text:
    Clarence WILLIS v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 57282.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: State of La. Dept. of Highways applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary. 321 So.2d 819.

Writ denied. No error of result under the facts found.


source: Caselaw Access Project

license: Public Domain

text:
    TOOMER ELECTRICAL COMPANY, INC. v. HUMBLE OIL & REFINING CO. et al. DEPT. OF HIGHWAYS of the State of La. v. HUMBLE OIL & REFINING CO. et al.
    No. 57285.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Dept. of Highways of the State of Louisiana and of Toomer Electrical Co. Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 827, 321 So.2d 833.

Writ denied. The judgment of the court of appeal is correct.


text:
    David J. KEYSER, Jr. v. Jessie M. TRIPLETT, Jr. and Cumis Insurance Society, Inc.
    No. 57290.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: David J. Keyser, Jr., applying for Certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 322 So.2d 294.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Mr. and Mrs. Leander H. GRAY v. POPLAR GROVE PLANTING AND REFINING COMPANY, INC., et al. Mr. and Mrs. Anderson PIERCE, Sr. v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al.
    No. 57292.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: American Mutual Liability Ins. Co.; Poplar Grove Planting and Refining Co., Inc. et al., applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 919.

Application denied. No error of law in the Court of Appeal judgment.


text:
    STATE of Louisiana ex rel. James Oliver RAPHIEL v. Hon. John F. FANT, Judge, First Judicial District Court, State of Louisiana.
    No. 57294.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: James Oliver’Raphiel, applying for writ of mandamus.

Writ denied. Relator not entitled to the relief sought.


text:
    STATE of Louisiana ex rel. Cyril NELSON v. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57308.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Cyril Nelson applying for Writ of Mandamus.

Writ denied. The mandamus application is moot, since the trial court denied the writ on January 12,1976.


text:
    STATE of Louisiana v. Leroy MADISON.
    No. 57405.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Leroy Madison, applying for supervisory writs, writs of certiorari, prohibition and mandamus and Stay Order.

Writ denied. No showing of palpable error. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana ex rel. Joseph Leon CHASE v. Hon. Ian W. CLAIBORNE, Judge, Eighteenth Judicial District Court, Parish of West Baton Rouge, State of Louisiana.
    No. 57370.
    Supreme Court of Louisiana.
    Jan. 20, 1976.
   In re: Joseph Leon Chase, applying for writ of mandamus.

Writ denied. Trial judge acted on application on July 30, 1975. Appeal is pending in this Court and will be heard on January 22, 1976.


text:
    William Jonathan GOLZ and Pamela Marie Fortier Golz v. CHILDREN’S BUREAU OF NEW ORLEANS, INC.
    No. 57373.
    Supreme Court of Louisiana.
    Jan. 21, 1976.
   In re: William Jonathan Golz and Pamela Marie Fortier Golz applying for writs of review and aid of the court’s supervisory jurisdiction prohibition and injunction.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Melvin J. Duran, Judge of the Civil District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 27th day of January, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 27th day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mrs. Mary Cavanaugh MORGAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 57407.
    Supreme Court of Louisiana.
    Jan. 22, 1976.
   In re: Riley Stoker Corp., Liberty Mutual Ins. Co. and American Home Assurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 323 So.2d 855.

On joint motion of the parties this application is dismissed.


text:
    Mrs. Mary Cavanaugh MORGAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY, INC.
    No. 57286.
    Supreme Court of Louisiana.
    Jan. 22, 1976.
   In re: Mrs. Mary Cavanaugh Morgan, et al applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 323 So.2d 855.

On joint motion of the parties this appli-cai. is dismissed.


author: MARVIN, Judge.

text:
    J. B. OWEN et al. v. W. H. OWEN et al.
    No. 12775.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Granted Feb. 13, 1976.

      Holloway, Baker, Culpepper & Brunson by Donnie G. Brunson, Jonesboro, for defendants-appellants.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiffs-appel-lees.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   MARVIN, Judge.

Defendants, W. H. Owen, Charles Wayne Bush, and Wayne S. Bush, appeal from a judgment which set aside sales by parents to children, holding the sales to be disguised donations and donations omnium bonorum. The judgment named and declared the forced heirs of the parents to be owners of an undivided one-seventh interest in the land in question. We affirm.

On October 12, 1957, I. M. Owen died intestate. His wife, Henrietta Owen, died intestate in 1970. _ On March 22, 1957, I. M. Owen and his wife executed three instruments purporting to be cash sales by authentic act to two sons :

TRACT ONE:
To W. H. Owen, the Northeast Quarter of the Northwest Quarter of Section 24, Township 17 North, Range 2 West, containing 40 acres, more or less, for a recited $100.00 consideration;
TRACT TWO:
To J. B. Owen, the Northwest Quarter of the Northwest Quarter of Section 24, Township 17 North, Range 2 West, containing 40 acres, more or less, except four acres in the northeast corner previously acquired by the vendee, for a recited $720.00 consideration; :
TRACT THREE:
To W. H. Owen and J. B. Owen, the north fifteen acres of the Southeast Quarter of the Northwest Quarter of Section 24, Township 17 North, Range 2 West, for a recited $300.00 consideration.

In 1972, J. B. Owen transferred his one-half interest in tract three above to his brother, W. H. Owen, for $1,500.00, after a partition suit was filed. On January 29, 1973, defendant, W. H. Owen, executed two credit sales conveying in separate parts all of tracts one and three above to defendants, Wayne S. Bush and Charles Wayne Bush. Wayne S. Bush and, by stipulation that his testimony would be the same, Charles Wayne Bush admitted that W. H. Owen stated he had acquired the property from his father and that there was a question as to whether he could give a “clear deed” to the property before the credit deeds were executed to Messrs. Bush in 1973.

J. B. Owen, Berta Lee Owen Green, Carene Elizabeth Owen Walker, Mary Alma Owen Richardson, Grady Hopson Owen, and Lora Ella Owen Brewster, alleging themselves to be six of seven forced heirs of Mr. and Mrs. I. M. Owen, attacked these sales as donations in disguise and in contravention of La.C.C. Art. 1497 in this suit filed October 31, 1973.

Louisiana Civil Code Article 2444 provides :

“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of sale.”

J. B. Owen judicially confessed that he paid no consideration to his parents for property deeded him on March 22, 1957. See La.C.C. 2291. W. H. Owen contended that he had given consideration for property deeded him, but produced no receipts or other supporting evidence. The trial court found that no price was paid by either son for any of the property deeded by the parents. Giving great weight to the trial judge’s finding of fact as required by Canter v. Koehring, 283 So.2d 716 (La.1973), we find no manifest error in the lower court’s factual findings. The cash sales of March 22, 1957, to W. H. Owen and J. B. Owen, were correctly held to be disguised donations under La.C.C. Art. 2444.

To these disguised donations, the rules pertaining to donations inter vivos are therefore applicable, particularly La.C.C. Art. 1497:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the'whole.” (Emphasis supplied).

The trial judge found that Mr. and Mrs. I. M. Owen divested themselves of all property without reservation of an amount sufficient for subsistence. The record establishes that the donors owned no immovable property other than the tracts they attempted to transfer on March 22, 1957. The record also indicates that Mr. ■ and Mrs. Owen’s income was monthly welfare and social security checks, and that there was no other property owned by them when the disguised donations were made. We find no manifest error in the lower court’s holding that the purported cash deeds of March 22, 1957, from Mr. and Mrs. I. M. Owen to their sons, W. H. Owen and J. B. Owen, are donations om-nium bonorum.

The jurisprudence under La.C.C. Art. 1497 clearly establishes that a donation in contravention of this article is an absolute nullity. See Litton v. Stephens, 187 La. 918, 175 So. 619 (1937), and Givens v. Givens, 273 So.2d 863 (La.App. 2d Cir. 1973), and cases cited therein. In Litton, Justice Land as the organ of the court, stated:

“A' contract whereby one gives away his property, without reserving enough for his own subsistence, ... is void ab initio, as contravening a prohibitory law..."

Since La.C.C. Art. 1497 is a prohibitory law, whatever is done in contravention of it is absolutely void ab initio. See also La.C.C. Art. 12; 6 S. Litvinoff, Louisiana Civil Law Treatise § 103 (1969). In Givens, supra, we said:

“ . . .a donation omnium bonorum as defined by LSA-C.C. Article 1497, supra, is a nullity and ... a suit to set aside such a transaction is imprescripti-ble and can be brought at any time. Lagrange v. Barre, 11 Rob. 302 (La.1845); Kirby v. Kirby, 176 La. 1037, 147 So. 70 (1933); Welch v. Forest Lumber Co., 151 La. 960, 92 So. 400 (1922); Magee v. Stacey, 223 So.2d 194 (La.App. 3d Cir. 1969).” Givens, 273 So.2d 865.

In stating the effect of the nullity imposed by the article, some cases have employed broader language than perhaps was necessary to the decision, resulting in ostensible conflicts or confusion in the jurisprudence. This statement for instance was made in Dugas v. Talley, 109 So.2d 300, 304 (La.App. 1st Cir.1959).

“It is the settled jurisprudence that when an instrument is in the form of an act of sale and the property has passed into the hands of a third party purchasing on the face of the public records, that Article 2464 (relating to the adequacy of the consideration); . . . and Article 1497 (relating to donations omnium bonorum), do not apply.” 109 So.2d 304.

In Hearon v. Davis, 8 So.2d 787, 793 (La.App. 2d Cir. 1942), it was said:

“Whether or not a donor reserves to himself sufficient property to provide him with subsistence is a question of fact, which, of course, the public records do not disclose. However, a purchaser from the donee assumes the risk of losing the property to the donor if the facts warrant application of the rule laid down in Article 1497 of the Civil Code.”

