author: HOOD, Judge.

text:
    Lois Lancaster HALCOMB, Plaintiff-Appellant, v. Roy Seale HALCOMB, Defendant-Appellee.
    No. 5788.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 1977.
    Rehearings Denied April 5, 1977.

    Writ Granted May 26, 1977.

      Lyman S. Gore, Vidalia, for plaintiff-appellant.
    Roy S. Halcomb, Sr., Ferriday, for defendant-appellee.
    Before HOOD, GUIDRY and FORET, JJ.

       GUIDRY, J., voted for reheaaring of plaintiff-appellant.

   HOOD, Judge.

Plaintiff, Mrs. Lois Lancaster Halcomb, instituted this action to have the amount of past due child support payments owed to her determined and made certain, and to have the judgment ordering those payments made executory. The defendant is plaintiff’s former husband, Roy S. Halcomb. Judgment was rendered by the trial court in favor of defendant, rejecting plaintiff’s demands and dismissing this action, with prejudice. Mrs. Halcomb appealed.

After the record was lodged in this court, defendant Halcomb filed a motion to dismiss the appeal. That motion was argued and submitted at the same time the case was argued on its merits. The case is before us at this time, therefore, on the motion to dismiss the appeal as well as on the merits.

Motion to Dismiss Appeal

The judgment appealed from, that is, the judgment rejecting plaintiff’s demands, was rendered on June 25, 1976. Thereafter, on July 14, an order was signed by the trial judge granting plaintiff a devolutive appeal, making the appeal returnable to this court on September 15,1976, and fixing the appeal bond in the amount of $250.00. Plaintiff filed the required appeal bond on August 2, 1976.

The plaintiff-appellant did not pay the costs of preparing the record or the filing fee required by this court at least three days before the return date originally set by the trial court, pursuant to LSA-R.S. 13:4445. She, however, did pay those costs and the filing fee on September 15, 1976, that being the original return date for the appeal. The appeal was not filed in this court on or before that date. In the record, however, there is an order signed by the trial judge, dated September 15, 1976, which extends the return date of the appeal to October 15,1976. The record was lodged in this court on October 13, two days prior to the extended return date. Defendant Halcomb filed a motion to dismiss the appeal on October 15, and it is that motion which is before us now.

The appellee, Halcomb, alleges as one ground for his motion to dismiss the appeal that neither the plaintiff nor the Clerk of Court had requested an extension of the return date by October 6, 1976, and he then alleges the legal conclusion that “any extension executed by the District Court Judge after the return date of September 15, 1976, would be null and void because a lower court has no jurisdiction after the return date has passed.” Although not specifically alleged in the motion, we think defendant meant to assert that the order extending the return date of the appeal was not signed by the district judge on September 15, 1976, as stated in that order, but instead that it was signed by the judge at some later date, after October 6,1976. Defendant argues that the order purporting to extend the return date is null and void, that the appeal was not lodged in the appellate court on or prior to the effective return date, and that the appeal thus should be dismissed.

Halcomb also alleges in his motion to dismiss the appeal that the appellant did not pay the costs of preparing the record, or the filing fee required by this court, at least three days prior to the original return date, all as required by LSA-C.C.P. art. 2126 and LSA-R.S. 13:4445. He argues that for that additional reason the appeal should be dismissed.

The record shows that although the order extending the return date is contained in and is a part of the record, no filing date has been endorsed on that order, and no minute entry was made showing that such an order had been issued. Defendant suggests that those circumstances either make the order null and void, or they indicate that the order was not signed until some time after the original return date. He alleges that on October 4, 1976 he was informed orally by a Deputy Clerk of Court that a formal order extending the return date had been prepared, but that it had not been presented to the judge up to that date. Although he alleges that this information was given to him orally, there is no receivable evidence of any kind in the record tending to show that the order extending the return date was signed at any time other than on the date shown on the face of the order.

Defendant has not included in his motion to dismiss, or in any other pleading, a prayer that the case be remanded for evidence tending to show that the order extending the return date was signed after September 15, 1976. Neither does he suggest in the written briefs which he filed in this court that the case be remanded for any purpose. In the brief filed by defendant in support of the motion to dismiss, he simply suggests that “these inconsistencies should be seriously considered by Your Honors.” He concludes his brief with the statement that the Clerk of Court should not be permitted “to collect payment at the last minute of the return date and then, at this late hour, apply for an extension of the return date.”

No authority has been pointed out to us, and we know of none, which would support a holding that the extension order was null simply because a filing date was not endorsed on it. Neither do we know of any requirement that an order extending the return date be filed in the record before the expiration of the original return date. In the instant suit, the extension order obviously was filed some time before October 13, 1976, because it was in the record when the appeal was lodged in this court. We believe that the order, if signed by the trial court on or before the original return date, would be valid and would effectively extend that return date even though it was not filed in the record until some time after that date. Also, we know of no law which requires that the extension order be entered on the minutes of the court, and we hold that the failure to enter the order involved here on the minutes did not affect its validity.

Defendant argues, however, that the absence of an endorsement showing the filing date on the order, and the failure to show the order in the minutes, are circumstances which tend to support his contention that the order was signed after the original return date had expired. We draw no such inference from those circumstances.

Although the evidence in the record does not support defendant’s demand that the appeal be dismissed, and defendant does not ask for a remand, we nevertheless considered remanding the case on our own initiative so that evidence could be produced as to the date on which the extension order was signed. After carefully reviewing the record, the allegations in the motion to dismiss and the arguments of defendant, however, and after considering the legal presumption which exists that the court officers discharged their duties properly, we have decided that a remand of the case is not warranted under the circumstances presented here.

Our conclusion is that the order extending the return date of the appeal was signed timely, that it is valid, and that it had the effect of extending the return date of this appeal to October 15, 1976.

We turn now to the second ground alleged by defendant to support his demand for dismissal of the appeal, that is, that plaintiff did not pay the costs of preparing the record and the filing fees required by this court at least three days prior to September 15, 1976. We find no merit to that argument for two reasons.

First, LSA-C.C.P. art. 2126 and LSA-R.S. 13:4445 provide that the appellant shall pay the above costs and filing fee to the clerk of the trial court not later than three days before or prior to the return day “or extended return day.” In this instance the extended return date of the appeal was October 15, 1976. The costs of preparing the record on appeal and the filing fee required by this court were paid 30 days before that extended return date. The costs and fees thus were timely paid.

Our second reason is that the clerk of the trial court is not required to lodge the record in the appellate court unless the costs and fees are paid. LSA-C.C.P. 2126 and LSA-R.S. 13:4445. If the clerk of the trial court should timely file the record in the appellate court, with the appellate court filing fee, then the question of whether the costs and fees required by the above statutes were timely paid to the clerk by the appellant becomes moot, and the failure of the appellant to pay those costs and fees would not be fatal to the appeal. Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Howard v. Hardware Mutual Company, 286 So.2d 334 (La.1973); Succession of Nunez ex rel First National Bank of Abbeville v. Pickett, 335 So.2d 778 (La.App. 3 Cir. 1976).

Appeals are favored in the law, and they should be maintained whenever possible. An appeal will not be dismissed solely on technicalities, unless clearly required by law. Louisiana Power and Light Co. v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970).

Our ultimate conclusion is that the costs and fees required by law were timely paid, and that the appeal is properly lodged in the court.

The motion to dismiss the appeal, therefore, is denied.

On the Merits

Several issues are presented on the merits. One is whether a father who has more than one, child and who is ordered by judgment of the court to pay a fixed amount per week as child support, without specifying the amount which is to be paid for the support of each individual child, is entitled without a formal modification of that judgment to reduce the amount of his weekly payments proportionately as each child becomes of age or is emancipated.

In the instant suit judgment was rendered by the trial court on May 6, 1969, granting plaintiff an absolute divorce against her husband, defendant Halcomb, and awarding to Mrs. Halcomb the custody of their four minor children. The judgment also ordered that defendant Halcomb pay to plaintiff the sum of $100.00 per week as child support. The order did not specify how much of the award was intended for the support of each child.

Defendant paid $100.00 per week as child support from the day that judgment was rendered until April 10, 1970. On the last mentioned date, he reduced his payments to $75.00 per week without obtaining a modification or amendment of the above judgment, explaining that he felt he no longer owed any obligation to support his oldest child who by that time had become 21 years of age and was married. He continued to pay $75.00 per week until June 19, 1970, when the second oldest child was emancipated by marriage, and on that date he reduced his payments to $50.00 per week. On December 24, 1970, his third oldest child became 18 years of age, and defendant at that time reduced his payments to $25.00 per week. The fourth child was still a minor at the time of the trial, and defendant was continuing to pay $25.00 per week as child support.

Plaintiff contends here that since the 1969 judgment ordering defendant to make child support payments to her has never been modified or amended, defendant is obligated to pay her the full sum of $100.00 per week as child support from the date of that judgment until her youngest child reaches the age of majority or is emancipated. The evidence indicates that plaintiff would be entitled to recover $11,844.00 as past due child support payments, if her understanding of the law is correct.

Defendant Halcomb contends that he was entitled to reduce his weekly payments of child support proportionately as each child reached the age of majority or became emancipated, without the necessity of obtaining a modification of the original judgment. Plaintiff concedes that the judgment appealed from, rejecting her demands, must be affirmed if defendant’s theory of the law is found to be correct.

The case was tried on its merits on May 21, 1976, and thereafter judgment was rendered by the trial court on June 9, 1976, in favor of plaintiff (and her three children who had become majors or were emancipated by that time and who had been implead-ed as parties plaintiff) against defendant Halcomb for the sum of $11,844.00. Upon application of defendant Halcomb, however, a new trial was granted, and thereafter judgment was rendered by the trial court on June 25, 1976, revoking the judgment of June 9, 1976, and rendering judgment in favor of defendant, Roy S. Halcomb, and against plaintiff and her children, denying plaintiff’s demands and dismissing her action against defendant, with prejudice. It is from the last mentioned judgment that this appeal was taken.

