author: MARVIN, Judge.

text:
    MONROE REDEVELOPMENT AGENCY, Plaintiff-Appellant, v. Succession of Joseph KUSIN, Louis Kusin and Rosalia Kusin Bloom, Defendants-Appellees.
    No. 14518.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    En Banc. Rehearing Denied June 4,1981.
    Farrar, Perry & Jefferson by Harvey P. Perry, Monroe, for plaintiff-appellant.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this expropriation under LRS 19:101 et seq., the plaintiff city agency appeals a judgment awarding the defendant landowners $183,000 in addition to the $187,000 deposited by the agency as just compensation for three parcels of property taken for the widening of Washington Street in Monroe.

The landowners answer, seeking to increase the award of attorney fees. We amend to allow attorney fees for services rendered by defendants’ attorneys on appeal, and otherwise affirm, essentially for the excellent reasons stated by the trial court which are summarized here. Art. 1, § 4, La.Constn., City of Shreveport v. Bernstein, 391 So.2d 1331 (La.App. 2d Cir. 1980). See also State through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979).

The agency expropriated three parcels (identified as Parcel 4-4, 5-2, and 5-3). Only the award for parcel 5-3 is questioned on appeal. The award for parcel 4-4 (39,-000 square feet on which 12 dwellings were situated) was $73,000, $6,000 more than was deposited. The award for parcel 5-2 (50 square feet of parking area) was $100, the amount deposited.

The landowners own and operate Dixie Bedding & Furniture Store with facilities on either side of Washington Street. On parcel 5-3 located on the south side of Washington, defendants have a retail showroom occupying 9,261 sq. ft. and warehouse area occupying 10,935 sq. ft. of this parcel. Dixie Bedding is one of the largest retail furniture businesses in the mid-south with annual sales in excess of $2,000,000. The effect of the taking reduced the total retail showroom area by 17 percent (from 52,863 to 43,602 sq. ft.) and the total warehouse area by 32 percent (from 35,396 to 24,461 sq. ft.).

It was shown that if lost showroom and lost warehouse space were not replaced, the business would lose $100,000 to $150,000 in annual sales. The litigants stipulated that just compensation should not be determined by the capitalization of loss of income method because this method would greatly exceed the actual cost of replacing the lost showroom and warehouse space. The agency contends that the only method by which just compensation should or could be determined is market value based on comparable sales.

The trial court determined that replacement cost was the proper method to fully compensate defendants for their loss, relying on Constant, supra.

“In view of the constitutional requirement that they be compensated to the full extent of their loss, it is not constitutionally significant that the award to them will exceed the market value of the property used in their business operations. The very purpose of the constitutional language was to compensate an owner for any loss he sustained by reason of the taking, not restricted (as under the former constitution, see Dakin and Klein, Eminent Domain in Louisiana (1970) 70-72, 78-79, 95-96, 154-262), to the market value of the property taken and the loss of market value of the remainder, sometimes including the cost to cure such damage — i. e., where (formerly) the award was based solely upon the physical value of the property and the economic injury to the property itself, but not including injuries to a business or the cost of moving it due to the taking.” 369 So.2d at 702

The trial court concluded that the landowners should be awarded an amount which would pay for the purchase of four lots adjacent to the Northside business operations ($18,000), the cost of removing the improvements on those four lots ($3500), and the cost of constructing a building to replace the taken warehouse and display space ($275,722.40), a total of $297,222.40. Credit for the money deposited in the court’s registry ($187,085.00) resulted in a judgment of $183,462.40. Attorney’s fees of $5,000 were also awarded to defendants.

On appeal, the agency contends that the principle of Constant should not apply because that case involved a unique, special property, and that the instant case does not have such characteristics. We disagree. While Constant was unusual in that an entire marina was effectively destroyed by the taking of a part, the principle of Constant is interpretive of the constitutional directive of just compensation. In City of Shreveport v. Bernstein, 391 So.2d 1331, 1334 (La.App.2d Cir. 1980), we observed:

“In State v. Constant, 369 So.2d 699 (La.1979) the Louisiana Supreme Court construed this constitutional provision to require compensation for any economic loss sustained by the property owner, including the cost of replacing his business facilities. The court pointed out that the intent of the pertinent constitutional provision was to ‘broaden former constitutional concepts of the measures of damages’ and ‘to permit the owner to remain in equivalent financial circumstances after the taking.’ It was not deemed constitutionally significant that the award to the landowner would exceed the market value of the property expropriated.” Emphasis supplied.

Here the landowners presented uncontra-dicted evidence that parcel 5-3 (two warehouses and a showroom) was an indispensable part of their furniture business. Under the Constant principle, the trial court was completely justified in awarding the cost of replacing the taken property. The trial court’s award was for the full amount it would take to replace the warehouse and display area, without allowance for depreciation of the buildings, which admittedly were old. Although the usual method of calculating replacement cost includes a reduction for depreciation, this is not necessarily required in every case. Depreciation is designed to deduct for functional obsolescence, i.e., incurable depreciation. See Da-kin and Klein, “Eminent Domain in Louisiana”, Chapter IV, Section 7 at p. 256, et seq. Citing Bonbright’s Treatise on Expropriation, Dakin and Klein indicate that a more accurate term than depreciation is “value inferiority”. This term is certainly in accord with the expansive language of Art. I, Section 4 and Constant. We conclude from all of this that depreciation is only deductible in appropriate circumstances. See Dakin and Klein, supra.

The trial court was convinced by testimony that depreciation should not be deducted from replacement cost. It was shown that the use of the warehouses and the showroom did not require modern facilities and in fact, part of the business’s image was one of low overhead by virtue of its antiquated facilities. In addition, both of agency’s appraisers testified that the use lifetime of the old buildings was from 50-100 years. Such a period of time constitutes a “lifetime use” and no deduction should be made for depreciation. See Constant, Dakin and Klein, supra. We find no manifest error in the trial court’s determination of the full replacement costs as just compensation under these circumstances.

ATTORNEY’S FEES

Defendants answer the appeal, seeking to increase the trial court award of $5,000 as attorney’s fees. Defendants base this claim on the additional effort required in defending this appeal. First of all, we find no error in the trial court’s award of $5,000 for attorney’s fees at the trial level. This award was expressly based on the attorney’s testimony of his time and his hourly rate. On appeal, appellee’s attorney filed an answer, submitted a 17-page brief, and orally argued the case before this court. We deem an additional award of $1,500 would fairly compensate the landowners’ attorney. Defendants’ argument to increase the award to 25 percent of the difference between the amount tendered and the amount awarded, as in City of Shreveport v. Pupillo, 390 So.2d 941 (La.App. 2d Cir. 1980), is without merit. The landowners’ attorney sought attorney fees in the trial court, testifying to his hourly rate and the time expended. Under these circumstances, we follow the trial court’s method of calculating the increase of the award according to our estimation of the attorney’s efforts on appeal.

The judgment is amended to increase the award of attorney fees from $5,000 to $6,500, and, as amended, and at appellant’s cost, the judgment is AFFIRMED.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    Ralph Clifford MILLER, Jr., Plaintiff-Appellee, v. Susan Eileen Turner MILLER, Defendant-Appellant.
    No. 14521.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.

      Whitmeyer & Glassell by Claudius E. Whitmeyer, Shreveport, for defendant-appellant.
    Soekrider & Bolin by H. F. Sockrider, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Appellant, Susan T. Miller, appeals a judgment finding her and her husband, ap-pellee, Ralph Miller, Jr., mutually at fault in causing their separation. We affirm.

Appellee sued appellant for a separation from bed and board on the ground of constructive abandonment. Appellant reconvened on the ground of cruel treatment.

The trial judge, although he did not give written reasons, found the parties to be mutually at fault and found that appellant’s fault was not legally excused by or did not result from her illness.

Appellee and appellant were married in 1973. On Feb. 12, 1980, appellant placed her husband’s clothes in a suitcase and carried it to his mother’s house. She left him a note telling him that she was putting him out. Later that day appellee, his mother, and a neighbor returned to appellee’s house and asked appellant to let him in, but she refused.

Because appellee did not appeal the adjudication that he was at fault, we are not required to consider the issue of his fault.

Appellant contends the trial court’s decision finding her to also be at fault is wrong for the following reasons:

1. That she was guilty of no fault that caused the separation;
2. That any fault was excused by the theory of condonation;
3. That any conduct attributable to her that could be construed as fault is excused by her mental or emotional condition and cannot be considered as a grounds for separation; and
4. That the husband failed to establish a real effort to re-enter the matrimonial domicile.

A separation shall be granted even though the husband and the wife are each guilty of fault. LSA-C.C. art. 141 . The fault required to form the basis of a mutual fault separation is conduct constituting an independent ground for separation under LSA-C.C. art. 138. Adams v. Adams, 389 So.2d 381 (La.1980). The spouses need not be guilty of equal fault so long as each of them is found to have committed acts which constitute Article 138 grounds for a separation. Post v. Post, 376 So.2d 1275 (La.App. 2d Cir. 1979). The fault must be an independent contributory cause of the separation. Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir. 1978); Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980); Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979); Watson v. Watson, 372 So.2d 639 (La.App. 1st Cir. 1979).

