text:
    Huey Allen LYNCH, Plaintiff-Appellant, v. Shirley Mae Haddad LYNCH, Defendant-Appellee.
    No. 82-319.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Daniel M. Landry, III and Fredric G. Hayes, Lafayette, for plaintiff-appellant.

      Shelton & Legendre, Robert Shelton and Philip Kobetz, Lafayette, for defendant-ap-pellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant-appellant, Shirley Mae Had-dad Lynch, instituted this suit seeking a divorce from her husband, Huey Allen Lynch. Incidental to the suit, Shirley prayed for alimony pendente lite, child custody, child support and permanent alimony. The trial judge ordered Huey to pay:

1) Alimony pendente lite at the rate of $1,500.00 per month from date of judicial demand until date of signing of this judgment, with credit to be given to Huey for all payments made to Shirley, including the value of the house note since that date.
2) Permanent alimony at the rate of $500.00 per month, and child support at the rate of $350.00 per month, with credit to Huey for the value of the house note to be deducted from such payments.

Shirley filed a timely motion for partial new trial for the purpose of reargument only. After submission of briefs in lieu of oral argument, the trial court modified its original judgment in the following respects:

1) Increased child support from $350.00 per month to $500.00 per month;
2) Deleted the credits allowed against the alimony pendente lite payments;
3) Determined that the value of the house note was $390.00 per month.

Huey argues on appeal, that the trial court erred in 1) amending the original judgment on a motion for new trial without a new trial; 2) amending the original judgment deleting the credits awarded to him without obtaining new evidence; 3) awarding permanent alimony to Shirley since she had been determined at fault in causing the original separation; 4) awarding excessive alimony pendente lite and child support. We reverse the trial court’s award of permanent alimony and the deletion of credit for the house note payments, amend the award of child support to increase it to $750.00 per month, and affirm as amended.

NEW TRIAL

LSA-C.C.P. Article 1971 states:

“A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargnment only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.” (Emphasis added)

Thus, the statute specifically states that a new trial can be granted for reargument only. The court may grant the new trial on the motion that the party is entitled thereto, without a contradictory hearing. Moreover, if the order applied for by the motion is one to which the mover is clearly entitled without supporting proof, the court may grant the motion ex parte. LSA-C.C.P. Article 963; Borras v. Falgoust, 285 So.2d 583 (La.App. 4th Cir.1973). Where the motion for new trial is based on discretionary grounds, LSA-C.C.P. Article 1973, then the established rule is clear that unless an abuse of discretion can be demonstrated, the appellate court will not reverse the trial court’s action. Simas v. Hicks, 381 So.2d 949 (La.App. 3rd Cir.1980).

The record reveals that Shirley presented a “Motion for Partial New Trial For the Purpose of Reargument Only” on March 18, 1982. The order granting the motion was made on March 22, 1982. The order was granted without a contradictory hearing and it limited the new trial to rear-gument only. After our review of the statutory and jurisprudential authority, we hold that the trial court had discretion in allowing a new trial on an ex parte motion limiting it to • reargument. From our review of the record, we conclude the trial court did not abuse its discretion in granting the new trial.

DELETION OF THE CREDITS

The granting of a new trial even • when limited to reargument, sets aside the original judgment. The fact that the trial was granted for reargument only simply meant that no additional evidence could be adduced. LSA-C.C.P. Article 1978. Shirley, in her written brief which was submitted in lieu of her oral argument did not present any new evidence. The brief only clarified the law as to set-offs, i.e., credits. The burden of proving claimed set-offs is upon the party asserting such set-offs. Brouillette v. National Remodelers and Rebldrs., Inc., 239 So.2d 375 (La.App. 4th Cir.1970).

In the original judgment, the trial court awarded Huey a credit for all payments made to Shirley since the date of judicial demand, including the value of the house note. After new trial, the original judgment was amended to delete all the credits. In his testimony Huey testified:

“I don’t think I paid any since probably the middle of 1980. And, those were gas bills, phone bills, light bills, water bills.”

The date of judicial demand was October 30,1980. Therefore, the record reveals that Huey paid no expenses for utilities, gas, etc. from the date of judicial demand. However, from the testimony of Huey and Shirley, it is clear that Shirley and their daughter, Andrea, are living in the family home rent free. The family home is Huey’s separate property which was bought prior to their marriage. Huey is paying monthly notes on this house. The payments have been paid by Huey from the time of the purchase to date. The testimony of Huey is uncontradicted. Shirley testified that since the separation she has not paid anything for housing. Therefore, we hold the record discloses sufficient proof that Huey is entitled to the credit for the house payments.

PERMANENT ALIMONY

It is Huey’s contention that the trial court erred in awarding permanent alimony to Shirley since she had been determined at fault in thé original separation. Therefore, the issue is whether or not Shirley was at fault in the original separation and whether the fault will preclude her from getting alimony.

Huey obtained a judgment of separation on November 13, 1979, which stated:

“... the law and evidence being in favor of the plaintiff, the- default entered herein on October 5, 1979, is confirmed...”

The basis of the separation was Shirley’s constructive abandonment of Huey. This basis was evidenced by Huey’s testimony which was not contradicted by Shirley. Huey testified that all his clothes were packed and put outside. Shirley acknowledged in her testimony that Huey did obtain the separation. Therefore, we hold the trial court in the separation proceeding concluded that Shirley had constructively abandoned Huey and that was sufficient grounds for the separation.

In Bruner v. Bruner, 364 So.2d 1015 (La.1978), the Supreme Court made the following definitive statement:

“It is thus our conclusion that for the wife to be entitled to post-divorce alimony our law requires that she be free from fault both prior to the separation judgment and prior to the divorce.” (Emphasis added)

The definition of “fault” is conduct which constitutes grounds for separation or divorce, other than mere living separate and apart for a specified period of time. Bruner v. Bruner, supra. Under the above definition, we conclude the trial court’s determination as to the grounds for the separation results in Shirley being at fault. Since Shirley is not free from fault prior to the separation, therefore, she is not entitled to permanent alimony. For the above reasons, we reverse the trial court’s award of permanent alimony.

ALIMONY PENDENTE LITE

Huey contends that the amount awarded as alimony pendente lite was excessive. The applicable law is set out in LSA-C.C. Art. 148, which provides:

“Art. 148. If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

In Desormeaux v. Brignac, 408 So.2d 32 (La.App. 3rd Cir.1981), we established the following guidelines:

[1, 2] In making an award for alimony pendente lite, the court must take into consideration the needs of the claimant spouse and the means of the other spouse. The actual needs for the maintenance and support of the wife must first be determined, and if the amount needed is proportionate to the husband’s means, that amount should be awarded. If her needs exceed the husband’s ability to pay, then alimony pendente lite should be fixed at a sum which will be just and fair to all parties involved. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir.1980); Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir.1976).
[3] The fixing of the amount of alimony pendente lite which the husband should be required to pay his wife is largely within the sound discretion of the trial judge and his conclusions as to the amount of the award will not be disturbed on appeal unless there has been a clear abuse of discretion. Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir.1980); Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir.1976); Bernard v. Bernard, 300 So.2d 499 (La.App. 3rd Cir.1974); Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3rd Cir.1981), our Docket Number 8350, rendered July 30, 1981 and Manning v. Manning, 406 So.2d 285 (La.App. 3rd Cir.1981).

In determining the amount necessary for the “maintenance” of the claimant spouse, the measure is that amount necessary to maintain the spouse in the same style and under the same conditions which she enjoyed prior to the separation. Langham v. Langham, 381 So.2d 1284 (La.App. 2nd Cir.1980); Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir.1976).

The record reveals that Shirley received $2,400.00 per month from Huey while they were married. The $2,400.00 was for household expenses, food and clothing. After the separation Huey paid only $500.00 each month for child support. The trial court concluded that $1,500.00 per month would be a fair award to maintain the wife. The question now is whether the amount is proportionate to the husband’s means. “Means” includes assets as well as income. Huey earns approximately $7,500.00 a month and he has certain expense accounts, stocks and real property. From the above, we conclude that the amount awarded is not an abuse of the trial court’s discretion.

CHILD SUPPORT

Huey contends that the child support award of $500.00 is excessive; whereas, Shirley argues that the trial court erred in not awarding $750.00 per month in child support as prayed for in her motion for new trial. She bases this request on the needs of the child and the ability of Huey to pay. Louisiana Civil Code Article 227 provides that parents have the obligation to support, maintain and educate their children. This support shall 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. If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances permit. Ducote v. Ducote, 339 So.2d 835, (La.1976). In Fellows v. Fellows, 267 So.2d 572, (La.App. 3rd Cir.1972), the court stated that the application of these basic rules recognizes children are thus entitled by birth right to a life during their minority consistent with the father’s (and mother’s) station in life.

From the record, it is evident that Huey is an above average provider. Huey is making approximately $7,500.00 a month. The monthly expenses to adequately provide for the child is $907.00 per month. Therefore, the trial court awarded child support in the amount of $500.00. The support of the child is both parents’ obligation. In determining the amount needed to satisfy this obligation the court must view the ability of the person to pay. At the present time Shirley is only receiving $584.00 in unemployment benefits. If she was working, based on her last job’s salary figures, she would earn approximately $1,000.00 a month. Looking at both parents’ ability to pay and the totality of the circumstances, this court holds that the trial court erred in providing only $500.00 in child support. It is evident that Huey is able to provide more for his child. Therefore, the judgment of the trial court is amended to award $750.00 a month in child support.

