds, does the State have the duty? The undersigned is of the opinion that the state has no such duty with respect to persons of Mary’s age and intelligence.”

We find the trial court’s factual findings to be supported by the record, and concur in its determination that Central did not breach its duty of care to Mary.

In Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974), the Louisiana Supreme Court set forth the standard of care applicable to hospitals as follows:

“A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.” at pg. 747.

In Jenkins v. Bogalusa Community Medical Center, 340 So.2d 1065 (La.App. 1st Cir. 1976) the court stated:

“. . .A hospital is not an insurer of a patient’s safety. The duty owed by hospitals to patients is not designed to protect a patient against risks which patients who are aware of their surroundings and who are mentally capable should reasonably anticipate. See e. g., Killgore v. Argonaut-Southwest Insurance Company. 216 So.2d 108 (La.App. 2nd Cir. 1968); DeBlanc v. Southern Baptist Hospital. 207 So.2d 868 (La.App. 4th Cir. 1968); Noble v. Insurance Company of North America. 248 So.2d 12 (La.App. 1st Cir. 1971).” at pg. 1067.

A hospital must exercise such care of a patient as the patient’s known condition and the facts and circumstances peculiarly applicable to that patient on that particular occasion require. Meynier v. De-Paul Hospital, 218 So.2d 98 (La.App. 4th Cir. 1969).

On the day that Mary was admitted to Central, her history was compiled by a staff social worker, based upon information supplied by Mrs. Tolbert. As previously stated, the contents of this history was considered by Mary’s treatment team in evaluating her condition and prescribing a course of treatment for her. Examination of this history reveals that in part, Mrs. Tolbert supplied Central with the following information: Mary had, at times, left her mother’s home without permission “during the late hours of the night”: while she was at the Youth House, Mary had run away several times; once she “. . . even told a lie that she was pregnant”. According to this history, the factor which precipitated Mary’s commitment to Central was her overdose of diet pills at Youth House. The report is void, however, of any reference to possible promiscuity on Mary’s part or to any other reason why it might be in Mary’s best interest to segregate her from the male patients at Central. There is likewise no mention of the fact that she had been drinking for some time prior to her commitment. It might be noted that the following statement appears in the report: “Mrs. Tolbert requested that if at all possible the patient be referred to Unit 40 for treatment.”

In sum, the staff at Central made every reasonable effort to determine all of Mary’s problems from the day of her commitment. However, its staff was given no reason whatever to believe that Mary would, if given even an hour of freedom, consensually engage in sexual activities or drink alcohol on the grounds of the hospital. Behavioral observations made by staff members at Unit 1 revealed that she was behaving normally, socializing well, and adapting to her surroundings without difficulty. Her treatment team apparently determined that while her behavior did not entitle her to all the freedoms available at Unit 40, it did warrant a transfer to Unit 17. Dr. Hill testified that the transfer was made pursuant to accepted modern psychiatric procedures.

We conclude, as did the trial court, that based upon the record Mary clearly had the mental capacity to understand the consequences of her actions, i. e., of drinking alcohol and of engaging in sexual intercourse. She voluntarily left Unit 17 to enter Unit 15 with four males and one female for the purpose of drinking alcohol. She stated that before she did so, she anticipated that sexual advances would be made toward her. She likewise stated that she voluntarily drank the alcohol and voluntarily engaged in sexual activities with at least one of the males. We find that under the particular facts herein presented, Central’s duty of care to Mary did not include placing her behind locked doors all day until every report was received from each doctor and institution which had treated her prior to her commitment. Nor did its duty include guaranteeing that Mary would not have access to alcohol brought onto the hospital’s premises in direct contravention of Central’s rules prohibiting such. We find from the record that Central made every reasonable effort to keep alcohol off of its premises. Central’s actions with regard to Mary’s treatment did not fall below the standard of care required of it.