Beginning shortly after the marriage and continuing until the parties separated on Feb. 12, 1980, the wife had been guilty of mistreating her husband by committing many acts which could have been construed as making their living together insupportable within the contemplation of Pgf. 3 of Civil Code Art. 138. She cursed her husband from time to time, she often pouted at him without justification, she refused to engage in sexual relations with her husband, and when appellant became angry or displeased with her husband, she would remove herself from the common bed and move into a separate bedroom where she would sleep separate and apart from her husband for several weeks at a time. Evidence establishes that a few months before the actual separation the wife told her husband that she had no desire to have sex with him, and her husband testified that following this disclosure by his wife he no longer had the desire to engage in sexual relations with his wife and he did not thereafter actively seek her participation in this relationship.

About 2V2 years before the parties separated the wife developed an illness described by her psychologist as “situational adjustment reaction to adult life.” He described her symptoms as “generally depression, acute anxiety, and severe cases there is hyperventilation with cold sweats, shaking, increased pulse rate, increased blood pressure and in some severe cases passing out.” The psychologist testified that he had treated appellant for about 18 months and she was much improved.

On the night of December 9, 1979, appellant became ill and commenced shaking, crying and fell onto the floor, and though her husband attempted to calm her down, get her to relax, which was recommended by the psychologist, he was unsuccessful. They then became involved in an argument during which the husband told appellant that her illness was a condition of her mind and that she should be institutionalized for mental treatment. During the argument appellant called her husband a SOB and stated she no longer wanted to live with him, and she moved out of their bedroom into a separate bedroom.

Appellant attempted to return to her husband’s bed on the night of Feb. 11,1980 and reconcile with him, and he refused her efforts to reconcile. On Feb. 12, 1980, while the husband was at work, the wife packed his clothes in a suitcase and carried them to his mother’s house. She left a note attached to the suitcase which read:

“Feb. 12, 1980
Ralph C. Miller, Jr.
I have done everything that I possibly can to try and keep our marriage together. I told you that I did not want a divorce and on several occasions ask if we could reconcile our differences. You refused me each time. After last night I knew that I could no longer keep this up so, therefore, I am putting you out.
Susan.”

Appellant installed a deadbolt lock on the back door on the same day that she carried her husband’s clothes to his mother’s home. Appellee’s mother called him at work and advised him of his wife’s actions. When appellee found out that his wife had put him out, he went to his home and attempted to get in, but his wife had locked the door and refused to permit him to enter. Appellee then instituted this suit for separation based upon his wife’s constructive abandonment.

Appellant answered appellee’s petition admitting that she put her husband out of the matrimonial domicile for the reason that it was apparent her husband did not want anything to do with her, and that she had exhausted her efforts to reconcile with him. She reconvened for a separation alleging that her husband had subjected her to cruel treatment. Included among her allegations of cruelty were the following:

1. that he had been hateful to her for months;
2. that her husband had forced her to move out of the bedroom on Dec. 9,1979;
3. that he refused to let her return to “their bedroom”; and
4. that commencing in the month of October he refused to have anything to do with her sexually and had generally refused to communicate with her since they commenced sleeping in separate bedrooms on Dec. 9, 1979.

Appellant’s practice of cursing her husband, pouting, sleeping in a separate bedroom, telling him she had no desire to engage in sexual relations with him, establishes provocation on the part of appellant for appellee’s refusal to reconcile with her and permit her to return to the matrimonial bed on the night of Feb. 11. Under these circumstances the wife can hardly be justified in putting her husband’s clothes out of the family home, locking the door with a deadbolt, and refusing to permit him to enter the family home. The wife attempts to excuse her conduct by contending that it was induced by her illness. Her psychologist testified she was unable to function as a wife because of her illness and that her conduct which tended to disrupt the marriage was attributable to her illness.

The evidence establishes that the pattern of the wife’s conduct of cursing her husband, pouting, sleeping in a bedroom apart from her husband (a circumstance, created by appellant which necessarily grossly impaired opportunity for communication and sexual relations between the spouses), and denying him sexual relations, all commenced long before the wife became ill, which clearly establishes that the wife is not entitled to justify her actions which provoked the husband’s refusal to reconcile with her based upon a contention that her illness caused her to act that way.

Appellee did not sue his wife for a separation based upon any allegations of cruelty as outlined by us above, and for this reason appellant objected to the husband’s evidence which established the wife’s misconduct. The appellant is not entitled to use cruel treatment which she provoked as a grounds for a separation. Krauss v. Krauss, 163 La. 218, 111 So. 683 (1927); Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976). We find the evidence was admissible for the purpose of explaining the husband’s refusal to let his wife return to the matrimonial bed and his refusal to reconcile with her.

Appellant further objects to the husband’s proof of the wife’s earlier faults during the time frame far removed from the circumstances which brought about the separation. We find the evidence that appellant’s improper conduct towards her husband commenced before her illness was admissible for the purpose of establishing that the illness was not the cause of the wife’s mistreatment of her husband because of the fact that she had mistreated him in similar fashion long before she became ill.

The wife admitted that she had put her husband out and installed a deadbolt lock on the only door to which he had a key, but contends that her conduct was justified because of her husband’s cruel treatment, and she also obliquely contends that her action was excused because of her illness.

The psychologist testified the real underlying cause of the wife’s illness was her fear of being abandoned and of losing the support of the people upon whom she was dependent. Appellant’s action of purposely putting her husband out and locking him out of the house appears to be inconsistent with the cause of her illness.

It is apparent that the trial judge did not believe the appellant’s illness caused her to put her husband out of the house because he did not excuse her action as being induced by her illness. We conclude the trial judge was justified in reaching this conclusion because the husband had so completely established that the other mistreatment he had received from his wife, which the psychologist said was brought about by her illness, had in fact been a pattern of appellant’s conduct for many years before she became ill.

Appellant, contends that any mistreatment in the form of denying her husband sexual relations, or of her cursing her husband, or pouting, have all been condoned because the husband has continued to live with her throughout this mistreatment.

As we have earlier pointed out, the husband did not rely in this suit for a separation upon any mistreatment that he had received at the hands of his wife, other than her putting him out of the house, and he did not live with her following her actions in this respect. For this reason the wife’s contention that he had condoned her actions is without merit.

Appellant contends the husband made no real effort to return to the matrimonial domicile and therefore he does not have a cause of action based upon constructive abandonment. The answer to this contention is that appellee did return to his home after his wife put his clothes out and asked her to open the door and let him come in and she refused to do so.

We recognize that a cause of action based upon abandonment normally requires that the party being abandoned be free of fault, and that the trial court’s finding, which was fully supported by the record, that the husband was guilty of fault, is inconsistent with a determination that the wife is guilty of fault by constructive abandonment of her husband.

While the wife’s conduct of putting her husband out of the home could be construed as constructive abandonment, as it was alleged to be by appellee in his petition, it is also cruelty. The taking of her husband’s clothes from his home and the locking him out of the house falls within the cruel treatment provisions of LSA-C.C. art. 138 for the reason that it is clearly designed “to render their living together insupportable.” See Burnett v. Burnett, 349 So.2d 490 (La.App. 3d Cir. 1977).

In our decision of Guin v. Guin, 378 So.2d 1022 (La.App. 2d Cir. 1979), this court awarded a separation on the grounds that the parties had been living separate and apart for one year even though neither party had sought a separation on this basis. The court there recognized that we have a system of fact pleading and that a party is not required to plead the theory of his case. The court there stated:

“So long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the evidence. Articles 862, 1154, and 2164. Cox v. W. M. Heroman, 298 So.2d 848 (La.1974).” Id. at 1024.

While the trial judge did not favor us with reasons for his determination that appellant was guilty of independent fault which could have provided a ground for a separation, we conclude that on the facts alleged in the husband’s petition and proved by the evidence, that the wife was guilty of cruel treatment by putting her husband out of the house. Her conduct substantially contributed to the circumstances which she contends warranted her action of putting the husband out of the family home.

There is substantial evidence to support the trial judge’s determination that appellant and her husband were mutually at fault within the provisions of LSA-C.C. art. 141. There is no manifest error.

AFFIRMED.

      . LSA-C.C. art. 141 — A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pen-dente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.

      . LSA-C.C. art. 138 — “Separation from bed and board may be claimed reciprocally for the following causes:

        3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable;

      . She relies upon the cases of Gipson v. Gipson, 379 So.2d 1171 (La.App. 2d Cir. 1980); Bettencourt v. Bettencourt, 381 So.2d 538 (La. App. 4th Cir. 1980); and Courville v. Courville, 363 So.2d 954 (La.App. 3d Cir. 1978), where the wife’s mistreatment of the husband was excused because it was induced by her illness.


text:
    Garland Boyd CALHOUN, Plaintiff-Appellant, v. The ROYAL GLOBE INSURANCE CO., Defendant-Appellee.
    No. 14524.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this trip and fall case which occurred at a New Year’s Eve dance, a 55-year-old VFW member appeals a judgment dismissing his demands for personal injury and for medical expenses against the liability insurer of the VFW Post. Plaintiff contends that the Post was both strictly liable and negligent because of the manner in which the post premises were maintained and lighted, and that, in any event, the insurer is obligated to him for the amount of his medical expenses under the policy which provides that

“The company will pay to or for each person who sustains bodily injury caused by accident all reasonable medical expense incurred within one year from the date of the accident on account of such bodily injury, provided such bodily injury arises out of (a) a condition in the insured
premises or (b) operations with respect to which the named insured is afforded coverage for bodily injury liability under this policy.”