Our jurisprudence is settled that a judgment for child support remains in full effect in favor of the party to whom it is awarded, until the party held liable applies to the court and obtains a modification. Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954); Hebert v. Hebert, 159 So.2d 537 (La.App. 3 Cir. 1964); Eaglin v. Eaglin, 306 So.2d 375 (La.App. 3 Cir. 1974); Wallace v. Wallace, 316 So.2d 496 (La.App. 2 Cir. 1975).

Equity will not nullify or reduce accumulated alimony or child support payments which have become a vested property right, until the judgment is altered or amended by a subsequent judgment or is terminated by operation of law. LSA-C. C.P. art. 3945, Pisciotto v. Cruda, supra; Mertens v. Mertens, 308 So.2d 506 (La.App. 3 Cir. 1975); Simon v. Calvert, 289 So.2d 567 (La.App. 3 Cir. 1974); Theriot v. Melancon, 311 So.2d 578 (La.App. 3 Cir. 1975).

The issues presented in Eaglin v. Eaglin, supra, are almost identical to those which are before us for determination here. After citing Pisciotto, Hebert and Simon, supra, as well as other cases, we held in Eaglin that:

“Under this jurisprudence, the mother in the present case, in whose favor the child support judgment was awarded is entitled to the full amount of that judgment until the last child was emancipated by marriage or by reaching the age of majority. The only remedy available to the father to relieve himself of the obligation of paying a proportionate amount for each child as each became emancipated was by petitioning the court to reduce the amount of the judgment. No such proceeding was filed by the father in the present case.” (306 So.2d 375, 377).

The rule set out in Eaglin, supra, was applied by the Second Circuit Court of Appeal in Wallace v. Wallace, supra. See also McDaniel v. McDaniel, 288 So.2d 86 (La. App. 4 Cir. 1974).

Defendant contends that the principle of law applied in Eaglin, Wallace and Pisciotto, supra, was rejected by our Supreme Court in the later case of Miller v. Miller, 321 So.2d 318 (La.1975). He argues that the rule applied in Miller should be controlling here, and that under that rule defendant Halcomb was entitled to reduce his weekly payments of child support proportionately as each child reached his majority or was emancipated, without the necessity of obtaining a modification of the original judgment.

We agree that the Miller case is subject to an interpretation which lends support to defendant’s argument. Our review of that case convinces us, however, that the Supreme Court did not intend by that decision to modify Eaglin, Wallace or Pisciotto, supra. None of those cases were cited or discussed in Miller, and we believe they weren’t mentioned because different issues-were presented. In Miller, the trial court condemned the defendant to pay to his former wife the sum of $500.00 per month as alimony and as child support for their three minor children. After that judgment was rendered his former wife remarried and one child became emancipated by marriage. About two years later, his former wife filed an action seeking to recover from defendant all past due payments owed to her as alimony and as child support. The First Circuit Court of Appeal prorated the award equally among the four recipients, concluding that one-fourth of the “in globo” award was intended as alimony for plaintiff, and that the remaining three-fourths of that award was for child support. The court held that since plaintiff had remarried she was not entitled to recover that part of the award which was intended as alimony and which had accumulated since her second marriage. It also determined, however, that plaintiff could recover all of the remaining part of the “in globo” award, that is, the part which was made as child support, despite the fact that one of her three children had been emancipated by marriage.

The Supreme Court granted writs in Miller, but on review the court did not consider the legal questions which are presented here. It did not determine, for instance, the validity of prorating the “in globo” award among the wife and children, on the merits of the wife’s claim for alimony payments which had accumulated after her remarriage. In that connection, the Supreme Court said:

“Since the wife has not sought writs from the judgment of the court of appeal, we do not consider the correctness of the ruling which disallowed the past due amount to Mrs. Miller from the date of her remarriage. For the same reason we do not inquire into the validity of prorating the ‘in globo’ award of $500.00 equally among the former wife and the three children.” (Emphasis added).

In' Miller, the Supreme Court ultimately reduced the award made to the mother by the Court of Appeal. It concluded that since one child had become fully emancipated by marriage, that child owned both the property and right to sue for support, and that the mother no longer had the right to sue for or to receive alimony from the father for the support of that child. As we understand the ruling, the father was not relieved of the obligation of paying the accrued and past due payments of child support.

In the instant suit, we conclude that the trial court erred in rejecting the demands of plaintiff. We think the judgment rendered by the trial court on May 6, 1969, ordering defendant to pay to Mrs. Halcomb the sum of $100.00 per week as child support, remains in effect in favor of Mrs. Halcomb until the youngest child reaches the age of majority or becomes emancipated.

The evidence establishes that the child support payments owed by defendant from the date of the original divorce decree until November 25, 1975, when Mrs. Halcomb filed the present action for judgment for past due payments, amounted to the total sum of $32,500.00. Defendant paid $20,-656.00 to plaintiff as child support payments during that time, leaving a balance due of $11,844.00. We hold that Mrs. Hal-comb is entitled to judgment for that amount against defendant.

All of the Halcomb children who have reached the age of majority or have been emancipated were impleaded as parties plaintiff in this proceeding. The judgment sought by plaintiff here, however, must be rendered in favor of Mrs. Halcomb, and not in favor of the children, because her claim is for child support payments which were awarded to her and which accumulated before her youngest child reached the age of majority or became emancipated. No claim is being asserted in this proceeding by the major or emancipated children for alimony under LSA-C.C. art. 229.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered in favor of plaintiff, Lois Maxine Lancaster Halcomb, against defendant, Roy Seale Halcomb, for the sum of $11,844.00, with interest thereon at the rate of seven (7%) per cent per annum from November 25, 1975, until paid, and for all costs of this suit.

The costs of this appeal are assessed to defendant-appellee.

REVERSED and RENDERED.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Wilbert URSIN, Jr. v. Coleman OUBRE, Administrator of the Estate of his minor daughter, Kelly M. Oubre, et al.
    No. 7838.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Robert R. Paucheaux, Jr., Daniel E. Bec-nel, Jr., Reserve, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and BEER, JJ.
   BEER, Judge.

Appellant, Wilbert Ursin, Jr., filed suit against Coleman Oubre (the Administrator of the Estate of his Minor Daughter, Kelly M. Oubre), Israel Louque, Sr. (grandfather of Kelly M. Oubre) and State Farm Mutual Automobile Insurance Company (the liability insurer of Mr. Louque), for damages sustained in a vehicular accident on September 26, 1974, involving Ursin’s motorcycle and a vehicle owned by Mr. Louque and operated by Kelly Oubre, a minor at the time of the accident. By amended petition, Ursin added Aetna Casualty & Surety Company (hereafter, “Aetna”), the automobile liability insurer of Coleman Oubre, as a co-defendant. In its answer, Aetna admits coverage of Coleman Oubre but avers that Kelly Oubre is not covered by the policy. Thereafter, the trial court rendered summary judgment (without written reasons) in favor of Aetna, dismissing Ursin’s suit as to Aetna only, from which Ursin suspensively appeals.

Ursin’s contentions emphasize that Coleman Oubre was the legal administrator of the estate of Kelly Oubre, and, thus, responsible for her alleged tortious conduct under LSA-C.C. Arts. 146, 2317 and 2318. However, this issue is not properly before us. The motion for summary judgment and the decree granting the motion were specifically limited to Ursin’s claim vis-a-vis Aet-na- — not Coleman Oubre. The focus of the trial judge’s attention was, necessarily, directed toward and limited to the automobile liability insurance contract and its provisions. Thus, the issue presented then and now is whether Kelly Oubre was an insured within the terms of the policy. The potential individual liability vel non of Coleman Oubre is without the scope of our review.

The insurance policy issued by Aetna provides that “a relative” of the named Insured (i. e. Coleman H. Oubre) driving a “non-owned” automobile is also an insured for the purpose of coverage. Moreover, under a section entitled “DEFINITIONS,” we find the following:

“ ‘Relative’ means a person related to the named Insured by blood, marriage or adoption, who is a resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile.”

The question thereby becomes whether or not Kelly Oubre, who undoubtedly is a relative, could be considered “a resident of the same household” as the named insured, Coleman Oubre.

The record shows that approximately two months prior to the accident on September 26, 1974, Kelly Oubre’s parents were physically separated, with Coleman Oubre acquiring a separate home apart from Kelly and her mother. A petition for separation was filed by Marie Louis Oubre, Kelly’s mother, on August 7, 1974, and on August 8, 1974, Mrs. Oubre was granted the provisional custody over Kelly. Thereafter, on September 23, 1974, after trial, judgment was rendered pursuant to a stipulation between Mr. and Mrs. Oubre, awarding Kelly’s mother, Mrs. Oubre, “care, custody and control” of Kelly and condemning Mr. Ou-bre to pay child support and alimony pen-dente lite. The judgment further ordered that Coleman Oubre pay “liability and collision insurance for plaintiff’s community vehicle.” Three days later, September 26, 1974, Kelly, who was living with her mother pursuant to the court’s decree, was involved in an accident while driving her grandfather’s car.

In Taylor v. State Farm Mutual Automobile Ins. Co., 248 La. 246, 178 So.2d 238 (1965), the phrase “a relative of the named Insured who is a resident of the same household” was held to cover Daniel Taylor’s father in Arkansas although Daniel lived and worked with his uncle in Louisiana, thus allowing plaintiff to sue the insurer of Daniel’s father due to the tortious conduct of Daniel.