Huey presently provides a home for Shirley and Andrea from his separate estate. The trial court found the monthly house notes to be $390.00. Since the home provides living accommodations for Andrea this should be considered in the child support award. Our award of $750.00 child support is limited to the amount prayed for. Friedman Iron & Supply Co. v. J.B. Beaird Co., 222 La. 627, 63 So.2d 144, (1953). We deem it reasonable to give Huey credit of $390.00 per month on the $750.00 per month child support award.

For the above and foregoing reasons, the award of permanent alimony is reversed and the judgment of the trial court is recast as follows:

It is now ordered that Huey Allen Lynch pay $750.00 in child support with future credit to Huey Allen Lynch of $390.00 per month to be deducted from such monthly payments;

It is further ordered that Huey Allen Lynch pay alimony pendente lite at the rate of $1,500.00 per month from date of judicial demand until date of signing of the trial court judgment, less credit to Huey Allen Lynch for the payments of the $390.00 per month house note during this period;

It is ordered that costs of the appeal be paid one-half (V2) by appellant and one-half (V2) by appellee.

Reversed in part; Amended in part, and Affirmed as Amended.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    M & A FARMS, LTD., Plaintiff-Appellee, v. TOWN OF VILLE PLATTE, et al., Defendant-Appellant.
    No. 82-321.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Fusilier, Pucheu & Soileau, A. Gaynor Soileau, Ville Platte, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Dubuisson & Dubuisson, Edward B. Du-buisson, Opelousas, J. Wendel Fusilier, Ville Platte, Guglielmo & Lopez, Peter Caviness, Opelousas, for defendant-appellee-appel-lant.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

M & A Farms, Ltd. (M & A) filed this suit against the Town of Ville Platte to recover damages for a trespass and for a mandatory injunction to correct the damage to a levee. The town answered and filed a third party demand for contract indemnification against Dodge Construction Company (Dodge), the town’s contractor on a construction project. Dodge in turn filed a third party demand based on negligence and/or fault against Paul N. Fontenot and/or Paul N. Fontenot, Inc., the engineer for the project, and his or its insurer. After trial on the merits, the district court rendered judgment in favor of M & A and against the Town of Ville Platte for damages totalling $7,033 plus $5 a day from the date of the trespass until the property is restored to its former condition, and also granted a mandatory injunction ordering the Town to restore the property to its former condition within 90 days from final judgment. The district court further granted judgment in favor of the Town of Ville Platte on its third party demand against Dodge, and also granted Dodge a judgment on its third party demand against Paul Fontenot and/or Paul Fontenot, Inc. and his or its insurer. The Town of Ville Platte, Dodge Construction Company, Paul Fontenot and/or Paul N. Fontenot, Inc. and the latter’s insurer have all appealed. M & A answered the appeal seeking an increase in the award of damages.

The facts of this case are relatively simple. The Town of Ville Platte employed Paul N. Fontenot to draw up plans and specifications for the resurfacing of certain streets and other related improvements. The contract also required that Paul N. Fontenot provide all engineering services for the project including the inspection and supervision of the construction. Dodge was awarded the construction contract. Under its contract Dodge was required to take orders and directions from the engineer.

Included in the construction project were plans for improvements along Hickory Street. The street for a distance of 986 feet bounded the northern side of property belonging to M & A. The plans provided for the construction of sidewalks on the south side of Hickory Street. The sidewalks were to be laid on M & A’s property. The town never obtained a written right of way from M & A.

A levee ran along the north edge of M & A’s property parallel to Hickory Street. The levee occupied the area designated by the construction plans for the building of the sidewalk. On October 10, 1979 Douglas Fontenot, the designated job site inspector for Paul N. Fontenot, instructed Dodge to level the levee and utilize the dirt to fill in the roadside ditch lying between the street and the levee. After this was done Clem Morein, the sole stockholder and president of M & A Farms, Ltd., discovered the equipment on his property and ordered the construction crew out. The sidewalk was never constructed and the present lawsuit followed.

The issues presented by these appeals are whether the trial court erred:

1) In finding that the town committed a trespass;
2) In the award of damages;
3) In issuing the mandatory injunction;
4) In finding Dodge liable under its contract with the town for damages;
5) In finding Paul Fontenot and/or Paul Fontenot, Inc. negligent and/or at fault in causing Dodge to trespass upon M & A’s property.

We will discuss these issues under the headings 1. Trespass, 2. Quantum, 3. The Mandatory Injunction, and 4. Ville Platte’s Third Party Demand.

TRESPASS

To constitute a trespass there must be an unlawful physical invasion of the property or possession of another. Gliptis v. Fifteen Oil Company, 204 La. 896, 16 So.2d 471 (La.1943); and Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir.1975).

Dodge’s construction crew bulldozed the levee down on direct orders from Douglas Fontenot, the on-the-job inspector for the Town’s engineer. The Town had a right of way for Hickory Street but the levee was outside this right of way. Although the needed right of way had been discussed with Clem Morein, M & A’s president and the sole stockholder, none was ever granted. The trial court was correct in finding that the entry onto plaintiff’s property constituted an actionable trespass.

Likewise, the trial court was correct in concluding that the Town was vicariously liable for the actions of its engineer and the latter’s employees since they were hired to supervise and direct the job, and were acting for the Town when they ordered the trespass. La.Civ.Code art. 2320.

QUANTUM

The Town of Ville Platte complains that the damages awarded were neither proved nor authorized by law. The plaintiff answered the appeal seeking an increase.

The trial court awarded plaintiff $4,000 for the trespass, $3,000 for the property damage, $33 for the crop damage, and $5 a day for the continuing trespass.

In Louisiana only compensatory and not punitive or exemplary damages are recoverable for injury done to property. Bentley v. Industrial Fire Protection Company, 338 So.2d 1177 (La.App. 2nd Cir.1976). In the assessment of damages arising out of trespass the trial court has much discretion, but the damage must be certain and the discretion exercised only to the extent of the damage and ascertained from all the facts and circumstances. Ibid.

In the present case the plaintiff showed that it suffered property damage by the destruction and removal of the levee. The levee was 986 feet long, approximately two to three feet high and four to five feet wide. This dirt was taken off M & A’s property and used to fill the ditch within the Town’s right of way. We cannot say that the trial court abused its discretion in awarding $3,000 for this damage to plaintiff’s property, and find that award to be appropriate.

The same observation can be made regarding the award of $33 for the damage to the bean crop.

The $4,000 award for the trespass was evidently intended by the trial court as an award for mental anguish suffered as a result of the trespass, since no other damages may be inferred from the acts. We find the trial court erred in this award. Plaintiff is a corporation. A corporate plaintiff cannot experience mental anguish. See Wendorf v. Corley, 394 So.2d 1252 (La.App. 3rd Cir.1980).

We also find that the trial court erred in awarding $5 a day from the date of the trespass until the property is returned to its former condition. The trespass in this case did not constitute a continuing trespass.

A continuing trespass occurs where the defendant erects a structure or places an object upon the land of the plaintiff and fails to remove it. The trespass continues as long as the offending object remains on the premises, and the trespass is terminated only by the removal of the object wrongfully placed there. Joseph A. Neyrey, General Contractor v. Louisiana Power & Light, 347 So.2d 266 (La.App. 4th Cir.1977). See also Prosser, The Law of Torts, § 13, p. 74-75 (4th ed. 1971).

In the present case no object or structure was erected upon the plaintiff’s property. The employees of Dodge left the property when asked by Mr. Morein before the construction of the sidewalk. Under these circumstances the trial court erred in finding a continuing trespass.

THE MANDATORY INJUNCTION

In considering whether the trial court erred in granting a mandatory injunction ordering the Town of Ville Platte to restore plaintiff’s property to its original condition, the Town argues that the plaintiff failed to show irreparable injury justifying such an injunction. We agree.

Under LSA-C.C.P. art. 3601 an injunction should issue only where the party is threatened with irreparable loss or injury without an adequate remedy at law. Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir.1975). “Irreparable injury justifying an injunction is that which cannot be adequately compensated in damages, for which damages cannot be compensable in money, ...” Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (La.1969).

In the present case the plaintiff was awarded $3,033 for the damages to its property. This award fully compensated the plaintiff for its damage and the issuance of the mandatory injunction was therefore improper.

VILLE PLATTE’S THIRD PARTY DEMAND

As stated earlier, we agree with the trial court that the Town is liable for the trespass. We now turn to a consideration of the Town’s third party demand against Dodge Construction Company. The Town alleged that under its contract with Dodge, Dodge is responsible for any damages to personal property.

Under § 1D.55 of the contract Dodge agreed not to “enter upon private property for any purpose without first obtaining permission from the owners and lessees” and that “the contractor shall be responsible for the preservation ... of all private property”. However, we do not regard these provisions as conferring upon the Town the right to seek indemnification from Dodge for damages caused by the negligence of the Town’s employee.