In sustaining a motion for a directed verdict under CCP 1810(B), the trial court said:

“I do not feel that Plaintiff has shown any real defect in the condition in this building which could have caused the Plaintiff to fall. I think the evidence suggests his familiarity with the building. He went there regularly for dances at which the same lighting conditions prevailed, same floor conditions. [The] Court feels that the evidence shows that the accident would not have happened except for the negligence of the Plaintiff himself and possibly his drinking.”

Plaintiff argues that he has shown that the condition of the VFW Post presented an unreasonable risk of harm to its customers and that the Post should have been presumed to have been at fault in causing the injury. Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978); CC 667, 2322. The record, however, is to the contrary and supports the finding and results pronounced below and we affirm.

With his wife and others, plaintiff arrived at the Post more than 30 minutes before the dance was to begin at 9:00 p. m. He made a minor repair to plumbing in the men’s restroom and discussed this repair with the building custodian at a table in the dance hall. When plaintiff started to return to the table where his party was seated he apparently hooked his boot on a table leg and fell to the floor, fracturing the head of his left femur. He eventually underwent surgery and was fitted with a femoral prosthesis made of metal and plastic.

Plaintiff and his wife had been attending weekly dances at the Post for several years and were very familiar with the premises. It is true that corn meal had been sprinkled on the dance floor, but the testimony was uncontradicted that there was no corn meal or other substance on the floor in the table area where plaintiff tripped and fell.

Plaintiff contends that a premise hazard was created by the inadequate lighting and the close proximity of the tables and chairs to each other. We cannot agree. One cannot expect blazing house lights at a dance party. There were lights on the wall which generally illuminated the room sufficiently for people to recognize one another from some distance. The testimony indicates that the incident occurred near the north end of the hall near the bar where there was a large overhead light. The wall lights were located six feet above the floor all along the sides of the hall. The sole circumstance of dimmed lights in a dance hall does not constitute an unreasonable risk of harm as to constitute a premise hazard under Johnson, supra. Plaintiff produced no evidence to support a finding that the placement of tables and chairs created an unreasonable risk of harm. Property owners are not insurers of the safety of visitors, but are only under a duty to keep their premises in a safe condition for use in a manner consistent with the purposes for which the premises are intended. Property owners must keep the premises free of defects or conditions in the nature of hidden dangers, traps or pitfalls which are not known to the visitor and which would not be observed by him in the exercise of reasonable care. The visitor assumes the obvious, normal or ordinary risks attendant on the use of the premises and owners are not liable for injuries to a visitor when those injuries result from a danger which he should have observed in the exercise of reasonable care.

There is no fixed rule for determining whether or not a defect in the premises is dangerous or in the nature of a trap and the facts and surrounding circumstances of each particular case will control. Patty v. Brookshire Grocery Company, et al. 389 So.2d 421 (La.App. 2d Cir. 1980).

Plaintiff’s contention that he is entitled to medical expenses independently of the tort claim because of the policy provision part (b), quoted above, is apparently conceded by the insurer. The insurer states in supplemental brief that it has offered and does offer to plaintiff the medical pay limits of the policy. Under these circumstances, we shall amend the judgment to reject only the plaintiff’s demands for damages and shall remand to allow the trial court to grant plaintiff’s demands for medical benefits as the policy provides.

As amended, the judgment is AFFIRMED and the case is remanded. Costs on appeal are assessed one-half to each litigant.

      . Plaintiffs witness testified:
      “Well, sir, I would say they [tables in the aisle ways] were awfully close, really. I don’t know the exact distance. The chairs were so that people could move back and forth. 1 would say there was a person’s width in between them, say 30 inches might have been walking space.”


author: HALL, Judge.

text:
    Pamela Mae Green CHAFFEE, Plaintiff-Appellee, v. James Patrick CHAFFEE, Defendant-Appellant.
    No. 14527.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    Glenn F. Armstrong, Bossier City, for defendant-appellant.
    Thomas & Burchett by Dewey E. Bur-chett, Jr., Bossier City, for plaintiff-appel-lee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff-wife filed suit for separation from the defendant on grounds of abandonment and sought permanent custody of the only child of the marriage, alimony penden-te lite and child support. Upon trial of a rule to show cause on the alimony and child support issues, the trial court rendered judgment in favor of plaintiff granting her custody of the child, a 23-month-old son, and awarded her child support in the sum of $375 per month. Plaintiff’s request for alimony pendente lite was denied on the basis that her income was substantially equal to that of the defendant.

Defendant appealed, contending that the amount of child support awarded is excessive. We amend the judgment of the trial court to reduce the amount of child support.

The only issue presented for our review is whether the trial court abused its discretion in setting the amount of child support. Defendant contends that the trial court did abuse its discretion and that the amount of child support he is ordered to pay is excessive considering his income, his wife’s income, and the needs of the child.

Defendant works for a nümber of race horse trainers as an exercise boy. He makes $5 for each horse he exercises. His income and monthly expenses fluctuate as he follows the horses from meet to meet. He testified that on the average he exercises about seven horses a day, seven days a week. On the average then, defendant grosses approximately $1,000 per month during times of steady employment. Defendant filed into evidence an affidavit of his average monthly income and expenses. In that affidavit he lists his average gross monthly income as $800; his listed living expenses exceed $600 per month. Plaintiff filed into evidence a list of bank deposits made by her and the defendant during the months of January through August, 1980. Plaintiff testified that the list of deposits reflected the amount of the pay checks received by each of the parties. According to plaintiff’s list, plaintiff’s income averaged approximately $800 per month while defendant’s income averaged approximately $620 per month.

Taking the above evidence as a whole, we conclude that the defendant has an average gross income of $900 per month out of which he must pay his necessary living expenses, taxes, and business expenses. Plaintiff has a net income of approximately $800 per month.

Parents have a mutual obligation to support, maintain, and educate their children. LSA — C.C. Art. 227. Support of the child is to be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA — C.C. Art. 231. The children of divorced or separated parents are required to be maintained in the same manner that they were maintained prior to the divorce or separation, if the circumstances of the parents allow. Ducote v. Ducote, 339 So.2d 835 (La.1976).

Plaintiff in the instant case filed an affidavit of her average monthly expenses, which exceed $1,300. Plaintiff did not attribute any particular expenses to the child so the trial court allocated certain portions of the mother’s total expenses to support of the child. The trial court determined that support of the child in this case would require $550 per month. The court took half of that amount, $275, and then added $50 per month for the mother’s care and maintenance of the child and $50 per month related to the payment on the house trailer (which had already been considered in the child’s expenses), arriving at the award of $375 per month.

Taking the evidence as a whole, we are of the opinion that the trial court abused its discretion in setting the amount of child support. We are not convinced that support of the two-year-old child requires $550 per month. The trial court arrived at this figure by allocating certain portions of the mother’s itemized expenses to the child. For example, the trial court allocated to support of the child one-half of the note which plaintiff pays on her house trailer, one-half of the utilities, and one-half of the insurance on the trailer. As defendant points out in his brief to this court, some of these expenses would have been incurred by the mother regardless of whether she was living with the child or not. After carefully reviewing the itemized list of the mother’s expenditures, we conclude that support of the child requires approximately $450 per month.

As noted above the obligation imposed on parents to support their children is mutual. A portion of the custodial parent’s obligation of support will be fulfilled by the day-to-day care and maintenance which he or she gives to the child. This day-to-day care would include washing clothes, preparing meals, providing transportation, and maintaining the home environment. See Cowen v. Cowen, 375 So.2d 118 (La.App. 3d Cir. 1979). For this reason, it is not appropriate to calculate the entire amount needed for support of the child and divide it evenly between the two parents.

Considering the needs of the child and the ability of the defendant to pay, we conclude that the child support award should be reduced by $100 to the sum of $275 per month, which is $50 more than one-half of the sum needed to support the child.

Accordingly, the judgment of the trial court is amended to reduce the award to plaintiff-appellee for child support from $375 per month to $275 per month, payable $137.50 on the first and fifteenth of each month. Costs of this appeal are assessed to the plaintiff-appellee.

Amended, and as amended, affirmed.


text:
    Camille Poindexter COX, Plaintiff-Appellant, v. Theodore H. COX, Defendant-Appellee.
    No. 14529.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    DeCelle & Hansen by Malcolm DeCelle, Jr., Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Louis D. Smith, Monroe, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

At issue in this appeal of a judgment in an action to reform a 1977 community property settlement is the ownership of a 50-foot strip of land which abutted the former marital homesite. The strip was acquired during the marriage in 1974 in the name of the husband. The former marital homesite was the separate property of the wife.

The wife instituted this action in 1980, the husband reconvened, and each litigant asserts that the strip is his (her) separate property. The trial court rejected the demands of each litigant and the husband answered the wife’s appeal of that judgment. We affirm.

The wife contends that the strip is her property because $800 of the down payment on the strip was paid by her in 1974 and because she paid the husband $1,250 for his one-half interest in the strip in the community property settlement in 1977.

The husband contends he paid the full purchase price of the lot with his separate funds for the purpose of providing a place for his mobile home.