Manuel v. American Employers Ins. Co., 228 So.2d 321 (La.App.3rd Cir., 1969), involved a 24-year-old plaintiff who sued his father’s insurer under an uninsured motorist provision which required that he be a “resident of the same household” as his father in order to maintain coverage. At the time of the accident, the plaintiff was renting an apartment near the college he was attending approximately 40 miles from his father’s home. However, most of his clothes and possessions were kept at his father’s home, to which the plaintiff returned on weekends and vacations. In fact, plaintiff was injured while living at home with his father on a weekend. Additionally, his mailing address was at his father’s home and plaintiff testified that he regarded his father’s house as his home. The appellate court found no error in the trial court’s finding that the plaintiff was a resident of his father’s household for the purposes of the policy coverage.

In Fidelity General Ins. Co. v. Ripley, 228 So.2d 238 (La.App.3rd Cir., 1969), writs ref. 255 La. 248, 230 So.2d 94, the minor defendant, Donald Ripley, was living with his mother in Midland, Louisiana, although he had clothes at his father’s home in Lake Charles, Louisiana. Donald’s parents had not been legally separated nor had either of them been awarded legal custody over Donald. However, he visited his father on numerous occasions and since Donald “was for all legal intents and purposes under the complete control of his father . . . ”, he was found to be a “resident of the household” of his father.

Here, the trial judge has orally indicated his reliance upon Chapman v. Allstate Ins. Co., 306 So.2d 414 (La.App.3rd Cir., 1975), in granting summary judgment. In that case, plaintiff sued under an uninsured motorist provision of his own automobile policy for the death of his son, which had resulted from a fatal automobile collision with an uninsured motorist. The issue was whether Carl Chapman was an “insured” under a policy issued to his father. Prior to the accident, Carl’s mother was awarded custody of Carl by divorce decree. Hence, Carl lived with his mother in Ville Platte up to the time of his demise. As in this case, the policy provided coverage for “relatives” of the named insured while residents of the same household . . .In affirming the summary judgment of the trial court, the Third Circuit Court of Appeal stated:

“In the case before us we have no doubt that Carl Chapman was a legal resident of his mother’s household in Ville Platte at the time of the accident. Mrs. Chapman had been given custody in the Florida divorce proceeding and Carl was actually residing in her household at the time of the accident.
* * * * * *
“In this case, Carl cannot be considered a legal resident of his father’s household as there was a change of status by law. When the Florida ’court awarded custody to Mrs. Chapman, Carl, as an unemanci-pated minor, became a legal resident of his mother’s household and was no longer a legal resident of his father’s household.
“We conclude that Carl was not a resident of the same household as his father and that the trial judge properly rendered summary judgment in favor of the defendant.”

We find Kelly Oubre not to have been “insured” under the automobile liability insurance policy issued by Aetna to Coleman Oubre. Accordingly, we affirm the judgment.

AFFIRMED.


author: STOULIG, Judge. REDMANN, Judge,

text:
    LEE MOVING & STORAGE, INC. v. Al BOURGEOIS, d/b/a Al Bourgeois Plumbing & Repairs, et al.
    No. 7894.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Sutterfield & Vickery, James R. Sutter-field, New Orleans, for plaintiff-appellee.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for A1 Bourgeois, d/b/a A1 Bourgeois Plumbing & Repairs.
    Sydney J. Parlongue, Philip R. Riegel, Jr., New Orleans, for Mrs. Carol R. Lee.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Lee Moving & Storage, Inc., filed suit to rescind an allegedly ultra vires sale of its 35-foot fiberglass 1971 Concord boat to defendant A1 Bourgeois, doing business as A1 Bourgeois Plumbing & Repairs, for $15,000. Plaintiff alleged the buyer accepted title from defendant, William Lee, the president of plaintiff corporation, knowing that he was without authority to sell the vessel. From a judgment decreeing the sale a nullity and ordering the purchase price returned, only Bourgeois, the defendant’s purchaser, has appealed.

It is apparent from the record that vendor and purchaser and their respective attorneys were aware that William Lee’s authority to sell might later be challenged.

We reconstruct the negotiations and sale as follows: After indicating he was willing to pay $15,000 for the boat to an associate of William Lee, Bourgeois was contacted by Lee and a meeting was arranged for late afternoon of April 23, 1975 on the boat. The seller and the buyer were each represented by their respective attorneys. They preliminarily discussed an injunction that had issued to Lee in connection with domestic litigation in which he was involved forbidding him from disposing of any assets of the community of acquets and gains existing between himself and his wife Carol Lee. They all testified that both attorneys were of the opinion that Lee could nonetheless alienate the boat as majority stockholder of the corporate owner. Appellant’s attorney required a resolution from the corporation authorizing the sale of the boat, although he testified this was the first time in long years of practice that he had demanded a resolution to support a corporate sale of a chattel.

The next problem patent on the face of the title was the designated registered owner. The boat was registered in the name of William Lee. With the injunction outstanding and the title reflecting the vessel presumptively was community property, the buyer’s attorney’s doubts were resolved by Lee himself writing in on his own title “Lee Moving & Storage, Inc. by its President $ * *

Before the buyer’s attorney would release to the vendor his client’s $15,000 certified check, he required a corporate resolution authorizing the sale and a hold-harmless agreement. The former was signed by the secretary of Lee’s attorney as “assistant secretary,” a procedure not authorized by the corporate charter or sanctioned by the board of directors. The latter was executed by Lee individually and in his corporate capacity as president, in which it was agreed that Bourgeois would be indemnified for any judgments that might be rendered against him as the result of the sale and for all costs of defense.

When cash and documents purporting to convey title were exchanged, it was with the understanding that Bourgeois’ money would be refunded if the sale was questioned. Bourgeois took possession of the vessel on April 25. On April 28, 1975, he applied for a title to the boat in the name of A1 Bourgeois Plumbing. Meanwhile, William Lee’s estranged wife Carol returned from St. Louis where she had been attending IBM school since mid-April. When she learned of the transaction, she went to the boathouse where Bourgeois had docked it and told him she had a court order requiring the release of the vessel to her so she could take it to Scariano’s Boat Works for repairs. On the advice of his attorney, Bourgeois released the boat.

At this point appellant’s attorney demanded from plaintiff’s attorney the boat or the money. In response thereto, William Lee took a $15,000 certified check to the office of appellant’s attorney who advised him his client refused to accept the return of the purchase price and insisted the sale could not be rescinded. Bourgeois discharged his attorney for advising him to accept the tendered return of the $15,000.

Bourgeois denied he was aware of any title problems until Carol Lee repossessed the boat. Initially he denied knowledge of Lee’s questionable authority to convey title until Mrs. Lee appeared at the boathouse; however, he later admitted he had been willing to return the boat until Mrs. Lee repossessed it in the presence of his acquaintances and embarrassed him by doing so.

Appellant seeks a reversal on either of two theories: (1) Lee, as a majority stockholder and president of the corporation, had full authority in law to enter into a valid contract of sale of a corporate asset; or alternatively, (2) he had apparent authority to act for his corporation and thus Lee Moving & Storage, Inc., is bound by any agreement Lee made with a third party.

The evidence defeats the first proposition. During this period William Lee unquestionably owned 499 shares of the outstanding 1,000 shares of stock issued, Carol Lee owned 499 shares, and Kenneth Lee was recorded owner of the other two shares on the corporate books. William Lee claims he acquired the two shares of Kenneth’s prior to the sale of Bourgeois. Plaintiff corporation and Carol Lee deny this.

The articles of incorporation refute that Lee'was a majority stockholder when he sold the boat because the disputed shares, even if actually owned by William Lee, were never transferred or reissued in his name in the corporate records. Article IV of the charter provides the corporation will only be bound by stock transfers recorded on its books. But even if Lee did succeed in proving record ownership of 501 of the outstanding 1,000 shares, he would still be powerless acting alone to alienate one of the primary assets of the corporation. Article VI vests the corporate powers and the ability to exercise them in a three-man board of directors.

In Hayes v. Johnson, 299 So.2d 566 (La. App. 4th Cir. 1974), we nullified a sale of corporate property by an individual shareholder because the corporate charter required the business of the company to be conducted by three directors.

Having concluded Lee had no authority to bind the corporation; we next consider whether Bourgeois nonetheless can maintain the sale on the theory he acted in good faith in dealing with a corporate officer with apparent authority. Ideal Savings & Homestead Ass’n v. Kerner, 208 La. 513, 23 So.2d 200 (1945), validates a purchaser’s right to retain property of a corporation sold ultra vires by one of its officers, however, as a prerequisite, the purchaser must deal in good faith and rely on the apparent authority of the officer or director to act.

This is not a case of good faith reliance. To the contrary there is every indication buyer and seller and their respective attorneys foresaw the potential attack on Lee’s capacity and/or right to sell the boat before title passed. We have summarized the evidence upon which the trial court found no good faith reliance on corporate authority on Bourgeois’ part and fully concur in this result. The sale was properly ordered rescinded.

Finally we consider Bourgeois’s demand for attorney fees and cost of litigation under the hold-harmless agreement executed by William Lee individually and in his capacity as president of the corporation.

Having determined that Lee did not possess the authority, expressed or apparent, to act for the corporation in the sale of the boat, it follows that he cannot bind the corporation in the ancillary indemnity agreement arising out of the purported sale.

With regard to the individual liability of William Lee, at the time this agreement was executed, both Lee and Bourgeois agreed they would return to the pre-April 23 status quo if problems or questions later developed about the validity of the transfer. When the problem did arise, William Lee lived up to his agreement by tendering $15,-000 cash to the buyer’s attorney, but the buyer would not rescind the sale. Because his liability stems from his own willful refusal to honor his agreement, he cannot now demand indemnification under the breached agreement. By its terms the in-demnitee’s negligence vitiates the indemnification; therefore, his willful refusal to comply with the terms of the agreement should produce the same legal result.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

The president of a corporation whose business is moving and storage does not have implied actual authority (La.C.C. 3000) to sell a large pleasure boat belonging to the corporation (and no express actual authority from by-law or resolution, La.R.S. 12:82, was shown).

