text:
    Myra F. WOODARD, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    No. 13327.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.
    Writs Refused Dec. 14, 1977.

      Bethard & Davis by Henry W. Bethard, III, Coushatta, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Neilson S. Jacobs, Shreveport, for defendant-appellant.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff and defendant appeal a judgment awarding plaintiff 12% penalties and attorneys’ fees under LSA-R.S. 22:658 for defendant’s failure to timely pay a disability claim under a blanket health and accident policy. We affirm.

On June 19,1975, plaintiff sustained injuries in an automobile accident which permanently disabled her. At the time of her injury plaintiff had outstanding loans with Barksdale Federal Credit Union (“Barks-dale”) payment of which was insured by defendant. The health and accident policy was issued to the Trustees of the Federation of Louisiana Credit Union Insurance Trust and Barksdale was a participating credit union in this trust.

Plaintiff notified Barksdale within one month of her injury and inquired into the existence of insurance to pay the loans. She was advised Barksdale carried insur-anee, but was not told the insurer’s name. For seven months plaintiff unsuccessfully attempted to obtain claim forms to apply for payment of the loans. She contacted Barksdale at least six times by telephone and made one visit to the office. Plaintiff received a letter from Barksdale on February 25, 1976, advising her of insurance which would cover the loans if she was completely disabled. On February 27, she advised Barksdale she probably would never be able to return to work. Barksdale sent her claim forms on March 1.

Plaintiff filled out the claimant’s statement March 31, her physician filled out his statement April 13, and these documents were returned to the credit union as per instructions on the claim form. Plaintiff had no other address for Prudential Insurance Company.

In May plaintiff contacted Barksdale to see if her loans had been paid and was told the forms had not been forwarded to Prudential. On June 9 Barksdale filled out its portion of the form showing a balance of $9,092.86, and these forms were transmitted to defendant by letter dated June 12. The claim forms were received by defendant June 22. Defendant approved plaintiff’s disability July 21, but delayed authorizing payment until September 14 because it interpreted a Barksdale ledger sheet as ambiguous as to the unpaid balance of plaintiff’s loan.

The first issue on appeal is which penalty provision applies to this blanket health and accident policy — LSA-R.S. 22:657(A) which provides 100% penalties and attorneys’ fees if the claim is not paid within 30 days of receipt of proof of loss, or LSA-R.S. 22:658 which provides 12% penalties and attorneys’ fees if the insurer arbitrarily and capriciously refuses to pay within 60 days after receipt of proof of loss and demand.

The second issue presented on appeal is do the circumstances surrounding payment of plaintiff’s claim entitle her to penalties and attorneys’ fees under the applicable statutory provision.

WHICH PENALTY PROVISION APPLIES?

Defendant’s policy provided for payment of insured loans in one lump sum to the credit union to discharge the borrower’s indebtedness in the event the borrower became totally and permanently disabled.

In Harmon v. Lumbermens Mutual Casualty Company, 247 La. 263, 170 So.2d 646 (1965) the Supreme Court, in discussing the applicability of LSA-R.S. 22:657(A) to a lump sum claim under a health and accident policy, stated:

“A reading of Section A of LSA-R.S. 22:657, supra, clearly shows that the Legislature intended that this section be applicable to small claims (hospital, medical, etc.) and monthly disability payments. Such intent is expressed in the sentence, ‘The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments.’ Immediately following the preceding sentence is the 100% penalty provision. LSA-R.S. 22:657 expresses no intent to award a 100% penalty on a lump sum which could be as high as $100,000.00. We conclude that the penalty provision and attorney’s fees provision of LSA-R.S. 22:657 are not applicable to plaintiff’s claim.” Id., page 653.

In Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App., 3d Cir. 1971), the court in a case indistinguishable from the one here appealed, rejected the 100% penalty and attorneys’ fees provisions of R.S. 22:657(A) and applied the less harsh provisions of R.S. 22:658 to a lump sum claim situation.

The trial court was correct in interpreting defendant’s policy to provide for a lump sum payment and in holding the penalty provisions of LSA-R.S. 22:658 applicable.

DID DEFENDANT PAY WITHIN SIXTY DAYS OF DEMAND?

Defendant argues the trial court erred in assessing penalties and attorneys’ fees because under R.S. 22:658 demand is required in addition to submission of proof of loss before the 60 days commences to run. Defendant urges no demand was made until plaintiff’s attorney wrote a demand letter August 27, and defendant’s payment of the loss on September 14 was made within 60 days of this letter. A careful examination of the documents received by defendant on June 22 reflects three parts. One is entitled Claim for Disability Benefits, or Claimant’s Statement. This statement, which is signed by claimant, contains information concerning claimant’s name, address, occupation, nature and date of injury or illness, name and address of treating physician, and medical history. On the back of Claimant’s Statement is the second form entitled Attending Physician’s Statement, which was filled out by plaintiff’s physician, in which he described the nature and extent of plaintiff’s disability. The third portion styled Creditor’s Beneficiary Statement, and signed by the manager of Barksdale certifies plaintiff’s loan balance.

Webster’s New Twentieth Century Dictionary, unabridged, includes among definitions of claim as a verb: to call for; to demand as due; and among synonyms given are: ask; demand; insist; and require; and as a noun it is defined as a demand for something rightfully or allegedly due; the assertion of one’s right to something. From these definitions of claim the document entitled Claim for Disability Benefits submitted by plaintiff meets the requirement of demand as required by LSA-R.S. 22:658, and together with the attached Physician’s Statement and Creditor’s Statement, meet the requirements for a proof of loss.

In Steadman v. Pearl Assurance Company, 167 So.2d 527 (La.App., 4th Cir. 1964) the court recognized a proof of loss and supporting documents could constitute demand for payment, and when this was the case no additional demand was necessary. The 60 days commenced to run upon receipt of the demand and proof of loss. The language of the court is as follows:

“This would apply only where there was no previous demand and where the proof of loss alone could not be construed as a demand in itself. It would be absurd to require a second demand to be made after sixty days, merely because the insurer had passively refused payment by sixty days of silence as in this case. Such an interpretation would defeat the purpose of the statute and give the insurer additional time not intended.” Id. p. 530.

In Steadman the letter forwarding the proof contained the following words: “Your prompt, attention in concluding the claim would be greatly appreciated. . . .” (emphasis added). The court held this constituted demand. In light of the frequent use of claim and claimant on the document accompanying the proof of loss in the instant case, no additional demand was necessary because the use of the word claim on the form in numerous places was synonymous with use of the word demand.

In Wilkins v. Allstate Insurance Company, 173 So.2d 199 (La.App., 1st Cir. 1965), the court discussing the demand requirement of the statute, stated:

“Demand, when required may be either written or oral so long as it be shown to have fully informed and apprised the insurer of the insured’s intention to press for or demand payment of the claim submitted. It is significant that the statute does not require written demand. What constitutes demand, however, is to be determined in the light of the facts and circumstances of each individual case. . . . ” Id. p. 202.

Plaintiff’s persistence in seeking information about the existence of insurance coverage, executing claimant’s statement, securing her physician’s statement, and urging Barksdale to execute their form and mail these documents to the insurer, reflects her full intention to press for and demand payment of her claim, and constitutes demand as required by the statute.

Under the trust agreement Barks-dale was obligated to supply Prudential the names of borrowing members and amounts of their insured loans, to deliver and perhaps prepare the certificate of insurance to borrowing credit union members and to supply Prudential with necessary claim information. In consideration of Barksdale’s services, defendant refunded 1% of premiums to the trustees and Barksdale was entitled to participate in this refund. Under these circumstances Barksdale is an agent of defendant. The knowledge of Barksdale as defendant’s agent of plaintiff’s pressing pursuit to collect her claim is attributable to defendant. Mistrie v. Republic National Life Insurance Company, 314 So.2d 472 (La.App., 1st Cir. 1975); Neider v. Continental Assurance Company, 213 La. 621, 35 So.2d 237 (1948).

WAS DEFENDANT ARBITRARY AND CAPRICIOUS?

Under the provisions of LSA-R.S. 22:215 defendant was required to furnish plaintiff a certificate of insurance advising her of the benefits, method of presenting notice of claim, proof of loss and name and address of the insurer.

Defendant failed to provide this certificate to plaintiff. There is evidence indicating blank certificates were made available to Barksdale, defendant’s agent, with instructions to provide members with the required certificate. Plaintiff denied having any knowledge concerning the insurance establishing she never received such a certificate. Had she received the certificate containing the required information, she could have made her demand and submitted her proof of loss direct to defendant instead of being required to refer her insurance affairs to the inefficient handling of Barks-dale.

Considering these circumstances Prudential had possession of demand and proof of loss at least by June 9, 1976, when Barks-dale, while in possession of claimant’s statement and attending physician’s report, prepared its appropriate form reflecting the unpaid balance of plaintiff's loan.

Defendant received the claim forms on June 22, and following investigation, approved plaintiff as totally and permanently disabled July 21. Defendant failed to pay the claim on this date because the claim examiner believed Barksdale’s ledger sheet did not establish the balance of plaintiff’s loan. When the ledger sheet is considered in conjunction with the certification sheet of Barksdale, there is no reason why the unpaid balance of plaintiff’s loan was not discernible. The certification sheet, signed by the manager of Barksdale, states the balance to be $9,092.86, and an examination of the ledger does not show this figure to be incorrect.