In the present ease Sidney Fontenot, the President of Dodge Construction, testified that Paul Fontenot, the Town’s engineer, had told him to proceed with the east end of Hickory Street because of right of way problems on the other end. He testified that he was never told of right of way problems with the portion of the street fronting the property of M&A. He knew he was to take orders from the engineer and to follow the plans and specifications drawn up by the engineer. The contract itself is explicit in this regard, providing that the “engineer shall give all orders and directions contemplated under this contract and specifications relative to the execution of the work”. The undisputed testimony reveals that Dodge was given plans and specifications calling for a sidewalk to be built where the levee was, and that Douglas Fontenot, the on-the-job inspector specifically instructed Dodge to level the levee and move the dirt into the ditch.

Under these circumstances we do not find any fault or negligence on the part of Dodge Construction Company which caused the trespass. The trespass was caused by the negligence of Douglas Fontenot in giving the order to tear down the levee and/or Paul Fontenot in failing to advise Douglas and Dodge of the right of way problem. Paul N. Fontenot, Inc. was employed by the Town to oversee the project. The contract does not provide for the indemnification against damage resulting from the negligent acts of Paul N. Fontenot, Inc. and/or Paul N. Fontenot. We interpret the provision to provide indemnification only for damage to personal property caused by the negligence and/or fault of Dodge. For this reason we find the trial court committed manifest error in awarding the Town of Ville Platte judgment in favor of Dodge Construction Company based upon the third party demand.

Since we have concluded that the Town’s third party demand should have been dismissed, we need not consider Dodge’s third party demand against Paul N. Fontenot, Inc. and/or Paul Fontenot. La.C.C.P. article 1111 et seq.

For the reasons assigned, the judgment in favor of M&A Farms, Ltd. against the Town of Ville Platte in the sum of $7,033 plus $5 a day for the continuing trespass is hereby amended to a judgment in favor of M&A Farms, Ltd. against the Town of Ville Platte in the sum of $3,033. The issuance of the mandatory injunction in favor of the plaintiff against the Town of Ville Platte is hereby reversed and set aside. The judgment in favor of the Town of Ville Platte as to its third party demand against Dodge Construction Company is hereby reversed and set aside, and judgment is hereby entered in favor of Dodge Construction Company against the Town of Ville Platte dismissing the action. The judgment against Paul Fontenot, and/or Paul N. Fontenot, Inc., and their insurer on the third party demand of Dodge Construction Company is reversed and set aside. The Town of Ville Platte will pay all costs of both trial, and appeal.

AMENDED AND AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . This is not a proper situation where injunc-tive relief under LSA-C.C.P. art. 3663 is applicable. Such relief is granted to protect the possession of one’s property from trespassers. See Elliott v. Louisiana Intrastate Gas Corporation, 336 So.2d 925 (La.App. 3rd Cir.1976); and § b of the Official Revision Comments to LSA-C.C.P. art. 3663. In the present case the trespass is no longer continuing as in Elliott, supra.


text:
    Allen MITCHELL, Plaintiff-Appellant, v. Lawrence J. POULLARD, et al., Defendants-Appellees.
    No. 82-324.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Preston N. Aucoin and Gilbert Wayne Aucoin, Ville Platte, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, James L. Pate, Davidson, Meaux, Sonnier, McElligott, Richard C. Meaux, Jeansonne, Gibbens, Blackwell & Briney, Owen M. Goudelocke, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   YELVERTON, Judge.

This is an appeal from the dismissal of plaintiffs suit for personal injuries resulting from a collision at an unmarked intersection just outside the city limits of Eunice, Louisiana.

The accident happened on November 24, 1979, late in the afternoon about two and a half blocks from plaintiff’s house as he was driving home from work. Plaintiff, alone in his car, was traveling east and a three ton truck driven by Lawrence Poullard and owned by his employer, South Louisiana Contractors, Inc., (SOLOCO) was traveling north. Neither vehicle stopped at the intersection and the truck hit plaintiff’s car on the right front and side.

The intersecting streets were maintained by the Parish of St. Landry.

Plaintiff sued the driver of the truck, Poullard, his employer, SOLOCO, and the Parish of St. Landry.

The trial court found that plaintiff was familiar with the intersection, knew that it was an unmarked intersection, and that his entry into it under the circumstances was negligent. The trial court found the driver of the SOLOCO truck also negligent, but that plaintiff’s negligence barred his recovery from any defendant.

A trial court’s conclusions of fact and evaluation of credibility of witnesses must be given great weight and should not be disturbed unless clearly wrong.

Plaintiff was familiar with the intersection. For the previous three or four weeks he had crossed it twice daily going to and from work. The driver of the SOLOCO truck was also familiar with the intersection. The area was residential. This was a local neighborhood intersection. There were no signs or traffic lights. There were some trees and hedges near the intersection which prevented a driver going east and one going north from seeing each other until they were very near the crossing. Plaintiff testified that he looked to his right before he reached the trees and hedges and saw nothing approaching. He then looked to his left and did not look to his right again until he was in the intersection.

All of the roads were blacktopped except a portion of the north-south road which was gravel north of the intersection. The gravel road goes north to a state highway. Plaintiff testified he thought his was the favored street since all of it was blacktopped. This difference in road surface did not dignify the all-blacktop road as having the right of way. Nor did it justify plaintiff in disregarding the known fact that the intersection was unmarked.

Plaintiff admitted that he knew that a driver is required to yield to traffic on the right when approaching an unmarked intersection.

A motorist who approaches an uncontrolled intersection with a street of equal dignity has the duty to determine that he can cross safely before proceeding into the intersection. Pepitone v. State Farm Mutual Automobile Ins. Co., 369 So.2d 267 (La.App. 4th Cir.1979); Zemo v. Louviere, 349 So.2d 420 (La.App. 4th Cir.1977); Peterman v. City of Hammond, 378 So.2d 181 (La.App. 1st Cir.1979). The trial court found that plaintiff breached his duty of reasonable care since he crossed the intersection before determining that it was safe to do so. We observe also that plaintiff breached the duty established by La. R.S. 32:121 A which states: “When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.”

We conclude under these circumstances that the trial court correctly found that plaintiff was negligent.

Plaintiff contends that, notwithstanding his own (or the other driver’s) intervening or later negligence, St. Landry Parish had a duty to mark the intersection and that the failure to do so was a cause in fact of the accident and a breach of the police jury’s duty to protect him against the very risk encountered. We disagree.

What prevents finding a causal relationship and a duty owed by the police jury is that both drivers were thoroughly familiar with the intersection and knew that it was unmarked. Neither could reasonably believe he had an unqualified right of way. Under such circumstances it has been held that the alleged breach of a duty to post traffic signs was not the cause in fact of the intersectional collision between two cars. Carmouche v. State Department of Highways, 360 So.2d 1374 (La.App. 3rd Cir.1978); Pepitone v. State Farm Mutual Automobile Insurance Co., supra; Peterman v. City of Hammond, supra.

Also, even if we assume that the police jury had a duty to post signs at this particular intersection and that the failure to do so rendered the intersection defective, the duty does not protect a motorist against a defect of which he has knowledge and a reasonable opportunity to avoid. Sinitiere v. LaVergne, 391 So.2d 821 (La.1980). We conclude that the parish was under no duty to protect this plaintiff from the risk which gave rise to his injuries, because he had knowledge of the risk and a reasonable opportunity to avoid it.

Plaintiff’s final complaint of error is that the trial court should have found he preempted the intersection and can therefore recover from the SOLOCO parties. The evidence reflects that he did not preempt the intersection. Entry into an intersection at the same time or just a fraction ahead of the other vehicle does not constitute a preemption of the crossing. Abshire v. Southern Farm Bureau Casualty Ins., 346 So.2d 1354 (La.App. 3rd Cir.1977).

For the reasons assigned, the judgment dismissing plaintiff’s suit is affirmed at plaintiff’s costs.

AFFIRMED.


author: LABORDE, Judge.

text:
    Eddie GUIDRY, et al., Plaintiff-Appellant, v. Helena Trahan GUIDRY, Defendant-Appellee.
    No. 82-325.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Olivier & Brinkhaus, John L. Olivier, Sunset, for plaintiff-appellant.
    Boagni & Boagni, C.F. Boagni, Jr., & Chas. F. Boagni, III, Opelousas, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

The appellants, Eddie Guidry, Lelia Gui-dry Menard, Ethel Guidry Guilbeau, Sidney P. Guidry and Curbs A. Guidry, have devol-utively appealed a judgment of the trial court appointing Letty Guidry Lagrange as curator and Tony James Lagrange as un-dercurator of Helena Trahan Guidry. We dismiss the appeal ex proprio motu as being untimely filed.

The judgment of the trial court appointing the curator and undercurator was signed on February 24, 1982. No application for a new trial was filed. The appeal was perfected on April 20, 1982.

LSA-C.C.P. Art. 4548 provides that an appeal from a judgment appointing or removing a curator or undercurator, or a judgment revoking a judgment of interdiction, can be taken only within thirty days from the applicable date provided in LSA-C.C.P. Art. 2087(1) — (3). LSA-C.C.P. Art. 2087(1) provides that where a new trial is not timely applied for, the 30 days to appeal begin to run from the expiration of the delay for applying for a new trial. The delay for applying for a new trial is seven days, exclusive of legal holidays, commencing to run on the day after the judgment is signed, unless notice of judgment is required under LSA-C.C.P. Art. 1913. LSA-C.C.P. Art. 1974. Where a case is not taken under advisement and no written request for notice of judgment is filed, notice of judgment is not required. LSA-C.C.P. Art. 1913; Interstate Elec. Co., Inc. v. Holmes, 350 So.2d 995, (La.App. 3rd Cir.1977).