Nor were any circumstances shown creating apparent authority in the president to sell the boat for the corporation.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    AETNA FINANCE COMPANY v. Mr. Jeff ANTOINE and Mrs. Elaine Antoine.
    No. 7906.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Stahl & Berke, Kenneth J. Berke, New Orleans, for plaintiff-appellee.
    Noble, Moon, Slaughter & Clayton, Paula A. Perrone, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   GULOTTA, Judge.

Husband and wife, judgment debtors, appeal from the dismissal on exceptions of no cause of action and res judicata of their petition seeking injunctive relief from the seizure by writ of fieri facias of household movable furnishings, upon which a chattel mortgage had been granted. The Antoines seek to arrest the sale of seized pieces of household furnishings which are exempt under LSA-R.S. 13 ^l.

The debtors contend that the statutory exemption covering the seized household property has not been waived by the granting of the chattel mortgage. In support of their position, the Antoines analogize the exemptions of these statutorily-exempt movables to the homestead exemption which requires a written waiver. According to petitioners, if indeed authority exists for a waiver, the waiver, express or implied, must be voluntarily, intelligently and knowingly made.

Aetna claims, .on the other hand, that when the debtors granted the chattel mortgage, they impliedly waived the exemptions afforded under LSA-R.S. 13:3881. Aetna alternatively argues that the default judgment maintaining the chattel mortgage against the debtors is res judicata, and any claim for injunctive relief from seizure and sale of the mortgaged items is now barred because any defenses which they may have had should have been asserted at the time the suit was brought on the note and mortgage.

Considering Aetna’s contentions in reverse order, we find no merit to the claim that injunctive relief sought by petitioners is res judicata. Aetna filed suit in March, 1975, for the balance owed on a note and for recognition of the chattel mortgage. Default judgment was rendered in the amount prayed for and the chattel mortgage was recognized. In May, 1975, a writ of fieri facias was issued against the debtors, and it was at this time that the An-toines’ petition for injunctive relief to arrest the sale of the seized exempt property was filed. Their petition for injunctive relief does not address itself to whether or not an indebtedness is due (subject of the default judgment), but addresses itself rather to whether or not the judgment creditor rightfully seized exempt property to satisfy the judgment. It was not until such time as the seizure included the exempt property that the debtors could be heard to complain. It was then that the Antoines brought this action for injunctive relief for the arrest of the sale of the seized exempt property. The Antoines could not have raised the issue whether the waiver in the chattel mortgage was knowingly, voluntarily and intelligently made until such time as the creditor seized the exempt items. The debtors had no way of knowing that exempt items would be seized to satisfy the judgment until they were in fact seized. The matter before us is clearly not res judicata. See Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810, 818 (La.1974) for discussion of res judicata.

We are more concerned with the primary issue, i. e., whether the debtor who has executed a chattel mortgage may subsequently, absent allegations of fraud, assert the defense that the waiver was not voluntarily, knowingly and intelligently made.

Waiver is defined as:

“A voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed.”

Breaux v. Laird, 230 La. 221, 234, 88 So.2d 33, 38 (1956). See also Pittman Construction Company v. Housing Authority of New Orleans, 248 La. 471, 179 So.2d 900, 904; Michel v. Efferson, 223 La. 136, 65 So.2d 115, 119 (1952).

As also stated in Estoup Signs v. Frank Lower, 10 So.2d 642, 645 (La.App.Orl.1942), citing 31 C.J.S. Estoppel § 61, p. 244:

“A waiver occurs, takes place, or exists when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.”

See also Fox v. City of Monroe, 15 La.App. 192, 131 So. 483, 484 (2d Cir. 1930).

It is well-settled that a debtor, in mortgaging his property, may waive statutory exemptions. In those instances involving the mortgage of property covered by the homestead exemption, the debtor must make a written waiver. In those instances involving property exempt from seizure under LSA-R.S. 13:3881, however, no express waiver is required. Indeed, our jurisprudence recognizes an implied waiver through conduct, i. e., the execution of the chattel mortgage itself. In Kay v. Furlow, 178 La. 637, 644, 152 So. 315, 317 (1933), the Louisiana Supreme Court dealt with a case involving property exempt from seizure under Code of Practice, art. 644, the precursor to LSA-R.S. 13:3881. The defendant in Kay had executed a chattel mortgage on tools of his trade and sought an injunction to prevent the sale of the mortgaged property. In affirming a dismissal of the petition, the court stated:

“Defendant, in consenting to the mortgage, by necessary implication, waived his exemption, otherwise he would not have been granting a mortgage at all, but only a mere sham. The implied waiver, as appears from the authorities cited, is a valid waiver. The waiver, as we have seen, does not violate public policy.”

See also: Kyle v. Sigur, 121 La. 888, 46 So. 910 (1908). In our case, the property seized included certain household items exempt under the terms of LSA-R.S. 13:3881; they are not items encompassed within the constitutional homestead exemption. Accordingly, in view of the Kay and Kyle decisions, we conclude that the Antoines have granted an implied waiver of their right to assert the exemptions afforded them by LSA-R.S. 13:3881.

We now turn to a consideration of whether the debtor, who has executed a chattel mortgage on exempt property, has the right to raise the defense that the implied waiver granted in the chattel mortgage was not knowingly, voluntarily and intelligently made. If we conclude that the signing of the mortgage, which lists the exempt property, cannot be vitiated by allegations and proof that the waiver was not knowingly, voluntarily and intelligently made, an irrebuttable presumption exists in favor of the validity of the waiver. If, on the other hand, the implied waiver is subject to an attack, on the grounds that the waiver was not so made, the presumption is rebuttable. To hold that the presumption is irrebuttable would result in a foreclosure (absent allegations of fraud) of the right of a debtor to attack the validity of a waiver under circumstances, where for one of many reasons, a debtor is not aware of the effect of the chattel mortgage on the exemption.

In Breaux v. Laird, supra, the court stated at page 38:

“The doctrine of waiver or estoppel contravenes the legal rights of the person sought to be estopped, and in some instances stays the operation of the usual proceedings in the adjustment of rights of individuals and for that reason should, in every instance, be applied with great care and caution. Our courts and other jurisdictions universally hold that this doctrine should be applied only in exceptional cases where its application is necessary to effectuate justice or prevent injustice, and should not be applied where it will serve as an instrument of, or operate as, a fraud, be against good conscience, work injustice or accomplish a wrong. * * *”

See also Pittman Construction Company v. Housing Authority of New Orleans, supra, at page 905. Notwithstanding the fact that a person executing a chattel mortgage knew, presumably, that he was in fact granting a chattel mortgage on the movable property, he is not presumed to know the effect of a chattel mortgage on the exemption. Accordingly, we hold that the irrebuttable presumption does not exist, and a debtor is not foreclosed from attacking the validity of the waiver under circumstances where the debtor shows the waiver was not knowingly, voluntarily and intelligently made.

Having so concluded, we are next confronted with the question whether the petition, in the instant case, states a cause of action. The petition for injunction alleges that “. . . the plaintiff was not entitled to seize those exempt goods because the implied waiver of the debtor’s right to retain certain exempt goods was not an intelligent, voluntary and knowing waiver”.

For the purposes of an exception of no cause of action, well-pleaded allegations of the petition are accepted as true. See Francois v. Fireman’s Fund Insurance Company, 236 So.2d 519 (La.App. 4th Cir. 1970). However, the petition in our case alleges conclusions of law rather than facts upon which those conclusions are based. Under the circumstances, we conclude the petition does not state facts upon which to base a cause of action. The exception was properly maintained. However, as in the instant case, where the objection raised by the peremptory exception may be cured by amendment, the petitioners shall be granted the opportunity to amend. See LSA-C.C.P. art. 934.

Accordingly, the judgment dismissing the Antoines’ suit is reversed and set aside. Judgment is now rendered and recast as follows: The exception of res judicata is overruled. The exception of no cause of action is maintained; however, leave is afforded to petitioners (the Antoines) to amend within the time to be determined by the trial judge. The matter is remanded for further proceedings not inconsistent herewith.

REVERSED, RENDERED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns

reasons.

This case raises the issue of whether a chattel mortgagee has the affirmative duty to explain to a debtor who executes a chattel mortgage that he thereby waives his statutory exemption from seizure, or whether the mortgagee merely has a negative duty to refrain from misleading the debtor.

In civil law a person is generally presumed to know the legal effects of his acts. When a debtor executes a contract of chattel mortgage, he is presumed to know the legal consequences. Therefore, an allegation of the lack of knowledge of legal consequences is not sufficient to state a cause of action to prevent seizure.

I disagree with the majority decision insofar as it appears to require that the mortgagee provide an affirmative explanation of the legal consequences in every mortgage transaction. Such a requirement would invite a swearing match over the validity of the waiver whenever statutorily exempt chattels are seized. I would limit such contests to those cases in which there are allegations of fraud, misrepresentation or other vice of consent.

However, the conclusionary statements in the petition may be based on the fact that the debtors were misled or defrauded. Therefore, I have no strong objection to allowing the debtors an opportunity to provide particular facts in support of their allegations in an attempt to cure the objections raised by the exception, which challenged the petition peremptorily prior to trial.