Defendant should have examined the ledger sheet and attached document upon receipt on June 22, and, if it considered same ambiguous, immediately made further inquiries of Barksdale as to the correctness of the balance. This it failed to do, but waited 30 days at which time it attempted to clarify the balance by writing letters to Barksdale. This mode of communication, due to Barksdale’s failure to promptly answer the first letter, resulted in defendant taking from June 21 to September 14, approximately 84 days, to approve and pay the claim. Defendant could have made a telephone call to Barksdale on the 21st day of July to clarify any uncertainty concerning the balance instead of corresponding by mail.

Defendant’s failure to investigate the account balance promptly upon receipt of claim documents or by telephone at the later date is without justification. Under these circumstances defendant’s failure to pay plaintiff’s claim within 60 days of receipt is arbitrary and capricious and subjects defendant to payment of penalties and attorneys’ fees.

For reasons assigned, we affirm at defendant’s costs.

      . LSA-R.S. 22:658
      “All insurers issuing any type of contract other than those specified in R.S. 22:656 (applicable to life insurance policy) and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, . . (explanation added).

      . LSA-R.S. 22:215(A)(3)(g):
      “. . . The insurer shall furnish to the policyholder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reductions contained in the policy and the provisions relating to notice of claim, proof of loss, time of payment of claim and any other relevant information, including the name and address of the insurer. * * * ”


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Hazel Rivers CONTARIO, Plaintiff-Appellee, v. Virgil A. CONTARIO, Defendant-Appellant.
    No. 13329.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-appellant.
    Edmund M. Thomas, Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

The issue presented by this appeal is the correctness of a judgment awarding a divorced wife and mother $225 per month for the support of two minor children. The appellant divorced husband and father contends the trial court erred in awarding an excessive amount and in awarding child support for a married 16-year-old son. The appellee, who answered the appeal, contends the amount awarded is correct or should be slightly higher, even if child support is due for only one minor child. Appel-lee further contends a portion of the award should be designated as alimony.

The trial judge fixed the amount to be paid by appellant at $225 per month and made the award for the support of two minor children. The judge made it clear, however, in oral reasons for judgment, that he was designating the award entirely as child support for tax purposes, and the award would be the same even if divided between alimony and child support and even if support was due for only one minor child. The trial judge was convinced the needs of the wife and one minor child exceed $225, but that amount is the maximum the appellant can afford to pay.

Pendente lite support for five minor children was originally fixed at $325 per month. At the trial of the alimony and child support matter following a final divorce, it was established that two of the children had married and moved away from home. One son had become 18, is living with his mother, not going to school and not working. Another son, 16 years of age, had married but is living at home with his mother rather than with his wife, not going to school and not working. A 15-year-old son also lives at home, goes to school, and works part time.

The mother works at a nursing home earning $350 per month. She does some part-time work earning minimal additional income. Her total expenses in her present household situation exceed $900. Her expenses for herself and only one child exceed her earnings plus the amount awarded.

The father is regularly employed at a manufacturing plant and earned approximately $12,000 in 1976. His earnings may be reduced as much as 25 percent in 1977 due to a shorter work week at the plant. Although the wife’s needs are greater, the trial judge determined that $225 per month is all appellant is able to pay.

The evidence supports the amount of the award made by the trial judge, whose discretion was soundly exercised. However, the judgment must be modified in some respects.

The mother may not assert the right to support on behalf of the married 16-year-old son. A minor emancipated by marriage has the power of administration of his estate which includes the capacity or right to seek support from his parents. LSA-C.C. Arts. 380 and 382; LSA-C.C.P. Art. 682; Jefferson v. Jefferson, 246 La. 1, 163 So.2d 74 (1964); In Re Greer, 184 So.2d 104 (La.App. 4th Cir. 1966). The minor’s emancipation does not relieve the parent of the obligation to support the child; however, the child must assert the right in his own name. Miller v. Miller, 321 So.2d 318 (La.1975). Accordingly, the judgment must be modified to award support only for the 15-year-old minor son.

Considering the totality of the circumstances, the wife is in necessitous circumstances and is entitled to alimony for her own support. Accordingly, the award will be modified to provide for $100 per month alimony and $125 per month support for the child.

That part of the judgment of the district court dealing with child support is amended and recast as follows:

It is ordered, adjudged and decreed that there be judgment in favor of Hazel Rivers Contario and against Virgil A. Contario, ordering Virgil A. Contario to pay to Hazel Rivers Contario, the sum of $100 per month as alimony and the sum of $125 per month for the care and support of the minor child, Alton Delane Contario, said total amount of $225 being payable semi-monthly in installments of $112.50 each on the first and fifteenth day of each month, beginning February 1, 1977.

As amended and recast, the judgment is affirmed, at appellant’s costs.

Amended and recast and as amended, affirmed.


author: PRICE, Judge.

text:
    Johnny Wayne BILYEU, Plaintiff-Appellee, v. HIGHLAND WELL SERVICE, INC., Defendant-Appellant.
    No. 13330.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    James E. Franklin, Jr., Shreveport, for defendant-appellant.
    S. Patrick Phillips, Bossier City, for plaintiff-appellee.
    Before PRICE, HALL, and JONES, JJ.
   PRICE, Judge.

Highland Well Service, Inc., has appealed from the judgment awarding its former employee, Johnny W. Bilyeu, workmen’s compensation benefits for seven weeks, medical expenses of $2,946.95, statutory penalties of twelve per cent, and attorney’s fees in the amount of $500.

Defendant on appeal questions the adequacy of proof of a compensable injury, the duration of any disability, and the award of penalties and attorney’s fees.

Plaintiff began working as a roustabout for defendant on the morning of August 27, 1975. He was injured approximately an hour later when riding in the bed of a pick-up truck enroute to a well site. A long piece of pipe that was tied to the truck came untied at one end causing the pipe to swivel and strike plaintiff in the lower back region. Plaintiff continued to work throughout this day, but contends he felt a stinging sensation in his back.

On August 28,1975, the day following the accident, plaintiff sought treatment from Dr. W. W. Fox, an orthopedist in Shreve-p rt. Dr. Fox admitted him to Bossier General Hospital for diagnostic X-rays and treatment. He diagnosed plaintiff as having an acute sprain of the lumbar spine. He was treated with traction and therapy and discharged on September 15, 1975. Plaintiff subsequently was examined by Dr. Fox on September 23rd, and September 29th, on which occasions he continued to complain of pain in the lumbar area of the back. Plaintiff was hospitalized again by Dr. Fox between September 30th and October 10, 1975, for further evaluation. A myelogram was performed by a neurosurgeon which did not reveal any specific basis for plaintiffs complaints of pain.

After an electromyelogram on October 16, 1975, did not reveal a physical cause for plaintiffs continued complaints of pain, Dr. Fox released him as able to return to work.

There is no serious issue as to the proof of plaintiff sustaining an on-the-job accident. Plaintiffs testimony is corroborated by a fellow employee who was riding in the bed of the pick-up with plaintiff and saw the pipe strike him. In addition, the defendant’s production superintendent testified that the happening of the accident was reported to him on the same day by plaintiff’s foreman.

The most serious issue is whether plaintiff’s disability continued past his first period of hospitalization. Defendant contends after that time the complaints of plaintiff were imaginary and further medical treatment was unnecessary.

Defendant also contends plaintiff misled Dr. Fox as to his prior medical history, and had the doctor known of a previous injury to his foot in another employment a short time before, Dr. Fox would not have admitted him for the second hospitalization.

The testimony of Dr. Fox can be fairly construed to reflect that although he was suspicious of exaggerated complaints of pain by plaintiff in the later stage of his treatment, the difficulty in diagnosing the cause of lower back pain led him to hospitalize plaintiff a second time in order to rule out the possibility of a ruptured disc or nerve injury.

Plaintiff presented the testimony of his wife, his father, and a friend with whom he stayed during a period when he was separated from his wife. The testimony of these witnesses, if believed, is sufficiently corroborative of plaintiff’s position that he continued to suffer pain.

Therefore, the finding of the trial court that plaintiff was disabled through the second period of hospital treatment is supported by sufficient evidence.

The trial court properly imposed penalties and attorney’s fees in this instance. The president of defendant-corporation at the time of the accident admitted he was informed of the accident. He further admits receiving a communication from plaintiff, who was in the hospital, inquiring if the company intended to pay the medical expenses. Although the defendant could in good faith question the continued disability of plaintiff during his second hospitalization, there is no doubt that it was arbitrary and capricious in refusing to pay compensation and medical expenses through the period of plaintiff’s initial hospitalization.

Plaintiff has asked for an increase in the amount of attorney’s fees awarded. The sum of $500 is within the reasonable discretion accorded the trial court and should not be redetermined by this court.

