text:
    Beverly Shoap WILHITE, Plaintiff-Appellant, v. Sidney R. WILHITE, Defendant-Appellee.
    No. 14727.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    On Rehearing Jan. 29, 1982.

    Writ Denied March 12, 1982.
    James D. Sparks, Jr., Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before PRICE, MARVIN and FRED W. JONES, JJ.

       Limited Rehearing Granted on behalf of appellant and Rehearing Denied on behalf of appellee, Jan. 18, 1982, JASPER E. JONES, J., recused.

   FRED W. JONES, Jr., Judge.

Plaintiff appealed an assertedly inadequate alimony pendente lite judgment, contending that the trial judge erred in (1) classifying as income a monthly payment of $1,000 received by plaintiff from defendant on a promissory note executed by him in her favor pursuant to a community property settlement and (2) taking into consideration in fixing the alimony pendente lite the receipt by plaintiff of $21,400 in cash as part of the consideration for the described community property settlement.

We amend to increase the alimony pen-dente lite award and affirm.

Beverly Shoap Wilhite and Sidney R. Wil-hite were married in 1975. Having been judicially separated in property by a judgment dated July 30, 1980, the parties con-fected a settlement of their community on October 6, 1980. In general, under the terms of that instrument Mrs. Wilhite conveyed to her spouse her undivided interest in substantial movable and immovable property in consideration for the payment to her of $21,542 in cash and the execution by her husband in her favor of a promissory note in the principal amount of $100,000, payable in 100 monthly installments of $1,000 each beginning on November 1, 1980, bearing interest at the rate of 10% per annum from maturity until paid. In addition, the husband assumed the payment of all community debts and obligations.

On March 19,1981, Mrs. Wilhite sued her husband for a judicial separation and, in connection therewith, filed a rule for alimony pendente lite, asking for $1250 per month.

After a hearing on the rule, the trial judge awarded plaintiff $250 per month, based upon the following oral reasons:

“[Tjhere was also testimony that there was some $21,400 in T bonds in a local bank which was drawing 13% interest and Mrs. Wilhite chose to withdraw those funds and deplete those assets. The Court feels that there .. . that the total assets . . . that the income from Mrs. Wilhite must be considered, that being a $1,000 a month, and will make an award of alimony pendente lite in the sum of $250.”

Prior to its amendment in 1979, Louisiana Civil Code Article 148 provided:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

In Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), the Louisiana Supreme Court drew the following clear distinction between the rights of the claimant wife under Article 148 and those under La.C.C. Art. 160:

“Article 148 has for its purpose the enforcement of the husband’s obligation of support of his wife as it exists under Article 120 of the Civil Code, which continues during the pendency of a suit for separation from bed and board or for divorce and does not terminate until the marriage is dissolved either by death or by divorce. While the suit is going on the obligation still exists and, whether the wife is the one who is suing or is being sued, if she has not a sufficient income for her maintenance, the judge shall allow her a sum for her support, the amount to be gauged according to what her needs are and what are the means of her husband. It is to be noted here that both her needs and the means of the husband are to be taken into consideration in determining the sum to be allowed.
“On the other hand, Article 160 merely makes some provision for the maintenance of the wife who has obtained the divorce, after the marriage has been terminated and the obligation of support by the husband under Article 120 of the Code no longer exists. But it is only in the event that she has not sufficient means for her maintenance that the Court may, in its discretion, allow her out of the property and earnings of the husband, a sum not to exceed one-third of his income, and this alimony is revocable in case it becomes unnecessary, and in case the wife should contract a second marriage.”

Both Article 148 and Article 160 were amended in 1979 to provide for the “gender-neutral” approach mandated by the U.S. Supreme Court. However, while significant alterations were made to the content of Article 160, only minor textual changes were made to Article 148.