      .LSA-R.S. 13:3881, in pertinent part, reads as follows:
      § 3881. General exemptions from seizure; waiver of sovereign immunity from garnishment
      “The following income or property of a debt- or is exempt from seizure under any writ, mandate, or process whatsoever:
      * * * . * * *
      “(4) The clothing, bed, bedding, bedstead, linen, china, glasses, knives, forks, spoons, dining table and chairs, cooking stove, kitchen utensils, pressing irons, washtubs, and refrigerator (electric or otherwise) used by him or a member of his family; the family portraits; his arms and military accoutrements; the musical instruments played or practiced on by him or a member of his family; and the poultry and fowl kept by him for the use of his family.

      . Among the mortgaged items seized were beds, a dinette table and matching chairs, a refrigerator, a gas range, a washing machine and a dryer.

      . See homestead exemptions, Const, of 1921, Art. XI, Secs. 1 and 3, and carried over in Art. 14, Sec. 35, La.Const. of 1974.

      . See La.Const. of 1921, Art. XI, Sec. 3.

      . See Ideal Loan of New Orleans, Inc. v. Johnson, 218 So.2d 634 (La.App. 4th Cir. 1969).

      . Indeed, the consequences of the bargain are most plain. The debtor bargains that if he does not pay as promised, the mortgagee may seize the mortgaged property, even that property which would be exempt from seizure for an ordinary debt.


author: GULOTTA, Judge.

text:
    RIVERLANDS NATIONAL BANK IN LA PLACE v. Darleen CLEMENT.
    No. 7909.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      William O’Regan, III, La Place, for plaintiff-appellant.
    Alma L. Chasez, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of its deficiency judgment suit against a husband where wife, alone, executed a promissory note secured by a chattel mortgage in favor of plaintiff bank, for a sum of money with which she purchased supplies and furnishings used in connection with a business operated by her. Judgment was rendered only against the wife.

While acknowledging that the defendant-husband did not sign the promissory note and chattel mortgage, plaintiff complains that the trial judge erred in not concluding the note represented a community obligation. According to plaintiff, community obligations were paid with funds from the business operated by the wife. Under the circumstances, plaintiff claims the husband ratified his wife’s action. Finally, plaintiff argues the trial judge erroneously reduced interest in the judgment against the wife to legal interest from date of judicial demand instead of 8% interest as provided for in the notes and mortgages.

Darleen J. Clement executed a note in the sum of $4,730.40, dated September 12, 1973. The note was payable in monthly installments of $131.40 and bore interest at the rate of 8% per annum from maturity until paid. Mrs. Clement made the loan in connection with her beauty shop business and secured the note with a chattel mortgage on the shop fixtures: shampoo bowls, chairs, manicure table and stool, floor mats and dryers. On January 10, 1974, Mrs. Clement executed a second note in the sum of $912.36, payable in monthly installments of $25.33, bearing interest of 8% per annum from maturity. Upon default in payment, plaintiff brought executory process for nonpayment of both loans. Following a sale of the mortgaged property, this suit for deficiency judgment was filed against the wife and later amended to include the husband.

In dismissing the suit as to Mr. Clement, the trial judge stated:

“As to Mr. Clement another result must flow. Mr. Clement does not have his name to [sic] the note and his testimony is positive that he did not go along with the whole idea. * * * ”

In Nationwide Finance Co. of Gretna, Inc. v. Pitre, 243 So.2d 326, 328 (La.App. 4th Cir. 1971), we stated:

“It is clear from the record that Mr. Pitre did not authorize his wife to sign the note on his behalf and had no knowledge of the transaction until after ‘it occurred. While a person will be bound by his signature being executed by another person when done in his presence and under his authority, ratification must be shown when his signature is executed by another person outside of his presence and without his knowledge or authority. * * * [footnote deleted]
“For ratification of an unauthorized act, the facts must indicate a clear and absolute intent to ratify the act, and no intent will be inferred when the alleged ratification can be explained otherwise. * * * »

Applying this doctrine to the facts of our case, we conclude that the trial judge correctly held that the defendant-husband did not ratify his wife’s act.

The husband testified he had objected to his wife’s opening the shop and borrowing money to finance the venture. He further stated the community had derived no benefit from the business, and no revenues from it had been used for home improvements, education, entertainment, clothing expense or other community debts. His testimony was corroborated by the wife who stated that the husband was opposed to her opening the business and that he had no intention of signing the note. She further testified her husband was not aware that she had signed the note until after she had made the loan. She also stated that the money borrowed had been used to purchase supplies for the business and that the venture was not a profitable one.

Though certain checks drawn on the shop account were used to pay community debts, Mrs. Clement stated that funds from her personal or the community account had reimbursed the business account.

The testimony and exhibits considered, we conclude, as did the trial judge, that no showing has been made that Mr. Clement expressly ratified his wife’s business loan or that the community benefited so substantially from business funds that Mr. Clement’s ratification should be implied.

The judgment against the wife provides for “interest from date of judicial demand . . . .” In his use of the term “interest”, the trial judge does not specify whether he means legal interest or interest at the rate provided for in the notes. The notes provide for 8% interest “from maturity until paid”. Plaintiff is entitled to the stipulated interest from date of maturity which, in this case, is from date of judicial demand. See First National Bank of Jefferson Parish v. Kindermann, 280 So.2d 888 (La.App. 4th Cir. 1973), writ denied, 282 So.2d 720 (La.1973); Preferred Investment Corporation v. Denson, 251 So.2d 455 (La. App. 1st Cir. 1971).

Accordingly, the judgment of the trial court is amended to provide for interest at the rate of 8% per annum from the date of judicial demand until paid. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . In 1973, the business loss amounted to $1,660.39. In 1974, the loss totalled $7,311.00.

      . These checks drawn on the business account included payments for a house note, purchases from a department store, and the home utility and water bills. One expenditure in the amount of $8.00 covering family dues in a social club apparently was not reimbursed.


author: SCHOTT, Judge.

text:
    In the Matter of ADOPTION OF Marion Angela HAKENJOS.
    No. 7914.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Arthur G. Kingsmill, Gretna, for respondent-appellant.
    George L. Wax, New Orleans, for Charles B. Fedel.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

On January 22, 1975, Charles B. Fedel filed a petition to adopt Marion Angela Hakenjos. He alleged that he was married to the child’s mother, Geraldine Wright, on December 9, 1963; the child was born on November 12, 1960, of the marriage between his wife and her former husband, Warren W. Hakenjos, defendant-appellant; this marriage had been terminated by a judgment of divorce on December 9, 1963; and his wife had consented to the adoption of the child by him. The petition contained no allegation that defendant had consented to the adoption of his daughter so that the case did not fall within the purview of LSA-R.S. 9:422.

In the absence of the consent of the legitimate parent as provided for in R.S. 9:422, an adoption may be obtained by the step-parent in accordance with R.S. 9:422.1, which states that such consent is not necessary if the following conditions exist:

“(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have 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

Although the petition contained no allegations that these conditions existed, at the trial plaintiff’s attorney asked Mrs. Fedel whether defendant had been “court ordered to support this child.” A timely objection was made by defendant’s attorney and was overruled by the trial judge. There was no mention of amending the petition in accordance with LSA-C.C.P. Art. 1154 and the trial proceeded.

The evidence established that on February 16,1962, Mrs. Geraldine Wright Haken-jos obtained a judgment from the Civil District Court for the Parish of Orleans ordering Warren W. Hakenjos to pay alimony pendente lite for the support of his wife and child in the sum of $160 per month. On December 9, 1963, a decree of divorce between Mr. and Mrs. Hakenjos was issued by the State of Nuevo Leon, Mexico. The decree recites that Mr. and Mrs. Warren W. Hakenjos both came before the issuing official and by mutual consent secured the decree of divorce dissolving their marriage. One hour later a Mexican marriage certifi: cate was issued proclaiming the marriage between Charles B. Fedel, plaintiff, and Geraldine Wright. On December 14, 1963, the Fedels returned to New Orleans and the child, Marion Angela Hakenjos, has lived with them since. On April 27, 1965, Warren Hakenjos obtained a divorce from Mrs. Hakenjos (now Mrs. Fedel) from the Civil District Court for the Parish of Orleans. Hakenjos made no child support payments after the Mexican divorce except for some isolated payments at the end of 1965.

The judgment of the trial court in favor of plaintiff now before us on appeal is apparently based upon the failure of defendant to support his child for over a year between December, 1963, and April, 1965, in violation of the court order of February, 1962.

Appellant’s contentions are twofold. First, he maintains that plaintiff did not state a cause of action under R.S. 9:422.1 in his petition and despite a timely objection to the proffered evidence of a court order plaintiff failed to amend his petition. He relies on LSA-C.C.P. Art. 927 to the effect that the failure to disclose a cause of action may be noticed by the appellate court on its own motion. The second contention is that the Mexican divorce of December 9, 1963, had the effect of abating the effects of the judgment condemning him to pay alimony and child support pendente lite. Because we find his second contention to be meritorious and dispositive of the case we will not consider his first contention.

At the outset it must be understood that neither party to these proceedings has questioned the validity of the Mexican divorce. They have limited their arguments to the effect of that divorce on the previous court order of support. In answer to appellant’s argument of abatement, appellee contends that the Mexican court never exercised or assumed any jurisdiction over the child, so that the obligation to pay child support continued to be governed by the judgment of February, 1962, despite the Mexican divorce of December, 1963.

In Clark v. Clark, 192 So.2d 594 (La.App. 3rd Cir. 1966) the validity of a Mexican divorce was at issue. The court said:

“Turning to the question of the legality vel non of the divorces and marriage of the parties in Mexico, we are unable to find a single Louisiana case dealing with a divorce granted in a foreign country. However, the courts of this state have repeatedly refused to recognize divorces obtained in sister states when the parties to the divorce have not established a bona fide domicile in that state.”