The 1974 deed of the strip did not contain the double declaration of separateness but conveyed the property to “T. H. Cox, a married man whose wife is Camille . .. Boddie ...” The $800 check in 1974 upon which the wife relies, was written to Cash and was endorsed by the husband. The check does contain a notation that it was “for lot next to [the marital homesite]” but the check is dated a month after the deed to the husband. The husband’s check [to the vendor for $2,500 as “Bal. on . . . lot”] was dated the day after the date of the $800 check which is relied on by the wife.

The community property settlement in 1977, prepared by the wife’s attorney, is detailed and specific. The $1,250 paid to the husband by the wife is identified only in this language:

“Further, as part of the consideration herein CAMILLE P. COX has this date paid unto THEODORE H. COX the sum of Twelve Hundred Fifty ($1250.00) Dollars, cash, receipt of which is hereby acknowledged and full acquittance therefor granted.”

This amount ($1,250) is not equal to one-half of the $3,500 price paid for the lot in 1974.

The trial court correctly concluded that the evidence (each litigant saying, “I paid for the strip”) was not sufficient to overcome the presumption that the strip was community property. Property acquired during the existence of the marriage in the name of the husband, even with money advanced to him by the wife, retains its community character, although the wife might succeed in enforcing a debt against the community for the advance to the husband. See Emerson v. Emerson, 322 So.2d 347 (La.App. 2d Cir. 1975); Guilott v. Guilott, 361 So.2d 1271 (La.App. 3d Cir. 1978); Lane v. Lane, 375 So.2d 660, 675 (La.App. 4th Cir. 1978). Property acquired during the existence of the marriage in the name of the husband without the double declaration and even with his separate funds, retains its community character, although he might succeed in enforcing a debt against the community for the value that the community has been enhanced by the acquisition. See Compton v. Compton, 371 So.2d 313 (La.App. 2d Cir. 1979) and Barnett v. Barnett, 339 So.2d 495 (La.App. 2d Cir. 1976).

The burden of proving either the separate character of property or error as a ground to reform a conveyance is a heavy burden, more than a mere probability.

"... [T]he evidence, to justify the granting of [reformation of a conveyance] must be clear and convincing, and not ... merely probable that the land was erroneously omitted.” Nelson, Curtis & Nelson v. Bridgeman, et al., 152 La. 190, 92 So. 855, 860 (1922) Emphasis supplied.

See also Wilson v. Levy, 234 La. 719, 101 So.2d 214 (1958); Southwest Gas Producing Co. v. Hattie Brothers, 230 La. 339, 88 So.2d 649 (1956); Mire v. Miller, 140 So.2d 767 (La.App. 3d Cir. 1962); Price v. Taylor, 139 So.2d 230 (La.App. 1st Cir. 1962).

We find no manifest or clear error. We adopt the reasons assigned by the trial court which we have summarized and supported. Costs on appeal are assessed one-half to each litigant, and the judgment is

AFFIRMED.

      .He conveys to her:
      1. Tiller
      2. All household furniture, effects and contents located in the home of Camille P. Cox at 111 Texas Avenue, Monroe, Louisiana
      3. One Ford Pinto Station Wagon and renounces any claims to her separate property which includes 10 described immovable tracts of land and described personal or movable property.
      She conveys to him:
      1. Motor home — Highlander
      2. Boat, trailer and motor
      3. One Chrysler automobile
      4. Personal belongings and tools
      5. Addendum annexed hereto
      Dirty clothes hamper
      22 Rifle
      Double barrel 12 G. shotgun, rack, and shells
      One stereo and records
      One short wave radio
      Shoe shine kit
      Saddle soap
      Necktie rack
      AA book
      Cotton balls
      Tape recorder jack
      Motor home table in house at 111 Texas
      Street, Monroe, Louisiana
      11 gallons Mobil roof coating
      Cedar chest
      Chest of drawers
      and renounces any claims to his separate property, which includes a described immovable tract.


text:
    SUCCESSION OF Anna Gray Sweeney NOE.
    No. 14530.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    En Banc. Rehearing Denied June 4,1981.

      Cook, Yancey, King & Galloway by Clarence L. Yancey, Shreveport and Hodge & Skoog by Richard E. Hodge, Los Angeles, Cal., for plaintiff-appellant, Linda Noe Laine.
    Pugh & Pugh by Robert G. Pugh, Shreveport, for Co-Testamentary Executors of the Last Will and Testament of Anna Gray Sweeney Noe — appellees, James A. Noe, Jr. and Charles Thomas Munholland.
    Blackwell, Chambliss, Hobbs & Henry by Douglas C. Caldwell, West Monroe, for defendant-appellee, James A. Noe, Jr., Individually and as Trustee of the Anna Gray Sweeney Noe Trust for Cristel McRae Noe Laine.
    Snellings, Breard, Sartor, Inabentt & Thrasher by Ryan Sartor, Monroe, for the nonresident minor, Cristel McRae Noe Laine.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

In this proceeding the mother of the minor beneficiary of a testamentary trust established by the minor’s grandmother seeks to remove the trustee named in the will and to have herself appointed as trustee. Originally, petitioner sought modification of the trust under LSA-R.S. 9:2026, alleging changes in circumstances since the will was executed by the decedent which would defeat the purposes of the trust if the trust was continued unchanged. After an exception of no cause of action was sustained, with the court ultimately granting leave to amend, petitioner amended to also seek removal of the trustee under LSA-R.S. 9:1789, alleging conflict of interest and hostility. Judgment was rendered sustaining exceptions of no cause of action and res judicata and petitioner appealed. We find the exception of no cause of action was properly sustained and affirm the dismissal of plaintiff’s suit to remove the trustee.

The primary issue on appeal is whether plaintiff has stated a cause of action to modify the trust by removing the designated trustee and naming plaintiff as trustee. We hold that the allegations of fact contained in plaintiff’s petition, as supplemented and amended several times, if proved, are not sufficient as a matter of law to justify the court in granting the relief sought.

Mrs. Noe died in 1972, leaving a will she executed in 1961. She bequeathed a % interest in her estate to each of her three children, petitioner Linda Noe Laine, James A. Noe, Jr. and Gay Noe McLendon. Petitioner’s share was left in trust, with her sister and her sister’s husband as trustees. The decedent bequeathed a Vs interest in her estate to each of her three sets of grandchildren to be held in trust for them. The parents of the grandchildren were named trustees of the respective trusts, except for the trust created for petitioner’s daughter. Named trustees of this trust were James A. Noe, Jr. and Gay Noe McLendon.

Mr. Noe died several years after his wife, leaving a will disposing of his estate in a similar fashion. However, Mr. Noe had changed his will so that petitioner’s inheritance was not left in trust and petitioner was named trustee of the trust created for her daughter by his will.

Both successions are still under administration, with James A. Noe, Jr. and C. T. Munholland as executors. The legatees have not been sent into possession and no property has been delivered to the trustees of the various trusts established by the Noes’ wills. Consequently, there has been no administration of the trusts by the trustees.

Gay Noe McLendon filed an act declining to accept as trustee of petitioner’s daughter’s trust. At the time this proceeding was instituted, James A. Noe, Jr. had not accepted the trust; subsequently, he filed a formal act of acceptance. Petitioner makes no complaint about the delay in his filing of the acceptance or about the fact that the successions are still under administration.

The essential allegations of plaintiff’s petition, as amended, are as follows:

(1) At the time of execution of the will and thereafter there was a complete lack of harmony and trust between the decedent and the husband of petitioner and for this reason, and not because of any belief by decedent that plaintiff was in any way incompetent to deal with and manage the inheritance of her daughter, the interest of the daughter was placed in trust with plaintiff’s sister and brother as trustees thereof;
(2) Plaintiff has since divorced her husband and for years has lived alone without any contact whatever with him;
(3) Because the problem of distrust of plaintiff’s husband no longer exists and plaintiff is thoroughly capable of managing the affairs of her daughter through the trust, there is no longer any reason why plaintiff should not be trustee of the trust. The trust should be modified under the provisions of LSA-R.S. 9:2026;
(4) The last will of plaintiff’s father, written after the divorce of plaintiff from her husband and after the date of the will of Mrs. Noe, does not name plaintiff’s brother and sister as the trustees of the trust for plaintiff’s daughter; rather, said will names plaintiff as the trustee;
(5) The court has already held in this proceeding on the petition of plaintiff that the trust affecting her personal inheritance was null and void under Article 2026 because the reason for establishing the trust no longer existed; and the relief sought herein is merely a corollary to that holding;
(6) James A. Noe, Jr., individually and as co-executor, was named defendant and C. T. Munholland as co-executor was named defendant;
(7) The change in circumstances referred to herein, that is, the divorce by plaintiff from her husband and her living separate and apart from him without any communication from him for a number of years, took place following the execution by Mrs. Noe of her Last Will and Testament and she did not know and did not anticipate said events which completely removed any influence on plaintiff which her said husband have had over her;
(8) The important thing for the benefit of the estate of the minor is that a competent trustee and one in whom she has confidence be appointed. Plaintiff was made trustee of the minor’s property inherited from plaintiff’s father, James A. Noe, under the terms of his will and she should also be trustee of the property inherited by her minor daughter under the terms of the will of Mrs. Noe;
(9) James A. Noe, Jr. is disqualified as trustee and should be removed for the reason that hostility exists between him and the beneficiary. The minor lives with her mother, the plaintiff, at her home in San Francisco, California. James A. Noe, Jr. lives at his home in New Orleans. No fraternization exists between Noe and his said sister and niece. No visitation occurs back and forth. Dealings are at arms-length or through attorneys and the parties are utterly incompatible, whereas total compatibility exists between plaintiff and her daughter. In view of this atmosphere of distrust and incompatibility, it is impossible to have a satisfactory relationship of trustee and beneficiary. Further, plaintiff is named as trustee for her daughter under the will of the father. There can be no cooperation between her and James A. Noe, Jr. as trustee under the will of Mrs. Noe, thus making for a most difficult if not impossible climate for the administration of the trust established for the benefit of the minor daughter;
(10) James A. Noe, Jr. was named as trustee for his own children in the trust set up in the will of the testator for the benefit of such children. In the course of the partition of the assets of this succession and the administration of the various trusts established under the will of the decedent, there will be many complex dealings between the estate of the children of James A. Noe, Jr., of which he will be trustee, and the estate of the minor child of the plaintiff, of which he also stands to be trustee, and in the normal course of human behavior it is natural for a person to prefer his own children over the child or children of others, especially where the hostility exists as described above. The conflict of interest standing alone is sufficient ground for removal of the trustee or his disqualification to act as such; and
(11) James A. Noe, Jr. is barred from qualification as trustee by the terms of the will in that under the provisions establishing the subject trust it is ambiguous whether or not one of the two trustees designated may qualify alone where the other has refused to accept qualification, and where such refusal occurs prior to the transfer of any trust corpus to the designated trustees.