We are not prompted to conclude otherwise because of the language of the coroner’s commitment to the effect that Mary suffered from a mental illness which made her dangerous to herself and others. This statement was printed on each coroner’s commitment form. It was never, however, intended to be a medical diagnosis of every patient committed to Central by coroner’s commitment. Consequently, it did not, and should not have played any significant part in Central’s evaluation and treatment of the patient’s condition. We therefore affirm the judgment of the trial court dismissing Mary Tolbert Calendar’s action against defendants.

In light of the fact that Mrs. Evelyn Berry Tolbert’s claim for damages is based upon the alleged breach of Central’s duty of care to her daughter, we likewise affirm the trial court’s dismissal of her action.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are to be paid by appellants.

AFFIRMED.

      . The case of Moreaux v. Argonaut Insurance Company is reported at 350 So.2d 240 (La. App.3rd Cir., 1977), writ refused, November 11, 1977.

      . In the course of a physical examination conducted on May 25, 1976 by Central, Mary herself denied the use of alcohol.

      . Unit 40 was part of the adolescent program at Central, which was unlocked. It was located on the perimeter of the hospital’s grounds adjacent to a public road and was considered by the administrator of Central to be a much less restrictive Unit than both Units 1 and 17.


text:
    Charlotte Bourque MYERS, Plaintiff-Appellee, v. Eldridge MYERS, Jr., Defendant-Appellant.
    No. 6929.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Marcantel & Marcantel by David E. Mar-cantel, Jennings, for defendant-appellant.
    Edwards, Stefanski & Barousse, Larry C. Dupuis, Crowley, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Defendant appeals from a judgment which removed his daughter, Nicole Amant Myers, age 5 years, from his custody and placed the child in custody of her mother, Charlotte Bourque Myers, now Mrs. Donald Roach.

The facts are not disputed. On January 28, 1977 defendant was granted a divorce from plaintiff on grounds of adultery. Although plaintiff filed answer to the petition for divorce she did not appear on the day of trial to defend the action. The judgment of divorce awarded defendant the care and custody of Nicole, then age 3 years.

Shortly following rendition of the divorce decree plaintiff married her paramour, Donald Roach, and they established a home in Estherwood, Louisiana, where they presently reside. The record reflects that Mr. Roach is gainfully employed earning in excess of $3000.00 monthly. The Roaches live alone in a comfortable two bedroom home.

Following his divorce the defendant married Mary Ann Myers and the family, now consisting of three children of Mary Ann by a previous marriage, Nicole, and a child bom of defendant’s second marriage, presently reside in a small two bedroom home in Estherwood. Mr. Myers is gainfully employed and earns approximately $1800.00 monthly.

Plaintiff on June 6, 1978 filed this suit seeking custody of Nicole.

The trial court in brief oral reasons for judgment alluded to no change in circumstances since the original award of custody which might be considered deleterious to the welfare of the child but found after consideration of all of the evidence that “it is in the best interest of the child that the child be returned to the mother”.

Appellant assigns as error the trial court’s grant of a change of custody to the mother in the absence of a showing that circumstances deleterious to the welfare of the child have arisen since the award of initial custody to the father. In effect, able counsel for appellant argues that the trial court judgment is in error because it does not comply with the “double burden” rule applicable in cases involving change of custody. Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). In response appellee argues that the initial award of custody to the father is not a “considered decree” within the intendment of the “double burden” standard in that she did not appear at the initial hearing to contest the award of custody and, in any event, our Supreme Court in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) discarded the “double burden” standard.

In Fulco v. Fulco, supra, our Supreme Court set forth clear and understandable guidelines which are to be followed in custody matters, whether the matter involves the initial award of custody or an application to change custody. Fulco was decided some sixteen years after Decker. Therefore, to the extent the rule announced in Decker may conflict with the rules or guidelines set forth in Fulco, the former has been superceded. As stated in Fulco the following principles are to be considered in determining an award of custody (extensive citation of authorities omitted):

“The paramount consideration in determining to whom custody should be granted is always the welfare of the children. * * *
The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. * * *
When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.
Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. * * *

As observed by this court in Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3rd Cir. 1977) the principles above set forth are not to be applied rigidly or inflexibly rather they should be considered in pari materia to the end that the court will seek, above all else, a custody award which will assure the best interest and welfare of the child.