Pointing out that Louisiana courts are not required by the full faith and credit clause of the United States Constitution to recognize divorces in foreign countries, the court held that divorces obtained in foreign countries are illegal and without effect if they do not meet the standards recognized in Louisiana and her sister states. The court continued:

“Under the universally acknowledged principle that the judicial power to grant a divorce is founded on domicile, and because the plaintiff and defendant admittedly went to Mexico for the sole purpose. of obtaining their respective divorces, we hold that the divorces thus obtained were patently invalid and of no effect whatsoever.”

There is no evidence in the record as to whether or not Mexico was the domicile of Mrs. Hakenjos when she obtained her divorce. We do not know her intentions at the time or how long she was there. We do know that her child was not with her, she remarried one hour after the divorce was granted and she returned to her home, presumably, in New Orleans five days later where she has remained since. We also know that Mr. Hakenjos, who is shown in the divorce decree to have been present and participated in obtaining it, saw fit to obtain another divorce in New Orleans sixteen months later.

These circumstances make the Mexican divorce highly suspect, and, while we do not hold that it was invalid, if we assume that it was, the marriage between plaintiff and Mrs. Hakenjos was also invalid. That being so plaintiff had no right to bring these adoption proceedings under R.S. 9:422.1.

On the other hand, if the Mexican divorce decree was valid it was to the same extent as any judgment of divorce rendered by a sister state of Louisiana and had the same effect. The law is well settled that a valid judgment of divorce issued in another state of the United States abates prior Louisiana separation proceedings, including a judgment for child support. Webster v. Webster, 308 So.2d 302 (La.App. 1st Cir. 1975), Hampson v. Hampson, 271 So.2d 898 (La.App. 2nd Cir.), Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir. 1967).

Plaintiff relies primarily on Tripoli v. Gurry, 187 So.2d 540 (La.App. 4th Cir. 1966) to support his position but that case provides an exception to the abatement rule with respect to custody only. Furthermore, the procedural posture of that case clearly distinguishes it from the instant case. We have concluded that the Mexican divorce decree, if valid, had the effect of abating appellant’s obligation of support under the February, 1962, decree so that there is no basis for the application of R.S. 9:422.1 to this case.

Accordingly, the judgment appealed from is reversed and set aside. There is judgment in favor of defendant Warren W. Hakenjos and against plaintiff Charles B. Fedel, dismissing plaintiff’s petition to adopt Marion Angela Hakenjos at his cost.

REVERSED AND RENDERED.


author: REDMANN, Judge.

text:
    LAWRENCE AND SAUNDERS et al. v. ST. MARY’S DOMINICAN COLLEGE.
    No. 7920.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Frederick R. Bott (Deutsch, Kerrigan & Stiles), Edward J. McCloskey (McCloskey, Dennery, Page & Hennesy), New Orleans, for plaintiff-appellee.
    Leon Sarpy (Chaffe, McCall, Phillips, Toler & Sarpy), New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

When defendant claimed a large credit against plaintiffs’ bill for architectural services, plaintiffs not only disputed the credit but countered with a supplemental bill including “extras” that plaintiffs had intended to absorb. Then, when plaintiffs sued, defendant reconvened for the increase in the low bid price of the contract to build over an earlier low bid which was lost because zoning problems then prevented immediate building. By now the initial dispute has been resolved in defendant’s favor, and defendant alone appeals from the trial court’s award of the extras and dismissal of the reconventional demand. We affirm.

The Reconvention

The basic foundation of the reconventional demand is the architects’ failure to design a building which the zoning law would allow to be built (with the difference here that defendant seeks to charge the architects with the duty of procuring zoning law changes). Defendant makes a compelling analogy to the cases that deny compensation to an architect whose plans irremediably exceed the project’s budgetary limit, such as MacDonnell v. Dreyfous, 1919, 144 La. 891, 81 So. 383 (but see Moossy v. Huckabay Hospital Inc., La.1973, 283 So.2d 699, holding parol inadmissible to show that a limit was intended).

The common factor in cases of buildings not buildable because of excess costs and buildings not buildable because of zoning noncompliance is the worthlessness of the architect’s plans for the intended purpose. If the owner cannot use the plans because of some factor which the architect knew or should have known (though perhaps only if declared in the contract, see Moossy, supra), the owner should not have to pay for the unusable plans. See Bebb v. Jordan, 1920, 111 Wash. 73, 189 P. 553, 9 A.L.R. 1035.

We conclude, however, that the valid point defendant makes does not extend to our problem, which is more complicated than non-compliance with zoning (and more complicated than simple liability for the architect’s fee). If our library buildings were re-designed to meet the original single-family and low-density residential zoning, it could not be a library (and it surely would not be the building that defendant wanted). One must conclude that defendant did not want a building that would comply with the existing zoning regulations.

The basic question, then, is whether it was the architects’ duty to change the zoning law. The only pertinent contractual obligation of the architects is “filing the required documents to secure approval of governmental authorities having jurisdiction over the design of the project.” That language does not oblige the architects to secure an amendment to the zoning ordinance. Moreover, there is no showing that, by promptly moving after the defendant owner delivered a “survey . . . giving . zoning ... of the building site” (as the contract required), the political accomplishment of amending the zoning ordinance could have been achieved in time for the earlier bidding. Finally, there is evidence of some changes in specifications to meet later federal grant requirements which plaintiff architect testified increased the cost.

The Extras

Although defendant disputes the propriety of some of the extras (especially some which pre-date the design contract), they are all shown to be reimbursable under the design contract (including the pre-dated ones, incurred when plaintiffs anticipated the design contract).

Defendant urges, however, that all of the extras were remitted by plaintiffs’ unilateral decision not to charge for them when submitting their “final bill”. But that final bill did not allow credit for defendant’s payment under a prior “master plan” contract which, as plaintiffs knew, was interpretable as obliging the credit (although plaintiffs had a contrary interpretation). We find no evidence of an intended remission under the circumstances, although there is evident merit in defendant’s argument that once remission is made, the beneficiary’s consent to the remission is presumed by law and the remission cannot be revoked. We view plaintiffs’ action in billing, without charging extras but without allowing credit, as in the nature of an offer of compromise, and we conclude that no remission was intended or occurred.

Affirmed.


author: BOUTALL, Judge.

text:
    BANK OF ST. CHARLES AND TRUST CO. v. Therral RANSOME et al.
    No. 8057.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Charles S. Lagarde, Jr., Luling, Paul E. Hurley, James J. O’Connor, Hurley, McNulty & Stakelum, New Orleans, for Bank of St. Charles and Trust Co.
    David M. Ellison, Jr., Ellison, Gary & Field, Baton Rouge, for Gary J. Anderson, Jr. and Robert E. Weimer.
    John L. Diassellis, III, LaPlace, for Remy F. Gross II.
    Thibaut & Thibaut, Baton Rouge, for Charest D. Thibaut, Jr.
    Sam J. D’Amico, D’Amico & Curet, Baton Rouge, for Therral Ransome.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Plaintiff filed this suit against defendants-appellants Therral Ransome, Gary J. Anderson, Jr., Remy F. Gross, II, Charles Thibaut, Jr., and Robert E. Weimer. Plaintiff’s petition alleges that the defendants breached their fiduciary duty owed to the plaintiff, Bank of St. Charles & Trust Company. The defendants filed exceptions of prematurity, and the trial court maintained the exceptions, but only as to the relief prayed for by the plaintiff, and granted the plaintiff thirty days to amend the petition. Defendants appeal that judgment urging error in permitting amendment rather than dismissal. Plaintiff has answered the appeal urging error in maintaining the exception.

Appellants rely on Article 933 of the Code of Civil Procedure to support their contention that the trial court erred in not dismissing plaintiff’s suit after maintaining the exception of prematurity. Article 933 states, in part:

“If the dilatory exception pleading prematurity is sustained, the suit shall be dismissed.”

Thus, the issue before us is whether the trial judge was correct in maintaining the exception of prematurity, for if he was correct in maintaining the exception, Article 933 prohibited him from granting plaintiff an opportunity to amend, and he should have dismissed the suit. City Investment Co. v. Williams, 171 La. 848, 132 So. 367 (1931).

In his written opinion, the trial judge stated that the petition factually alleges acts that, if proven, could establish negligence, breach of fiduciary duties and damage to the bank resulting from the committed acts. As the trial judge stated, “Certainly, there is nothing premature ins the factual pleadings.” The trial judge went on to say that although the plaintiff had pleaded factual allegations of damage, plaintiff had not prayed for such damages. Instead, the trial judge found the plaintiff’s prayer to be a prayer seeking a declaratory judgment for an amount to be arrived at later.

The trial judge was correct in his determination that there was no prematurity in the factual allegations setting out a cause of action. The problem presented here is in the prayer for relief. In approaching this problem we note that the Code of Civil Procedure, rejecting procedural technicalities, adopts the salutory rule of liberal construction of pleadings. Paxton v. Ballard, 289 So.2d 85 (La.1974).

Article 5051 states:

“The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not' an end in themselves.”

Article 865 directs:

“Every pleading shall be so construed as to do substantial justice.”

Additionally, with the exception of items of special damages and default judgments, a party is entitled to relief based upon the allegations pleaded in the petition and is not bound strictly to the relief sought in the prayer.

Article 862 says:

“Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contained no prayer for general and equitable relief.”

In the present case, plaintiff prayed for judgment in an amount equal to the difference between the value of the collateral security, at the time the collateral is sold, and the amount of the unpaid loans alleged to be illegally made without authority of the Bank. It also prays for such other relief as law, equity and the nature of the case may require. As we interpret the case the pleadings would permit full recovery of the illegal loans entered into by the corporate officials. The prayer apparently attempts to minimize damages by granting credit for value of the security given for the loan. It creates confusion, not of the issue that damages are owed, but as to the amount, or measure of the damages owed.