In Dugas and Hearon, the donation was in the form of a sale and forced heirs were asserting the nullity against third party-purchasers as well as donees.

In Litton, supra, it was in the form of a donation and a forced heir was seeking to annul as against a third party purchaser. There the court said:

“The donation in this case being void ab initio, the donee acquired no title, and the sale by the donee to her codefendant, Mrs. Mamie Wynn Nichols, conveyed no title.
“Neither of the defendants has title to the land in dispute, since the donation is null ab initio, and is not an act transía-tive of property.
“The prescription of five years, pleaded by defendants under article 3542 of the Revised Civil Code, is therefore overruled under the authorities above cited.
“The prescription of thirty years, pleaded under articles 1030 and 3548 of the Revised Civil Code by defendants, and the pleas of estoppel herein tendered by them, are also without merit and are overruled, as defendants are without title and, therefore, without actual interest to pursue in the matter. Besides, neither of the defendants pretends to have had actual corporeal possession of the land in dispute during thirty years.” 175 So. 621.

In Broussard, supra, the donation was in the form of an exchange and the nullity was claimed by the donor also against a third party purchaser. There it was said:

“The purported act of exchange was therefore void ab initio, and Doucet acquired no title from the plaintiff . . . (citations omitted).
“If we could stop here, the case would be a simple one. However, appellants, . . . rely on the law of registry as announced by this court in the leading cases of McDuffie v. Walker, 125 La. 152, 51 So. 100, and Martin v. Fuller, 214 La. 404, 37 So.2d 851.
“We give full recognition to the holding of those cases. However, we do not think that the law of registry has any application to the facts and circumstances of the instant case ... As we have pointed out before, both Doucet and Marceaux had full knowledge of all the facts which we have set out above. Marceaux was a cousin of plaintiff, was aware of her feeble mental condition, knew she owned no other property, actually was a witness to the purported act of exchange, and subsequently acquired the property for $800 and a few days later conveyed it to Guidry for $2,125.”

In Givens v. Givens, 273 So.2d 863 (La.App. 2d Cir. 1973), we held that thirty year acquisitive prescription could be successfully pleaded by a donee-forced heir who had placed of record a sale disguised as a donation, as against his co-heir, also a forced heir. There, we said:

“The plaintiff correctly contends that a donation omnium bonorum as defined by LSA-C.C. Article 1497, supra, is a nullity and that a suit to set aside such a transaction is imprescriptible and can be brought at any time. LaGrange v. Barré, 11 Rob. 302 (La. 1845); Kirby v. Kirby, 176 La. 1037, 147 So. 70 (1933); Welch v. Forest Lumber Co., 151 La. 960, 92 So. 400 (1922); Magee v. Stacey, 223 So.2d 194 (La.App. 3d Cir. 1969). * * *
“Plaintiff cites Jenkins v. Svarva, 131 La. 749, 60 So. 232 (1912) as authority for his position that the donee, or one standing in his shoes, as distinguished from a third person, cannot assert acquisitive prescription in defense of an action to set aside a donation omnium bonorum under Article 1497. In Jenkins, the defendant was a third party purchaser under a chain of conveyances emanating from the original donee. The court sustained defendant’s plea of ten years acquisitive prescription based on good faith possession under a deed translative of title. Plaintiff seeks to derive comfort from language of the court holding that a ‘third person’ could successfully assert the plea of prescription, indicating, according to plaintiff, that the donee or one in his shoes could ■ not do so. Plaintiff’s analysis attempts to read into Jenkins an implication that does not exist. There the court was dealing with a ‘third person’ and with a plea of ten years prescription. The court was not presented with the issues involved in the instant case on a plea of thirty years prescription and did not consider or pass on the issue presented here. The Jenkins case is, however, authority for defendant’s position here that his title rests on adverse possession, not the validity of the donation, and that the imprescripti-bility of the action to annul the donation does not mean that the property cannot be adversely acquired by acquisitive prescription. The rationale of Jenkins is that the donor, who remains the owner because the donation is null, occupies no better position than any other owner. It follows that the donee, who has no claim to title based on the null donation but whose sole claim must necessarily be based on possession, is in no worse position than any other adverse possessor.” 273 So.2d 863, 865, 866.

It is obvious that each case, wherein the nullity has been asserted, has been decided on the basis of (1) the form of the donation omnium bonorum (2) the capacity of the person asserting the nullity and (3) the capacity of the person in possession of the property against whom the nullity was asserted.

Also there has been scholarly criticism of the nullity (“null for the whole,” as the article says) being absolute. See 6 L.L.R. 98. Notwithstanding this, in the expressions of the Supreme Court, beginning with LaGrange in 1845 to Broussard in 1958, except for Turgeau in 1912, the nullity has been held absolute and the donation void ab initio.

In the instant case, we note that in the record below, Wayne S. Bush, and by stipulation that his testimony would be the same, Charles Wayne Bush, admitted that before the credit deeds to them were executed, W. H. Owen told Wayne S. Bush that he had acquired the property from his father and that there was some question whether he could give either of the Messrs. Bush a “clear deed.”

We state the effect of La.C.C. Art. 1497 and summarize the principles derived from the jurisprudence in this fashion:

When one gives away his property without reserving enough for his subsistence, the contract by which this is done is an absolute nullity and is void ab initio in contravention of a prohibitory law (La.C. C. Art. 12) as a donation omnium bonorum under La.C.C. Art. 1497. This is true whatever the form of the donation, whether disguised as a sale or an exchange or in conventional form of an inter vivos donation. LaGrange, Litton, Broussard, Hearon, supra.

A suit by the donor or his forced heirs against the donee is imprescriptible and can be brought at any time as against a claim of liberative prescription, LaGrange, Kirby, supra; Welch v. Forest Lumber Co., 151 La. 960, 92 So. 400 (1922); Magee v. Stacey, 223 So.2d 194 (La.App. 3d Cir. 1969).

If the donation be disguised in the form of a sale (Hearon) or an exchange {Broussard) and the recited consideration given for the donated property is not serious and out of proportion to the value of the property (La.C.C. Arts. 2464, 2444), these facts shall be deemed to be as self-evident to and binding upon a subsequent purchaser from the donee as in the case of an inter vivos donation in conventional form. (Litton, Broussard, Hearon, supra.)

When the donation is, or is deemed to be self-evident, it is a question of fact whether the donor has retained sufficient property for his subsistence {Hearon), and notwithstanding the protection afforded third party purchasers by the public records doctrine, the purchaser from the do-nee assumes the risk of losing the property to the donor or his forced heirs (after his death) because of the nullity declared'by the La.C.C. Art. 1497 {Broussard). ' In such a case, the donation in whatever form or however disguised is not an act transla-tive of title. (Litton, Hearon, supra.)

A thirty year acquisitive prescriptive title (La.C.C. Arts. 3475, 3499, 3500), which does not depend of course, upon the validity of any recorded instrument, may be established where the legal requisites are met (Givens). Liberative prescritpion may not be successfully pleaded by the third party purchaser in cases where the donation is or is deemed to be self-evident. Estoppel also is not applicable (Litton).

Where a purchaser from the donee, as here, is informed by the donee of the source of the donee’s title and that the do-nee’s title is questionable, before the purchaser acquires title from the donee, there is even more reason not to afford to the purchaser the protection afforded by the public records doctrine. See Broussard and other cases cited, supra.

Under the circumstances of this case, the donation in disguise was void ab initio under La.C.C. Art. 1497. The sale disguised as a donation here was not an act transla-tive of title. The purchasers from the do-nee were informed of the source of the do-nee’s title and of the question whether he could convey a “clear deed.” Under these circumstances, the fact of the donation om-nium bonorum should have become, and is deemed to be, self-evident to the purchasers from the donee, and they purchased the property under the risk that they could lose it to the forced heirs of the donor. Thirty year acquisitive prescription has not been established and cannot be claimed here.

The bringing of a suit claiming title from their deceased parents is an unconditional acceptance by the six plaintiffs of the successions of their mother and father. The heirship evidence and other necessary information is not disputed in any way. The trial court placed these six parties, with the defendant, W. H. Owen, into possession of the estates as forced heirs. Soule v. West, 185 La. 655, 170 So. 26 (1936). The arguments made on appeal relating to collation are improper in this proceeding.

“However, as held in Taylor v. Brown, [223 La. 641, 66 So.2d 578], supra, collation is not properly demandable in this suit which is primarily an action to set aside a sale by a parent to one of his children on the ground that it is a donation in disguise. Collation was held, in Lamotte v. Martin, 52 La.Ann. 864, 27 So. 291 (1899), to be an incident to an action for a partition, and ‘is made only to the succession of the donor.’ LSA-C.C. Art. 1242.” Jackson v. Jackson, 175 So.2d 360 (La.App. 2d Cir. 1965).

The judgment below, at appellant’s cost, is

Affirmed.

MARVIN, Judge

(Per Curiam).

A Rehearing is sought in this case. It is pointed out in the application therefor that the record does not support the statement in the opinion that W. H. Owen stated to the defendant-vendees of the property that there was some question as to whether W. H. Owen could give a “clear deed” to the property because the property derived from his father. The statement mentioned was made to the defendant-vendees by J. B. Owen and not W. H. Owen. Both J. B. Owen and W. H. Owen acquired by the disguised donation from their father Tract Three of the property in question which was later sold to the defendant-vendees. The fact that the source of the statement to defendant-vendees was inadvertently given does not avail defendant-vendees. The statement was in fact made as defendant-vendees admit. Rehearing is therefore denied.