For the reasons assigned, the judgment is affirmed at appellant’s costs.


text:
    Jerry Lee CRIPE, Plaintiff-Appellant, v. J. D. HAYNES, Neal Haynes and Jim Sites, Defendants-Appellees.
    No. 13331.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      James B. Wells & Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Hal V. Lyons, Shreveport, for defendant-appellee-Jim Sites.
    Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendants-appellees-J. D. Haynes and Neal Haynes.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

The issue on appeal in this “executive officer” action is whether a compromise settlement entered into between the plaintiff-employee and his employer and the employer’s workmen’s compensation insurer precludes the employee’s action against three executive officers of the employer. The district court sustained a motion for summary judgment filed by one of the defendants and an exception of no cause of action filed by the other two defendants and dismissed plaintiff’s suit. For reasons expressed in this opinion, we reverse and remand.

Plaintiff’s petition alleges he was employed as a truck driver and was injured while driving his employer’s truck and trailer when the defective trailer gave way causing the truck to go out of control. The petition alleges negligence on the part of the president of the employer corporation and two supervisors in that they knew of the defects in the trailer yet failed and refused to halt use of it and instead required plaintiff to use it on the date of the accident.

Defendant Sites filed a motion for summary judgment alleging that plaintiff had released all claims arising out of the accident by virtue of a compromise and release in a workmen’s compensation settlement approved by the court in a previous proceeding. A copy of the record in the previous proceeding was attached to and made a part of the motion for summary judgment.

Defendants, J. D. Haynes and Neal Haynes, filed an “Exception of Res Judicata and Alternative Exception of No Cause and No Right of Action” based on the previous proceeding.

The district court sustained the motion for summary judgment, overruled the exception of res judicata, and sustained the exception of no cause of action. Plaintiff appealed from the judgment dismissing his suit.

On appeal plaintiff contends:
(1) The exception of no cause of action should not have been sustained because an exception of no cause of action must be determined on the face of the allegations of the petition; therefore, the compromise and release could not be considered;
(2) The compromise and release was only of the plaintiff’s workmen’s compensation claim against the employer and its insurer and did not settle or release plaintiff’s tort claims; and
(3) Even if the compromise and release covered plaintiff’s claims in tort, if any, against the employer and its insurer, it did not settle or release plaintiff’s claims in tort against the executive officers of the employer.
Defendants contend:
(1) The compromise and release was of all plaintiff’s claims, of any nature, including tort, arising out of the accident against all parties whomsoever; and
(2) The release of the employer and its insurer, who are joint tort-feasors and debtors in solido with the defendant-executive officers, without express reservation of plaintiff’s rights against the remaining debtors in solido, constituted a release of the executive officers.

1.

Plaintiff’s position is correct as to the exception of no cause of action. Since an exception of no cause of action must be determined on the face of the allegations of the petition, the compromise and release was not properly before the court in connection with this exception. The error is of no consequence, however, as the compromise and release was properly before the court in connection with one defendant’s motion for summary judgment and with the other defendants’ exception of res judicata. See Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir. 1967).

2.

The record in the previous workmen’s compensation compromise and settlement proceedings, including the joint petition, judgment, and receipt and release, supports defendants’ contention that plaintiff compromised and released all claims of any nature, including claims for damages, that he had against the employer and its insurer. Although the words “tort” or “personal injury” are not used, the words “all claims” for “injuries”, “damages”, “all liability” or “any thing else whatsoever” are used. The language plainly shows a release of all claims of any nature against the employer and its insurer. No counter-affidavits or other evidence was offered by plaintiff to show error or intent contrary to the plain language of the compromise proceeding. There is no reason why claims of any and every nature against the employer cannot be settled along with a workmen’s compensation settlement. See Meinerz v. Treybig, 245 So.2d 557 (La.App. 3d Cir. 1971) writ refused, 258 La. 580, 247 So.2d 395 (1971); Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App. 3d Cir. 1972) writ refused 261 La. 481, 259 So.2d 921 (1972).

3.

The primary issue in this case is not what was released, but who was released. The compromise proceeding was between plaintiff on the one hand and the employer and its workmen’s compensation insurer on the other hand. The compromise proceedings, including the judgment and the receipt and release, do not mention any other parties. The proceedings do not in any way mention or purport to release any claims plaintiff may have against officers, agents, or employees of the employer. In this respect, the compromise and release in this case differs significantly from the releases in Meinerz and Dodge, which specifically named the agents, officers and employees of the employer as parties released.

The release does not purport to release the executive officers of the employer or anyone else other than the employer and its compensation insurer. The defendant-executive officers take the position, however, that under the allegations of the petition they are joint tort-feasors and debtors in solido with the employer. Consequently, it is contended, the release of one joint tort-feasor or debtor in solido, without reservation of rights against the others, released the other solidary debtors under LSA-C.C. Art. 2203 which provides:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
“In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”
LSA-C.C. Art. 2324 provides:
“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

This article has consistently been interpreted as making joint tort-feasors solidarity liable for the damages caused by their combined acts of negligence.

LSA-C.C. Arts. 2077, et seq., deal with obligations in solido. Article 2091 provides:

“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”

LSA-C.C. Art. 2315 creates the substantive liability of those whose fault causes damage to another and a substantive cause of action in favor of persons injured by the fault of another to be compensated for their damages.

The Workmen’s Compensation Act provides a substantive exception to the rule of Article 2315. An employer whose fault causes damage to an employee is not required to repair the damages. The employee has no cause of action under Article 2315 against the employer for damages for injury sustained in the course and scope of his employment due to the employer’s fault. LSA-R.S. 23:1032; Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App. 2d Cir. 1939); Shumake v. Home Indemnity Co., 68 So.2d 789 (La.App. 2d Cir. 1953). The Workmen’s Compensation Act creates an entirely different, distinct, and separate cause of action in favor of an employee against an employer for specific statutory benefits, regardless of fault on the part of the employer.

Although the employer may have been independently and jointly negligent along with the executive officers of the employer, resulting in injury to the employee, the employer is not answerable in solido with the executive officers because it has no liability to repair the damages caused by its negligence. The meaning of Article 2324 is that joint tort-feasors who are each answerable under substantive law for damages caused by their acts are answerable in solido. If one wrongdoer is immune from liability — not answerable for damages— that wrongdoer is not liable in solido with a wrongdoer who is answerable for damages.

This analysis is consistent with the definition of solidary liability found in the Civil Code articles dealing specifically with that subject. Tracking the language of Article 2091, the employer and its executive officers, in relation to damages sustained by the employee, are not all obliged to do the same thing, each may not be compelled for the whole, and payment made by one does not exonerate the others toward the creditor. The elements of a solidary obligation do not exist in this case.

This analysis is also consistent with several cases involving injuries to an employee allegedly caused by the joint negligence of the employer and a third party, which cases hold that contribution under LSA-C.C. Art. 2103 cannot be claimed by the third party against the employer, nor can the third party claim a credit for one-half of the damages due, where an employee is being paid workmen’s compensation or has settled his workmen’s compensation claim against the employer. Sanderson v. Binnings Construction Company, 172 So.2d 721 (La.App. 4th Cir. 1965); Gros v. Steen Production Service, Inc., 197 So.2d 356 (La.App. 4th Cir. 1967); Gifford v. Aurand, 207 So.2d 160 (La.App. 4th Cir. 1968), writ refused, 252 La. 113, 209 So.2d 41 (1968); Hebert v. Blankenship, 187 So.2d 798 (La.App. 3d Cir. 1966); Phillips v. Houston Fire and Casualty Insurance Company, 219 F.Supp. 420 (W.D.La.1963); Brenham v. Southern Pacific Company, 328 F.Supp. 119 (D.C.La.1971), affirmed 469 F.2d 1095 (5 Cir.), cert. denied, Southern Pacific Transportation Company v. Sutton’s Steel & Supply, Inc., 409 U.S. 1061, 93 S.Ct. 560, 34 L.Ed.2d 513 (1972). See also Certain Underwriters at Lloyd's v. United States, 511 F.2d 159 (5th Cir. 1975), which held that a third-party tort-feasor has no claim for contribution against the federal government for damages owed by the third party to an injured serviceman, there being no substantive tort liability on the part of the government employer to the serviceman and, consequently, no solidary liability with the third party.

Smith v. Southern Farm Bureau Casualty Insurance Company, 247 La. 695, 174 So.2d 122 (1965) is distinguishable. There it was held that although a wife is proeedurally barred from suing her husband for tort damages, she nevertheless has a substantive cause of action against her husband under Article 2315, which renders the husband solidarily liable with a joint tort-feasor and, therefore, liable for contribution to the joint tort-feasor. The distinction between Smith and the instant case is that here the workmen’s compensation statute is a substantive exception, not merely a procedural bar, to the general tort liability imposed by Article 2315. The injured employee has no cause of action against the employer for the damages caused by the employer’s fault. The Smith case itself recognizes that there are substantive exceptions to Article 2315 fault liability.

Since the employer and its workmen’s compensation insurer are not debtors in solido with the defendant-executive officers, the release by plaintiff of all claims against the employer and its insurer does not operate under Article 2203 to also release the executive officers of the employer.

For a scholarly article on solidary obligations discussing issues closely related to the primary issue in this ease and presenting views which, to some extent may be contrary to the conclusion reached in this opinion, see Redmann, “Louisiana Civil Code Principles of Contribution and Indemnity: Solidary Obligations and Suretyship”, 17 Loy.L.Rev. 297 (1970-1971).