We agree with the trial judge that the prayer needs amendment but we cannot agree with use of the exception of prematurity as a vehicle to order amendment. Perhaps another type of exception, permitting amendment would have been appropriate. We refer to the case of Central La. Elec. Co. v. Pointe Coupee Elec. Mem. Corp., La.App., 182 So.2d 752, writ refused 249 La. 119, 185 So.2d 529. In this case, as in that case, plaintiff’s petition alleged facts that show the suit not to be premature and the damages real and certain, even if the dollar value of the loss is subject to some uncertainty.

The judgment maintaining the dilatory exception of prematurity is reversed and the exception is overruled. This matter is remanded to the trial court for further proceedings; costs to await a final determination of the case.

REVERSED AND REMANDED.

      . We note that extensive amendment has been made prior to this appeal being taken.


author: MORIAL, Judge. LEMMON, Judge,

text:
    Kim K. ACOSTA v. Rhonda Fried, wife of Kim K. ACOSTA.
    No. 8211.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      William P. Schuler, New Orleans, for plaintiff-appellee.
    Rodney J. Madere, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   MORIAL, Judge.

Kim Acosta obtained a judgment of separation from bed and board from Rhonda Fried Acosta on June 17,1976. The defendant mother was awarded the care and custody of the couple’s minor daughter Erica subject to reasonable visitation by the father. Kim Acosta was also ordered to pay $35.00 per week for the support of Erica.

On July 8, 1976 Kim Acosta sought a temporary suspension of the child support payments and a change in the visitation rights. He alleged in his rule that he was injured in an automobile accident in which he sustained a broken arm on July 1, 1976. Kim Acosta’s employment as a lithographer required the use of both arms. The injury resulted in his being out of work for at least ten to twelve weeks. Plaintiff received no income except welfare payments of $60.00 and $50.00 worth of food stamps during that period.

On August 18, 1976 the district court rendered judgment relieving Kim Acosta of the payment of eight weeks child support and ordered that payments be resumed on the first date due after September 16, 1976. Rhonda Fried Acosta appeals. We affirm.

The sole issue is whether or not the trial judge abused his discretion in relieving plaintiff of the payment of child support for eight weeks. We do not find an abuse of discretion and affirm.

Defendant argues that the court did not take the assets held by plaintiff into account. Plaintiff paid out $1,000.00 on a $1,500.00 hospital bill resulting from the accident. Plaintiff also purchased a car with the insurance proceeds received for the property damage to his car as a result of the accident. Defendant argues that he should have reserved a portion of these funds for the child support payments.

Plaintiff argues that as a result of the accident and subsequent injuries he suffered a substantial change in his financial condition. At the time of the hearing he had only $20.00 in his checking and savings account.

In seeking a modification of an award for child support, the mover must show that there has been a change in the needs of the child or in the ability of the father to make the payments Norred v. Norred, 306 So.2d 799 (La.App. 2 Cir. 1975). Plaintiff established at the hearing on the rule that he has suffered a temporary financial set back. He was out of work without pay for over two months and incurred substantial medical bills. We conclude that the plaintiff proved a sufficient change in his financial position to entitle him to a suspension of the child support payments. Slagle v. Slagle, 205 La. 691, 17 So.2d 923 (1944); Cino v. Cino, 237 So.2d 722 (La.App. 4 Cir. 1970); Lockwood v. Lockwood, 175 So.2d 313 (La.App. 2 Cir. 1965).

Plaintiff testified that he would be out of work for at least ten to twelve weeks. We have no evidence that he would not be out of work for the period of time which he stated. Under these circumstances we find that an eight week suspension was not an abuse of the district court’s discretion. See Norred v. Norred, supra.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

In my view more appropriate relief in this case would have been partial reduction in support payments over the 10 to 12 weeks of anticipated disability. Nevertheless, I cannot say the trial judge abused his discretion by ordering complete suspension for eight weeks.

      . This would have given the father some relief while not completely eliminating support necessary for the child. The father had never missed a previous support payment and was apparently in good faith. However, his use of $1,000.00 in savings to pay part of the hospital bill and $2,800.00 in collision insurance proceeds for the cash purchase of a replacement car, while allowing nothing for child support out of these funds, suggests at least unwise evaluating of priorities.


author: STOULIG, Judge.

text:
    Loubie J. CHAMPAGNE v. SOUTHWEST INDUSTRIAL CONTRACTORS, INC., and Commercial Union Assurance Companies.
    No. 8256.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, James H. Drury, Madison C. Moseley, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BOU-TALL JJ.
   STOULIG, Judge.

This is an appeal from a judgment denying the workmen’s compensation claim of Loubie J. Champagne for maximum benefits he alleges are due for a job-connected injury that left him totally and permanently disabled from continuing in his occupation as a sheet metal foreman. We affirm.

Plaintiff testified the accident occurred on November 7, 1973 as he bent to write an identifying chalk mark on a cut section of pipe so it could later be reassembled properly. He said he felt a sharp pain in his back and he could not straighten up immediately. That same day he was examined by Dr. E. A. Bertucci at St. Bernard General Hospital and his condition was diagnosed as a severe paravertebral lumbar sprain. Bed rest and an analgesic were recommended; however, plaintiff continued performing the same duties until January 1, 1974. At that time he was eligible for retirement and he applied for his benefits.

Plaintiff testified that at no time after the accident was he free from pain but he continued working until his employer’s contract with Kaiser Aluminum was completed. In January 1974 he testified that while lying in bed reading a newspaper, he was suddenly seized with excruciating back pain. A friend took him to Touro Infirmary, where he was treated by Dr. Harold Stokes, an orthopedist recommended by his own family physician. He was in pelvic traction for 16 days of his 23-day hospital confinement. While there, a myelogram was performed that failed to reflect clinical evidence of traumatic back injury. Dr. Stokes treated him as an outpatient and discharged him as being able to return to his regular duties as a foreman.

Dr. Stokes’ testimony is impressive. As treating physician, we accord his opinion great weight. Oliver v. T & C Contractors, 264 So.2d 225 (La.App.3rd Cir. 1972). In essence he states plaintiff has a degenerative lumbar disc that long predated the injury and that the two episodes of pain he experienced in November 1973 and January 1974 had subsided when Dr. Stokes discharged him on April 22, 1974. It was his opinion that the back problem that manifested itself on the job in November 1973 completely resolved itself and left plaintiff in no worse condition than he was in before the incident occurred. The trial judge’s reasons for judgment indicate that he too was impressed by the testimony of Dr. Stokes.

The conflicting medical evidence is set forth in an evaluation of plaintiff’s condition by Dr. Stuart Phillips, an orthopedist. After Dr. Stokes discharged the plaintiff in April 1974 as able to return to his regular job, at the suggestion of plaintiff’s attorney Champagne consulted Dr. Phillips, who then assumed the role of treating physician. Dr. Phillips related the disc problem to the industrial accident which was contrary to the opinion of plaintiff’s other expert.

Compensation benefits were paid until plaintiff’s doctor discharged him as able to return to work. Dr. Stokes was called as a witness for plaintiff and Dr. Phillips’ deposition and reports were tendered to overcome the unfavorable opinion of plaintiff’s own treating physician. Under these circumstances, we find no merit in the complaints of error by appellant.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Plaintiff admitted while in the continued employ of the defendant after the accident, he did not complain to any of his bosses or fellow workers that he was in pain.


text:
    Ernest MARTIN and Edward Johnson v. Elgin GRAVES and New Orleans Public Service, Inc.
    No. 8261.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Valerie Fontaine, New Orleans, for Ernest Martin.
    Floyd F. Greene, New Orleans, for Elgin Graves and New Orleans Public Service Inc.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Ernest Martin 'sued a truck driver and New Orleans Public Service, Inc. for personal injuries and damages arising from a hit-and-run collision between the truck and the bus on which plaintiff was a fare-paying passenger. He appeals from a judgment dismissing his suit against New Orleans Public Service, Inc.

At issue here is solely whether or not an act or omission by the defendant’s bus driver caused or contributed to the cause of the accident. The defendant-appellee contends that the bus was stopped at the time of the hit-and-run accident and was in the proper lane of traffic, and there was no fault or negligence on the part of the bus driver. The plaintiff-appellant contends that the bus was pulling away from the stop at the time of the accident and did so in a negligent manner.

Plaintiff argues that he does not need to show the bus driver to be negligent, but merely need show that he had sustained an injury in transit to establish a prima facie case of negligence against the carrier. Johnson v. New Orleans Public Service, Inc., La.App., 293 So.2d 203 (1974). Once the prima facie case has been established, the burden of proof is then on the carrier to show that there has been no disregard of its duties. He asserts failure to carry this burden of proof.

The plaintiff and the plaintiff’s witness, Alan Johnson, testified that the bus had begun to pull away from the stop at the time of the collision (although the plaintiff’s testimony was confused on this and many other issues).

The defendant attempted to prove its freedom from negligence through the testimony of its witness, the bus driver Alphonso Peacock, and two passengers, Dorothy Wise and Clarence Johnson. The defendant’s witnesses testified that the bus was stopped in the right lane at the time of the collision, and that lane was the proper lane for the bus.

Thus, the issue of negligence became a question of credibility of the testimony of the various witnesses. If the defendant’s version of the accident was accepted, the bus was properly stopped at the time of the accident and the defendant could not be guilty of any negligence. If the plaintiff’s version of the accident were accepted, the defendant has not exculpated itself from liability.

The trial judge made a determination of the credibility of the witnesses and found no negligence by the defendant. In his reason for judgment he said:

“The court was not impressed with the testimony of Ernest Martin and Alan Johnson.
“The Court is of the opinion that Alphonso Peacock, the driver of the bus, was not guilty of any negligence whatsoever.
“There will be judgment accordingly.”