Since this appeal involved the appointment of a curator, we hold that the thirty (30) days for an appeal must govern. The instant case was not taken under advisement, nor was notice of judgment requested by either party. The appellants did not apply for a new trial. Therefore, the thirty (30) day delay for taking this appeal commenced to run on March 6, 1982, the day after the expiration of the delay for applying for a new trial. Thus, the last day for perfecting this appeal was April 4, 1982. Clearly, the motion for this appeal, filed on April 20, 1982, was untimely.

For the above and foregoing reasons, this appeal is dismissed at appellants’ cost.

APPEAL DISMISSED.

      . A weekend falls within the delay for a new trial and is not used to compute that delay.


author: YELYERTON, Judge.

text:
    Barbara BARBRE, Plaintiff-Appellee, v. James Milton BROWN, Jr., et al., Defendants-Appellants.
    No. 82-326.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Hunt, Godwin, Painter & Roddy, Thomas Lorenzi, Lake Charles, for plaintiff-appel-lee.
    Dale M. Maas, Baton Rouge, for third party defendant-appellant.
    Plauche, Smith & Nieset, A. Lane Plauche, Lake Charles, for third party defendant-appellee.
    Gerald J. Casey, Lake Charles, for defendants-appellees.

      Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELYERTON, Judge.

The issue here is whether the trial court was correct in dismissing a third party demand upon the third party defendant’s exception of no cause of action. We conclude that the trial court was correct and we affirm.

The principal demand is a suit in quanti minoris brought by the purchaser of a residence against the sellers. It is based upon alleged termite damage discovered shortly after the sale. The principal demand seeks reduction of the purchase price by the amount required to repair this damage.

The following activity then occurred in the third party arena. The defendants-sellers filed a third party demand against Stanley McKenzie, d/b/a McKenzie Pest Control, alleging they paid for an inspection (and treatment against future termites) and that McKenzie certified to FHA and also to the sellers and the buyer that the house was free of termites. The sellers accordingly demanded recovery from McKenzie for any amount for which they might be found liable to the purchaser.

The next pleading was the third party demand which is the subject matter of this appeal. McKenzie Pest Control sued Abel-man and Associates, Realtors. The allegations forming the basis for this demand (the only allegations we are permitted to consider in testing whether a cause of action is stated) are here quoted:

“18.
Made third party defendant herein is Ableman’s [sic] and Associates realtors.
“19.
In April, 1979, third party plaintiff was contacted by an individual employed by third party defendant Abelman and Associates with respect to the inspection and treatment of a house located at 716 West Hale Street in Lake Charles, Louisiana.
“20.
After an individual with the third party plaintiff had gone to the house and found that there was a great deal of water underneath the house, such information was relayed to third party defendant.
“21.
Third party plaintiff did not see any sign of termite damage but did find some dry rot or wood rot damage and never found any active infestation.
“22.
On information and belief, your third party plaintiff states that third party defendant Ableman and Associates had full information as to the nature of inspection and treatment and that if there was any damage to the house, this was well within the knowledge of Ableman and Associates and that said third party defendants failed to properly inform the parties to the act of sale of such situation, if such situation did actually exist.
“23.
Therefore, if liability should be found against third party plaintiff, Stanley McKenzie d/b/a McKenzie Pest Control, then said third party plaintiff should be held harmless and indemnified by third party defendant for the full amount of any judgment that may be cast, and for all interest, costs, and attorneys fees.”

We agree with the trial court that this third party petition does not state a cause of action by McKenzie Pest Control against Abelman and Associates. The demand filed by McKenzie is a demand against a third party. The procedure and requirements for institution of such demand are embodied in Code of Civil Procedure Articles 1111 et seq. In order to state a cause of action for relief against a third party under C.C.P. art. 1111, the defendant in the principal action, or third party action, must allege facts showing that such third party is a warrantor or that such party is liable to him for all or part of the principal demand. Toledo Bend Proprietors v. Sabine River Authority, 395 So.2d 429 (La.App. 3rd Cir.1981), writ denied 400 So.2d 903 (La.1981).

In his third party demand McKenzie does not allege any facts showing that Abelman is his warrantor or that Abelman is liable to him for all or part of the principal demand. There is no allegation that there was a contract between McKenzie and Abelman. There is no allegation on which any conceivable contractual obligation can be discerned which might make Abelman responsible for the incompleteness or inaccuracy of McKenzie’s inspection.

Nor is a cause of action stated in tort. If McKenzie is ultimately found responsible to the sellers, based on this third party petition it will not be because of something Abelman did or did not do. There are no facts pleaded on which Abel-man can be blamed if the inspection was incomplete or inaccurate. Abelman owed no duty to McKenzie to protect him from damages resulting from his own wrongdoing. If, as is intimated in the pleadings and in appellant’s brief, the execution of the negative termite certificate was done without an inspection but in anticipation that one would be made later and that it would be negative for termites, and that both McKenzie and Abelman had knowledge'of this, then it might be said that both these parties had a duty to inform the sellers and the purchaser before the sale. However, if that was the case, then the duties were independently owed by these parties, and while the discharge of its duty by one would have enured to the benefit of the other, the neglect of the discharge by one did not free the other of his obligation.

Appellant relies on former La.R.S. 37:1447 which, as interpreted by Guidry v. Barras, 368 So.2d 1129 (La.App. 3rd Cir. 1979), provided a statutory cause of action against a real estate broker, in favor of either the seller or the buyer, for damages caused by any wrongful act or by any fraud or misrepresentation by the broker or his salesman. We need not concern ourselves with whether the duty created by that statute might extend to a third person such as McKenzie here, because we note that R.S. 37:1447 no longer exists. By Act 514 of 1978 the Legislature amended and re-enacted certain statutes relating to realtors and R.S. 37:1447 was omitted in its entirety.

We have considered this third party petition in light of the liberal interpretation we are required to give it. LSA-C.C.P. Article 865. Monies Lumber Company, Inc. v. Village DuLac, Inc., 399 So.2d 747 (La.App. 3rd Cir.1981). Because appellant complains on appeal that he should have been allowed to amend his petition to state a cause of action, we have carefully considered the arguments made in his appellate brief concerning matters which do not appear in the third party petition, to determine whether the grounds of the objection pleaded by the exception of no cause of action could be removed by amendment, as provided by LSA-C.C.P. Article 934. We have reached the conclusion that the grounds cannot be removed by amendment.

For the above reasons, the judgment of the trial court dismissing third party plaintiff’s demands is affirmed. Costs of this appeal are to be paid by appellant.

AFFIRMED.


text:
    Louis Allen CORMIER, Plaintiff-Appellant, v. Mary Trixie CORMIER, Defendant-Appellee.
    No. 82-357.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Edwards, Stefanski & Barousse, Stephen A. Stefanski, Crowley, for plaintiff-appellant.
    Norwood M. Lyons, Crowley, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

This appeal arises out of appellant’s, Louis Allen Cormier, suit to decrease or in the alternative to terminate alimony payments to the appellee, Mary Trixie Cormier. The trial court reduced the amount of alimony from $300.00 per month to $200.00 per month but refused to terminate alimony payments. The issue on appeal is whether the trial court erred in its denial of termination considering the circumstances of Mary and the provisions of Act 72 of 1979 amending LSA-C.C. Art. 160, requiring the court to consider Mary’s earning capacity in making the award. From our review of the record, we conclude that the trial judge did not abuse his discretion in reducing the alimony payments. Hence, we affirm.

The litigants were divorced by judgment of court dated October 26, 1972. The judgment of divorce ordered Louis to pay $300.00 per month in alimony to Mary. Mary is a 50-year old female with a 7th grade education who has never worked and who has no formal training. Her assets consist of a house obtained in the community settlement valued at $50,000.00, a 1978 Mark IV, $1,000.00 in a checking account and a money market certificate valued at $20,542.34. Her only sources of income are the alimony payments in the amount of $300.00 per month and the interest on her money market certificate.

Louis’ contention on appeal is that his wife, Mary, should be required to seek employment before demanding alimony and that she has failed to prove she is unable to work. Under Louisiana jurisprudence and statutory law the wife must be without fault and without sufficient means for her maintenance in order to be eligible for post-divorce alimony. LSA-C.C. Art. 160. When considering whether a spouse’s means are sufficient to support her needs, the court must look to the income and property of the spouse requesting alimony before making its determination. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950); White v. White, 356 So.2d 1023 (La.App. 1st Cir. 1977). In Ward v. Ward, 339 So.2d 839 (La.1976), which was decided prior to the 1979 amendment to LSA-C.C. Art. 160, the Supreme Court held that earning capacity alone does not fall within the definition of “means” in Article 160. The second paragraph of LSA-C.C. Art. 160 as amended states:

“In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.”

This article as amended does not require the denial of permanent alimony where the spouse is apparently capable of employment, it only lists earning capacity as a consideration to be made in determining an alimony award. Super v. Super, 397 So.2d 1084, (La.App. 4th Cir.1981). Under the provisions of LSA-C.C. Art. 160, the trial court must look at the totality of the circumstances concerning both parties in deciding whether alimony is due and the amount thereof. Brossette v. Brossette, 396 So.2d 369 (La.App. 1st Cir.1981). In our review of the jurisprudence and LSA-C.C. Art. 160, we conclude, a spouse may have earning capacity but still not have sufficient means for his or her support. Earning capacity is one of many factors that must be considered by the court in determining if alimony is due. Therefore, we conclude that a spouse who is unemployed can be awarded alimony without first being required to seek employment.