Dodge, supra, cited by defendants and by the trial court, is not persuasive authority to the contrary. The holding in Dodge that a release of the employer also released the executive officers was purely obiter dictum. The only issue in that case was whether the language of the release included tort claims. The court held tort claims were included in the release, which specifically named the executive officers as parties being released. The court noted that the question of release because of solidary liability was not raised or briefed; but the court proceeded to discuss the issue, holding the release of the employer without reservation of rights against the other parties released all parties. The court’s obiter dictum holding might be justified by the fact that in that case it was alleged by plaintiff that the employer and the executive officers were joint tort-feasors and liable in solido. In the case before this court, there are no such allegations. In any event, we do not regard the Dodge case as controlling authority on the issue presented in the case before us.

The compromise entered into between the plaintiff-employee and the employer and its workmen’s compensation insurer, and the release of all claims granted by plaintiff to those parties, did not compromise or release plaintiff’s claims ex delicto against the employer’s executive officers. The judgment of the district court dismissing plaintiff’s suit is reversed; the motion for summary judgment and exception of res judicata and no cause and no right of action are overruled; and this action is remanded to the First Judicial District Court for further proceedings in accordance with law. Defendants-appellees are assessed with the cost of this appeal; the assessment of all other costs to await final determination of the litigation.

Reversed and remanded.


text:
    J. C. BOYER, Plaintiff-Appellant, v. Joe E. JOHNSON et al., Defendants-Appellees.
    No. 13333.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Willie H. Barfoot, West Monroe, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiff, J. C. Boyer, has appealed the judgment rejecting his demands for damages for the loss of his fifteen-year-old son who was accidentally killed while employed by Johnson Toy and Novelty, Inc.

Plaintiff named as defendants, Joe E. Johnson, the principal stockholder and president of the employer corporation; and the Morehouse Parish School Board. Plaintiff’s action against the school board was dismissed by the sustaining of a peremptory exception from which no appeal was taken.

The facts giving rise to this litigation reveal that plaintiff and his wife were divorced approximately seven years prior to the accident. Their son, Johnny C. Boyer, Jr., remained in the custody of his mother and her second husband in Bastrop until a short time prior to the accident. In late November 1968, while living with an older married sister in West Monroe, Johnny obtained employment with a small corporation owned and managed by defendant, Johnson. His mother and stepfather had given their oral consent for Johnny to begin his employment. The boy, who was within a few days of his sixteenth birthday, had quit school and had obtained a work permit from the Morehouse Parish School Board. He was employed to drive a Volkswagen van in the delivery of merchandise sold by the corporation to businesses in the vicinity of Monroe.

Johnny began work on Wednesday in the last week of November 1968. He worked through Saturday of that week and was killed on the following Monday, December 2nd, while driving on Louisiana Highway 4 in Jackson Parish. He was transporting fireworks for his employer to sell to customers in the oncoming Christmas season.

The allegations of plaintiff’s pleadings and arguments in brief to this court are directed to establishing liability on behalf of the employer corporation and Johnson individually for employing plaintiffs son in violation of various sections of the child labor law, L.R.S. 23:151, et seq. However, we note that the corporation was not specified as a defendant and no prayer for judgment against it was made in the pleadings. No service of process was made on the corporation nor any responsive pleadings filed on its behalf.

The sole defendant against whom judgment could be rendered is Joe E. Johnson, individually, and the reference to plural defendants in argument in brief to this court is error.

There are a number of allegations of negligence alleged in plaintiffs original and amended petition which have been abandoned because it became apparent on trial of the cause that they were based on erroneous information, and we do not find it necessary to discuss these issues.

On this appeal, plaintiff contends defendant Johnson was guilty of actionable negligence which was a cause of his son’s death in the following respects:

1. In employing a minor under eighteen years as driver of a motor vehicle used for commercial purposes in violation of L.R.S. 23:161(10), as in effect at the time of the accident in December 1968. (This provision was deleted by amendment in 1976.)
2. In employing a minor under sixteen to work in connection with power driven machinery in violation of L.R.S. 23:163.
3. In employing a minor under eighteen to engage in the transportation of explosives in violation of L.R.S. 23:161(4).
4. In employing a minor between the ages of fourteen and sixteen during school hours in violation of L.R.S. 13:166 [23:166], and without compliance with other provisions of the child labor statute relating to approved work in a vocational program with a proper work certificate.

The plaintiff concedes, however, that mere violation of the child labor laws does not constitute negligence per se without some causal connection between the violation of those statutes and the damage sustained. Cutrer v. Southdown Sugars, 42 So.2d 314 (La.App. 1st Cir. 1949); Flores v. Steeg Printing and Publishing Co., 142 La. 1068, 78 So. 119 (1918); Jones v. Insurance Company of North America, 303 So.2d 902 (La.App. 1st Cir. 1974). Therefore, the violation of one or more of those provisions must causally relate directly to the accident. Under the facts of this case, the alleged violations of the statute pertaining to working during school hours and related violations have no causal connection with the accident. If the deceased would have been driving the van during school hours, with a work certificate, and with permission from the vocational training program, the accident would still have occurred. Any connection these violations have with the accident are too remote from the proper sphere of causation. The transportation of fireworks has no bearing on the accident. There is no evidence that the fireworks exploded either during the time the van was on the highway or when it struck the tree. Transportation of the fireworks, therefore, has no direct or indirect relation to the cause of the accident.

Plaintiff’s principal and strongest argument is that the violations of L.R.S. 23:161(10), which prohibits employing a minor under eighteen to drive a commercial motor vehicle, and L.R.S. 23:163, which prohibits a minor under the age of sixteen from being employed in, about, or in connection with power driven machinery, are direct causes of the injury. Plaintiff contends that since the statute forbids operation of power driven machinery or the driving of a commercial vehicle, and since the deceased was killed driving a van, the violation of the statute is the cause of the accident. The evidence in this case, however, supports the conclusion that the cause of the accident can be best attributed to the negligence of the deceased and that the defendant was void of any actionable substandard conduct. The record reveals that deceased had a valid driver’s license. Furthermore, the defendant, Johnson, rode with the deceased his first two days in the van before he let the boy drive the van by himself. Johnson testified that Johnny was a good driver and did not have any difficulty in operating the van. The record also shows that Johnny drove the truck the next two days unaccompanied by defendant without mishap. The accident occurred on the fifth day of employment. Although plaintiff contends that the van may have been defective, there is no evidence to support that inference. Johnson testified that the van was only three to four weeks old, had approximately five hundred miles on it, and had never had any mechanical or steering trouble. Although there were no witnesses to the accident, the investigating state trooper filed an accident report which was submitted into evidence by agreement in lieu of the officer’s testimony. The report shows the officer concluded the accident occurred because the operator lost control of his vehicle. There is no evidence to the contrary.

Plaintiff’s entire argument, fairly construed, suggests that if the deceased had not been driving the van, he would not have been killed, and thus defendant’s hiring him to drive the van caused his death. The argument is too tenuous. Causation must be more direct and not so remote.

The mere fact that a minor is injured in the course of employment of his master does not per se render the employer liable where the injury results from obvious defects or dangers unless the minor was incapable, because of tender age or otherwise, of fully appreciating and understanding the danger inherent in the employment. * * *

Jones v. Insurance Company of North America, 303 So.2d 902 (La.App. 1st Cir. 1974). In the Jones case, the court rejected plaintiff’s demands under somewhat analogous but much stronger facts than those before us. In Jones a fourteen-year-old boy was injured when driving a tractor in violation of L.R.S. 23:163, the same statute relied on by plaintiff in the present case. In Jones plaintiff urged that the violation of this child labor statute constituted a causal connection to the accident of the minor. The court reasoned that since the minor had driven the tractor before and was well acquainted with it, that there was no negligence on the employer’s part, even though the fourteen year old did not have a driver’s license.

In the instant case, the trial court was correct in finding that any violations of the child labor law which may have occurred do not establish actionable negligence on the part of defendant, Johnson.

For the reasons assigned, the judgment is affirmed at appellant’s costs.


text:
    HASKINS TRUCKING COMPANY, INC., Plaintiff-Appellant, v. LYNN LAKE TRANSPORTATION COMPANY, LTD., Rudy Jehle and Lewis Gershman, Defendants-Appellees.
    No. 13334.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Whitten & Blake by John C. Blake, Jonesboro, for defendants-appellees — Lynn Lake Transp. Co., Ltd., Rudy Jehle and Lewis Gershman.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Haskins Trucking Company, Inc., sued defendants, Lynn Lake Transportation Company, Ltd., a Canadian trucking firm, Rudy Jehle, the trucking firm’s principal stockholder, and Lewis Gershman, the Canadian consignee, seeking to recover the amount allegedly due on freight bills for hauling three loads of paper bags from Hodge, Louisiana to Manitoba, Canada. Plaintiff also sought to recover damages for an alleged illegal detention of two of its trailers by the defendants in Canada. Plaintiff sought and obtained a nonresident writ of attachment pursuant to which a truck allegedly owned by the defendants, all Canadian residents, was seized in Jackson Parish.

Defendants bonded the truck from the attachment and filed an answer and recon-ventional demand. Defendants denied any amount was due for freight charges and reconvened for damages for illegal seizure of the trailer under the writ of attachment.