      . Compare statements in (1) Succession of Turgeau, 130 La. 650, 58 So. 497, 499 (1912) that the right to annul is of a “personal character” to the donor and after his death the nullity may be asserted by forced heirs only “to the extent of their légitime;” in Bernard v. Noel, 45 La.Ann. 1135, 13 So. 737, 738 (1893) that the nullity “is absolute only relatively to the particular persons in whose special interest it (the article) was passed . and in Maxwell v. Maxwell, 180 La. 35, 156 So. 166 (1934) that the right of asserting the nullity was personal to the donor, with (2) LaGrange v. Barré, 11 Rob. 302 (La.1845); Litton v. Stephens, 187 La. 918, 175 So. 619 (1937) and Broussard v. Doucet, 236 La. 217, 107 So.2d 448 (1958), to effect that the nullity is “absolute” and the donation omnium bonorum is void “ab initio” and is “not an act translative of title.”
      Also compare statements in (3) Jenkins v. Svarva, 131 La. 749, 60 So. 232, 233 (1912), that the right to assert the nullity may be enforced against a purchaser in good faith, citing Beaulieu v. Monin, 50 La.Ann. 732, 23 So. 937 (1898), and Hearon v. Davis, 8 So.2d 787, 792 (La.App. 2d Cir. 1942), with (4) Dugas v. Talley, 109 So.2d 300 (La.App. 1st Cir. 1959) that the-nullity may not be and was not allowed to be asserted against a purchaser from the donee.
      See also 6 L.L.R. 98 and 31 L.L.R. 224. The statement in Turgeau, supra, is commended by the law review writers as being more in harmony with the policy behind the nullity and more in accord with the design of the civil code relegating the forced heir to an action to reduce to the disposable portion, donations by their deceased ascendant. La.C.C. Art. 1504.


author: LEMMON, Judge.

text:
    Eve Ardoin, wife of William A. LeBOUEF v. William A. LeBOUEF.
    No. 6815.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 1975.

      Henican, James & Cleveland, Carl W. Cleveland, New Orleans, for plaintiff-ap-pellee and appellant.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for defendant-appellee and appellant.
    Before LEMMON, BOUTALL and MORIAL, JJ.
   LEMMON, Judge.

This appeal involves issues as to child custody, support and visitation privileges.

Mr. and Mrs. William LeBouef were divorced in August, 1973. The judgment also granted Mrs. LeBouef the custody of their two minor children, Elizabeth and Joseph, who were then 12 and 11 years old respectively, and reserved her right to child support. Mrs. LeBouef remarried the next month and became Mrs. Ronald Brechtel.

In April, 1974, Mrs. Brechtel filed a rule for child support, claiming she and Mr. LeBouef had been unable to amicably agree as to a reasonable amount. Mr. LeBouef answered and also filed a rule for custody of Elizabeth on the basis that the girl was living with him and was attending school near his home on Lake Pontchartrain and that she desired to attend high school in the same area during the next school term. He also pointed out that Joseph spent every weekend with him, usually from Friday afternoon to Monday morning.

At the trial of the rules Mrs. Brechtel testified: Her children resided with her after the separation in 1971 When she moved to the west bank upon her remarriage, Elizabeth pleaded to remain in the same school until the end of that school year, and she consented to Elizabeth’s living with her father under certain conditions, although she registered the girl in a west bank high school for the .following year. She eventually objected to this arrangement when Mr. LeBouef left Elizabeth alone on many nights and indulged her with lavish spending and unlimited charge accounts, all to the child’s detriment.

The trial court dismissed Mr. LeBouef’s rule for custody and ordered him to pay support at the rate of $500.00 per month per child, plus school tuition and medical expenses. He subsequently appealed.

Shortly after the first judgment, Mr. LeBouef filed another rule seeking custody of Elizabeth, and both parties also filed separate rules to have the court fix a visitation schedule. Without receiving further evidence, the trial judge maintained Elizabeth’s custody in Mrs. Brechtel and set visitation for the child with her father from 6:00 p. m. on Sundays to 6:00 p. m. on Fridays during the school term, plus one week during vacation. Mrs. Brechtel appealed from that judgment.

The two appeals, one by each party, are presently before us.

Custody and Visitation

Mr. LeBouef conceded at trial that Mrs. Brechtel was “a good wife” and “could provide a home for anybody”. In brief filed in this court, he abandoned the appeal as to the issue of custody.

Mrs. Brechtel argues, however, that the judgment granting the father visitation privileges five of the seven days each week amounted to an award of divided custody, which is generally reprobated as detrimental to a child’s best interest. See 92 A.L.R. 2d 695 (1963).

The only justification apparent in the record for the unusual visitation award was the child’s expressed desire to continue her educational and social activities in the familiar neighborhood. This is insufficient justification.

A child’s security and general welfare are shattered to some extent by any marital breakup. Understandably, this child was particularly apprehensive about a new neighborhood, a new school and new friends, in addition to her mother’s marriage ' to a new husband. However, the judgment, which imposed full responsibility on the mother while denying her substantial opportunity to establish and exercise the necessary authority and understanding, served only to emphasize the confusion and insecurity.

The welfare of a child generally requires custody and control under undivided authority. Cormier v. Cormier, 193 La. 158, 190 So. 365 (1939). The differences in points of view in everyday decisions as to the proper way to rear a child will almost certainly result in a deleterious effect on the child’s welfare. Newson v. Newson, 176 La. 694, 146 So. 472 (1933). Additionally, frequent shifting of the child from home to home exposes the child to changes in discipline and in daily habit, creating further confusion and insecurity and inviting breach of discipline and emotional instability.

Judicial recognition of the right of the non-custodial parent to express his affection through periodic visitation does not justify the granting of visitation privileges so extensive as to be equivalent to divided custody. Pierce v. Pierce, 213 La. 475, 35 So.2d 22 (1948). While short-time arrangements as to educational or social activities may reasonably be implemented to facilitate transition to new family and new surroundings, the best interest of the child generally demands that permanent custody and control be vested in one parent and that the visitation privileges accorded the other parent do not substantially affect the custodial parent’s ability to discharge his or her responsibility.

We further note that the objectionable visitation schedule also effectively results in separation of siblings, since Elizabeth is only in her mother’s custody on weekends, at which time her brother visits with the father. The separation of children, though sometimes necessary, should be avoided by the court in custodial dispositions, when family solidarity can reasonably be maintained. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969).

We conclude that the unusual visitation. privileges awarded in the present case are not justified by the circumstances established in this record and are not in the best interest of the child. We amend the judgment to allow the father overnight visitation privileges not to exceed two weekends per month during the school term and three full weeks during vacation, reserving to the parties the right to have a specific schedule set by the trial court within these limitations in the event of their inability to reach an agreement.

In respect to Mr. LeBouef’s complaint of the trial judge’s refusal to allow Elizabeth to testify, we note counsel’s argument that the judge interviewed the girl and stated to both counsel that Elizabeth desired not to be forced to take sides, although she expressed a desire to attend the high school in her father’s neighborhood. Thus, the judge revealed the contents of the private interview prior to ruling on custody, and counsel does not suggest that the child’s testimony was necessary to produce facts not otherwise established in the record. We find no abuse of discretion in the trial judge’s refusal to subject the child to questioning about her preference as to custody, especially in view of Mr. Le-Bouef’s abandonment of his appeal as to the issue of custody.

Child Support

Mr. LeBouef testified that he would pay whatever amount of support the court awarded, and the evidence unquestionably established his ability to pay the amount the court did award. The principal disputed issue is whether the evidence established that the amount awarded was 'necessary to maintain the children according to the standard of living they enjoyed while living as a family unit.

The record contains no evidence as to an itemized amount which would be required to maintain the children at this standard. Of equal importance, the record does not show thé children’s standard of living (for comparison purposes) with the mother and stepfather prior to the award of child support.

Our impression from the record is that Mr. LeBouef is willing to supply his children with the amount of money awarded. He argues, however, that this amount is not necessary for the maintenance of his children, and he apparently wants to pay his former wife only the minimum cost of necessary maintenance and to furnish gifts and luxuries directly to them through charge accounts or other procedures.

One of the essential elements of custody is the management of the children’s expenditures. A custodial parent’s authority could be completely undermined, if any substantial aspect of that authority is controlled by the other parent. Therefore, the funds necessary to support the children must be channeled through the custodial parent, although the other parent of course may maintain some direct financial communication through appropriate gifts and the like.

Nevertheless, because of the lack of evi-. dence previously discussed, we are unable to determine the amount necessary to maintain the children according to the standard outlined in the Lamo the case and the cases cited therein. Although the record established Mr. LeBoeuf’s ability to pay the amount awarded, it is necessary for us to remand the case for additional evidence as to whether this amount is needed to maintain the children according to the pertinent standard.

Furthermore, Mr. LeBouef, arguing that both the father and mother have the obligation of supporting their children under C.C. art. 227, urges the trial judge erred in excluding evidence of Mrs. Brechtel’s present husband’s income.

The mother’s ability to furnish support must be taken into consideration in determining the father’s obligation to contribute to the total amount found necessary to support and maintain children. C.C. art. 231; Marcus v. Burnett, La., 282 So.2d 122 (1973); While Mrs. Brechtel’s present husband has no legal obligation to support her children from a previous marriage, the court may consider the fact that she has married a good provider in determining whether or not the mother must furnish a portion of the amount necessary to support the children. Marcus v. Burnett, supra.

We therefore conclude that the trial judge erred in excluding evidence bearing on Mrs. Brechtel’s present ability to furnish a portion of the amount necessary for the support of the children in her custody. This evidence may be presented at the hearing upon remand.