We have considered the record in light of the above and find it unnecessary to categorically decide whether the initial award of custody in this case was a “considered decree”, for even if it be considered such, our review discloses no manifest or clear error in the trial court’s transfer of custody to the mother. Considering the sex and age of the child; the fact that the plaintiff mother is now living a decent and moral life and can provide her young daughter with a good comfortable home; the fact that, although defendant has had the custody of his daughter for a year and a half, the mother through the exercise of her visitation privileges has maintained a close, loving and warm relationship with her child; and, the fact that there is not even the slightest suggestion in the record that the child will be adversely affected either physically or emotionally by a change in custody, prompts us to conclude, as did the trial judge, that it is in the best interest of the child that her custody be transferred to her mother.

Although it has not been established that if custody were continued in defendant this would be detrimental to the welfare of the child, we feel that it has been shown that, considering the factors above set forth, the child’s interest and welfare will be better served if she is placed in her mother’s custody-

We concede that in the instant case a rigid and inflexible application of the third principle enunciated in Fulco might dictate a different result. However, as heretofore stated we do not consider that such principles should be considered singularly or rigidly and inflexibly applied. As this court stated in Bushnell v. Bushnell, supra:

“. . . the return of Niki to the custody of her mother meets three of the principles established by Fulco. The third principle, involving the heavy burden, must bow to the others. In matters so difficult of determination as child custody, rigid and inflexible rules can serve only to defeat the ends of justice and do not serve the welfare of children.”

Appellant’s remaining assignment of error concerns the action of the trial court in assessing him with all court costs. Although the trial court is vested with great discretion in the assessment of costs we consider that under the particular circumstances of this case equity demands that the costs incurred both at the trial level and on appeal be assessed equally to the parties’ litigant. LSA-C.C.P. Article 2164.

For the above and foregoing reasons the judgment of the trial court is amended so as to assess all court costs one-half (V2) to plaintiff and one-half (V2) to defendant. Except as amended the judgment appealed from is affirmed with the costs on appeal to be borne one-half (V2) by appellee and one-half (V2) by appellant.

AMENDED AND AFFIRMED.

      . Plaintiff filed a similar suit in Acadia Parish on March 2, 1978, however, such suit was dismissed on an exception of venue.

      . Although not labeling the circumstance deleterious to the welfare of the child, the trial court did find that, at the time of hearing, defendant’s family of seven, including Nicole, occupied a house consisting of two bedrooms and twelve hundred square feet of space.


text:
    John D. REAVILL, Plaintiff-Appellee, v. Mary C. REAVILL, Defendant-Appellant.
    No. 6931.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.

      Jules R. Ashloek, Ville Platte, for defendant-appellant.
    John Saunders, Ville Platte, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This action arose out of a rule to show cause which was filed by the plaintiff, John Reavill, to compel the defendant to comply with a 1973 judgment of divorce which provided for certain visitation rights with the plaintiff’s daughter, Cynthia Reavill. The defendant subsequently filed a counter rule in which she sought to increase child support payments awarded to her in the divorce decree from $150 per month to $300 per month. The issues presented on appeal are whether the trial judge erred in only increasing child support payments by $25 per month, and in only allowing the plaintiff to see his daughter on one Sunday per month.

A judgment of divorce was entered into between the parties on July 12, 1973. The divorce decree ordered the plaintiff to provide child support to his two minor children, Cynthia Reavill and Paul Reavill, in the amount of $150 per month. The divorce decree awarded custody of these two children to the defendant; however, the plaintiff was afforded liberal visitation rights with his two children.

The evidence reveals that the plaintiff has fully complied with his obligations to provide monthly child support to the defendant. However, the plaintiff has been refused the opportunity to visit with his daughter as had been allowed him in the judgment of divorce. Consequently, on August 3, 1978, plaintiff filed a rule to show cause as to why the defendant should not be compelled to comply with those visitation rights afforded under the divorce decree as to his daughter, Cynthia Reavill. The following August 9th, defendant filed a counter rule by which she sought an increase in child support payments to $300 per month. These rules were set for hearing on August 18, 1978.