Petitioner argues that her petitions, as amended, set forth a cause of action to have her substituted as trustee in place of her brother on several grounds:

(1) the trust should be modified because of change of circumstances, i. e. her divorce from her former husband and the changes in her father’s will, under LSA-R.S. 9:2026;
(2) the trustee named in the will should be removed because of hostility and conflict of interest under LSA-R.S. 9:1789; and
(3) the court should appoint a trustee because the provision in the will does not provide for a trustee in the event of resignation by one of the named trustees.

LSA-R.S. 9:2026 provides:

“The proper court may order the termination or modification of a trust, in whole or in part, if, owing to circumstances not known to a settlor and not anticipated by him, the continuance of the trust unchanged would defeat or substantially impair the purposes of the trust.”

The decedent established trusts for each of her grandchildren, including plaintiff’s child, each trust to endure until the beneficiary becomes 31 years of age. The obvious central purpose of the trusts is to provide for administration of that part of her estate left to each grandchild in accordance with the provisions of the trust instrument during the grandchild’s minority and until he or she reaches an age of mature judgment as determined by the settlor of the trusts. The change of circumstances alleged i. e., petitioner’s divorce from her husband whom the settlor did not trust and the naming of petitioner as trustee in her father’s will, does not constitute legal reason to modify the trust by removing the named trustee and substituting petitioner as trustee. The continuation of the trust unchanged, with Noe as trustee, will not defeat or substantially impair the purpose of the trust.

LSA-R.S. 9:1789 provides:

“A trustee may be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause shown.”

Decedent’s will makes no provision for removal of the named trustees; therefore, the trial court was vested with the discretion to remove the trustees if sufficient cause was established. Petitioner contends, as noted above, that hostility coupled with a conflict of interest is sufficient to require removal of a trustee.

The parties have, in excellent briefs, cited extensive authority dealing with the removal of trustees for reasons of hostility and conflict of interest. It can be stated as a general rule that neither conflict of interest, particularly where the settlor knew of the potential conflict at the time the trust was created and the trustee named, nor hostility, of itself, constitutes sufficient cause for removal of a trustee unless it materially impairs or interferes with the proper administration of the trust. Consequently, in order to allege a cause of action for removal of a trustee on these grounds, there must be not only allegations of conflict of interest and hostility, but also factual allegations of impairment or interference with the proper administration of the trust. The petitions as amended in this case do not contain factual allegations which relate the alleged hostility and conflict of interest to improper administration of the trust.

The only conflict of interest alleged here is co-ownership of trust property by the trustee individually and as trustee of other trusts, a common and usual situation in testamentary trusts involving family property. In general, the trustee’s interests in his several capacities will be consistent with one another — what is best for one will be best for the other. The petition alleges future “complex dealings” but fails to allege specific facts regarding the nature of the complex dealings, the specific conflict involved or the manner in which the administration of the trust will be adversely affected. Without such factual allegations presenting real and existing conflicts of interest coloring the judgment of the trustee and making it difficult or impossible for the trustee to discharge his duties to the trust and beneficiary, no cause of action to remove the trustee is set forth.

The allegations of hostility amount to nothing more than allegations of social or family animosity and incompatibility. In view of the fact that the trust property has not yet been delivered to the trustee, that the trust is not active and functioning, and that the trustee has not yet had occasion to act, the allegations of hostility in the petition cannot be factually related to the administration of this trust. Mere hostility is not grounds for removal of a trustee; it is only where such hostility interferes with the proper administration of the trust that it constitutes reason for removal. The petition here contains no factual allegation of improper administration of the trust arising from the alleged hostility.

Even if the allegations of hostility were proved, such would not support discretionary removal of the trustee by the court, absent allegations and proof that such hostility adversely affects the administration of the trust and the interest of the beneficiary therein. There are no such factual allegations here, only conclusionary allegations necessarily based on speculation and future uncertain events, not facts.

The court has discretion to remove a trustee upon a showing of sufficient cause. When confronted with an exception of no cause of action, it is proper for a court to take the factual allegations of the petition and make the determination that even if the allegations are accepted as true, the existence of such facts would not, as a matter of law, justify the court in exercising its discretion to remove the trustee.

Appellant makes no complaint about any action or nonaction of the trustee. No complaint is made about the delay in acceptance of the trust by the trustee. No complaint is made about the continued administration of the succession by the executors, of which the defendant trustee is one, and the fact that the trust property has not been delivered to the trustee. There are no allegations that the hostility or conflict of interest has influenced defendant’s conduct as executor of the estate in a manner adverse to the trust or the beneficiary.

The factual allegations of the petition, accepted as true, do not justify removal of the trustee at this stage. The exception of no cause of action was properly sustained. Dismissal of plaintiff’s suit is without prejudice to the right of the beneficiary in the future to again seek removal of the trustee upon specific allegations of conflict of interest or hostility adversely affecting the administration of the trust in specific ways.

The provision of the will naming the trustees provides:

“.. . I name James A. Noe, Jr. and Gay Noe McLendon as Trustees for each of said Trusts, of which one of the children of Linda McRae Noe Laine shall be a beneficiary. Should only one of said Trustees be able to serve, for whatever cause, the other shall continue to serve alone with full authority. ...”

Although the provision is nonsensical when read literally, the testator-settlor’s obvious intent was to provide that if one of the named trustees should be unable to serve, then the other trustee should continue to serve alone with full authority. Petitioner’s argument that the effect of the provision, with one of the trustees having declined to serve, is to cause a vacancy in the position of trustee which should be filled by appointment by the court is without merit.

The decision on the central issues of the appeal being dispositive of the case, it is unnecessary to consider the several other issues, mostly procedural, raised by the parties.

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

Affirmed.

      . Succession of Supple, 274 So.2d 790 (La.App. 4th Cir. 1973); Succession of Dunham, 393 So.2d 438 (La.App. 1st Cir. 1980), writ granted 397 So.2d 802 (La. 1981); Restatement of Trusts 2d, § 107; Oppenheim & Ingram, Civil Law Treatise, Vol. 11, Trusts, § 136; 63 A.L. R.2d 523, Annotation: Hostility between trustee and beneficiary as ground for removal; Levan, “Removal of the Trustee for Cause”, 34 La.L.Rev. 289, 291 (1974); 90 Corpus Juris Sec-undum “Trusts”, §§ 231 and 232; G. Bogert, The Law of Trusts and Trustees § 527 at 53-54; 1A W. Nosaman & J. Wyatt, Trust Administration and Taxation, § 26.11 [2] at 26-38; 76 Am. Jur.2d “Trusts” § 131 at 372; Ingalls v. Ingalls, 257 Ala. 521, 59 So.2d 898, 910 (1952); In re Estate of Sells, 15 Ohio App.2d 23, 238 N.E.2d 803, 811-12 (1968); In re Estate of Croessant, 482 Pa. 183, 393 A.2d 443, 446 (1978); Jennings v. Murdock, 220 Kan. 182, 553 P.2d 846, 870 (1976); Matter of Estate of Amason, 369 So.2d 786, 791 (Ala.1979); In re Gilmaker’s Estate, 57 Cal.2d 627, 21 Cal.Rptr. 585, 371 P.2d 321 (1962); Overell v. Overell, 78 Cal.App. 251, 248 P. 310 (1926); Matter of Estate of Gilliland, 73 Cal.App.3d 515, 140 Cal.Rptr. 795 (1977); Goto v. Goto, 187 Cal.App. 603, 10 Cal.Rptr. 20, 23 (1960); In re Bixby's Estate, 55 Cal.2d 819, 13 Cal.Rptr. 411, 362 P.2d 43, 47 (1961); In re Koretzky’s Estate, 8 N.J. 506, 86 A.2d 238 (1951); In re Graves’ Estate, 110 N.Y.S.2d 763, 767 (Sur.Ct.1952); Morrison v. Asher, 361 S.W.2d 844, 852 (Mo.Ct.App.1962); White v. White, 15 S.W.2d 1090, 1093 (Tex.Civ.App. 1929).


text:
    SUCCESSION OF Richard Allen GRIFFIN, Sr.
    No. 14532.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    B. J. Woods, Shreveport, for plaintiffs/appellants.
    Luther S. Montgomery, Shreveport, for defendant/appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Appellants, Richard A. Griffin, Mary Griffin Middlebrooks, and Irma Jeter Griffin, appeal a judgment rejecting their demands to annul the last will and testament of decedent, Richard Allen Griffin, Sr., and rejecting their demands to invalidate a document reconstituting the community between decedent and his surviving widow, Mrs. Eva Bowles Griffin.