Accordingly, the judgments of the trial court as to the two rules for custody are affirmed. The judgment on the rule to set visitation privileges is amended to permit overnight visitation, limited to two weekends per month during the school term and three full weeks during vacation. The judgment on the rule for child support is set aside, and the case is remanded for further proceedings on that rule consistent with this opinion. Until judgment is rendered after the hearing on remand, Mr. William LeBouef is ordered to continue paying child support at the rate of $500.00 per month per child, in addition to school tuition and medical expenses. All costs of this appeal are assessed against Mr. Le-Bouef.

Affirmed in part, amended and affirmed in part, set aside and remanded in part.

      . While counsel for Mr. LeBouef makes much over the impracticability of Elizabeth’s living on the west bank and attending school in the Lake Pontchartrain area, his answer to the first rule indicated that Joseph was pursuing that exact procedure. There was no further reference to this, however, in testimony or later pleadings.

      . When children have been reared in an affluent standard of living, they are entitled to support necessary to maintain them in similar circumstances if the supporting parent’s income permits. Williams v. Barnette, 226 La. 635, 76 So.2d 912 (1954); Lamothe v. Lamothe, 262 So.2d 87 (La.App. 4th Cir. 1972).

      . An itemized list of expenses in Mrs. Brech-tel’s pre-trial brief was characterized by Mr. LeBouef as outrageous, although he admitted that the children had always enjoyed an extraordinary lifestyle.

      . Mr. LeBouef had paid alimony pendente lite and child support in the amount of $1,500.00 per month from the judgment of separation until the judgment of divorce. The record does not reveal, however, the amount of support he paid between the divorce and the trial of the rule for support nine months later.

      . The record does not suggest Mr. LeBouef intended to undermine his former wife’s custodial authority.

      . Of course, this question in the case where the father is financially able to provide the full amount necessary for support and maintenance really amounts to a question of how much credit the father should receive against the full amount because of the mother’s present ability to furnish a portion of that amount.


author: MILLER, Judge.

text:
    Luther D. KNOX, Plaintiff-Appellant-Respondent, v. James H. BROWN et al., Defendants-Appellees-Relator.
    No. 5391.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 12, 1976.
    Crawford A. Rose, Jr., Rayville, for plaintiff-appellant-respondent.
    Dale, Richardson & Dale by Jerry B. Daye, Jr., Ferriday and Reeves, Lossin & Owens by H. James Lossin, Sr., Jonesville, for defendants-appellees-relator..
    Before MILLER, DOMENGEAUX and GUIDRY, JJ.
   MILLER, Judge.

In this case defendant appellee James H. Brown, Jr., moves to dismiss the unlodged appeal of plaintiff appellant Luther D. Knox, contending Knox failed to timely move for and perfect the appeal under LSA-R.S. 18:420(E). The motion is unopposed and we dismiss the appeal.

Knox filed suit against Brown and other state officials seeking to declare the November 1, 1975 General Election a nullity insofar as it affected Brown’s election to the office of Senator of Louisiana’s Thirty-second Senatorial District. The other defendants did not file pleadings or appear. Senator Brown filed peremptory exceptions of no cause and no right of action which exceptions were tried December 2, 1975. On that date a formal judgment was read and signed sustaining the exceptions and dismissing Knox’s suit at his costs.

Knox moved for and was granted a sus-pensive appeal on December 19, 1975 and the appeal was made returnable to this court March 1, 1976 conditioned on Knox filing an appeal bond of $750.00. A Deputy Clerk of the Seventh Judicial District Court certified Knox had not filed his appeal bond or paid costs due for this appeal as of December 22, 1975.

In election cases the party cast may appeal as in other cases, upon giving bond for a sum to be fixed by the court to cover all costs of court. However, the appeal shall be filed in the court of appeal within not more than five days from rendition of judgment. LSA-R.S. 18:420(E).

Judgment in this matter was read and signed December 2, 1975. Knox did not move for the appeal until December 19, 1975, and as of December 22, 1975, had not filed his bond. Knox has not complied with the provisions of LSA-R.S. 18:420, and his appeal is dismissed.

In his motion to dismiss Senator Brown seeks damages for frivolous appeal under LSA-C.C.P. art. 2164, and seeks attorney fees for having to defend the frivolous appeal. Since there is no appeal before us, art. 2164 does not apply. This court will not award damages for frivolous appeal on a motion to dismiss an unlodged appeal, there being no record before us from which the merits of the application could be considered. The claim for attorney fees is likewise without merit. Attorney fees are assessable only when provided for by law or contract. Neither basis is shown to exist.

Where appeals are not perfected because appellant fails to timely post his appeal bond, the district court is not divested of jurisdiction. LSA-C.C.P. art. 2088. The trial court therefore had full authority to dismiss the appeal.

Costs of this motion are taxed to plaintiff appellant Luther D. Knox.

Appeal dismissed.


author: BEER, Judge. DOMENGEAUX, Judge

text:
    Succession of Joseph Isom FUSELIER.
    No. 5133.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearings Denied Jan. 28, 1976.
    Writs Refused March 9, 19, 1976.

      Edwin A. Stoutz, Jr. and Robert R. Gis-evius, New Orleans, for plaintiff-appellant.
    Tate & Tate by Donald J. Tate, Donald Soileau, Mamou, for defendant-appellee.
    Before HOOD, MILLER, DOMEN--GEAUX, WATSON and BEER, JJ.
   BEER, Judge.

Joseph Isom Fuselier, died on February 2, 1973, at Savoy Memorial Hospital in Mamou, Louisiana. While hospitalized he executed a last will and testament in statutory form dated January 30, 1973. In that will he recognized Linda Marie Fuselier (Mrs. Andre Sharp), as his daughter and bequeathed her one-half of the residue of his estate. The other half was bequeathed to decedent’s son Joseph Donald Fuselier who, through his curatrix, Evangeline Le-doux Manuel, challenges the decedent’s testamentary capacity and further contends that Linda Marie Fuselier was not the natural child of the decedent, or, alternatively, that .she was his illegitimate daughter.

The executrix, Grace McGee Fuselier, tacitly joins in the contention that Linda Marie Fuselier is the illegitimate daughter of Joseph Isom Fuselier by alleging that she “verily believes that the dispositions in favor of Linda Marie Fuselier are invalid as a legacy under Article 1483 of the Louisiana Civil Code and invalid as an alimentary allowance under the same article, considering the age and station in life of the purported legatee.”

After trial of these issues, the district court concluded that Joseph Isom Fuselier had testamentary capacity and determined that Linda Marie Fuselier was the illegitimate child of Joseph Isom Fuselier, holding that Daisy Davis (Fuselier), mother of Linda, was not legally married to Joseph Isom Fuselier at the time of the birth of their daughter. The district court further determined that an alleged putative marriage had not taken place between decedent and Daisy Davis (Fuselier) and thus concluded that Daisy Davis (Fuselier) could not be a good faith partner to a putative marriage. From this judgment Linda Marie Fuselier (Mrs. Andre Sharp) has appealed.

The record does not support the contention that Joseph Isom Fuselier lacked testamentary capacity at the time his will was executed. It is apparent that he was seriously ill and that his physical capabilities were depleted and diminished. It is also apparent that he was receiving medication and doubtlessly was in some way affected thereby. However, many wills are written under just these circumstances and there has been no affirmative showing that should cause us (or the trial court) to reach even the threshold of doubt as to his testamentary capacity when his will was made. Agreeing fully with the trial court’s conclusion on this issue and finding nothing in the evidence upon which to seriously base a contrary finding, we move on to a consideration of the legitimacy of Linda Marie Fuselier and her capacity to come to her father’s succession.

The record clearly supports the positive conclusion that Linda Marie Fuse-lier is the daughter of decedent and Daisy Davis (Fuselier). The record further supports the factual finding by the trial court that “decedent [Joseph Isom Fuselier] informally acknowledged her [Linda] in actions and conduct, loved her very much, wanted to help her while living and provide for her after his death. . . . ” Indeed, this brief description of the relationship between decedent and his daughter is certainly as clear as any we might attempt to phrase after our painstaking review of the extensive record.

The record also fully supports the trial court’s finding that Linda’s mother, Daisy Davis (Fuselier), initiated a change in the records of her employment with the Telephone Company back in March of 1945 within days after her alleged marriage to decedent. The change was in her marital status—from “single” to “married.”

Equally important, in our view, is the factual finding by the trial court, also entirely supported by the record, that Joseph Isom Fuselier was identified as Linda’s father (without mention of illegitimacy) on the records of the hospital where she was born and on her birth certificate.

The record further contains unchallenged testimony, from witnesses called by the executrix that decedent had, on various occasions and in various ways, made known his father-daughter relationship to Linda. Burke Pierrottie, who' as Isom’s “very good friend” described the time that Isom “made a crack” about him [Mr. Pier-rottie] being a grandfather and then told him of his daughter Linda and her children, pointing out that he, too, was a proud grandfather. Mr. Pierrottie affirmatively testifies that Isom never restricted him in any way from discussing his acknowledgement of fatherhood, did not appear in any way to be ashamed of the fact and, from this, Mr. Pierrottie made the “natural assumption” that Linda was Isom’s legitimate child.

The record also contains unchallenged testimony of Linda which confirms that:

(1) She has always believed that she is the legitimate child of decedent;

(2) She has never had reason to doubt the correctness of her birth certificate;

(3) She was always registered at school as Linda Marie Fuselier;

(4) She was never known by any other name until her marriage;

(5) She had a continuing, comfortable, happy relationship with her father, Isom;

(6) She was partially supported by her father during her college career (supplementing a partial scholarship) ;

(7) She received mail from Isom signed, “Love, Dad”;

(8) She stayed at “her father’s house” when she attended his funeral in Mamou.

Pretrial discovery procedures had largely disclosed most of these contentions and refutation could certainly have been easily accomplished by able counsel if, indeed, such was possible.