The trial court came to a conclusion regarding the earning capacity of Mary. In its written reasons for judgment the court stated it would not find Mary presently, absent any training, capable of employment. This conclusion was based on the court’s finding that Mary had no marketable skills, no work experience and a limited education. An award of alimony will not be disturbed on appeal in absence of clear showing of an abuse of discretion. Lovell v. Lovell, 386 So.2d 1063 (La.App. 3rd Cir. 1980). Reviewing the totality of the circumstances concerning both parties, we find no abuse of the trial.court’s discretion.

Accordingly, the judgment is affirmed at appellant’s, Louis Cormier, cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    SUCCESSION OF Eddie DESHOTELS. Darrell ABSHIRE, et al., Plaintiffs-Appellants, v. Connie Courville LeMAIRE, Defendant-Appellee.
    No. 82-386.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Marcantel & Marcantel, David Emile Marcantel, Jennings, for plaintiffs-appellants.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, C.A. King, II, Lake Charles, for defendant-appellee.

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

This appeal presents the issue of whether Eddie Deshotels, deceased, possessed the mental capacity to confect a last will and testament.

Eddie Deshotels died June 22, 1981, in Calcasieu Parish. His wife, Edna, predeceased him, having died on January 10, 1981. During the 1950’s Eddie and his wife had confected reciprocal wills wherein they, each willed their property to the other. As a result of the death of his wife, Eddie’s prior will became ineffective since he had willed his property to her. If he had not made another will, all the property would be inherited by his collateral heirs since Eddie and Edna had no surviving descendants or ascendants. Eddie confected a new will dated January 13,1981, before a notary and three witnesses. This will bequeathed one-half of the property to the heirs of Eddie and one-half to the heirs of Edna.

This will was submitted for probate and Connie LeMaire was appointed executrix of the successions. Opposition to the probate was filed by a number of heirs of Eddie Deshotels. Made defendants were the executrix and the heirs of Edna Deshotels. The plaintiffs’ contention was that Eddie was not mentally competent to confect a will on January 13,1981. After trial on the merits, the trial court rendered judgment dismissing plaintiffs’ suit at their cost. Plaintiffs appeal. We affirm.

The general principles applicable to the issue of mental competency of a testator are set forth in the case of Succession of Collins v. Hebert, 377 So.2d 516, 519 (La. App. 3rd Cir.1979), writ den., 379 So.2d 15 (La.1980), as follows:

“It is well settled that testamentary capacity is always presumed, unless the contrary is proven. Succession of Zinsel, 360 So.2d 587 (La.App. 4th Cir.1978), writ denied 363 So.2d 72 (La.1978); Succession of Patterson, 329 So.2d 925 (La.App. 2nd Cir.1976), writ denied 334 So.2d 231 (La.1976); Succession of Bush, 292 So.2d 915 (La.App. 1st Cir.1974), writ denied 294 So.2d 837 (La.1974); Guidry v. Hardy, 254 So.2d 675 (La.App. 3rd Cir.1971), writ denied 260 La. 454, 256 So.2d 441 (1972).
“The party alleging lack of testamentary capacity at the time the will was executed bears the burden of proof. Succession of Zinsel, supra; Succession of Gumbel, 333 So.2d 340 (La.App. 4th Cir.1976), writ denied 338 So.2d 111 (La.1976); Succession of Bush, supra. The degree of proof required to overcome the presumption of testamentary capacity is similar to that required to rebut the presumption of innocence which the law creates in favor of the accused in criminal cases. Succession of Patterson, supra; Guidry v. Hardy, supra; Succession of Bush, supra.”

With these principles in mind we examine the testimony in order to determine whether the trial judge was clearly wrong in his factual conclusions.

At the time of his death, Deshotels was adversely affected by medical problems that are not unusual for elderly people. The record does not disclose his age but the trial judge concluded that he was in his late eighties.

Dr. David Buttross had been treating Deshotels since the early 1970’s for a heart condition and for a neurological problem that affected his ability to walk. On November 21, 1980, Dr. Buttross admitted him to the hospital in Lake Charles after he complained of headaches, a slurring of speech and nausea. Dr. Buttross stated that Deshotels was confused when he was hospitalized due to his having suffered a stroke. Dr. Buttross testified that Desho-tels began to improve while hospitalized and was discharged on December 9, 1980. This was the last time Dr. Buttross saw Deshotels until a few days before his death on June 22, 1981.

Amos Deshotels, a brother of the deceased, and a party-plaintiff, testified that he spent two weeks in Lake Charles in November and December 1980. Amos was a resident of New Jersey. He visited Desh-otels in the hospital several times. He testified that Deshotels did not recognize him and was unable to hold any conversation. The only thing that Eddie would talk about was those events that happened in the distant past. Amos returned to New Jersey after his two week visit. He returned to Lake Charles on January 24,1981, and upon visiting deceased, he stated that he found the same condition he had seen in December 1980.

Harry Deshotels of Jennings, Louisiana, an uncle of deceased and a party-plaintiff, stated that he saw deceased in the hospital on one occasion and again at home on January 17, 1981. He stated that Eddie was unable to hold any conversation and that Eddie did not recognize him. The testimony of plaintiffs’ other witnesses was substantially the same as that given by Harry Deshotels; i.e., they visited the deceased on two or three occasions, both in the hospital and at home, and found that deceased did not recognize them and was not able to hold a conversation.

Testifying on behalf of the defendants was a nurse, Rose Dougay, who attended to Deshotels for the last seven months of his life; Paul Palmer, the attorney who prepared the will; his secretary; Harold Mires, a certified public accountant who had prepared Deshotel’s income tax for several years and who witnessed the confection of the will, and Connie LeMaire, who had attended to Deshotel’s business for several months prior to his death.

Rose Dougay was employed to care for Deshotels beginning in November 1980 until his death in June 1981. She worked from 5:30 A.M. until 5:30 P.M. six days per week. She stated that after his initial stroke, his speech was slurred but that he understood what was going on. He would converse with her. He would respond to questions. She stated, for instance, that each day he told her what he wanted to eat each meal. She listened to the conversation between him and Paul Palmer on the day that the will was confected. She heard the attorney explain the effect of the death of Deshotel’s wife insofar as the inheritance of his property. She heard Deshotels say emphatically that he did not want his heirs to inherit all his property but that he wanted to divide the property between his heirs and those of his deceased wife. This witness stated that Deshotels experienced some days when he was not as responsive as he was on others, but he was responsive and rational a majority of the time.

Harold Mires, a certified public accountant, testified that Deshotels was on the board of directors of the Vinton Co-op Dryer. He had prepared Deshotels’ tax return each year since 1953. Mires spoke French which was the native tongue of Deshotels. Deshotels could speak English but preferred the French language whenever possible. He accompanied Paul Palmer to the home of Deshotels. They first went there to find out how Deshotels wanted to dispose of his property in his will. This witness testified as follows:

“Q. And the first visit was for what purpose?
“A. The first visit was to gather the information as to what he wanted in his will.
“Q. And on that first visit, do you recall him speaking to you about what he wanted?
“A. Yes.
“Q. And what did he tell you that he wanted?
“A. As I recall, he wanted his wife’s family to share in one-half of what he died possessed of....
“Q. So, on the first visit on January the ISth, you held a discussion with him concerning his desires and his wishes with respect to his estate.
“A. That’s correct.”

After the will had been prepared Mires accompanied Paul Palmer to the home of deceased for the confection of the will. His testimony in this regard reads as follows:

“Q. Were you present when the will . was read aloud?
“A. Yes.
“Q. And were you handed a copy of the will?
“A. Right.
“Q. And you read along with .. .
“A. Along with Mr. Palmer, and after it was read, I asked him if he fully understood it.
“Q. You asked him?
“A. I asked him that. Mr. Palmer asked him also.
“Q. And what was his response?
“A. And he said he did, and he said he wanted — that was what he wanted. Half of what was his was for his wife’s family. He was very definite about that.
“Q. Mr. Mires, do you stand to receive anything from this succession? Are you named as an heir or legatee, to your knowledge?
“A. No, I am not.”

Paul Palmer, an attorney practicing with the firm of Camp, Carmouche, Palmer, Barsh & Hunter, testified that on January 12, 1981, Connie LeMaire, a great niece of Deshotels, came to his office and informed him that Edna Deshotels had died and had left a will that had been prepared by Mr. John Camp, his partner. She wanted Palmer to handle the succession of Edna Desho-tels. Palmer was also told that Eddie Desh-otels was bedridden and would want to discuss the disposition of the property with him.

On the morning of January 13, 1981, Palmer visited the home of Eddie Deshotels along with Harold Mires. Connie LeMaire had found the prior reciprocal wills made by Eddie and Edna Deshotels. Palmer examined the wills and explained to Deshotels the consequences of the death of his wife. He stated that Deshotels made it clear to him that he wanted the property, upon his death, to be divided one-half to his heirs and one-half to his wife’s heirs. Palmer went back to his office and prepared the will, and at 1:30 P.M. he, along with his secretary and Mires, went back to Desho-tels’ home to execute the will. Palmer read the will to Deshotels and Deshotels confirmed that the will contained the dispositions that he desired. Palmer stated that, as a result of the conversations with Desho-tels, there was no question in his mind that Deshotels knew what he was doing and did what he wanted to do.