Richard Allen Griffin, Sr. died March 10, 1980, leaving Eva Bowles Griffin as his surviving widow and Richard A. Griffin, Jr., Mary Griffin Middlebrooks, and James Richard Griffin, his children by a former marriage, as his forced heirs.

Decedent had married Eva Bowles on February 7,1932. She sued him for a separation on November 10, 1951. There was a judgment of separation rendered on November 21, 1951. About two years after the separation the parties reconciled and lived together until Richard Allen Griffin, Sr.’s death.

On February 26, 1980 decedent made a statutory will wherein he left the disposable portion of his estate to Eva Bowles Griffin and made her the executrix of his will. The will left the forced portion of decedent’s estate to his three children.

On March 6, 1980 decedent and his wife executed a document before a notary and two witnesses styled “Matrimonial Agreement Between Richard Allen Griffin and Eva Bowles Griffin Re-Establishment of the Community of Acquets and Gains Between Them.”

Following the death of Richard Allen Griffin, Sr., his widow, Eva Bowles Griffin, probated his last will and testament and qualified as executrix of his estate. In this succession proceeding Irma Lucille Jeter Griffin, widow and heir of James Richard Griffin who had died subsequent to the death of his father, Richard Allen Griffin, Sr., and Richard A. Griffin, Jr. and Mary Griffin Middlebrooks, decedent’s children, sued Eva Bowles Griffin to annul decedent’s will and to invalidate the document that reconstituted the community between her and decedent.

Appellants alleged that the will was null because:

“A. The testator lacked the capacity to make such a testament on February 26, 1980 in that he had been sick, senile and unable to fully comprehend the consequences of his acts for several months due to his advanced age.”

Appellants alleged that the document reconstituting the community was null because:

“Mr. Griffin lacked the necessary capacity to contract on March 6, 1980 in that he was physically and mentally incapacitated as not to understand the nature of his acts due to his illness and advanced age.”

Decedent was 86 years of age at the time he signed the documents sought to be annulled, and these documents were signed by him while he was in the hospital for treatment of his terminal illness.

At trial no witnesses were called, only the testimony taken by deposition of decedent’s two treating physicians, his surviving widow, and the two witnesses and notary on each of the documents was placed into evidence. All of the deponents testified that during the time frame when the two documents were signed that though decedent was seriously ill he was alert and understood what was going on around him. The notary and witnesses on each of the documents signed by decedent stated that at the time he signed them he understood and approved the contents and purposes of the will and the agreement reconstituting the community.

There was no evidence offered by appellants which supported their contentions that decedent was incapacitated at the time he signed the two documents which they sought to annul.

The trial judge found as a fact that appellants failed to prove that decedent was without capacity to make the will and execute the agreement re-establishing the community. The evidence fully supports the trial judge’s conclusions.

Appellants do not argue decedent’s incapacity to execute the documents in brief on appeal. They contend in brief that the document re-establishing the community has only the effect of creating a community between decedent and his surviving widow for the period between March 6, 1980 when it was signed and March 10, 1980, the date decedent died.

Appellants rely on the case of Corkern v. Corkern, 270 So.2d 209 (La.App. 1st Cir. 1972). In this case a husband and wife were judicially separated April 7, 1958 and executed an agreement to re-establish the community January 27, 1970. The agreement contained the following provisions:

“... which act shall be without prejudice to separate property rights and all other property rights of Jimmie W. Corkern and Ladonias R. Corkern validly acquired in the interim between April 7, 1958 and January 27, 1970.” Id. p. 210.

At the same time this document was signed, a separate instrument was executed between the parties that contained the following declaration:

“... Said appearers, Jimmie W. Corkern and Ladonias Rogers Corkern, further declare unto me, Notary, that this acknowl-edgement in no way affects property rights or other rights of either party validly acquired between the interim of April 7, 1958 and January 27, 1970, and Ladonias Rogers Corkern further acknowledges and declare to me Notary, that all property, immovable, corporeal, incorporeal, and movable, consisting partially and without limitation to all dairy equipment, farm equipment, stocks and other securities acquired by Jimmie W. Corkern between April 7, 1958 and January 27, 1970 are his separate and para-phernal property.” Id. at 210.

The husband sued for a separation on February 16, 1970 and amended his suit to demand a divorce on April 23, 1970 which was granted May 13,1970. The wife thereafter sued for a community property settlement contending that all properties acquired during the marriage was community property. The trial court rejected her contentions concluding that only that property acquired subsequent to the January 27,1970 act re-establishing the community belonged to the community between the parties. On the wife’s appeal the court affirmed the judgment stating:

“The notarial instruments executed by the litigants herein on January 27, 1970, clearly negate any intent on the part of plaintiff husband to relinquish his individual and separate property rights in the property which was acquired by him following the initial termination of the community of acquets and gains in 1958 and until the execution of the notarial instruments on January 27, 1970. The instruments admit of no other possible construction, as evidenced by the emphasized excerpts therefrom reproduced above.” Id. p. 213.

The agreement re-establishing the Griffin community reads as follows:

“MATRIMONIAL AGREEMENT BETWEEN RICHARD ALLEN GRIFFIN AND EVA BOWLES GRIFFIN RE-ESTABLISHMENT OF THE COMMUNITY OF ACQUETS AND GAINS BETWEEN THEM.
BEFORE ME, the undersigned Notary Public, personally appeared RICHARD ALLEN GRIFFIN, SR. and his wife, EVA BOWLES GRIFFIN, each of them having been duly sworn by me, stated that:
1. They were married February 7th, 1932 in Bossier Parish, Louisiana and shortly thereafter they established their matrimonial domicile in Caddo Parish, Louisiana, where both are still domiciled.
2. That on November 10, 1951 in suit Number 109,926, entitled Eva Bowles Griffin vs. Richard Allen Griffin, First Judicial District Court, Caddo Parish, Louisiana Eva Bowles Griffin filed a petition for a judgment of separation from bed and board from Richard Allen Griffin, and the same being recorded in Conveyance Book 652, Page 715 of the Clerk’s office of Caddo Parish, Louisiana. A judgment of separation from bed and board was granted on November 21st, 1951.
3. Approximately two years later Richard Allen Griffin, Sr., and Eva Bowles Griffin reconciled and have lived together as man and wife ever since.
4. That by this matrimonial agreement Richard Allen Griffin, Sr., and his wife, Eva Bowles Griffin, mutually agree to re-establish the community of acquets and gains between them, as of the date November 10th, 1951, of the filing of the original petition for a judgment of separation from bed and board, in which action the judgment was rendered by the court on November 21st, 1951.”

The provisions of LSA-C.C. art. 155 which authorized the parties to re-establish the community provides:

“The judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the original petition was filed in the action in which the judgment is rendered, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorney fees and costs incurred by the spouses in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment. Upon reconciliation of the spouses, the community may be re-established by matrimonial agreement as of the date of filing of the original petition in the action in which the judgment was rendered.” [our emphasis].

The provisions of this article clearly empowered the decedent and his wife to place in their agreement the following provision:

“4. That by this matrimonial agreement Richard Allen Griffin, Sr., and his wife, Eva Bowles Griffin, mutually agree to re-establish the community of acquets and gains between them, as of the date, November 10th, 1951 of the filing of the original petition for a judgment of separation from bed and board, in which action the judgment was rendered by the court on November 21st, 1951.”

The provisions of Paragraph 4 unequivocally establish the intent of decedent and his wife to re-establish their community on the date that it was initially dissolved. There is no provision in the Griffin agreement similar to the provisions contained in the agreements construed in the Corkern, supra, case limiting the effect of the agreement to property acquired by the parties subsequent to the date of the agreement. For this reason the Corkern case does not support appellants’ contention as to the effective date on which the community was re-established.

We conclude that the Griffin community exists as though it had never been dissolved with the property rights flowing from the community being just as they would have been had there never been a judicial separation between Richard Allen Griffin, Sr. and Eva Bowles Griffin.

Appellants contend in brief that the community property agreement is in fact a will wherein decedent attempts to evade the forced heirship law by giving his wife xk of his estate. They then contend that the second will dated March 6th annuls the provisions of the statutory will dated February 26th. These contentions are totally without merit. A review of the community property document establishes that it is an agreement to re-establish the community prepared pursuant to LSA-C.C. art. 155 and is not a will.

The trial judge in his written reasons for judgment made statements indicating an adjudication that specific property belonged to the re-established community. The signed judgment appealed rejected appellants’ demands, but properly did not contain any adjudication as to the status of any particular property as there were no demands asserted by the litigants for a determination of the status (separate or community) of any of the property left by the decedent.