Thus, we take note of the fact that the record supports a prima facie showing of the legitimacy of Linda Marie Fuselier without the necessity of making reference to any contested factual issues and we further note that the presumption of legitimacy is a principle of Louisiana law which applies with particular force in favor of the child asserting it. In re Gray’s Succession, 201 La. 121, 9 So.2d 481 (1942); Succession of Kneipp, 172 La. 411, 134 So. 376 (1931); Succession of Gaines, 227 La. 318, 79 So.2d 322 (1955).

In Succession of Curtis, 161 La. 1045, 109 So. 832 (1926), where the legitimacy of a child was at issue, the Supreme Court stated:

“ ‘A child is presumed to be legitimate until the contrary is shown.’ 7 C.J. 940. The presumption of legitimacy is based upon broad principles of natural justice and the supposed virtue of the mother.
‘The presumption in favor of marriage and the legitimacy of children is one of the strongest known to the law, and in favor of a child asserting its legitimacy this presumption applies with peculiar force.’ ”

Essentially the same prima facie showing is evident from the record insofar as the alleged putative marriage is concerned. lit is most unlikely that Daisy Davis (Fuselier) would have been able to detect her own pregnancy somewhat more than nine months prior to the birth of Linda. Hence, there was little reason for her to change her employment records at that time except to reflect the fact that she had good reason to believe she was married. It is certainly reasonable to conclude that the change was made because of the pride and excitement of her marriage and her desire that her employer and fellow employees know about it.

Just as with legitimacy, the law regarding putative marriages presumes good faith on the part of the parties to it and the burden of proof rests on the opponent to prove bad faith. Succession of Navarro, 24 La.Ann. 298 (1872); Howard v. Ingle, 180 So. 248 (La.App. 2nd Cir. 1938); Melancon v. Sonnier, 157 So.2d 577 (La.App. 3rd Cir. 1963). While affirmative evidence was introduced to show that Daisy Dávis (Fuselier) had acted in good faith, no acceptable evidence was introduced to show that she acted in bad faith, notwithstanding the trial court’s doubts about the exact facts of the alleged marriage.

Louisiana law provides that civil effects flow to those who contracted a marriage in good faith and also to the children if both or only one of the parties contracted the marriage in good faith.

“The child of a marriage contracted in good faith by at least one of the parties thereto is legitimate as to both. LSA-C.C. Arts. 117, 118. The burden of proving bad faith on the part of those contracting the putative marriage is upon the party contending that such was entered into in bad faith.” Melancon, supra.

We find that the record supports the conclusion—as a matter of law—that a pri-ma facie showing has been made of:

(1) The legitimacy of Linda Marie Fu-selier ; and

(2) The putative marriage between Joseph Isom Fuselier, father of Linda, and Daisy Davis (Fuselier), mother of Linda.

After having carefully and conscientiously overseen the compiling of the record regarding these issues, the able district court apparently fell into an error which is best evidenced by its own observations to the effect that it (the court) felt obliged to “strain[ed] to permit the daughter [Linda Marie Fuselier] to . prove [her] legitimacy . . .

In short, the trial court mixed up the presumptions that should have been applied. Once the prima facie showing of legitimacy was established, as it clearly and emphatically was in several well recognized ways , the burden of proof shifted to those attacking the legitimacy of Linda Marie Fuselier and it became necessary for them to prove, by a preponderance of admissible evidence (not innuendo or suggestion or observations of counsel) , that Linda Marie Fuselier was, indeed, illegitimate.

We take note of the fact that although Louisiana’s strong presumption of legitimacy properly stems from long-established moral considerations, it is peculiarly emphatic in this State because of the overriding possibility of a harsh and unjust result from just such application of Louisiana Civil Code Article 1483 as has been done here. The awesome possibility that a legitimate child could, without that strong presumption of legitimacy in his favor, find himself barred from coming to the succession of his own parent is so morally, socially and ethically revolting as to require that such presumption, in civil succession matters, be as ingrained and as fundamental as the presumption of innocence in criminal matters. Only by such presumption can the law do its full duty to protect a Louisiana child’s acknowledged basic right to inherit from its parent. We can think of no civil law result more unsatisfactory or more contrary to bedrock moral principles than one which could relentlessly deprive a child of the right to inherit from its parent by the imposition of a stringent requirement that he affirmatively carry the burden of proving his legitimacy. Indeed, such a requirement would, we believe, be as untenable to the legal principles of our State as would be the continued incarceration of an innocent man until he affirmatively carries the burden of proving his innocence.

Based upon this, and acting in response to the clear call of our Civil Code and the general body of our law to be ever zealous in guarding the inheritance rights of children, our courts have, properly, protected and vigorously defended ' the presumption of legitimacy.

Thus, while Louisiana has steadfastly maintained its Civil Code-based right to bar illegitimate children from succession rights in certain particularized circumstances, its judicial system has clearly done its effective best to' guard against the possibility of a grave injustice by recognizing, in the strongest terms, the presumption of legitimacy.

As we carefully review the record in our search to determine if it supports a finding that those who attack the legitimacy of Linda Marie Fuselier have carried their burden of proof, we conclude that it does not. The contrary is, in fact, the case. Thus, we are unable to agree with that portion of the judgment which deprives Linda Marie Fuselier. of the bequest in her favor of one-half of the remainder of her father’s estate.

Accordingly, it is ordered, adjudged and decreed that the judgment of the Thirteenth Judicial District Court for the Parish of Evangeline dated October 21, 1974 be amended to hold that Linda Marie Fu-selier is the legitimate child of Joseph Isom Fuselier and has the capacity necessary to receive, and shall receive, the property of her father, Joseph Isom Fuselier, under and in accordance with the terms of his testament dated January 30, 1973; and

Thus amended, the judgment, which is correct in all other respects, is affirmed.

Cost of this appeal to be borne jointly by appellees.

Amended and affirmed.

DOMENGEAUX, J., dissents and assigns written reasons.

DOMENGEAUX, Judge

(dissenting).

Regretfully finding the majority opinion of my learned brothers seriously lacking in analysis of the factual and legal issues pertinent to this litigation, I am compelled to dissent.

Joseph Isom Fuselier, the decedent, left a will bequeathing certain portions of his estate to his spouse, Grace McGee Fuselier. The remainder of his estate was bequeathed to his two children, Donald Fuse-lier and Linda Marie Fuselier, with contingency provisions should the bequests to the latter fail.

The major issue with which this appeal is concerned is the legitimacy of Linda Marie Fuselier and her capacity to inherit from her biological father, the decedent, in accordance with the aforementioned will.

The record reveals that the decedent was married November 7, 1925, to one Evangeline Ledoux, from which union Donald Fu-selier was the legitimate issue. Decedent was divorced from his first wife May 12, 1941. In 1945, in the city of New Orleans, he entered into a relationship with one Daisy Davis, the mother of Linda Marie Fuselier. This relationship terminated some time in April of 1945. Linda Marie Fuselier was born in the city of New Orleans on December 27, 1945. Her birth certificate lists her father as Joseph Isom Fu-selier, but it was unsigned by the decedent. Daisy Davis’ records at her place of employment, the telephone company, were changed to show that she was married and that her new name was Daisy Davis Fuse-lier. This personnel record from the telephone company was introduced at trial, and while the name change was typewritten on the document, there was, handwritten in red ink, the date “3-24-45” above the name of Daisy Davis “Fuselier”.

The filiation between the decedent and Linda Marie Fuselier has never been seriously questioned. After Linda’s mother, Daisy, married her present husband, Mr. Ullrich, in 1952, and moved to Covington, Louisiana, the decedent visited with his daughter several times. He wrote her a number of letters, always indicating that he considered her to be his daughter. In addition, the decedent afforded Linda some financial assistance during her abbreviated college career.

Since Civil Code Article 1483 prohibits donations to natural or illegitimate children in the event the testator leaves other legitimate children or descendants, Linda may only enjoy her legacy if in fact she is a legitimate descendant of Joseph Isom Fu-selier.

LEGAL OR PRESUMPTIVE MARRIAGE AND PRESUMPTIONS OF LEGITIMACY

I agree with the majority that the incapacity of an heir is never presumed and that he who alleges it must prove it. Civil Code Article 952. However, I do not believe the converse is true. While one who asserts the incapacity of an heir to inherit must prove that charge, I do not feel that there is a strong presumption of capacity to inherit.

The majority feels that:

“ . . . the record supports a prima facie showing of the legitimacy of Linda Marie Fuselier without the necessity of making reference to any contested factual issues and we further note that the presumption of the legitimacy is the principle of Louisiana law which applies with particular force in favor of the child asserting it.”

I am totally unable to discover any pri-ma facie showing of Linda Marie Fuse-lier’s legitimacy. I feel that the majority has erroneously applied the presumption of legitimacy to a situation in which it is not applicable. Civil Code Articles 184 through 197 deal with legitimate children. This chapter is divided into two sections. Section 1 consists of Articles 184 through 192, and is entitled “Of Legitimacy Resulting From MarriageArticle 184 states the basic principle of this section:

“The law considers the husband of the mother as the father of all children conceived during the marriage.” (Emphasis added).

Section 2 of the chapter dealing with legitimate children is entitled “Of the Manner of Proving Legitimate Filiation”, and is comprised of Articles 193 through 197.

Section 1 of the chapter presupposes a marriage between the parents of the child. Without a marriage no presumptions arise as to legitimacy of a child although his 'direct filiation can be easily proven. I feel that this principle is' so elementary as to warrant little further discussion.