The testimony of the remaining witnesses corroborated the testimony of Mires, Rose Dougay and Palmer as to the mental competency of Deshotels to confect the will.

The trial court rendered written reasons for judgment which concluded as follows:

“The court is satisfied that Mr. Desho-tels clearly understood, on the date of this will, what would happen with his property, including that portion coming to him as a result of the death of his wife, at the time of his death if he did not make a new will, and that he emphatically expressed his intention that it not be inherited entirely by his ‘side’ of the family. On at least two (2) occasions on January 13,1981, he made it clear that he intended that one-half (V2) of it go to his wife’s ‘side’ of the family.
“It may well be true that on some days Mr. Deshotels either could not or would not communicate with visitors, but whether this was due to inability or simply despression because of his state one may only speculate. The court is not permitted to speculate; it may only rule upon clear and convincing evidence.
“The court determines, based upon all the testimony and evidence, the credibility of the witnesses and the applicable law, that the presumption of sanity has not been overcome in this case. Decedent may possibly, at the most, have been classified as furious but certainly the proof is insufficient to classify him as mente cap-tas. He was sane at the time of planning and executing his will of January 13, 1981; he understood the nature of his act and its consequences, specifically who was to inherit his properties. It will be ordered that the demands of plaintiffs to annul the testament be rejected at their cost.”

The record fully supports the factual findings of the trial judge. The findings of the trial judge will not be disturbed on appeal unless they are manifestly erroneous. We find no such error by the trial court. The trial court judgment will be affirmed.

For these reasons the judgment of the trial court is affirmed. Plaintiffs-appellants are to pay the costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Dave GAUTREAUX, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY and Martin & Sons Builders, Inc., Defendants-Appellees.
    No. 82-418.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Harold L. Savoie, Lafayette, for plaintiff-appellant.
    Gachassin & Capretz, Nicholas Gachassin, Jr. and Shepton Hunter, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

Plaintiff, Dave Gautreaux, a construction worker in his forties, was injured while employed by Martin & Sons, Inc., and subsequently sought permanent disability benefits from his employer’s worker’s compensation carrier, United States Fidelity & Guaranty Company, who denied same. From an adverse judgment in the trial court, plaintiff appeals.

The sole issue on appeal is whether the trial judge erred in finding plaintiff had not proven permanent disability. We affirm.

Plaintiff was removing composition paper roofing -with a shovel on May 17, 1979 at defendant’s work site when he fell from the roof injuring himself. Plaintiff attempted returning to work the following day however, neck pain prevented his continued return. Accordingly, plaintiff visited Dr. John Guidry on May 19,1978 and was given some injections and medications and X-rays were taken at the time. Lymph nodes, muscles, and tendons of the neck were found to be inflamed. Thereafter, on May 29, 1978, plaintiff was admitted to Our Lady of Lourdes Hospital in Lafayette where he was tentatively diagnosed as possibly having a herniated disc. He remained there until June 8, 1978. Dave Gautreaux was re-admitted to the hospital on June 29, 1978 where he remained until July 3, 1978. He complained of progressively increased back pain and radicular pain in the lower extremities associated with increased temperatures.

On August 3, 1978, Dr. James McDaniel, treating physician during plaintiff’s hospitalization, received the results of EMG and nerve conduction studies. No objective basis for the neck and back pain appeared.

Dr. McDaniel last saw plaintiff in March of 1980, at which time he noted that he could not find any orthopedic or neurologic abnormality such as would prevent his return to work.

The findings of Dr. Ricardo Leoni, a neurosurgeon, were, likewise, essentially negative.

Three months following his visit to Dr. Leoni, plaintiff was seen by Dr. William Meuleman, an orthopedic surgeon, at the request of defendant-insurer on November 30, 1978. From an orthopedic standpoint, Dr. Meuleman could offer plaintiff nothing.

United States Fidelity & Guaranty Company, after receiving opinions from the various doctors, decided to terminate workmen’s compensation benefits previously paid effective May, 1979.

In August of 1980 plaintiff was referred by one of his treating physicians to Dr. Thomas Flynn, an orthopedic surgeon practicing in Baton Rouge. Dr. Flynn found no disability. Also in August, plaintiff was evaluated by Dr. Giles Morin, a psychiatrist who noted no traumatic neurosis.

Dr. Guidry, a general practitioner who first saw plaintiff, considered Gautreaux’s subjective complaints credible but could not ascertain any objective proof in support thereof. Roosevelt Savoy, Doctor of Chiropractics, stated that he had seen Gautreaux and believed he was suffering from a traumatic cervical sprain and mid-thoracic sprain. Savoy considered plaintiff to be totally disabled.

Appellant’s assignment of error is, at best, ambiguous, to wit: “The Honorable Judge erred here. He failed to consider the lay testimony of Mrs. Gautreaux completely, the testimony of the plaintiff, and he totally disregarded the testimony of Dr. Guidry and Savoy.”

In a workmen’s compensation suit the plaintiff must prove the fact of disability by a preponderance of evidence. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); West v. Belden Corp., 396 So.2d 1004 (La.App. 3rd Cir.1981). An employee is not disabled solely because he suffers some residual pain or discomfort when attempting to work. Dusang v. Henry C. Beck Builders, Inc., supra. Whether the plaintiff has sustained his burden of proving disability is an issue of fact to be decided on the basis of both medical and lay testimony. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). The credibility assigned by the trial judge to testimony in a workmen’s compensation proceeding is to be given great weight upon review. Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3rd Cir.1981). Accordingly, such determinations as to credibility will not be disturbed on appeal absent manifest error. We find no such manifest error here. Consequently, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: ISRAEL M. AUGUSTINE, Jr., Judge.

text:
    SUCCESSION OF Bernadette Wetmore, Wife of and Paul H. WETMORE.
    No. 13080.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 21, 1982.

      William M. Detweiler, New Orleans, for plaintiff-appellant.
    Plauche F. Villere, Jr., New Orleans, for defendant-appellee.
    Barry F. Viosca, Metairie, curator ad hoc, for minor.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   ISRAEL M. AUGUSTINE, Jr., Judge.

This is a contest for the custody and tutorship of Mark Allen Wetmore, a minor nine years of age. The applicants are Mrs. Wetmore, the paternal grandmother; Mrs. Sandra Whittaker, the paternal aunt; and Mrs. Charlotte Patten, a close friend of the Wetmores, who presently has physical custody of the minor child.

Mark Wetmore was adopted by Paul and Bernadette Wetmore when he was two weeks old, and was cared for by his parents until their death. Bernadette Wetmore died on August 23, 1980, apparently killed by her husband, Paul Wetmore, who later that day committed suicide. Paul Wetmore physically placed the child in the care of Mrs. Charlotte Patten shortly before he took his dwn life. In addition, he left a note indicating that Mrs. Patten should care for the child. On September 3, 1980, Mrs. Augusta Wetmore and Mrs. Sandra Whit-' taker, the appellants herein, filed proceedings seeking to be appointed co-administra-trices and co-provisional tutrices. The petition was granted the same day. Mrs. Patten opposed this appointment by filing a proceeding to name herself as tutrix; however, no action was ever taken on her petition. Although the appellants’ petition was granted, Mrs. Patten retained physical custody of the child. The appellants, thereafter, filed a petition for habeas corpus and custody. A curator ad hoc was appointed to represent the child individually.

After trial on the custody issue only, judgment was rendered in favor of Mrs. Charlotte Patten awarding visitation to the paternal grandmother. Mrs. Wetmore and Mrs. Whittaker have appealed.

Appellants argue that the trial court erred in awarding custody and tutorship of the child to a nonrelative when qualified relatives are available for appointment. We agree and, as a result, reverse the trial court.

Upon dissolution of marriage between mother and father, as in the death of one or both of the parents, a tutor must be appointed to care for the unemancipated child and his estate. C.C. Art. 246. There are four types of tutorships in Louisiana: (1) tutorship by nature, (2) tutorship by will, (3) tutorship by effect of law, and (4) dative tutorship. Each requires confirmation or appointment by the court and the applicant must qualify for office as required by law.

Each form of tutorship is invoked only in the absence of a candidate with a higher priority. Thus, when the categories of natural tutorship and tutorship by will produce no candidates to the court, or in the event that available candidates are disqualified or refuse to come forward, Civil Code Article 263 requires that, in appointing a tutor, the court look first to a close relative of the minor child before considering a stranger:

When a tutor has not been appointed to the minor by father or mother dying last, or if the tutor thus appointed has not been confirmed or has been excused, then the judge shall appoint to the tutorship, from among the qualified ascendants in the direct line, collaterals by blood within the third degree and the surviving spouse of the minor’s mother or father dying last, the person whose appointment is in the best interests of the minor. C.C. Art. 263.

Apparently the trial court interpreted the phrase “the person whose appointment is in the best interests of the minor” to mean any person whose appointment would be in the best interest of the child. We do not think this a correct analysis of the statute. Although the judge is obliged to consider “the best interests of the child,” such consideration cannot include the appointment of a stranger unless no qualified applicants exist within the categories of Art. 263.