The judgment is AFFIRMED at appellants’ cost.


author: JASPER E. JONES, Judge. FRED W. JONES, Jr., Judge,

text:
    Linda H. McDONALD v. INTERNATIONAL PAPER COMPANY.
    No. 14534.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.

      Campbell, Campbell & Johnson by John T. Campbell and James M. Johnson, Min-den, for plaintiff-appellee.
    Madison, Files, Garrett & Brandon by Charles L. Hamaker, Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendant-appellant.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Defendant, International Paper Co., appeals a judgment adjudicating it liable for worker’s compensation benefits for the widow and children of its deceased employee, Marion McDonald, who died of a heart attack at the age of 36. The judgment also awarded penalties and attorney’s fees.

McDonald had been employed at defendant’s Springhill Paper Mill for approximately 17 years. At the time of his death his job was classified as Washer First Helper in the washer room of the pulp mill.

On February 5, 1979, decedent was working the graveyard shift and reported to defendant’s mill at 10:20 p. m. to commence his duties. He walked some 150 yards up and down two small flights of steps to the Tour Foreman’s office where he commenced to fill in his time card. Decedent was required to report to the Tour Foreman’s office for the purpose of receiving any extraordinary instructions relating to the work on the upcoming shift. While sitting in this office he became sick and departed for the first aid room after having advised the operator on his shift who was his immediate supervisor that he was going to the first aid room. Decedent collapsed just before reaching the first aid room and was carried by ambulance to a hospital in Springhill where he was immediately pronounced dead on arrival.

Defendant assigns as error the trial court’s finding that the heart attack was related to decedent’s employment. Defendant also contents that if the heart attack was employment related, that the award of penalties and attorney’s fees was error because defendant was justified in not voluntarily paying compensation benefits because decedent had performed no work prior to the occurrence of the heart attack.

A heart attack is an accidental injury within the contemplation of LSA-R.S. 23:1021(1) and (7), and LSA-R.S. 23:1031. In order for the heart attack to be compensable the preponderance of the evidence must show that it was caused, precipitated or contributed to by factors directly related to the employment. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La. 1975); Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4th Cir. 1975); Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2d Cir. 1977); Jacob v. Godchaux-Henderson Sugar Co., Inc., 350 So.2d 274 (La.App. 4th Cir. 1977).

The guidelines for proving causal connection between the heart attack and the employment as set forth in Roussel, supra, are as follows:

“The only remaining issue for determination is whether plaintiff proved by a preponderance of evidence that the fatal heart attack which occurred on the job was caused by decedent’s employment. Difficulty in proving causation arises from the fact that a pre-existing heart infirmity can produce disability at any moment irrespective of any outside influence. However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment.” Id. p. 39. [emphasis supplied]

Included in the trial judge’s excellent reasons for judgment are the following findings which are fully supported by the record:

“Several months prior to Mr. McDonald’s death, International Paper Company had announced that the Springhill Mill would be closed. It was apparent to Mrs. McDonald and other co-workers and friends that Mr. McDonald was worried about the closing of the mill and the possibility of the termination of his job. The evidence showed that during the past several weeks prior to his death, there was increased difficulty at the mill caused by the crews being shorthanded and the personnel not being as diligent with their work and also caused by increased difficulty with old equipment needing increased maintenance. Mr. McDonald supervised nine men during his work, and when these men were absent or were taking a break, he took their place and performed work for them. The washer area where he sometimes worked was subject to extreme hot temperatures up to 130°. Mr. McDonald was a conscientious worker who felt responsible for the performance of the necessary tasks at work, and all of these factors placed considerable physical and emotional strain on him, particularly within the last week or ten days prior to his death. During that period his co-workers noticed several changes in him indicating he was under mental and physical strain, and during that period he complained on occasion of chest pains and his co-workers noticed that he became withdrawn within the last week or so before his death.
Even a defense witness, Leroy Shelley, testified that the job performed by Mr. McDonald was stressful at times and that he was under strain caused by the men and the machinery. Mr. Shelley testified that there was stress on himself as well as on Mr. McDonald.”

An autopsy was performed on the body of decedent by Dr. McCormick, a forensic pathologist, who found that decedent had died from a myocardial infarction. He found that decedent was suffering from arteriosclerosis of several months duration and that he had unusually small blood vessels. This pathologist after examining the muscle of the heart expressed the opinion that the tissue of the heart had been dying for several days and perhaps as long as a week before decedent’s death.

Dr. McCormick testified there were six principal causes for myocardial infarction in relatively young men. These were hypertension, heredity, excessive smoking, high blood cholesterol levels, stress, and diabetes.

There had been a blood work-up on decedent several weeks before his death and his blood did not have a high cholesterol level. During this examination decedent was found to have no high blood pressure or diabetes. Based upon this information Dr. McCormick eliminated high blood cholesterol, diabetes, and hypertension as a contributing cause of decedent’s heart attack. Evidence was introduced to establish that there' was no history of heart attacks in decedent’s family, and on this basis the heredity factor was eliminated. Evidence established that decedent only smoked a pack of cigarettes a day, and Dr. McCormick discounted decedent’s smoking habit as a cause for his heart attack.

Dr. McCormick was given the facts relating to the circumstances under which McDonald had been working and expressed the opinion that the myocardial infarction was due to the physical and mental stress to which McDonald was subjected by his employment. He stated that the stress which decedent had undergone during the several days before his death precipitated the occurrence of the death of the muscles of the heart:

“A. No sir, because what I’m going by is I think the oldest infarction there is several days, therefore, I think that the occlusion of the vessel occurred several days before his death and that subsequent to that time the heart muscles had been dying.”

It was therefore his opinion that the stress which decedent had undergone performing the work for defendant in the several days before the actual occurrence of decedent’s death was a contributing factor to decedent’s terminal heart attack. Dr. McCormick expressed the opinion that the circumstances that existed on the night of Feb. 5 and the activity of decedent’s reporting to work and filling in his time card on the night of his death had not contributed to decedent’s fatal myocardial infarction.

Dr. Bridges also testified that stress was one of the principal causes of myocardial infarction in people of decedent’s age. He stated that stress affects the blood chemistry and causes the formation of clots. He stated that stress caused the blood vessels to go into spasms and that the combination of clots and the spasms in the blood vessels precipitated the occlusion of the blood vessels and brought about the infarction.

Dr. Bridges had treated over 300 myocardial infarctions and testified that he believed the stress to which decedent was subjected brought about his fatal myocardial infarction. This physician was of the opinion that the stress which McDonald had been subjected to for a number of days prior to his death precipitated the change in McDonald’s blood chemistry which resulted in the formation of the clot which occluded the blood vessel at the time of his death. Bridges, however, felt that the actual occlusion occurred on the night of McDonald’s death because McDonald felt himself in a stressful situation as he approached his evening shift and that this stress caused the blood vessels to become spastic and the occlusion then occurred that brought about the myocardial infarction.

In the case of Jacob v. Godchaux, supra, work activity which occurred during days preceding a fatal heart attack which occurred on the employer’s premises were considered in establishing that the heart attack was work-related. In Barnes v. City of New Orleans, supra, an employee who began having chest pains while performing clerical work and died at home of a myocardial infarction the following day was found to have sustained a work-related heart attack.

The testimony of each of the doctors establishes that the stress related to decedent’s activities for the several days immediately preceding his death contributed to decedent’s fatal myocardial infarction. The testimony of Dr. Bridges also related decedent’s presence at the mill on the night of his death as a stress that contributed to his death. We believe this determination was reasonable because decedent, while filling out his time card and awaiting instruction with regard to his night’s work, must have contemplated the problems of the upcoming shift, even though he had not actually commenced the performance of his work. This is substantial evidence supporting the trial judge’s determination that plaintiff established a causal relation between decedent’s heart attack and his employment and we agree with his finding.

Defendant’s contention that decedent was under non-work-related stress caused by the death of his mother, father-in-law and mother-in-law all in a few weeks before his death does not detract from the conclusion that decedent’s death is compensable. Roussel’s, supra, guidelines do not require that the work-related factors which contributed to the heart attack be the exclusive cause of the heart attack in order for it to be compensable. While the medical evidence recognized that the stress sustained by the decedent by the loss of close members of his family may have contributed to his myocardial infarction, it clearly establishes that the work-related stress was an important factor in bringing about the fatal heart attack.

The defendant produced no evidence that decedent’s work had not placed him under stress for the several days preceding his heart attack. Decedent’s immediate supervisor who was called as a witness by defendant, testified decedent was placed under stress by the nature of his work during the several days preceding his death. Defendant offered no medical evidence that stress related to decedent’s work was not a contributing cause of his heart attack. The law is well settled that a heart attack which is work-related is compensable.