After trial on the rule to dissolve the writ of attachment and on the merits, the trial court found both parties came into court with unclean hands and that plaintiff failed to prove any amount was due. The demands of all parties were rejected. Plaintiff appealed. Defendants did not appeal, nor answer plaintiff’s appeal. For reasons expressed in this opinion, we reverse and allow recovery by the plaintiff.

The issues on appeal are whether there is a balance due for freight charges and whether plaintiff is entitled to damages for the wrongful detention of his trailers.

In connection with the first issue, plaintiff, a common carrier holding a Certificate of Public Convenience and Necessity from the Interstate Commerce Commission, contends it is entitled to be paid for the three shipments on the basis of the published ICC tariff rates, amounting to about $1,600 per load. Defendants contend plaintiff agreed with Jehle, acting with and for Lynn Lake and Gershman, to haul the three loads for $900 per load, which has been paid.

The evidence is in sharp conflict as to what charge was agreed on between the parties. Regardless of what agreement was made, the consignee is obligated to pay and the carrier is entitled to collect the published ICC tariff rate. By virtue of the Interstate Commerce Act, common carriers have the duty to adhere to the tariff schedules and may not charge a greater or lesser or different compensation for the transportation of property than the rates applicable to such transportation as specified in such schedules. The rates named in the schedule become the legal rate for the services rendered and must be charged by the carrier and paid by the shipper or consignee without deviation therefrom. The schedule has the force and effect of a statute, the purpose of which is to secure equality of rates to all and to destroy favoritism. Agreements inconsistent with the terms and provisions of published tariff schedules are void. It is not within the power of the parties to a contract of carriage to agree upon a rate or charge less than the legal rate of charge set forth in the published tariff schedule. A shipper or consignee is conclusively presumed to have knowledge of the published rates and to have contracted with reference thereto. A carrier is not estopped from collecting the proper amount even though it makes an error or misrepresentation as to the tariff rate or makes an agreement contrary to the tariff rate. Refunds or rebates of any portion of the rate specified in the tariff schedule are prohibited. See 13 Am.Jur.2d, Carriers, § 107-114.

The evidence establishes that the tariff rates for the three shipments were $1,584.40, $1,615.63 and $1,630, or a total of $4,830.03. Taking into consideration payments of $4,350 made by defendants, a coerced refund of $2,170 made by plaintiff to defendants, an undisputed credit of $718.50 for other services due by plaintiff to defendants, and $220 due by defendants to plaintiff for an advance made to one of defendants’ drivers, there is a balance of $2,151.53 due by defendants to plaintiff.

When the last two shipments got to Canada, plaintiff insisted he be paid the amount of the ICC tariffs before he would release the goods. Defendants protested on the basis of their understanding that the shipments would be made for $900 per load, but acceded to the demands of plaintiff and paid him $4,350 because they were obligated to deliver the paper bags to their customers for the Christmas trade. It was necessary for Jehle to remove two of plaintiff’s trailers from the trucks, which could not be started because of cold weather, and deliver the bags to the consignee. After Jehle delivered the bags he took plaintiff’s two trailers to his compound and refused to permit plaintiff to remove them until plaintiff paid him $2,170 as a refund of what he considered excess freight charges. Because the trailers were tied up by Jehle, Haskins paid Jehle the amount demanded and returned to Louisiana with the two trailers, after which he filed this suit.

The detention of plaintiff’s trailers in Canada in order to force plaintiff to refund the amount defendants believed they had been coerced to pay in excess of the agreed charge, was wrongful and tor-tious, entitling plaintiff to damages. Has-kins testified he had $1,190 out-of-pocket expense in connection with the wrongful detention of the trailers. Plaintiff’s testimony is unsupported by any itemization of the expenses or any invoices, bills or other evidence. The evidence does not support an award for the special damages claimed by plaintiff. Nevertheless, plaintiff is entitled to an award of general damages for defendant’s wrongful conduct which we fix at $500.

That part of the judgment of the district court rejecting plaintiff’s demands is reversed and set aside and judgment is rendered in favor of plaintiff, Haskins Trucking Company, Inc., and against defendants, Lynn Lake Transportation Company, Ltd., Rudy Jehle and Lewis Gershman, in solido, in the amount of $2,651.53, together with legal interest thereon from date of judicial demand until paid, and all costs of this proceeding including the cost of appeal.

Reversed and rendered.


author: BOLIN, Judge.

text:
    Glen YOUNG et al., Plaintiffs-Appellants, v. SQUEEZE TOOLS, INC., Defendant-Appellee, Pacific Atlantic Oil Company, Intervenor-Appellant, New Iberia National Bank, Intervenor-Appellee.
    No. 13335.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.

      Oliver & Wilson by William A. Hargiss, Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for intervenor-appel-lant.
    Hudson, Potts & Bernstein by Donald L. Kneipp, Monroe, for intervenor-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

This contest over the proceeds of a judicial sale involves laborers on defendant’s portable drilling rig and the holder of a chattel mortgage on that rig. The mortgage was recorded before the labor commenced. The trial court ruled in favor of the mortgagee and we affirm.

The dispositive question on appeal involves the effectiveness of the chattel mortgage as to third parties, i. e., the laborers. In order to answer this question we must decide whether, under Louisiana Revised Statutes 9:5351 et seq., the instrument was filed in the proper parishes and sufficiently described the mortgaged property.

New Iberia National Bank loaned defendant, a domiciliary of Iberia Parish, $65,000 for the purchase of a portable drilling rig, securing its loan with a chattel mortgage which the bank recorded in Iberia Parish on December 13, 1974. The rig was later moved to Ouachita Parish where plaintiffs performed services on it between September 1975 and February 1976. Plaintiffs then filed suit for unpaid wages and obtained a writ of sequestration in accordance with La.R.S. 9:4861 et seq., pursuant to which the sheriff seized that portion of the drilling equipment which remained in Oua-chita Parish.

The bank foreclosed on its mortgage by executory process in Iberia Parish and obtained a writ of seizure and sale. Acting under this writ the sheriff of Ouachita Parish again seized the equipment. The bank intervened in the laborers’ lawsuit and entered into a joint stipulation with plaintiffs to have the property sold under the bank’s writ and to have the district court in Oua-chita Parish determine entitlement to the proceeds.

Pacific Atlantic Oil Company, which had contracted with defendant to drill the Oua-chita Parish well, intervened in this lawsuit to protect its interest. It did not take part in the joint motion to sell the property, but did participate in the rule to rank liens and now joins plaintiffs in appealing the trial court’s judgment awarding the $8,886.85 net proceeds of sale to the bank.

The bank, contending the oil company has no security interest and, therefore, no standing to contest the ranking of liens, has filed an exception of no right of action in this court. We need not rule on this exception in view of our decision to affirm the trial court.

Plaintiffs maintain the bank’s chattel mortgage is ineffective as to them because it was not filed of record in Ouachita Parish until April 15, 1976, long after their laborers’ privilege became effective. The mortgage instrument indicates the drilling rig was to be located in Iberia Parish “when not in use.” We hold the expression “when not in use” merely evidences the mortgagee’s recognition that a portable drilling rig is movable and its location at any given time could not be anticipated. The record shows that Iberia Parish was the base location of this revenue-producing equipment. We hold the bank complied with the requirements of the Chattel Mortgage Act by recording the mortgage instrument in Iberia Parish, which is both the parish of the mortgagor’s domicile and the parish where the mortgaged property was to be located according to the terms of the mortgage instrument. La.R.S. 9:5353.

Recordation in Iberia Parish makes this chattel mortgage effective statewide, whether or not the bank knew of the rig’s presence in Ouachita Parish. See Sinclair v. Crew, 26 So.2d 331 (La.App. 2d Cir., 1946).

Although the chattel mortgage instrument did not include serial numbers in the description of the drilling equipment, the trial court found the instrument contained a full description of the mortgaged property as required by La.R.S. 9:5352. What constitutes sufficiency of description is a matter to be determined in the light of the circumstances of each individual case. All State Credit Plan Houma, Inc. v. Fournier, 175 So.2d 707 (La.App. 1st Cir., 1965). Since defendant owned only one drilling rig, we cannot say the trial court erred in its ruling.

The judgment is affirmed at appellants’ cost.


text:
    Ernest Roy TRUELOVE, Defendant-In-Rule-Appellee, v. Barbara Gail TRUELOVE, Plaintiff-In-Rule-Appellant.
    No. 13336.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    McKneely & McKenzie by Roland V. McKneely, Jr., Bossier City, for plaintiff-in-rule-appellant.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendant-in-rule-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

This appeal by a mother is from the denial of her petition to obtain custody of her eight-year-old daughter, whose custody was previously awarded to the father at the time the parties were divorced. We affirm the judgment of the district court, primarily because of the great weight to be given the determination of the trial judge, whose discretion will not be disturbed on review in the absence of a clear showing of abuse thereof. Monsour v. Monsour, 347 So.2d 203 (La.1977); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

In January, 1976, the father was awarded a divorce from the mother on the grounds of adultery. Custody of the daughter was awarded to the father. The mother did not contest the divorce or the custody of the child. In March, 1976, the mother married the man named in the divorce suit, who was the father’s brother-in-law at the time the adulterous relationship began.