The trial court, after examining the testimony of the parties involved and reviewing the evidence produced by the defendant as to Cynthia Reavill’s emotional and psychological state, concluded that the original divorce decree should be modified so as to limit the plaintiff’s visitation rights with his daughter. The judge found that the defendant would continue to have permanent care and custody of the minor children, and that the plaintiff’s visitation with respect to his son would remain unchanged. However, the trial judge concluded that the plaintiff could only visit his daughter on the last Sunday of each month in the presence of the defendant between the hours of 2 and 4 o’clock P.M. The trial judge also ordered that the plaintiff was to pay child support in an increased amount of $175 per month beginning on November 1, 1978. From this judgment both the plaintiff and defendant now appeal.

The evidence introduced in the trial court revealed that as to plaintiff’s claims for visitation rights with his daughter, that the defendant had not prevented Cynthia Rea-vill from visiting with the plaintiff. Rather, Cynthia Reavill herself exhibited a marked degree of reluctance to see her father. A psychiatric evaluation of Cynthia Reavill obtained pursuant to a court order was introduced into evidence and indicated that it would be emotionally detrimental to Cynthia for her to visit with her father when not in her mother’s presence. The report recommended that paternal visits be limited to brief periods of time in her mother’s home and in her mother’s presence. The report concluded that after several years of visits under such arrangements, it would be likely that Cynthia would begin to feel more comfortable with her father at which time the plaintiff could be allowed more liberal visitation rights. The impact of the evidence introduced is that at this time, the best interest of the child dictates that the plaintiff’s visitation rights be limited.

The record further indicates that shortly after the divorce in 1973, Mr. Reavill remarried and now has two step-children as a result of the second union. Although plaintiff’s income has increased by some $12,000 from 1973, it is clear that plaintiff has incurred increased obligations and responsibilities as a result of his second marriage. The record reflects that once deductions are made for the plaintiff’s medical expenses and other debts, the plaintiff is left with a limited amount of money per month to support his family. The testimony would seem to indicate that Mr. Reavill’s financial condition is adequate to maintain his family and to provide child support payments to the defendant in the amount of $175 per month without placing an unreasonable burden upon the plaintiff.

It is well settled that the paramount consideration in determining visitation rights following a divorce is the welfare of the child. Johnson v. Johnson, 357 So.2d 69 (La.App. 4 Cir. 1978). As such, the trial court is vested with a broad discretion in its award of visitation privileges to a parent. Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973). One of the questions in considering an award of visitation rights is whether the emotional stability of the child will be affected. In making such determination, much discretion is afforded the trial court in its structuring of the times and conditions of visitation, and the general rule is that a decision will not be disturbed unless there has been evidence of an abuse of the trial court’s discretion. Pate v. Pate, 348 So.2d 1338 (La.App. 3 Cir. 1977).

Similarly, in the determination of what constitutes the proper amount of child support, much discretion is left to the trier of fact and once a determination is made, then the trial court’s decision is generally not changed on appeal unless it is shown that the judge abused his discretion or was manifestly erroneous in assigning support. Byrd v. Byrd, 335 So.2d 515 (La.App. 1 Cir. 1976); Bergeron v. Bergeron, 351 So.2d 1296 (La.App. 1 Cir. 1977). Clearly, child support judgments are subject to modification; however, the burden of proof rests upon the parent seeking an increase in child support to show that there has been a substantial change in circumstances from the time of the initial decree. Edler v. Murray, 360 So.2d 205 (La.App. 4 Cir. 1978). However, a mere change in the circumstances is not enough, for the courts have held that support should be determined not only by the need of the child but also by the ability of those who have to pay. Graval v. Graval, 355 So.2d 1057 (La.App. 4 Cir. 1978). The courts are instructed to look to the totality of circumstances involved in making a determination as to child support. In essence, the final question largely becomes one of fact. LaBalle v. LaBalle, 352 So.2d 330 (La.App. 4 Cir. 1977). Clearly the mere cost of inflation alone will not automatically warrant an increase in support since such inflation affects both parties to an equal extent. Ducote v. Ducote, 339 So.2d 835 (La.1976).