In the present case, the paternal aunt and the paternal grandmother each sought to be appointed under Article 263. The record suggests that the child’s best interests would be better served by the appointment of the grandmother. Ms. Sandra Whittaker, the paternal aunt, testified that she is living with a man with whom she had no intentions of marriage. It has been held that such an atmosphere is not suited to the best interests of a child. Larroquette v. Larroquette, 293 So.2d 628 (La. App. 4th Cir.1974). We therefore find that between the two qualified applicants, Mrs. Augusta Wetmore’s appointment as tutor would be in the child’s best interest.

Mrs. Patten, the non-relative, could be appointed only upon the disqualification of Mrs. Wetmore as stated by C.C.P. Art. 4231. Disqualification is a matter of factual proof, whose burden rests with the party seeking to establish the disqualification. Mrs. Wetmore cannot, therefore, be rejected merely because another applicant is more favorably qualified. The record is absolutely devoid of any evidence which would render Mrs. Augusta Wetmore disqualified under the statute; therefore, the defendant-appellee failed to carry her burden of proof. It follows that the trial court erred in awarding the child to Ms. Patten.

We find that Mrs. Wetmore was not disqualified pursuant to C.C.P. Article 4231 and that her appointment as tutor would be in the best interest of the child. The judgment of the trial court awarding custody and tutorship to Mrs. Charlotte Patten is hereby reversed and awarded to Mrs. Augusta Wetmore, the paternal grandmother.

REVERSED.

      . In the present case we do not reach the question whether the note left by Mr. Wetmore constitutes an olographic will thereby appointing Ms. Patten as tutrix. Mrs. Charlotte Patten had not been confirmed by the court as required by Civil Code Article 248 and Article 263, even if we find that she had been appointed. As a result, the other provisions of Article 263 apply.


author: DOMENGEAUX, Judge.

text:
    S. Neal SIMMONS and Sammye Cooper Simmons, Plaintiffs-Appellees, v. D.V. TOLIVER, Defendant-Appellant.
    No. 82-256.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1982.
    Rehearing Denied Dec. 28, 1982.

      Griffing & Humble, George Griffing, Jonesville, for defendant-appellant.
    Smith, Taliaferro, Seibert, Boothe & Pur-vis, V. Russell Purvis, Jonesville, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

In this suit, plaintiffs seek to have established the boundary line between their property and that of the defendant. The parties own adjoining tracts of land in the northern portion of Catahoula Parish, Louisiana. Following institution of this suit, the trial court appointed James M. Hawkins, Jr., a registered land surveyor, to locate the ideal boundary between the respective properties of the parties. Mr. Hawkins conducted a survey pursuant to the court’s order and his “proces verbal of survey” was filed with the court together with a large scale drawing which reflects location of the ideal boundary between the properties of the parties and the topography of the area including fences, roads, etc. Neither of the parties question the accuracy of Hawkins’ location of the ideal boundary. However, defendant, by reconventional demand, claims that he acquired a portion of the Simmons’ property located east of the ideal boundary line by virtue of the running of thirty years acquisitive prescription. Specifically, defendant claims that his ownership extends east of the ideal boundary to a gravel road or “slide trail” which traverses the Simmons’ property in a north-south direction. He alleges that a fence located adjacent to such trail had been maintained by him and his ancestor-in-title, Mose Johnson, for a period in excess of thirty years. In his reconventional demand, defendant claimed further that he was entitled to recover $50,000.00 in damages, with legal interest, to compensate him and his wife for severe emotional distress and suffering. He asserts that the plaintiffs caused this by coining onto his property without his consent and erecting three oversized creosote posts pursuant to a survey conducted for them by Mr. Kenneth McKay, and by arbitrarily refusing to provide the defendant with a copy of the survey plat.

In order to establish the age of the fence and the extent of his possession, the defendant called five witnesses at trial who testified that the fence had been in existence for at least thirty years. The plaintiffs, on the other hand, countered the defendant’s position by introducing the testimony of two other witnesses who averred that the fence running along the western edge of the slide trail had been in existence for a period of time not exceeding fifteen to eighteen years.

The trial judge sought to resolve this conflict between the plaintiffs’ witnesses and those of the defendant by subsequently adjourning the proceedings to the site of the property in question. He directed that only counsel for both sides would be allowed to accompany him when he went to make his inspection.

At this point, the trial transcript no longer reflects the transactions that took place outside of the courtroom. In order to rectify this situation, the plaintiffs made a motion to correct and supplement the record. The defendant was ordered to show cause why such motion should not be granted on August 2, 1982. During the court proceedings which took place on that date, the trial judge supplied a Per Curiam which detailed his own recollections of the transactions which occurred outside of the courtroom.

In the trial judge’s Per Curiam, he stated that after his inspection, it was apparent to him that the fence referred to by the defendant’s witnesses was not as old as they had testified it was. His inspection also revealed that part of the wire on the fence had been attached to two trees, which had actually grown over the wire strands through the years.

The judge thereby suggested to the attorneys that an expert be chosen to come and examine the trees in order to determine the exact date that the wires had been attached to them. He asked the attorneys for suggestions concerning the availability of a local expert in the forestry field. On December 2, 1981, counsel for the defendant responded to the judge’s request, supplying him with the names of two persons that the defendant deemed satisfactory to examine the trees.

Subsequently, arrangements were made for Mr. Merlin Smith, one of the two persons recommended by defense counsel, to visit the disputed property on January 12, 1982, and examine the two trees. In his Per Curiam, the trial judge stated that neither the plaintiffs’ attorney nor the defendant’s counsel objected to the procedure. On January 21st, the judge and the attorneys met with Mr. Smith. Smith cut out portions of the two trees in which the fence wire was imbedded, and took them to his office for examination. The next day, Smith furnished a report containing his findings to the trial judge, and copies of the report were immediately forwarded to the attorneys. In the judge’s Per Curiam, he states that after this, he contacted both attorneys advising them of their right to cross-examine Mr. Smith in open court after he formally presented his report, which according to the judge, both parties waived.

Subsequently, the trial court rendered its decision, concluding that the defendants had not possessed for a period of thirty years up to the fence located adjacent to the gravel road or “slide trail”. The court determined that the boundary should be set some distance east of the ideal boundary line, as established by Hawkins, placing the boundary between the respective properties of the parties as follows:

“It is therefore my opinion that the boundary of the properties should be fixed on the southeast corner at the point where the old net wire fence virtually intersects the new barb wire fence.[] The boundary should then proceed in a northerly direction along the old net wire fence as shown on the plat and a projection thereof toward a connection with the old net wire fence on the east side of the cemetery to a point where it intersects the true line, as indicated on the survey. From that point, the boundary should follow the ideal line until it intersects the center line of Louisiana Highway 915.”

Furthermore, the trial court dismissed defendant’s claim for damages. From this judgment the defendant devolutively appealed. Plaintiff has neither appealed nor answered the appeal.

The defendant alleges that the trial judge erred in making two post-trial inspections of the disputed property in order to determine where the boundary should be set. Furthermore, he claims that the court was in error in retaining the services of Merlin B. Smith to assist in determining where the boundary was to be set, when Smith had not been called as a witness by either side, was never sworn in, and was not subject to cross-examination. In addition, he asserts that the court erred in admitting the letter of Merlin Smith dated January 22, 1982, into the record. He also argues that the court was mistaken in deciding the case based on post-trial data improperly developed by an outside consultant at the site of the disputed tract of land.

We are unable to agree with the defendant’s arguments. The Code of Civil Procedure specifically grants trial judges the power to appoint experts. La.C.C.P. Article 192 states:

“A trial court, on its own motion or on motion of a party, may appoint persons learned or skilled in a science, art, profession, or calling as experts to assist it in the adjudication of any case in which their special knowledge or skill may aid the court.
The reasonable fees and expenses of these experts shall be taxed as costs of court.”

Therefore, the Judge was not in error in seeking the services of Merlin Smith in order to establish the age of the fence running along the slide trail.

More importantly, it is our opinion that the defendant is mistaken in arguing that the two inspections made by the trial judge and the findings of Merlin Smith were not properly a part of the evidence on which the trial court could base its decision. We feel that the record clearly indicates that the defendant acquiesced in both the judge’s right to examine the disputed property and in the appointment of Merlin Smith to examine the fence and the trees. Furthermore, it is apparent to us that To-liver waived any rights that he had to cross-examine Mr. Smith on his findings and that Smith’s testimony is properly a part of the record due to the defendant’s failure to file any objections to the evidence.

The record provides ample support for these conclusions. At the end of the court proceedings, the statements of Mr. George Griffing, counsel for the defendant, indicate that he had no objection to the judge’s request to visit the site of the disputed tract the following morning:

“Mr. Griffing: Judge, what time are you talking about in the morning?
Judge: I’d like to meet fairly early.
Mr. Griffing: That would be fine ... early. I kind of scheduled ... I kind of schedule on Friday clients to come in on Friday mornings and I have about
Judge: Well, I don’t have to do it tomorrow but, see, I’m not going to be here for two weeks now. I’m not going to be in Catahoula next week. It’s Thanksgiving week ... it’s my Concor-dia week and then the 30th is a fifth Monday week and I’m in Concordia that week and I’ve got a full week of criminal jury trials that week, so I’ll...
Mr. Griffing: I prefer that you do it soon and while it’s fresh on your mind.”