In June, 1976, the mother filed a petition to obtain custody and after some delays and the filing of an amended petition, the matter came to trial in February, 1977.

The evidence establishes that at the time of trial and for most of the time since the divorce was granted, the child has lived with her paternal grandparents on a farm near Jonesboro. The father has a responsible position with a department store in Houma, having been transferred to Houma from Shreveport by his employer. He is making some effort to find employment in the Jonesboro area. The father visits with the child at least every other weekend and on holidays. Although the grandparents’ rural home is modest, the evidence establishes that the child is well cared for by her grandparents and by her father.

The mother’s present husband is an insurance agent with a good income. They have purchased a home in a nice residential area of Shreveport. They attend church regularly and the good character of their current life is attested to by their preacher and several friends. The mother exercises her visitation rights and has the child with her at every possible opportunity. The mother has been employed full-time but has quit her job in anticipation of gaining custody of the child.

Friction has continued to exist between the father and the mother. In the summer of 1976, there was an incident at the grandparents’ home where the mother drew a gun and was subsequently convicted and fined on an assault charge.

The appellant-mother contends that the trial court erred in:

(1) failing to apply the maternal preference rule;
(2) failing to find the mother gave up custody initially because of threats made by the father;
(3) refusing custody to the mother because of her past misconduct;
(4) failing to find the child had been abandoned by the father;
(5) failing to find that the child was living in deleterious circumstances; and
(6) failing to ground his decision on the child’s best interest.

There is a presumption that the welfare of a small child, especially a young girl, will be best served by granting .custody to the mother. The presumption can, however, give way to other factors and carries less weight where the mother seeks to change custody after there has been an initial award of custody to the father.

The mother’s testimony about giving up custody because of threats is unpersuasive.

Past misconduct, while not grounds for denying custody, is an important consideration in a court’s determination of the suitability of a parent for custody. Mons-our v. Monsour, supra.

Although the child is living with her grandparents, she has in no sense been abandoned by her father. It is recognized, however, that ordinarily it is in the best interest of the child to live with and be cared for by a parent rather than by grandparents of advancing age.

The child is not living in deleterious circumstances and is being well cared for.

The grounds for the trial court’s decision are expressed in the following excerpts from comments made by the trial judge at the conclusion of the trial:

“ * * * Now, I understand that the best interest of the child is what’s pertinent to the Court . . . [The mother] has remarried, but it would appear to me that enough time has not elapsed for me to be certain of what her true intentions are. Considering the serious transgressions that [the mother] had in the past — Considering the whole matter, I still don’t think the time is right for [the mother] to have custody of [this child], 4< * 4c J7

The trial judge recognized that the paramount consideration is the best interest of the child. He evaluated all of the circumstances and exercised his judgment and discretion in determining that the father should retain custody at this time.

The appellant-mother cites Hilliard v. Richard, 291 So.2d 875 (La.App.3d Cir. 1974) writs refused 294 So.2d 835 (La.1974) and DeCelle v. DeCelle, 313 So.2d 634 (La.App.2d Cir. 1975), as recent cases in which custody was changed from the father to the mother under circumstances similar to the instant case. Each case must be decided on its own particular facts and circumstances. It is to be noted also that each of the cited cases on appeal involved an affirmance of the trial judge’s decision. Here, the trial judge’s determination was in favor of the father. A decision on appeal in favor of the mother would require a finding that the trial judge abused his discretion and a reversal of his decision.

This court finds no abuse of the trial judge’s discretion which was exercised within the framework of applicable legal principles. The mother failed to convince the trial judge that a change in custody at this time would be to the best interest of the child. The trial judge’s decision was reasonable, based on the evidence in this case. The judgment is affirmed at appellant’s costs.

Affirmed.


author: MARVIN, Judge.

text:
    Kenneth R. MORRIS, Plaintiff-Appellant, v. Betty Jean Bowden MORRIS, Defendant-Appellee.
    No. 13337.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      McKinley, Bruscato & Loomis, Monroe by Anthony J. Bruscato, Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry, West Monroe by James A. Hobbs, West Monroe, for defendant-appellee.
    Before BOLIN, C. J., and HALL and MARVIN, JJ.
   MARVIN, Judge.

The lower court rejected the principal demand of the husband and the reconven-tional demand of the wife for divorce on the grounds of adultery of the other. On the husband’s alternative demand, a legal separation was granted and the husband was ordered to pay temporary alimony. A 16V2-year-old son of the marriage was found to have been without proper supervision from either parent and his custody — earlier assumed or taken by the court during the legal proceedings of several weeks duration — was “retained” by the court in the judgment of separation, with the son being permitted to live with the father.

The husband appeals, contending that the lower court erred in denying him a divorce; in awarding excessive temporary alimony, and in not awarding him full legal custody of the child. We affirm.

The lower court obviously declined to infer from the circumstances testified to by the witnesses of each litigant that the other litigant had committed adultery. This is in accord with the trial court’s discretion in determining credibility and our recognition of the great weight to which this determination is entitled on appellate review. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581 (1947); and Blackman v. Blackman, 253 So.2d 672 (La.App. 2d Cir. 1971).

The lower court ordered the husband to pay $700 per month as temporary alimony, plus an additional $100 per month until such time as the family home where the wife is living is sold. The husband was also ordered to continue coverage for his wife on medical insurance policies he has maintained through his employment. The wife was ordered to make the monthly mortgage payments on their family home. It was shown that the husband’s annual income is in excess of $30,000. We find no abuse of discretion by the lower court in respect to the temporary support provisions. Whitmeyer v. Whitmeyer, 326 So.2d 884 (La.App. 2d Cir.1976).

During the course of the parents’ marital distress, the 16V2-year-old son was temporarily placed in a detention home. The son refused to live with his mother and during the period of marital distress, was not receiving parental supervision from his father. In earlier pendente lite proceedings, the lower court stated to the son and the litigants:

“. . . since being [in the detention home] and having supervision, it seems that . . . you have done better in school. You have had some discipline. [You have had] . . . access to a car, a liberal allowance, liberal use of a gas credit card. So you can . . . run the streets. I don’t think that is good for you . . . but you just never had anyone there to really say stop and don’t do it. The Court was greatly concerned with the fact that you had been permitted to associate with people four years older than you are where drinking took place and by your own testimony, you drank. . . . I am going to award the custody of you to the Court . where I have control over you, where on a moment’s notice I can move you . I am going to allow you to temporarily reside with your father, and let’s make one thing perfectly clear; I am going to ask [a school official] to make a monthly report to me of your attendance, your grades, your attitude, and if I find these are not satisfactory, [the lawyers do not] need to come into this Court . then I can move because you are my responsibility right now ... I know you did not like it at [the detention home] and it is not the place that I want to see you grow up, but make one thing certain; if I feel that is the only way you are going to get an education . then I will see to it that is the way you get an education . . . ”

Following these remarks and for the next several weeks of the proceedings, the son lived with his father and when his father was away on business, with his mother, generally as directed by the court. The son’s grades and attendance record in school did improve under this arrangement of reasonably close supervision by the lower court. This was the “custody” which was “retained” by the lower court in its judgment on the merits.

Considering the age and history of the child and Edisen v. Edisen, 236 So.2d 528 (La.App. 4th Cir. 1970); 297 So.2d 787 (La.App. 4th Cir. 1974), we do not find any abuse of discretion below. Unique custody decrees are the product of unique cireum-stances which call for a greater measure of judicial supervision than that normally employed. Edisen, supra.

Costs here and below are assessed against the husband as head and master of the community estate.

AFFIRMED.


text:
    Leo Lucien LANGUIRAND, Plaintiff-Appellant, v. Ulla Hansen LANGUIRAND, Defendant-Appellee.
    No. 13338.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.

      Harvey P. Delaune, Bossier City, for plaintiff-appellant.
    Thomas, Prestridge & Burchett by Rogers M. Prestridge, Bossier City, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

In September, 1974, a considered decree of custody awarded two children to the father who was the successful plaintiff in an adultery divorce case. The mother, who married her paramour in 1974, and afterward reformed her life, sought to change custody in 1977.

The lower court continued custody of the 13-year-old son in the father, changed the custody of an 8-year-old daughter to the mother and ordered the father to pay monthly child support. The father appeals.

Here, the essential issue is the proof necessary for a parent out of custody to succeed in changing custody after a considered decree.

Once permanent custody has been established by a considered decree of custody and has continued for an appreciable length of time, may a lower court change the custody to the other parent without requiring that parent to show to some degree that the environment in which child has been living is detrimental to the child’s interest?

The record in the instant case shows that within a month after the 1974 divorce, the mother married her paramour and enjoyed visits with and from her children. The father changed military duty assignments so that he was home about 3:30 p.m. each working day. He purchased a mobile home and there lived and cared for the children for about 14 months before he married and moved into the home of his new wife and her five-year-old daughter.

The lower court correctly summarized the evidence in this fashion:

“[The mother] has made every reasonable effort to prepare herself to be a fit person to have custody of her minor children and . . . has succeeded in earning the respect of the community in which she resides . “The . . . father . . . has likewise remarried . . The evidence clearly reflects that both the mother and father clearly love their children and that both are in a position to give them a comfortable and a suitable home.”