A careful review of this record reveals that the trial court committed no manifest error in making its final determination. The evidence justifies an increase of only $25 per month in the child custody payments. Furthermore, the limitation of visitation rights for the plaintiff is clearly a proper decree in consideration of Cynthia Reavill’s emotional state.

For the above and foregoing reasons, the judgment of the trial court is affirmed and all costs of this appeal are assessed equally against the plaintiff and defendant.

AFFIRMED.

      . There is no issue about plaintiffs visitation privileges with his son, Paul.

      . Cynthia’s date of birth is Feb. 4, 1966.

      . Report of Dr. William P. Cloyd, Jr., M.D., is at page 31 et seq. of the transcript.


text:
    Wilma C. LESLIE, Plaintiff-Appellee, v. W. H. BLACKWELL, Defendant-Appellant.
    No. 6932.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Watson, Murchsion, Crews, Arthur & Cockern, by William P. Crews, Jr., Natchi-toches, for defendant-appellant.
    Gahagan & Gahagan, by H. C. Gahagan, Natchitoches, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a suit by the plaintiff-lessor for rescission of a predial lease. The lease in question is in writing and is dated August 5, 1963. By the terms of the agreement plaintiff’s ancestor in title, Bill Leslie, leased unto the defendant-lessee an approximate one-fourth acre of land in Sabine Parish to be used as a storage and distribution site for L. P. Gas. The lease was made in consideration of an annual rental of $25.00 and for the following term:

“This lease contract is for a primary term of one (1) year, from date, and from year to year thereafter for so long as ‘Lessee’ desires this lease contract to continue to remain in force.”

Plaintiff sought cancellation or rescission of the lease on several stated grounds: (1) the lease is invalid for want of a fixed or definite term; (2) nonpayment of lease rental as specified in the agreement; and (3) the lease rental is grossly insufficient and constitutes a lack of consideration sufficient to vitiate the agreement. The trial court rendered judgment in favor of plaintiff and defendant has appealed. We affirm.

LSA-C.C. Article 2674 provides as follows:

“To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him.” (Emphasis supplied)

It is well settled that a lease for an indefinite term is nudum pactum. Bristo v. Christine Oil & Gas Co., 139 La. 312, 71 So. 521 (La.1916). In the cited case our Supreme Court stated:

“. . . Hence the only question presented for decision is whether the stipulation that the grantee might prevent a forfeiture and continue the lease or option from year to year by paying an annual rental of 10 cents an acre was or is enforceable. Our opinion is that that stipulation in the contract is null for want of a fixed or definite term. Whether it be regarded as a lease or an option, it would be an anomalous contract without a definite term or limitation. To recognize that the defendant has the right, without any obligation, to hold the plaintiff’s land under a perpetual lease or option, would take the property out of commerce, and would be violative of the doctrine of ownership, defined in the second title of the second book of the Civil Code. ...”
“. . . We rest our decision in this case, not upon the potestative condition on which the contract was made, but upon the proposition that a contract purporting to give a perpetual option to hold land under a mineral lease is null. . . ”

The agreement in question by its terms purports to grant to the defendant the right or option to hold plaintiff’s land under a perpetual lease. Therefore, said agreement is null and void being violative of our civil law concept of ownership. As aptly stated in “Elements of the Law of Ownership” by Fred Zengel, LSA-Civil Code Volume 3, page 5:

“The power to separate or encumber the elements of ownership is qualified by two cardinal tenets of the Code: first, that a thing may not be removed from commerce indefinitely by a restraint upon its use or disposition; and, second, that perfect ownership in a thing will be restored as often as possible by the reunion of the elements of USUS, FRUCTUS and ABU-SUS . .

Having concluded that the lease agreement in question is void for want of a definite term, we do not consider appellee’s alternate contentions in support of her demand.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.