Section 2 of the chapter provides several methods by which a child may prove legitimate filiation, including a showing in the registry of birth or baptism (Article 193), constant reputation as a child born during marriage (Article 194), general' reputation and acknowledgment as a child of a particular family (Article 195), or other written or oral evidence (Article 196). I believe that a logical interpretation of these codal provisions leads one to find that they also are intended to apply to situations in which there has been a marriage between the parents of the child asserting his rights under the Articles. This section of the Civil Code is apparently more concerned with filiation than with legitimacy. I fail to see how the registry of birth can be conclusive proof of legitimacy, absent a showing of a marriage between . the parents. As the court stated in Succession of Hubee, 20 La.Ann. 97 (1868):

“The register of births was competent evidence to prove one of the elements of legitimacy — filiation, but not the legitimacy of filiation, even, although the declaration of the legitimacy of the child be made thereon by his father.”

In my opinion the conclusion is inescapable that before any presumption of legitimacy arises there must be first a showing of a marriage or such condition that will give rise to the presumption of a marriage. As the court stated in Boykin v. Jenkins, 174 La. 335, 140 So. 495 (1932):

“It is only those children who are born in or as a result of wedlock,- or who are legitimated by their father and mother in the manner prescribed by law, who may be termed lawful or legitimate heirs of their parents.
But proof of the celebration of a marriage between parents is not indispensable to the children’s right to inherit from them, for such proof cannot always be made. In the absence of such proof, however, they must show that they were born.of parents who were so living together and to conducting themselves toward each other in society, holding themselves out as man and wife, as to raise the presumption that they were married. When the facts shown are such as to raise the presumption of marriage, the further presumption that their children are legitimate necessarily follows. (Emphasis added).
A presumption of legitimacy _ arises also from proof of legitimate filiation.”

But, as has been discussed above, the proof of legitimate filiation presupposes an already existing marriage or at least a factual situation sufficient to form the basis for a presumption of marriage.

To briefly state my position at this point, I feel that in order for any presumption of legitimacy to arise based upon Civil Code Articles 184 through 197, there must first be either the showing of a marriage between the parents of the child or sufficient facts to give rise to a presumption of marriage between those parents.

See Succession of Anderson, 176 La. 66, 145 So. 270 (1932), in which the court said:

“ . . . the evidence offered by Mrs. Delsa to prove the marriage of Anderson and Emma Schwartz by general reputation was admissible. Such being the case, we think it clear that the evidence adduced fully justifies the presumption of marriage, and therefore the presumption of the legitimacy of Mrs. Delsa to which presumptive marriage she traces.”

See also Succession of Jacobsen, 182 La. 151, 161 So. 185 (1935), where the court stated:

“ . . . There is nothing in the record to show that the father of decedent and his mother ever lived together as man and wife or even held themselves out as husband and wife. In the absence of such evidence, there cannot be a presumption of a marriage which is necessary to raise the presumption of the legitimacy of decedent.
There is no competent evidence in the record to establish a marriage between Fanny Jacobsen and the father of decedent. Therefore, there is no presumption of legitimacy of Tony Jacobsen.” (Emphasis added).

Thus it appears that the legitimacy and presumptions thereof of Linda Marie Fuse-lier are dependent upon the existence of a marriage between her mother and the decedent. If no marriage or facts to justify a presumption of marriage are shown then there should be no presumption of legitimacy on behalf of Linda Marie Fuselier.

I do not believe that there was ever any serious contention in this case that a valid legal marriage actually existed between Daisy Davis and Joseph Isom Fuselier. No attempt was made to introduce any marriage license or certificate nor were the witnesses and celebrant produced or identified. However, even absent such proof, a marriage can be shown. As the court stated in Cameron v. Rowland, 208 La. 663, 23 So.2d 283 (1945):

“No record or documentary evidence of a marriage was produced and no one testified to having witnessed one. But, over defendant’s objection, evidence al-iunde was admitted on the authority of the cases cited below and the jurisprudence established by them, and others, that marriage, like other contracts, may be proved by any species of evidence not prohibited by law which does not presuppose a higher species of evidence within the power of the party.” (Citations omitted).

This evidentiary rule was limited, however, in Cameron, as follows:

“As was said by the Court in the case of Succession of Hubee, 20 Ann. [La. Ann.] 97, the rule has special application where petitioner is not a spouse seeking to prove a marriage, in which he or she was a party and who would be presumed to know all the facts and circumstances attending such marriage, but a child who has not and cannot be supposed to have, in regard to the marriage of his deceased parents, the same means of information.”

Thus, under certain conditions and showings, a presumption will arise as to marriage, and the marriage being established, a subsequent presumption of legitimacy will issue therefrom. See Blasini v. Succession of Blasini, 30 La.Ann. 1388 (1878), wherein the court stated:

“ . . . From certain established facts certain legal presumptions are deduced; and where it is proven, as in this case, that the parties from the time of their first appearing together in the community in which ^they made their permanent domicile, ptiblicly cohabited, assuming to be husband and wife, without separation or interruption until death intervened: that the woman bore the man’s name, and he called her his wife, and introduced her as his wife, and declared that he had married her in the land of her birth: where they present their offspring to the world as their children, give them the surname of the father, have them baptized as their children, and rear, and care for, and educate them as such, the law accords to the man and the woman and to their children a legal and social status, based upon the presumption of marriage, the consequence of which is the presumption of legitimate filiation and descent, which imposes on those who assert the contrary the burden of destroying that presumption.” (Emphasis added).

For the proposition that a presumption of legitimacy applies in this case, the majority cite In re Gray’s Succession, 201 La. 121, 9 So.2d 481 (1942); Succession of Kneipp, 172 La. 411, 134 So. 376 (1931); Succession of Gaines, 227 La. 318, 79 So.2d 322 (1955); and Succession of Curtis, 161 La. 1045, 109 So. 832 (1926). A mere perusal of the above jurisprudence shows that in each of those cases the “husband and wife” lived together, raised a family, and held themselves out to members of the community to be validly married individuals raising legitimate children. Reference to Blasini, supra, and the previously quoted language from Boykin v. Jenkins, supra, clearly indicates that the presumption of marriage is not automatic. Rather, the parties claiming the marriage or rights therefrom must at least establish the basic facts required by the two above cited cases.

Even a complete acceptance of the testimony of Daisy Davis Ullrich leads one to find that she and Joseph Isom Fuselier never established a permanent domicile, cohabited publicly, introduced each other as spouses to friends and family, nor did they ever conduct themselves in the general manner which one would expect of married persons. Not a single witness was produced to testify as to ever having met or known Daisy and Isom as man and wife, and no evidence was introduced as to their enjoying a general reputation of marriage. While Isom clearly admitted that Linda was his daughter, he never declared to anyone that he had been married to Linda’s mother.

I agree with my brothers of the majority that once the presumption of marriage is established, with it arises the presumption of legitimacy which is very difficult to overcome. However, I must reiterate that this presumption of marriage is not automatically accorded to any party who would rely upon it. Rather, there must be some basic factual display in order to activate the operation of the presumption. Considering the facts of this case, I feel that Linda Marie Fuselier has failed to show that her parents were either validly legally married or that they conducted themselves in such a fashion as to raise the presumption that they were married, and therefore there should be no presumption of her legitimate relation to the decedent. „

PUTATIVE MARRIAGE

The majority also find that the record supports the conclusion that a prima facie showing has been made that a putative marriage existed between Joseph Isom Fu-selier and Daisy Davis. I am unable to agree with this contention of my learned brothers.

A putative marriage is founded on the reasonable belief by at least one of the parties that they are honestly married and that their offspring are the result of a lawful and honorable union. Succession of Marinoni, 183 La. 776, 164 So. 797 (1936).

However, to claim a “putative” marriage, there must be a showing of some type of ceremony or celebration by which the parties intended to enter into the marriage contract. Succession of Marinoni held that since Civil Code Articles 117 and 118 dealing with putative marriage are literal translations of Code Napoleon Articles 201 and 202, views of the French commentators are applicable to our companion Articles. In reference to the putative marriage Plainol states at Volume I, Part 1, No. 1107:

“It is nevertheless necessary that there have been some kind of celebration. According to the text, it is the marriage ‘contracted’ in good faith that produces its civil effects. It is therefore necessary that there have been at least something that may be considered to be the celebration of marriage . . . The courts should therefore certainly refuse to accord civil effects to the marriage of any one who would claim to be married without any act . . . ”

In the case of Succession of Cusimano, 173 La. 539, 138 So. 95 (1931), rehearing denied, the parties obtained a marriage license but there was no proof that a ceremony was ever performed. The court stated:

“ . . . As there was an entire lack of any such celebration in this case, there was no marriage contracted between Mrs. Di Gratta and Nicolo Cusi-mano.
As there was no marriage contracted by Mrs. Di Gratta and Cusimano, even a void one, the status that existed between them cannot be deemed that of a putative marriage, possessing the effect, even as to Mrs. Di Gratta (though it is possible she may have been in good faith), of a valid marriage, for it is only to the marriage actually contracted, though null, that the law, where it was contracted in good faith, attaches to it the civil effects of a valid marriage. Civ.Code, arts. 117, 118.”

The occurrence of a marriage ceremony is a factual matter. Again, I feel that the majority has misapplied what they term to he a “presumption” to the existence of a putative marriage. Of the three cases cited by the majority in support of a presumption of a putative marriage, two of them involve situations in which there was a clear showing of a celebration or ceremony. The third case does not truly deal with putative marriage but more with the aforementioned presumption of marriage resulting from years of co-habitation and reputation.