The lower court found “ . . .it was in the best interest of the boy that he have the discipline and training offered by his natural father . . . ” The lower court noted that the daughter “ . . enjoys the affection of her stepmother and is . well cared for, . . . [but] if she resided with her natural mother and stepfather she would be their only charge and the recipient of all their love and affection.”

Two expert witnesses (a psychiatrist and psychological therapist) had observed and counseled with the children before and after their parents’ divorce. They generally testified that the children had made a good adjustment to the trauma of the divorce and that the children had achieved a close relationship with each other, solidified perhaps by their parents’ divorce. These experts concluded that the children should not be required to make another adjustment and that it would be detrimental to the children if they were separated.

Here presented then is a situation where the children have enjoyed and adjusted to a stable environment under one parent for an appreciable time while periodically visiting with their other parent.

The reason behind the policy of continuing custody in one parent rather than changing custody is to avoid unsettling the stable environment of children by repeated rules for change of custody by separated or divorced parents who are inclined to altercations and accusations toward each other. See footnote one, Fulco v. Fulco, 259 La. 1122, 254 So.2d 603, 605 (1971), and 49 T.L.R. 195-197.

The language in which the issue is stated comes from Fulco, supra, in which was cited Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955) and other cases. See and compare Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972), wherein a temporary surrender of children was involved. See also the majority and dissenting opinions in Bushnell v. Bushnell, 348 So.2d 1315 (La.App.3d Cir. 1977).

Fulco listed four general legal principles for custody litigation. We use Fulco’s format:

(1) The overriding general consideration is always the welfare of the children. See C.C. Art. 157, as amended, Act 448 of 1977.
(2) In the initial determination of custody, it is usually in the best interest of children of tender years that the mother’s custody is preferred over the father’s.
(3) In actions to change legal custody after a considered decree, a parent seeking the change is required to show not only a change in circumstances since the considered decree, but that the change in circumstances is of such magnitude that the continuation of custody thereunder would be, to some degree, detrimental to the interests and welfare of the child. Every change in circumstances will not justify unsettling a child’s environment. Each case will have to be determined on its own merits. In the absence of the required showing of detriment to the child by continuing custody under a considered decree, a change of custody will be denied.
(4)Upon appellate review, the determination of the trial judge is entitled to great weight.

These principles were recognized in Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969). There, the lower court changed the custody of a seven-year-old daughter from the mother to the father and continued the custody of a six-year-old daughter in the mother. The Court of Appeal affirmed on the basis that the trial judge concluded it was in the best interests and welfare of the child that custody of the one child be transferred and that the trial judge’s decision was entitled to great weight in a “difficult” case.

The Supreme Court reversed, stating: “Under the rule of Decker v. Landry, supra, the record is insufficient to warrant a change of custody . . . The record fails to establish any conditions detrimental to the welfare of the child.” 223 So.2d 843.
The Court also held:
“The separation of children of a family, though sometimes necessary, is a custodial disposition that courts seek to avoid. Normally, the welfare of these children is best served by leaving them together, so they can have the full benefit of companionship and affection. When feasible, a court should shape its orders to maintain family solidarity . . . ”

The Third Circuit is of the opinion that the Supreme Court in Fulco “discarded” the so-called double burden of proof rule and effectively overruled Decker. See Bushnell, supra; Bourque v. Leger, 322 So.2d 784 (La.App.3d Cir. 1975). Contra: Finn v. Finn, 335 So.2d 523 (La.App.1st Cir. 1976); Lagrone v. Lagrone, 311 So.2d 290 (La.App.2d Cir. 1975). Compare Spencer v. Spencer, 261 So.2d 702 (La.App.4th Cir. 1972) and Cramer v. Mowery, 346 So.2d 331 (La.App.4th Cir. 1977).

We do not agree that Fulco discarded the burden of proof rule and effectively overruled Decker. Estes said:

“It is true that stability in environment is an important value, so that a party seeking to change a considered [decree] of the permanent custody of children bears a heavy burden to justify such change as being in [the child’s] best interest.” 258 So.2d 859-860.

In Abreo v. Abreo, 281 So.2d 695 (La.1973), the Supreme Court reiterated the Fulco principle:

“When the trial judge has made a considered adjudication of permanent custody based upon these 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 clearly proving that the continuation of the existing custody so adversely affects the child that the child’s removal is justified.” 281 So.2d 697.

The “heavy burden” was again recognized by the Supreme Court in Nethken v. Nethken, 307 So.2d 563 (La.1975) and Monsour v. Monsour, 347 So.2d 203 (La.1977).

In Abreo, the court rioted that there was no evidence reflecting on either parent’s ability to properly care for the children and that each parent could provide a comfortable home, and then said

“On the facts recited, and the record before us, we find no valid basis for changing the custody of these children [after a considered decree].” 281 So.2d 697.

In the instant case, as in Tiffee, and as in Abreo, the record is devoid of evidence tending to establish that continued custody under the considered decree would be detrimental in any degree to the interests or welfare of the eight-year-old daughter.

The environment of a child in the custody of one parent, after divorce, may never be as ideal as in the proverbial home of marital bliss. But once a considered decree has established custody which provides a reasonably stable and secure environment for the child, that custody should not be changed unless there are good substantial reasons to justify the change. This assumes that the environment is reasonably stable and secure.

What are good and substantial reasons, of course, will vary from case to case, but the parent seeking the change does bear the burden of establishing them. This is the burden, in our opinion, which is imposed by Fulco and its progeny, and which was recognized in Decker. The comparative age and sex of the child and of each parent, the physical and emotional history of the child and of each parent, and the comparative evaluation of the existing and the proposed environment, are factors to be considered, but of particular importance and weight is the factor of the length of time the stable and secure environment has been maintained. This latter factor is the reason for the existence of the rule imposing the burden of proof on the parent seeking the change and that is to avoid whimsically unsettling a child’s stable and secure environment. In that sense, we are considering of paramount importance, the best interests and welfare of the child.

At appellee’s cost, judgment changing custody is reversed and the demands of plaintiff-appellee are rejected.

Reversed and Rendered.

      . Stevens v. Stevens, 340 So.2d 584 (La.App.1st Cir. 1976).


text:
    Cleo B. MILLER, Plaintiff-Appellant, v. Carl YOUNG and Aetna Casualty & Surety Company, Defendants-Appellees.
    No. 13339.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.
    Writ Refused Dec. 14, 1977.

      Ford E. Stinson, Benton, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

While a house guest of defendant, plaintiff fell and broke his hip. Alleging that his injuries were caused by defendant’s negligence, he sued his host and the latter’s homeowner’s insurer. The trial court rejected plaintiff’s demands and he appeals. We affirm.

In written reasons the trial judge stated: “In the opinion of the Court, the plaintiff has failed to prove that the defendant was guilty of any negligence. On the contrary, the evidence establishes that the plaintiff’s fall and resulting injury was caused by the combination of his own physical frailty plus the fact that he had consumed a considerable quantity of alcohol that evening.”

Since there is sufficient evidence to support the findings of the trial court, the judgment should be and is affirmed at appellant’s cost. Canter v. Koehring Company, 283 So.2d 716 (La.1973).


text:
    In re Charles Roger BLACKWOOD, Plaintiff-Appellant, v. John Martin YOUNT, Defendant-Appellee.
    No. 13341.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for plaintiff-appellant.
    Roos & Roos by Armand L. Roos and Armand W. Roos, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

In an adoption proceeding, the legitimate father opposed his child’s adoption by the child’s stepfather. The stepfather appeals the dismissal of his petition, contending that the consent of the legitimate father is not necessary under R.S. 9:422.1(3) because the father is a nonresident and has failed to support the child for more than one year after a Tennessee judgment awarded custody to the child’s mother.

This is not a case of failure to support, because there is an order for support and the father is complying with that order. We affirm.

We have held that the third condition of R.S. 9:422.1 — the condition upon which petitioner relies — was added to the adoption statute by Act 106 of 1962 to provide for those cases in which there was no order of support against a nonresident father because there was no jurisdiction.

“This condition intended to eliminate the need for a parent’s consent where he failed to support a child and it had been impossible to obtain jurisdiction over him to order him to support the child . .” In Re Stanford, 313 So.2d 849, 851 (La.App.2d Cir. 1975).

Where a support order exists, it is not the third condition, but the second condition of 422.1, which is applicable.

In 1973, the father and mother were divorced in Tennessee. The mother was awarded custody and was enjoined from removing the child from that state without permission of the Tennessee court. The father was granted visitation privileges and was ordered to pay child support through the clerk of that court. Jurisdiction was expressly retained. A few weeks after the divorce, the mother married the petitioner. The father paid the monthly child support as directed and the clerk, in turn, forwarded the payments by mail to the mother at an address in Tennessee.

In 1974, without permission of the Tennessee court and contrary to its injunction, the mother, with the child and the petitioner, moved from Tennessee to Shreveport. A few months later, in December, 1974, on the petition of the father, the Tennessee court ordered its clerk to deposit and retain the support payments in a savings institution for the benefit of the child, and subject to the further order of that court. This 1974 order was made on the father’s allegations that the whereabouts of the mother and the child were unknown and that his visitation rights were being denied. Eventually, about Christmas, 1975, the paternal grandmother learned the child was in Shreveport. The legitimate father learned this within a few weeks, at least during the early spring of 1976, because he opposed an earlier attempt by petitioner to adopt the child, filed in March, 1976, and later abandoned.