An employer who fails to pay compensation benefits where the facts requiring their payment are uncontradicted by the evidence, and the law applicable to those facts is well settled, becomes liable for penalties and attorney’s fees under the provisions of LSA-R.S. 23:1201.2. In Brewton v. L. L. Brewton Lmbr. Co., Inc., 349 So.2d 1364 (La.App. 2d Cir. 1977), the court stated:

“Defendant’s final contention is that the trial court erred in allowing penalties and attorney’s fees. LSA-R.S. 23:1201.2 provides that when failure to make payments is found to be arbitrary, capricious or without probable cause the employer shall be subjected to penalties and attorney’s fees. We accept defendant’s argument that its defenses have been asserted seriously and in good faith. Nevertheless, the defenses are without a solid or substantial basis either in fact or in law. The facts of this case were virtually undisputed, as shown by the fact that defendant called no witness to contradict any of the facts asserted by plaintiff. On each of the issues asserted by defendant, the law is well settled as applied to the established facts. The trial court’s determination that defendant’s failure to pay benefits was arbitrary, capricious and without probable cause is correct.” Id. at 1367.

The trial judge in his reasons for judgment made the following factual determination on the issue of penalties and attorney’s fees:

“Defendant introduced no medical testimony, evidence or medical reports upon which it based its refusal to pay workman’s compensation death benefits. The main contention of the defendant was that the death of Mr. McDonald was caused by stress from grief resulting from the recent deaths of three of his family members. However, this primarily arose because of a statement made by the grief-stricken widow of Mr. McDonald to defendant’s manager of employee relations at the hospital immediately after the death of Mr. McDonald, when the widow apparently indicated to him that Mr. McDonald was taking medication for nerves which the doctor thought related to the three deaths. There was never any testimony from a doctor to substantiate this position, and no such evidence was offered at the trial of the case. I do not see that this is sufficient basis for a defendant to base its refusal to pay workmen’s compensation benefits. That refusal is not supported by medical evidence or by factual information, as shown by the testimony in this case.”

The record fully supports this conclusion. The trial judge’s award of penalties and attorney’s fees is correct.

Judgment is affirmed at appellant’s cost.

FRED W. JONES, Jr., J., concurs in part and dissents in part.

FRED W. JONES, Jr., Judge,

concurring in part and dissenting in part.

I agree with the majority that the plaintiff is entitled to workmen’s compensation benefits, but dissent from the allowance of penalties’ and attorney fees.

An employer who fails to pay compensation benefits where there is no factual or legal dispute is liable to the claimant for penalties and attorney fees under La.R.S. 23:1201.2. However, it is obvious that this question must be decided upon the facts of each particular case. In referring to this issue, the court in Crooks v. Belden Corp., 334 So.2d 725 (La.App. 3rd Cir. 1976) commented:

“The penalty provided by the statute is very harsh and should not be imposed in doubtful cases. Where there is a bona fide dispute as to the occurrence of the accident or the causal connection between the accident and the disability, an employer’s refusal to pay benefits is in good faith and with just cause.” Id. at 727.

It should be clear that the mere fact that the employer refuses to pay on the ground that he denies liability entirely, or denies that he owes as much as is demanded is not enough to warrant the imposition of the penalty even though the facts and law developed at the trial show that he was in error in refusing. The refusal must have been without reasonable foundation in fact or law. Malone-Johnson, “Worker’s Compensation”, Vol. 14, La. Civil Law Treatise, Sec. 389, p. 286.

The primary question here is whether defendant’s refusal to voluntarily pay plaintiff workmen’s compensation benefits was without reasonable foundation in fact or law. The record shows that plaintiff’s husband had been on his employment premises for some 10 or 15 minutes prior to his fatal heart attack, but had not engaged in any work during that period of time. The autopsy report prepared by the pathologist, Dr. George McCormick, contained no information connecting the cause of death with the decedent’s employment. Immediately after the death decedent’s widow indicated to one of defendant’s officials at the plant that the decedent had been under considerable stress because of recent deaths of family members.

Both the trial judge and the majority seem to imply that an employer has the burden of proving that he was not “arbitrary, capricious or without probable cause” in refusing to voluntarily make workmen’s compensation payments. For example, the trial judge indicated in his written reasons that defendant was under an obligation to offer medical testimony to support its argument that the employee’s heart attack could have been caused by grief over the deaths of his family members. The majority cites the Brewton case with its comment that “defendant called no witness to contradict any of the facts asserted by plaintiff.” The primary questions presented in Brewton were whether plaintiff was an employee of the defendant and, if so, whether the accident occurred in the course of his employment. Examination of that opinion reveals that there was actually no contradiction of the evidence presented by plaintiff. The case at bar is different because the evidence presented on behalf of plaintiff in itself raised serious questions concerning the causal connection between the decedent’s employment and his death. Obviously, in that situation there is no particular significance to be attached to the failure of defendant to call witnesses since the evidence upon which it relies becomes a part of the record through the presentation of plaintiff’s case-in-chief, as amplified by cross-examination.

In the recent case of Bartley v. Insurance Co. of North America, 388 So.2d 461 (La. App. 2d Cir. 1980), this court stated:

“A deposition of plaintiff’s physician was taken approximately one week before trial and he stated the exact cause of her condition could not be determined. Although the court ultimately found plaintiff to be entitled to compensation benefits, no clear relationship between her condition and her job activities was evident, particularly since no specific incident or ‘accident’ as such had occurred. Under these circumstances we do not find defendants were unreasonable in their refusal to pay benefits until after the case had been tried and decided.” At p. 463.

Even though defendant, after trial, was deemed in error in refusing to voluntarily pay workmen’s compensation benefits to plaintiff, I do not believe that this refusal was without a reasonable foundation in fact or law. Whether the fatal heart attack was causally connected to the decedent’s employment was a serious factual issue. The purpose of the trial was to resolve this issue. Defendant should not be penalized for availing itself of this right.

For these reasons, I respectfully dissent from the award of penalties and attorney fees.


author: FRED W. JONES, Jr., Judge.

text:
    Mary Ann Byrd Baker WILLIAMS, Plaintiff-Appellee, v. Travis Lee BAKER, Defendant-Appellant.
    No. 14535.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    Writ Denied June 12, 1981.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    John Paul Woodley, Shreveport, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff sued her former husband for a partition by licitation of property which had belonged to their community. Defendant answered in proper person, contesting the partition by licitation.

On November 27, 1979 the trial court signed a judgment ordering a partition by licitation and stipulating that the fee of plaintiff’s attorney should be taxed as costs and paid from the proceeds of the sheriff’s sale. Notice of the judgment was served on the defendant on December 10, 1979. No appeal was taken.

On April 18, 1980 plaintiff filed a rule which included a request that the court fix the amount of her attorney’s fee. That fee was set at $1500 in a judgment on the rule signed on July 15, 1980.

After the filing of the proces verbal of the sheriff’s sale and the tableau of distribution, plaintiff on August 6, 1980 filed a rule to have the proposed distribution of funds homologated. Defendant, now represented by counsel, filed an opposition to the rule in which he objected, among other things, to payment of any portion of the fee of plaintiff’s attorney out of defendant’s part of the proceeds of the public sale on the ground that defendant had contested the partition suit. On October 14,1980 the trial judge signed a judgment of homologation, which included a provision that half of the fee fixed for plaintiff’s attorney was to be paid out of defendant’s share of the funds derived from the sheriff’s sale.

Defendant appealed this judgment of ho-mologation, asserting that the trial court erred in assessing his half of the public sale proceeds for any part of the fee set for plaintiff’s attorney.

It is apparent that the appellant’s complaint of trial court error is actually directed at the partition judgment dated November 27, 1979. This was a final judgment as defined by La.C.C.P. Art. 1841 because it determined “the merits in whole or in part.” See Junkin v. Carroway, 24 So.2d 682 (La. App.2d Cir.1946). Since the delays for appealing this judgment have lapsed,, it has become definitive. La.C.C.P. Art. 1842; La.C.C. Art. 3556 (31). Issues resolved by this judgment may not be raised again by the parties even though the judgment may have contained errors and would have been subject to reversal on appeal. Roddy v. Independent Oil and Chemical Workers Union, 233 So.2d 714 (La.App. 4th Cir. 1970); Fontenot v. Pan American Fire & Casualty Co., 209 So.2d 105 (La.App. 3rd Cir. 1968).

In Cheramie v. Archer, 360 So.2d 537 (La.App. 1st Cir. 1978), presenting a practically identical issue, some defendants complained of the lower court’s order that the attorney’s fee be paid out of the mass of the proceeds from a partition sale. These appeals were dismissed because of the court’s determination that the partition judgment containing the alleged error had become final, even though the judgment of homolo-gation was still appealable.

The judgment in this case decreeing the partition and ordering payment of the fee of plaintiff’s attorney along with other costs from the proceeds of the public sale before distribution of the remainder to the owners of the partitioned property is final and definitive and not subject to reversal on this appeal. Since defendant complains of no errors in the judgment of homologation from which he actually appeals, we affirm that judgment at appellant’s cost.

      . La.C.C.P. Art. 4613 provides:
      When there is no contest of the partition proceeding by any defendant, the court shall allow the attorney for the plaintiff a reasonable fee for his services. Except as provided in the second paragraph of this article, the fee shall be taxed as costs of court and paid out of the mass of the funds or the property partitioned, or thé proceeds of the latter if sold.
      No portion of the fee may be paid out of the share of any party represented in the proceeding by an attorney, whether appointed by the court or selected by the party.

      . Rule IX-A, Uniform Rules, Courts of Appeal (December 1, 1977) provides that ordinarily we will review “only issues which were submitted to the trial court and which are contained in the specification of errors in the briefs. .. . ”