In his reasons for judgment the trial judge was most emphatic in his finding that no putative marriage existed between Daisy and Isom. The District Judge stated:

“The Court did not believe the testimony of Daisy Davis, because:
a. Her story of her marriage is incredible. (Emphasis added). She says she was living in New Orleans, employed as a telephone operator, and got a telephone call from Isom Fuselier in the morning that he was coming with a license to marry her that day, — all the way from Mamou to New Orleans in a car. That he drove from Mamou to New Orleans, picked her up, took her to Eunice, again by car, the same day, and, after the ceremony, took her, the same day, back to New Orleans for the wedding night. The demeanor of the witness on the stand, her education, her experiences in life, her age of 26 at the time of the alleged marriage, her employment as a telephone operator at the time of the claimed marriage, and her maturity then, all gainsay her story .... The Court feels, from her testimony, that her story was fabricated to help her illegitimate daughter.
b. Her story of her divorce from Isom Fuselier is about as incredible. She says Isom Fuselier told her he got a Mexican divorce from her in Mamou. This, sometime before 1952 (when she married Mr. Ulhrich [sic] occurred when she was even more mature and experienced than when she claimed she was married to Isom Fuselier. Such a story should have made her suspicious, with her experience and maturity. Yet she showed no concern about whether she was divorced or not, made no further inquiry, and went ahead and married Mr. Ulhrich [sic]. Her father was suspicious about her marriage and apparently tried to check it out through an attorney. He must have been satisfied she was not married to Isom Fuselier, as he raised no protest to her second marriage, and made no search for a divorce, etc.
. All of the indicia of legitimate, or even putative marriage, are missing.
The strongest argument of the daughter and the mother is that the employment card of the mother with the telephone company was changed from single to married.on 3/24/45. The method of the notation is doubtful, but the really salient factor is that her status was changed from single to married to protect her employment, as the employment practice at this time was to fire pregnant, unmarried women.”

Obviously the trial judge found Daisy Davis’ testimony concerning the marriage and subsequent events very difficult to accept. Daisy testified that Isom picked her up in New Orleans, drove to Eunice, Louisiana, where the ceremony was performed, then took her back to New Orleans for the honeymoon. I take judicial notice of the fact such a journey entails a round trip of over 400 miles in a relatively short period of time in the year of 1945 in which automobile travel was much less advanced than it is today. In addition, Daisy could not furnish the name of the celebrant or any witnesses, and she showed a remarkable lack of concern regarding her marital status to Isom when she entered into a marriage with her present husband. I also find it odd that her current spouse, Mr. Ullrich, was under the impression for some time that Daisy was originally married to Isom somewhere in Mississippi. Also of considerable interest is a letter written by Daisy to the attorneys for the physician who delivered Linda. In response to a collection inquiry by the attorneys for the medical services rendered in the delivery and related care, Daisy wrote on February 8, 1947:

“Dear Sirs:
Several months I received mail from Dr. Wohl for Mr. Joseph Fuselier and I forwarded it to Mr. Fuselier at Mamou, Louisiana. Now I received a notice from your office for Mrs. Joseph Fuse-lier for immediate collection for the sum of $50.00.
May I make it clear that I am not responsible for that bill as Mr. Fuselier is to settle all bills of that kind as he agreed to.
Apparently Mr. Fuselier is out for getting by without paying his bills and take advantage of someone else. Accordingly to his attitude he has shown toward his child he is that type of person or character. He has never sent or gave me a nickel to get food or clothing for the baby ....
Hoping you will contact Mr. Fuselier and consult the matter over with him...."

The letter is signed "Daisy Davis”. It contains a handwritten postscript which reads in part:

“Here is more information may be of importance concerning Mr. Fuselier...."

This communication, in light of the other above recited facts pertinent to this litigation creates a serious doubt in my mind that Daisy Davis ever entered into a marriage contract with the decedent. Nowhere in the letter does Daisy refer to herself as “Mrs. Isom Fuselier” nor does she refer to the decedent as her husband, but only calls him “Mr. Fuselier” and describes him as an individual who would take advantage of people. It is significant that she signed the letter “Daisy Davis” and not “Daisy Fuselier”. Indeed the overall tenor of the letter is not that of one written by a wife about her husband. It is evident that the trial judge took cognizance of all these facts relevant to Daisy’s claim of a good faith putative marriage.

The only facts which support a claim of Daisy’s marriage to Isom are the change in Daisy’s personnel records with the telephone company, the listing of Isom as Linda’s father on the birth certificate, and the use of the name “Fuselier” by Daisy and Linda. Obviously, the creation of these conditions was within Daisy’s province exclusively.

To be content with the majority opinion one will have to accept the fact that henceforth a woman may bear a child after a brief union with a man, give that child the father’s name, and list the father on the child’s birth certificate. Upon the father’s death more than a quarter of a century later, the child may then present himself at his father’s succession, allege the occurrence of a “marriage ceremony” between his parents, invoke this multitude of “presumptions” and have himself declared a legitimate heir by an appellate court, in total disregard of the factual findings of the District Judge. The majority’s approach requires the other heirs of the decedent to, in effect, prove a negative, that is, that the child’s mother and the decedent were never in fact married. This non-marriage can be exceedingly difficult to prove, especially when the only rebutting witness is the decedent. For in the instant litigation Daisy did not produce a single individual who claimed to know of the marriage or of the marital relationship allegedly existing between herself and Isom.

As indicated in Cameron, supra, the relaxation of the degree of proof required to show a marriage is particularly applicable in situations where a child seeks to prove the legitimacy of the relationship which existed between his deceased parents. However, in cases such as the one at bar, where a parent is alive and able to testify, the requirements of showing specifics about the marriage are more stringent.

Isom’s only clear statement about his relationship with Linda, his acknowledged daughter, is found in the body of his Last Will and Testament. Therein, Isom makes a special contingency provision should the disposition to his daughter fail. Knowing that his son, Donald Fuselier, was legitimate, he inserted no such clause as to that individual. One must wonder why Isom felt that special provisions in the will were necessary in Linda’s case. Isom probably felt that his testamentary disposition to Linda would not stand because, in fact, there had been no marriage between Daisy and himself.

I feel that the case of Succession of Rossi, 214 So.2d 223, (La.App. 4th Cir.1968), writ refused 253 La. 66, 216 So.2d 309 (1968) — “On the facts found by the Court of Appeal the result is correct” — is somewhat analogous to the case before this court. In Rossi a man and woman lived together in open concubinage before allegedly contracting marriage. The Court of Appeal held that the presumption of marriage resulting from co-habitation and general reputation was destroyed because of the parties’ living in such a fashion. While I do not intend to imply that the same facts are found in the case at hand, the analogy lies in that the Court did not find the presumption of marriage applicable and operative. Therefore the Court was required to proceed with a “non-presumption” factual analysis. In Rossi the “wife” claimed that she and the decedent drove to Texas and were married by a Justice of the Peace in the presence of two witnesses. She placed the date in September of 1936 but could not remember in exactly what town the marriage ceremony was performed. As in the instant litigation, the “husband” in Rossi placed the marriage certificate in his pocket and allegedly never showed it to his “wife”. The “wife” left her “husband” and married another individual not seeking a divorce from her prior “spouse”. In finding that there had been no valid marriage or putative marriage between the parties, the court stated:

“ . . . .no documentary proof of marriage was introduced nor, with the sole exception of the testimony given by Darlene Rossi herself, is there any competent or credible evidence that the alleged marriage was contracted or that any formalities were observed.”

In the litigation at hand I feel that the entire decision turns upon one issue, namely the credibility of Daisy Davis. Not only did the trial judge refuse to believe Daisy’s testimony, he found her account of the alleged marriage and subsequent relationship with Isom “incredible”. The trial judge made reference to the witness' demeanor and was in a unique position to evaluate the credibility of Daisy’s testimony. The majority opinion is woefully lacking in substantial factual bases for its “prima fa-cie findings” of the legitimacy of Linda Marie Fuselier and the “marriage” between Daisy Davis and the decedent. As I have already stated, it is my opinion that the so-called presumptions relied upon by the majority are non-existent in a factual situation of this kind. Therefore the majority must reach the conclusion that the trial judge’s findings constitute manifest error.

However, when the credibility of a witness is at issue the findings of the trial court must be given great weight. This is a basic principle of our state’s jurisprudence. Uddo v. House of Nine, Inc., 299 So.2d 543 (La.App. 4th Cir. 1974). In the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Supreme Court clearly defined the limits of appellate factual review:

“.the reviewing court must give great weight to factual conclusions of the trier of fact; where 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.” (Citations omitted).

Bound by the guidelines set forth in Canter I feel that a finding of manifest error in this case is unwarranted.

CONSTITUTIONAL ISSUE

While footnote 5 of the majority opinion concerning the constitutionality of Louisiana’s scheme of inheritance laws does not constitute a part of the majority opinion I cannot let it pass unchallenged. My esteemed colleague, the author of the majority opinion, states that he feels that Article 1483 of the Louisiana Civil Code exists in violation of the equal protection clause of the 14th amendment to the U.S. Constitution.

I feel strongly that the United States Supreme Court has spoken very clearly on the issue in the case of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). While the Labine case may be somewhat factually distinguished from the current litigation, I do not believe that such minor factual differences would form the basis for a reversal of the position taken by the United States Supreme Court on the matter. In Labine, writing for the majority, Justice Black stated:

“. . . the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court, to select from among possible laws.” (Emphasis added).

The United States Supreme Court has said explicitly that the 14th amendment to the United States Constitution does not prohibit Louisiana’s differential treatment of legitimate and illegitimate descendants. Further, the Court has held that it is the duty of the Legislature to “select from among possible laws”. Our Court has previously adhered to the rationale enunciated in Labine. Succession of Sharbino, 285 So.2d 545 (La.App. 3rd Cir. 1973).