The instant proceedings were filed in October, 1976. In this proceeding, the father has shown that he has fully complied with the support order(s) of the Tennessee court.

Even though the mother did not receive notice of the 1974 modification directing the clerk of the Tennessee court as to disposition of the support payments and even though this modification was made on the father’s petition, she was fully aware of the provisions of the original Tennessee judgment in March, 1973. From that time until December, 1974, the father paid the clerk of court as directed. Since December, 1974, the mother has made no attempt to obtain from the clerk of that court the support payments made by the father nor has she attempted to further modify the Tennessee support or injunctive orders. Since December, 1974, the father has been paying the clerk of the Tennessee court as directed in the original order and in the modified order. The parents of the child were residents of Tennessee in 1973, and that court then had and afterwards has expressly retained its jurisdiction. Our concern is whether the father’s consent is dispensed with by the Louisiana statute.

The basis for requiring the consent of a parent to the adoption of his child by another is the natural, as well as legal, parental right arising from parenthood. There is a reasonable basis for dispensing with parental consent and declaring, in effect, forfeiture of parental rights under some circumstances. The Legislature in R.S. 9:422.1 has attempted to define circumstances which warrant forfeiture of parental rights. These circumstances are: (1) the parent’s refusal or failure to comply with a court order for support (422.1(2)); or (2) the nonresident parent’s failure to support the child where no court order exists (422.1(3)). Where an order for the support of a child exists, consent of the parent under R.S. 9:422.1 is dispensed with only where the parent refuses to comply with the order or fails, without just cause, to comply with the order. In Re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963).

In other circumstances, the provisions of R.S. 9:422.1 have been applied to dispense with parental consent to a child’s adoption by another. See for example, In Re Adoption of Jones, 337 So.2d 283 (La.App.2d Cir. 1976). The father here has neither failed nor refused to comply with the court order requiring him to support his child. He has not forfeited his parental rights and his consent to the proposed adoption is necessary.

At petitioner’s cost, judgment is

AFFIRMED.

      . The pertinent provisions of section 422.1 read:
      “If the spouse of the petitioner is the legitimate parent of the child . . . then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
      “(1) The spouse of the petitioner . [has] been granted custody of the child by a court of competent jurisdiction and
      “(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
      “(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father . .


text:
    Kathryn Iola HENSON, Plaintiff-Appellant, v. Richard Drew HENSON, Defendant-Appellee.
    No. 13342.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      Johnson & Johnson by Don H. Johnson, Monroe, for plaintiff-appellant.
    Dimos, Brown & Erskine by D. Milton Moore, III, Monroe, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

This is an appeal by the wife from a judgment rendered in a proceeding to enforce alimony and child support.

A motion to dismiss this appeal was filed by defendant who contends the appeal is untimely since it was not taken within the thirty-day period provided by La.C.C.P. Art. 3943 which prescribes the time for appeals from judgments relating to custody or alimony. An appeal from a judgment which orders past due alimony or child support executory does not come within the scope of C.C.P. Art. 3943 and is controlled by the general rule for devolutive appeals provided by Art. 2087. See Picinich v. Picinich, 271 So.2d 670 (La.App.1st Cir. 1972); Granger v. Granger, 193 So.2d 898 (La.App. 3rd Cir. 1967); Carlisle v. Carlisle, 313 So.2d 908 (La.App. 2d Cir. 1975), writ denied 319 So.2d 442 (La.1975). Therefore, plaintiff’s appeal was timely as it was taken within the prescribed sixty-day period of this article, and the motion to dismiss is overruled.

Kathryn Iola Henson filed suit against Richard Drew Henson on March 26, 1974, for a separation, custody of minor children, alimony, and child support. Almost a year later on March 20, 1975, following an agreed stipulation on the disputed issues, she was awarded a separation, custody of the two children, alimony pendente lite of $100 per month, and child support of $160 per month.

Defendant paid child support until September 1976, at which time plaintiff requested that he keep the children. On December 1, 1976, she filed this proceeding by rule to accrue past due alimony which she contends has never been paid; to make executory child support she contends is delinquent from September 1976 through the date of this proceeding; and to declare defendant in contempt for deliberately failing to pay these amounts.

The trial court rejected plaintiffs demands to have past due alimony payments accrued on finding that plaintiff had waived her rights to alimony by promising defendant she would not make him pay alimony if he would allow her to obtain the separation judgment, and by her inaction in enforcing the payments for an extended period of time.

The court also rejected plaintiff’s demand for child support for the period the children were in defendant’s custody at the request of plaintiff (September, October, November, 1976). The court refused to hold defendant in contempt under these circumstances.

The issues before us on plaintiff’s appeal are: 1) Whether plaintiff’s representations to defendant prior to the time of rendition of the separation judgment concerning enforcement of alimony provisions can effect a waiver of her rights, 2) Whether defendant is entitled to credit on payment of child support during the period he cared for the children at plaintiff’s request, 3) Whether defendant should be held in contempt for failure to pay the judgment as ordered by the court.

The record supports the factual finding by the trial judge surrounding the negotiations of the parties preceding the separation judgment as recited in his reasons for judgment:

* * * On direct examination, Mrs. Henson denied having ever declined any alimony, and claimed $100 per month since March 26, 1974, the date her original separation suit was filed. On cross examination however, she admitted that her separation suit was vigorously contested; that she was anxious to terminate that litigation, that after trial settings had been passed, she went to her husband with a proposition. She admitted that she told him it was at her mother’s insistence that she was claiming alimony in the suit, that she would not require him to pay it if he would not contest her suit and would allow her to put $100 monthly alimony in the judgment. After agreeing upon child support at $160 per month, the husband accepted Mrs. Henson’s proposal; and the matter was taken up without opposition.

Plaintiff argues that any agreement to waive alimony prior to a decree of divorce is a nullity and can be given no effect.

Plaintiff’s position is well taken in view of the decision in Ward v. Ward, 339 So.2d 839 (La.1976) in which the court held:

The parties entered into the alimony waiver agreement before the divorce and while they were still husband and wife. Under Article 1790 of the Louisiana Civil Code, a husband and wife are incapable of contracting with each other subject to limited exceptions. See LSA-C.C. Arts. 1790, 2446. The exceptions do not include a contract for the settlement of alimony rights. Hence, we hold that the agreement waiving the wife’s right to alimony and child support is a nullity and can be given no effect. * * *

The case relied on by the trial judge as authority that the plaintiff had waived alimony concerned an agreement by parties after a decree of divorce. DuPlechan v. DuPlechan, 270 So.2d 264 (La.App. 3rd Cir. 1972). Therefore, the agreement made in that decision did not fall within the circumscription of C.C. Arts. 2446 and 1790, since the parties were no longer husband and wife.

The failure of plaintiff to demand payment for the period from March 1975 to December 1976 does not estop her from now seeking enforcement. There is no duty on the wife to make periodic demands on a husband to keep an alimony judgment enforceable. Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950).

Although defendant contends he paid the alimony for approximately six months and quit paying as he lost his employment, this is denied by plaintiff and no proof of payment was submitted by defendant.

The second issue concerns the trial court’s credit to the husband against the child support claimed by the wife. The plaintiff brought the children to her husband in early September requesting that he take care of them. The children have remained in the care of the husband’s parents from that date to the present. The wife claims she is entitled to child support for the time the children have spent in the care of her husband and his parents. The trial court awarded her support from the time she made judicial demand for them in a habeas corpus application in early December 1976, but awarded the husband credit for those months the children spent in his care until judicial demand.

In arguing error of the trial court in this regard, plaintiff merely adopts the same argument advanced concerning waiver of alimony. However, the jurisprudence has allowed a husband credit for time the children spent in his care at the request of the wife. See Silas v. Silas, 300 So.2d 522 (La.App. 2d Cir. 1974). In Caraway v. Caraway, 321 So.2d 405 (La.App. 2d Cir. 1975), we said the following:

* * * Therefore, we hold that where the wife voluntarily places the only child of the marriage in the custody of the husband for an extended period of time, the husband is entitled to credit for such period of time on any past due child support. * * *

The trial judge was therefore correct in awarding the husband credit from the time they were given to him until judicial demand by the wife.

Plaintiff also appeals the trial court’s holding that defendant should not be held in contempt for not paying the alimony and child support. We agree with the trial court. The defendant is not in contempt for withholding the child support payments since plaintiff was not entitled to them, nor is he in contempt for withholding his alimony payments due to the questionable circumstances under which the separation judgment was obtained.

Since the judgment awarding alimony was silent as to the commencement date, it must be presumed the trial court intended alimony payments be effective from the date of the judgment, rather than commencement of suit. See Cumpton v. Cumpton, 283 So.2d 846 (La.App. 2d Cir. 1973).

For the reasons assigned, the judgment appealed rejecting plaintiff’s demand for recognition of accrued alimony is reversed, and plaintiff is hereby awarded judgment against defendant for the sum of $2,633, together with legal interest as provided by law, for past due alimony from March 20, 1975, through June 1, 1977. In all other respects, the judgment is affirmed. Costs of these proceedings are to be equally divided.