In addition to this, the letter written by Mr. Griffing to the trial judge on December 2, 1981, in which he recommended two foresters to the court (one of which was Mr. Merlin Smith) indicates that the defendant must have acquiesced in the necessity of having an expert examine the property. Mr. Griffing clearly stated in that letter that any of the foresters mentioned would be satisfactory to the defendant if the court still felt that an expert was necessary to resolve the matter. Clearly, the defendant cannot validly object to the appointment of Mr. Smith as an expert when he was the one that recommended Smith to the court.

The defendant is also incorrect in arguing that the report submitted by Merlin Smith cannot be considered by the court because it was never properly introduced into evidence, and because Smith was not subject to cross-examination. In this connection,, the trial judge in his Per Curiam stated:

“... On the 22nd day of January, 1982, Mr. Smith then furnished me his report, which was filed. A copy of this report was immediately furnished to Mr. Griff-ing and Mr. Purvis. Thereafter I contacted both attorneys, advising them that I would have Mr. Smith return to Court so that he could formally present his report in Open Court and be subject to cross examination. Both parties advised me that they did not wish to avail themselves of this opportunity and that the ease should be considered as submitted.”

The defendant was given ample opportunity to present evidence contradicting the judge’s recollections during the proceedings held on the motion to correct and supplement the record, but he failed to do so. Furthermore, the record is devoid of any showing that the defendant ever objected to the introduction of Merlin Smith’s letter of January 22, 1982, into the record. Due to the failure of the defendant to object to the admission of the letter under the circumstances stated, we can only conclude that the trial judge’s memory was accurate and that the defendant waived his right to cross-examine Smith and to object to the admission of Smith’s report into the record.

The defendant also alleges that the trial court erred in deciding the case on improperly obtained post trial testimony, rejecting the testimony of defendant’s witnesses, and determining that the boundary line was not to be set along the slide trail. However, the trial judge is entitled to a great deal of discretion in determining credibility of -witnesses and is not to have his findings of fact overturned on appeal unless clearly wrong. We do not feel that the trial judge committed manifest error in this case, and we therefore affirm his findings.

Defendant further cites as error the decision of the trial judge to cast him liable for one-half of the costs at trial. He claims that the plaintiffs’ failure to present the defendant with a copy of the plat prepared by their surveyor prior to institution of the suit constituted a failure to amicably settle the dispute, and that because of this, the plaintiffs should be cast with all costs.

Article 79Ó of the Civil Code provides:. “... When the boundary is fixed extra-judicially costs are divided equally between the adjoining owners in the absence of contrary agreement. When the boundary is fixed judicially court costs are taxed in accordance with the rules of the Code of Civil Procedure. Expenses of litigation not taxed as court costs are borne by the person who has incurred them.”

Article 2164 of the Code of Civil Procedure also provides that an appellate court may “... tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

It is our judgment that it would be most equitable in this case to assess the costs just as the trial judge chose to do by assigning them equally to both parties. The testimony of Neal Simmons clearly indicates that he sought to save costs by merely having his surveyor mark the corners of the property rather than prepare a plat, and that the plat was actually not prepared until just before the trial. Under these circumstances, we would deem it inequitable to tax all costs against the plaintiffs.

Finally, the defendant asserts that he is entitled to recover on his reconventional demand for damages for mental distress. He argues that the actions of the plaintiffs in erecting three massive creosote posts constituted a willful and deliberate trespass entitling him to recovery.

We find no error in the trial court’s dismissal of the defendant’s claim. Neal Simmons testified that he had attempted to place the three posts right on the boundary line marked by his surveyor with metal stakes. Mr. Toliver never challenged the survey made by Simmons, nor the fact that the plaintiff was the record owner of the land. Based on these facts, we cannot say that the judge’s denial of damages to the defendant for infliction of mental distress constituted an abuse of discretion.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs on appeal are assessed against defendant-appellant.

AFFIRMED.

      . Footnote by Court of Appeal. The old net wire fence determined by the court to be the boundary between the respective properties of the parties is not the fence located adjacent to the gravel road or “slide trail”.


text:
    Donald Ray MOREAU, Plaintiff and Appellant, v. Margaret Brown MOREAU, Defendant and Appellee.
    No. 82-312.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1982.
    Donald D. Landry, of Perrin, Landry, De-Launay & Durand, Lafayette, for plaintiff-appellant.
    Pucheu, Pucheu & Pucheu, Jacque B. Pu-cheu, Jr., Euniee, for defendant-appellee.

      Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

This appeal comes before this Court from the Twenty-seventh Judicial District Court for the parish of Saint Landry, and involves alimony pendente lite, child support and visitation rights.

Donald Ray Moreau and Margaret Brown were married in 1970. To the marriage there were born four children: Cherie, now aged ten; Jeanne, eight; Patricia, five; and Douglas, three. Unfortunately, the parents of these children encountered marital difficulties and separated on the 4th day of February, 1982, when Donald Moreau left the family home. He subsequently filed suit for separation, alleging cruel treatment of him by his wife. She in turn reconvened, alleging abandonment and cruel treatment. The cruel treatment alleged by the wife included averments of Donald Ray Moreau “constantly keeping company with another woman.” Because Mrs. Mor-eau believed her husband to be keeping company with another woman, she requested the trial court to restrict his visitation rights with his children. (Custody was not at issue, both parties agreeing the children should be with their mother.) Mrs. Moreau also asked the court to award her, as alimony pendente lite and child support, the sum of One Thousand Five Hundred Dollars per month.

Both parties submitted to the trial court affidavits of their income and expenses on a per month basis. Mr. Moreau’s affidavit listed income of $1,372.85 per month from his position with the State, Department of Public Safety. His expenses were shown as $1,090.00 per month. Mrs. Moreau’s income from the St. Landry School Board was shown to be a net of $877.29, with expenses of $2,963.00.

The rule for alimony pendente lite and child support was heard on March 12, 1982. The issue of the restricted visitations was taken up at the same time. The testimony of Mr. Moreau revealed that his income was augmented by overtime and supplemental pay and that his expenses were somewhat less than shown, due to the fact that he was not, at that time, paying rent, but was in fact attending a Law Enforcement Institute at L.S.U. and living on campus for the duration of the schooling. Mrs. Moreau’s testimony evidenced that she had somewhat liberally estimated her living expenses. She and her children are living in the former family home, a three bedroom house with a small swimming pool.

The trial court awarded Mrs. Moreau $800.00 per month as alimony for the support of the children and denied her alimony pendente lite. Mr. Moreau stipulated that he would not visit with the children in the home of the woman named as his extramarital companion, and the trial court added the further restriction to the visitation rights that Mr. Moreau could not “have any non-relative adult woman in his home while the children are visiting there.” The award of child support was made retroactive to February 16, 1982. From these rulings of the trial court, Mr. Moreau appeals.

In his first assignment of error, Appellant argues that the trial court abused its discretion in awarding $800.00 per month as child support. We disagree. The trial court heard the testimony elicited concerning the relative financial status and needs of the parties and then evaluated that testimony, took into account the available funds for the support of these children, and made an award accordingly. The courts of this state have long recognized the high priority nature of the obligation of a parent to provide support for his children, and have even required a reduction in the living expenses of the supporting parent, when necessary, to provide this support. Allbritton v. Allbritton, 393 So.2d 825 (La. App. 2d Cir., 1981). When an award of child support is made by the trial court, which has much discretion in fixing the amount, such an award will not be disturbed unless there is a clear abuse of that discretion. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir., 1979). The record before us does not reveal any abuse of discretion in this award of child support.

Appellant’s second assignment of error contends that the trial court was in error in making the child support payments retroactive to February 16, 1982. That argument is not supportable, since it is well settled in this state that the commencement date of an award of child support payments is within the discretion of the trial court. Porche v. Porche, 371 So.2d 1178 (La.App. 1st Cir., 1979) Writ refused 373 So.2d 510 (La.).

The third and final issue presented to this court by Appellant is that of the restricted visitation rights. Mr. Moreau asserts that the trial court abused its discretion when it forbade him to take the children to the home of the woman he is allegedly “keeping company with” or to “have any non-relative adult woman in his home while the children are visiting there.”

Mr. Moreau, through his counsel, stipulated that he would not take his children with him when he visited the woman named as his companion. Therefore, we do not disturb that portion of the trial court’s ruling. We do agree that the restriction upon his having any non-relative adult woman in his home while the children are visiting there is overly burdensome and unsupported by the evidence.

It is well settled that the paramount consideration in determining visitation rights following a separation or divorce is the welfare of the child. Duplantis v. Monteaux, 412 So.2d 215 (La.App. 3rd Cir., 1982) and the authorities cited therein. However, the trial court cannot go “beyond the record” in making the determination. Stephenson v. Stephenson, 404 So.2d 963 (La.1981). There is nothing in this record to indicate that visiting anywhere with their father would be injurious to these children. The only reason offered for the restriction was the statement by counsel for Mrs. Moreau, “I just don’t want him bringing them home; the wife doesn’t either.” In Stephenson, supra, the Supreme Court of this state awarded custody to a mother who had admittedly been living in an adulterous relationship. The Court based its holding on the lack of evidence indicating that the relationship had any detrimental effect on the child. In this case also, there has been no showing that having any non-relative adult woman in the home while Mr. Mor-eau’s children are visiting with him has had or will have a detrimental effect on those children, and so the restriction cannot stand.

All costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART, REVERSED IN PART.