I further disagree with the author of the majority opinion in his speculation that Justice Harlan would have sided with the minority had the facts of this case been presented rather than those in Labine. Even in view of Civil Code Article 1483 a father is not completely estopped from having his illegitimate child inherit from him. Under Civil Code Article 198 the father can automatically legitimate the child by marrying that child’s mother, or based upon the provisions of Civil Code Articles 214 et seq., the father may adopt his child who will then enjoy all the rights of a legitimate descendant. I also feel that Justice Harlan’s concurring opinion was provoked by the philosophical discourse of the dissenters in Labine rather than by any feelings of inadequacy about the majority ruling.

Thus, it is my opinion that Louisiana’s scheme of inheritance laws has withstood the attack of a frontal constitutional assault. Since the constitutional issue has been laid to rest, I strongly disagree with the suggestion of the majority’s author (in view of the very nature of our civilian legal system) that the judiciary should initiate changes in purely legislative matters, regardless of any ideologies which may permeate our feelings. My contention is fully supported by the language of the U.S. Supreme Court in Labine, supra, which is so profound that I am compelled to reiterate my position by quoting it again:

“. . . the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court, to select from among possible laws.”

ALTERNATIVE ISSUES PRESENTED

Having reached the above conclusions, I would consider two alternate issues raised by the appellant, to-w'it:

1. The constitutionality of Louisiana’s inheritance laws under Article 1, Section 3 of the new Constitution of the State of Louisiana (1974).
2. Appellant’s entitlement to receive alimony from the decedent’s estate in the event she is not found to be a legitimate heir of the decedent.

The State Constitutional Issue

Article 1, Section 3 of the 1974 Constitution of the State of Louisiana, reads:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, cápri-ciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas .or affiliations.” (Emphasis ours).

In Labine, supra, the U. S. Supreme Court held that the state of Louisiana alone is empowered with the authority to determine its own system of inheritance laws, including the right to establish certain classes of heirs. The Civil Code mandates that a differentiation be made between legitimate and illegitimate heirs. Apparently, then, the only restrictions placed upon the state legislature in this area are those imposed by Louisiana’s recently adopted constitution. Thus eventually a determination must be made as to whether our inheritance laws arbitrarily, capriciously, or unreasonably discriminate on the basis of birth.

However, in view of the clear provision of Article 14, Section 26 I find that the Constitution of 1974 is inapplicable to this litigation. It is evident that any of the appellant’s claims to property or succession rights from the decedent preceded the effective date of the Constitution of 1974. Art. 14, Section 35.

Appellant’s Claim for Alimony

In his ruling on this final issue the trial judge engaged in a scholarly analysis of the relevant codal provisions, and I agree with his reasoning.

Both Civil Code Articles 1483 and 919 refer to the chapter of the Civil Code entitled Of Father and Child to determine when and to what degree alimony is due a natural child.

The Code Articles in this chapter generally set forth the natural child’s right to claim alimony and the conditions necessary for this right to be exercised. Under Civil Code Articles 240 and 241 a natural child has a right to claim support and sustenance from his parents and his parents’ heirs.

However, the following codal provisions, Articles 242 and 243 limit this right as follows :

“Art. 242. Conditions governing claim to alimony
But in order that they may have a right to sue for this alimony, they must:
1. Have been legally acknowledged by both their father and mother, or by either of them from whom they claim alimony; or they must have been declared to be their children by a judgment duly pronounced, in cases in which they may be admitted to prove their paternal or maternal descent;
2. They must prove in a satisfactory manner that' they stand absolutely in need of such alimony for their support.”
“Art. 243. Termination of duty to pay alimony
The obligation of giving such alimony ceases, when the illegitimate child is able to earn his subsistence by labor, or whenever his father or mother have [has] caused him to be instructed in an art, trade or profession fit to procure him a sufficient livlihood [livelihood], unless some continual sickness or infirmity prevents such child from working for his subsistence.
The debt of alimony ceases likewise to be due from the estate of the father or mother of the illegitimate child whenever either of them has provided during his or her life a sufficient maintenance for his or her illegitimate child, or have made to him donations or other advantages wich may be sufficient for that purpose.”

Quoting from the trial judge’s opinion (Tr. p. 127):

“Thus it is apparent that regardless of the ability of the parent to provide, there must be a ‘need’ on the part of the illegitimate. Apparently, if this ‘need’ is extinguished, the ‘right’ to receive disappears; and, there is no longer a ‘right’ to receive, nor an ability to even give under Article 1483. Such is the import of Succession of Haydel, 188 La. 646, 177 So. 695, (1937); and Succession of Vincent, 229 So.2d 449 (1970).”

The evidence reveals that the appellant earns a gross salary of $486.00. per month and that her husband earns a gross salary of $640.00 per month. I agree with the trial judge that although the appellant is far from wealthy, she is not in “need” as contemplated by the Civil Code Articles relevant to alimony. Therefore, if this issue were reached, the appellant’s claim for these benefits would necessarily fall.

For the above and foregoing reasons I would affirm the judgment of the district court, and therefore respectfully dissent.

      . The dispositive provisions of the will are as follows:
      “1.
      “To my beloved wife, Grace McGee, I give and bequeath all of my interest in our present residence, including house and lot, and all appurtenant structures; in all household furnishings and appliances situated therein at my death; and in all motor vehicles and sporting equipment which I may then own; and all funds then on deposit or in my possession.
      “2.
      “The remainder of my estate I give to my son Donald Fuselier and to my daughter Linda Marie Fuselier (Mrs. Andre Sharpe [sic]), or, if they predecease me, to their deeendants [sic] by root, in equal portions.
      “3.
      “Should the bequest to my said daughter fail, then I desire that the disposition to her be treated as the establishment by me of the measure of alimony and support to which she is entitled under the law, and — to the extent that it is not so treated — I give and bequeath to my said wife the portion destined for my daughter under this will.
      “4.
      “The legitime of my forced heirs shall be satisfied first from my movable property.”

      . LSA-C.C. Article 1483 provides as follows:
      “Natural children or acknowledged illegitimate children can not receive from their natural parents, by donations inter vivos or mortis causa beyond what is strictly necessary to procure them sustenance, or an occupation or profession which may maintain them, whenever the father or the mother who has thus disposed in their favor, leaves legitimate children or descendants.
      “Those donations shall be reducible in case of excess, according to the rules laid down under the title: Of Father and Child."

      . See: Succ. of Thomas Rockwood et al., 231 La. 521, 91 So.2d 779 (1956); Succ, of Anderson, 176 La. 66, 145 So. 270 (1932); Succ. of Jacotsen, 182 La. 151, 161 So. 185 (1935); Jackson v. United Gas Public Service Co., 196 La. 1, 198 So. 633 (1940); In re Gray’s Succession, 201 La. 121, 9 So.2d 481 (1942).

      . See: Cameron v. Rowland, 208 La. 663, 23 So.2d 283 (1945).

      . The ratio deoidenti of this opinion obviates the necessity of considering the constitutional issue that might otherwise need to be dealt with in this case. However, by use of this footnote the author of this opinion (who has spoken for a majority of the court above but who now speaks only for himself) takes the liberty of making the following observations:
      I believe that Article 1483 of the Louisiana Civil Code is violative of the equal protection clause of the Constitution of the United States. Notwithstanding the 5 to 4 vote of the Supreme Court of the United States in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) (wherein Mr. Justice Harlan cast the fifth vote in a concurring opinion) I believe the facts of this case would have provoked a totally different result and I believe that Mr. Justice Harlan would have decided Latine differently if, as in this case, the decedent had specifically and categorically bequeathed his estate to his only beloved daughter by clear, unequivocal testamentary disposition.
      In Latine, Mr. Justice Brennan speaking for Justices Douglas, White, Marshall and himself inveighs against the “[discarded] moral prejudices of bygone centuries” which expresses my own feeling in far more eloquent terms than I could have authored.
      These observations do not detract in any way from my admiration of those gifted French lawyers, judges and legal scholars who were the redactors of our Code. They were worldly and worldly-wise during their moment in history and their codification of the law in such critically important and complicated areas as legitimacy and succession rights has, in many important ways, withstood the relentless and inexorable tests of time.
      Yet, I believe that our Civil Code must be interpreted in the bright reflected light of the Constitution and I believe that the eon-stitutional safeguard of equal protection connotes an ever changing, always vibrant quest for fairness and impartiality in the administration of justice. When I apply that criteria to Joseph Isom Fuselier’s great effort to call his only daughter, whom he obviously loved and admired, to his succession, I would conclude that his explicit testamentary desire should prevail, regardless of Linda’s legitimacy.

      . See the majority opinion, footnote 1, for the body of the testament.

      . Art. 1483. Natural or acknowledged illegitimate children, capacity to receive when legitimate descendants exist.
      Natural children or acknowledged illegitimate children can not receive from their natural parents, by donations inter vivos or mortis ewusa beyond what is strictly necessary to procure them sustenance, or an occupation or profession which may maintain them, whenever the father or the mother who has thus disposed in their favor, leaves legitimate children or descendants.
      Those donations shall be reducible in case of ex¿esS( according to the rules laid down under the title. of Fatlier and OMld.

      . Art. 952. The incapacity of heirs is not presumed. He who alleges it must prove it.

      . Succession of Navarro, 24 La.Ann. 298 (1872); Melancon v. Sonnier, 157 So.2d 577 (La.App.3rd Cir.1963).

      . Howard v. Ingle, 180 So. 248 (La.App.2nd Cir.1938).

      . Section 26. Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.

      . Section 35. This constitution shall become effective at twelve o’clock midnight on December 31, 1974. The secretary of state shall promulgate the results of the election by publication in the official state journal on the thirtieth day prior thereto; however, he shall announce the results of the election within thirty days after the date of the election at which the constitution is submitted to the people.