Because this case was determined by the credibility of the witnesses, our appellate review of this case is guided by the principles set forth in Canter v. Koehring Co., 283 So.2d 716, 724, (La. 1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; there is conflict in the testimony, reasonable evaluations of credibility ' and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Our review of the record leads us to the conclusion that there was no manifest error in the credibility determination and that defendant carried its burden of proof. Accordingly, the judgment appealed is affirmed.

AFFIRMED.


text:
    Richard H. NIELSEN v. Rosalie Grace Gauthe NIELSEN.
    No. 8292.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.

      Corwin B. Reed, Metairie, for plaintiff-appellant.
    Robert A. Pitre, Jr., Gretna, for defendant-appellee.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   GULOTTA, Judge.

In this appeal by the husband from a judgment in a rule to reduce alimony, we are confronted with three questions: 1) whether the wife is entitled to any alimony after divorce; 2) if she is so entitled, whether the award, after reduction, is excessive; and, 3) whether the judgment of reduction should be retroactive to the date of the filing of the rule.

The trial judge awarded, after divorce, pending settlement of the community, $850.00 per month alimony. After settlement of the community, in response to a rule to reduce, the court ordered Nielsen to pay $500.00 per month alimony. The rule to reduce was filed on May 26, 1976, and heard on June 18, 1976. Judgment was rendered on September 16, 1976. It is from this judgment that the husband appeals.

It is the husband’s claim that the wife’s ownership of an automobile, home furnishings and the family home (acquired by her in the community settlement) valued at $48,000.00 with an outstanding $27,000.00 mortgage upon which monthly payments were being made by Nielsen constitutes sufficient assets to relieve the husband from the payment of alimony under LSA-C.C. art. 160. Alternatively, Nielsen contends that a $500.00 alimony award exceeds “one-third of his income . . . .” (LSA-C.C. art. 160.) According to the husband, net monthly earnings derived from his business amount to $1,124.00.

According to the wife, the family home is valued at $40,000.00 and the balance on the mortgage amounts to $27,050.95. Mrs. Nielsen claims that she is unable to work because of physical infirmities and is unable to obtain needed surgery because of lack of hospitalization insurance. The wife argues that the husband’s income is suspect because he is president and 90% owner of the stock of the company from which he derives his income. She points out that Nielsen exercises exclusive control of his salary and that his present wife, while employed, had received $800.00 per month as a bookkeeper for the company.

It is the divorced wife’s position that her assets are the equity from the real property amounting to $12,949.05, together with house furnishings and an automobile requiring extensive repairs. Contending that she has no liquid assets or ready cash upon which to provide funds for her support, Mrs. Nielsen argues that she is without sufficient means for her support and is entitled to alimony.

Insufficient means for the wife’s maintenance and support has been defined primarily as an inadequate amount to provide food, clothing and shelter. See LSA-C.C. art. 160; Frederic v. Frederic, 302 So.2d 903 (La.1974). Considering that the wife’s assets consist of household furnishings, an automobile and the family home upon which an outstanding mortgage exists in excess of one half the value of the property (the husband is making the monthly mortgage payments in accordance with a property settlement), we conclude the divorced wife is entitled to alimony. Mrs. Nielsen’s financial circumstances in our case are similar to those of the wife in Mendoza v. Mendoza, 310 So.2d 154 (La.App. 4th Cir. 1975), writ denied, 313 So.2d 827 (La.1975), who earned approximately $200.00 per month from part-time work and who had received from the community settlement the family home encumbered by a mortgage, an automobile and household furnishings. In that case, we stated the wife need not dissipate the sum received by her in the community settlement before being entitled to alimony under LSA-C.C. art. 160.

We distinguish the instant case from our recent decision in Loyacano v. Loyacano, 343 So.2d 365 (La.App. 4th Cir. 1977) and the Supreme Court decision in Frederic v. Frederic, supra. The wife in Loyacano, unlike the wife in the instant case, possessed substantial liquid assets. Mrs. Loyacano owned stock, certificates of deposit, checking and savings accounts, and accumulation in a pension fund totalling $29,325.00. In addition, her equity in the family home amounted to $13,000.00. She owned two automobiles. The wife in Frederic had received a check in the amount of $20,700.00 as her share of the proceeds of the sale of a portion of the community real estate and her remaining undivided interest in community property totalled in excess of $73,-000.00.

Having found the wife’s entitlement to alimony, we conclude the reduction to the sum of $500.00 per month is not an abuse of the trial court’s discretion. It is true, as pointed out by the husband, that alimony under LSA-C.C. art. 160 shall not exceed one-third of the husband’s income. It is also true that the husband testified that his monthly net earnings (take-home pay after taxes) received from his business amount to $1,124.00. However, the amount of these earnings is suspect.

Nielsen is the president and 90% owner of the stock of a corporation from which he derives his income. He has exclusive control over his salary. Furthermore, the corporate financial statements entered into evidence and particularly those relating to 1976 indicate current assets totalling $157,-694.60 and current liabilities totalling $91,-686.00. Net income after taxes in April, 1976, amounted to the sum of $20,411.35. The trial judge, after examination of the corporate statements, apparently concluded either Nielsen’s income exceeded $1,500.00 per month net (after taxes) or the corporation was in a position to pay Nielsen a salary in this amount, without jeopardizing the corporate stability. We might add that the corporate financial statements for the years 1974 and 1975 indicate further that Nielsen received, in addition to salary, monthly payments of $331.40 on indebtedness owed by the corporation to him. Under the circumstances, we cannot say that the $500.00 alimony award is in excess of one-third of the net income derived by the husband. Accordingly, we find no abuse of the trial court’s discretion in reducing the alimony payments from $850.00 monthly to $500.00 monthly.

The final issue to be resolved is whether the judgment of reduction should be made retroactive to the date of the filing of the rule instead of the date of the judgment. The judgment signed on September 16, 1976, did not provide for retroactivity. Because the trial judge has the discretion to set the effective date of any alimony award made under LSA-C.C. art. 160, we will not, in the absence of a showing of an abuse of this discretion (and we find no such abuse), change the effective date of the reduction from the date of the signing of the judgment to the date of the filing of the rule. See Dubourg v. Dubourg, 291 So.2d 441 (La.App. 4th Cir. 1974). The judgment is affirmed.

AFFIRMED.

      . The present wife was unemployed at th of the hearing of the rule.


text:
    Mr. Joseph P. KRIEG v. Jack SCIORTINO.
    No. 8318.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Raymond A. Milly, Metairie, for plaintiff-appellee.
    Joseph S. Russo, Jefferson, for defendant-appellant.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Joseph P. Krieg, filed a petition for possession of the premises designated as Room 214 of 117 Focis Street, Metairie, Louisiana, against defendant, Jack Sciorti-no. Plaintiff alleged Sciortino took possession of the area March 1, 1976 with the understanding he was to execute a five-year written lease to be effective retroactively to the date of occupancy. He further alleged Sciortino refused to execute the lease agreement after taking possession and continued to occupy the premises also refusing to pay rent. This rule, filed July 27, 1976, was made absolute after a hearing and judgment was rendered ordering Scior-tino to relinquish possession. He has appealed.

Appellant first challenges the jurisdiction of the First Parish Court. There is no merit in this contention.

L.R.S. 13:2561.2 confers civil jurisdiction on the First Parish Court for the Parish of Jefferson in disputes or ejectments where the monetary amount at issue does not exceed $1,000, exclusive of interest and costs. The object of this suit is the eviction of an occupant who either converted plaintiff’s property to his own use by misrepresenting he would subsequently execute a lease or who occupied on a month-to-month lease basis at a stipulated rental of $155. If this is a case of conversion, there is no criterion for setting a monetary demand absent a prayer for damages as well as for eviction, thus the First Parish Court may hear the claim. Conversely, if we treat this as a month-to-month lease that the lessee tacitly accepted by taking possession of the premises, the monthly rental of $155 — well below the jurisdictional limitation of L.R.S. 13:2561.2 — is the controlling monetary sum for the purposes of determining whether the First Parish Court may adjudicate this case. See Tete v. Hardy, 283 So.2d 252 (La.1973).

On the merits the dispute here is one of fact. On October 24, 1975, plaintiff entered into a five-year written lease whereby he rented the premises 115 Focis Street for usé as a beauty school. The premises Room 214 of 117 Focis Street, from which the plaintiff now seeks to eject the defendant, is located upstairs in the same building as the ground floor area covered by the written lease of 115 Focis. Room 214 of 117 Focis was not included in the original lease; however, because both landlord and tenant knew the downstairs area did not contain the square footage required by lessee to obtain a license from the Louisiana Board of Cosmetology to operate a beauty school, the landlord agreed he would make available space in the upstairs portion of the building (designated as 117 Focis) should Sciortino need more space.

Appellant adduced the testimony of an architect who verified but did not measure the square footage of the area and members of the Board of Cosmetology which, when read as a whole, establishes two factors: (1) the premises 115 Focis does not contain sufficient footage to qualify as a beauty school under state law, and (2) while defendant’s application to the state board was being processed (after the written lease was executed) the area Room 214 of 117 Focis was mentioned as potential available space should Sciortino need it to qualify for a license. None of this testimony supports Sciortino’s assertion that the upstairs space was included in the written lease of October 24, 1975. In fact it is a notation of Sciorti-no that refutes his own defense to this proceeding. In a memorandum dated February 5, 1976 in which plaintiff’s agent Odenwald Real Estate certifies that Jack Sciortino has available for use as a beauty school Rooms 214 and/or 209 at 117 Focis Street, Sciortino made the handwritten notation “Will lease Room 214 for classroom.” This was done to satisfy the state board requirement and because he indicated he planned to lease the disputed area some four months after the written lease for 115 Focis Street was executed, it is apparent the written lease did not cover the disputed area. The testimony and documentary evidence amply support plaintiff’s demand and the trial court’s judgment.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.