As we observed in Arrendel v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980), the legislature’s failure to change the criteria set forth in Article 148 for determining entitlement or amount strongly indicated an absence of intent to overrule prior jurisprudence interpreting the significant provisions of this codal article. We then concluded:

“[Therefore, the criteria of Article 148, as interpreted in prior cases, remain unchanged except that they are now to be applied in a gender-neutral manner.” p. 930

It is in this context that we consider appellant’s argument that the trial judge erroneously classified as “income” the $1,000 monthly payment received by plaintiff as consideration for the conveyance of her interest in community property to the defendant-husband.

We pointed out in Staser v. Staser, 347 So.2d 514 (La.App. 2d Cir. 1977) that “[t]here is no requirement that she (the wife) deplete her capital (emphasis added) before she is entitled to enforce the support obligation of the husband.” Also see McMath v. Masters, 198 So.2d 734 (La.App. 3rd Cir. 1967).

Whether a monthly payment of the nature received by plaintiff in this case is “income” or “capital” under Article 148 was squarely answered in Newson v. Newson, 176 La. 699, 146 So. 473 (1933). There, in a community property settlement the wife had conveyed to her husband her undivided half interest in the community property for a total consideration of $2,000, part of which was paid in cash and the balance represented by a promissory note payable $75 per month. Subsequently, in an appeal involving a dispute over child support, our Supreme Court held:

“The $75 a month which she (the wife) is supposed to get, in discharge of the $1,800 due her for her one-half of the community property, is not income, but capital.” (Emphasis added)

In Hargrove v. Hargrove, 272 So.2d 394 (La.App. 2d Cir, 1973), the husband urged that an alimony pendente lite award be set aside because his wife’s share of the community property was “more than adequate to provide her support.” That argument was rejected with this explanation:

“The test and controlling factor provided by the article (CC 148) is the measure of the wife’s income, and only after a final divorce has been granted does the amount of the assets of the wife, including her share of the community property, become material under LSA-C.C. Art. 160.”

If, rather than receiving the $100,-000 promissory note plaintiff had been paid that sum in cash which she held at the time of the hearing, those funds clearly could not have been properly classified as “income” under Article 148. The mere fact that plaintiff received payment for her community interest in installments rather than a lump sum would not on any rational basis serve to convert these payments from a return of “capital” to the receipt of “income” under Article 148. The trial court’s holding that the $1,000 monthly payments received by plaintiff constituted “income” for the purpose of determining her entitlement to alimony pendente lite in effect required that she deplete a capital asset, which we forbade in Staser v. Staser, supra. Therefore, we conclude that the trial judge erred in this ruling.

Although it is not clear what weight was accorded by the trial judge to the receipt by plaintiff of $21,542 in cash in connection with the community property settlement, our reasoning with reference to his error in classifying the $1,000 monthly payments as “income” applies with even more cogency to this cash item. Consequently, we find that any consideration given by the trial judge to plaintiff’s “total assets” in fixing alimony pendente lite constituted error on his part.

Having concluded that the trial judge committed these significant errors in assessing factors determinative of an appropriate alimony pendente lite amount, we turn to an independent evaluation of the record to decide whether the award of $250 per month was inadequate under the circumstances.

At the time of the hearing on the rule to fix alimony pendente lite plaintiff was unemployed and had no “income” within the meaning of Article 148. Her itemized monthly expenses, which the trial judge characterized as not “that far out of line,” totaled $1815.00.

Defendant, who described himself as a millionaire, reported a gross income of $124,750 in 1978 and $173,500 in 1979. He testified he drew from his business $16,000 each month, from which he paid $6,000 in estimated taxes and $4450 on promissory notes, leaving a balance of about $5500. His monthly living expenses averaged $750. Defendant stated that during the marriage his wife’s expenses were “just open . . . whatever she needed.”

Addressing the function of alimony pen-dente lite in Arrendell v. Arrendell, supra, we stated:

“The purpose of alimony pendente lite is to temporarily, pending litigation, provide for the spouse who does not have sufficient income for his or her maintenance. ... In a sense, it is designed to preserve and continue the status quo insofar as maintenance and support are concerned.... Where the spouses themselves have, during the marriage, assigned the role of wage earner to one and the role of homemaker to the other, fairness and practicality dictate that the wage earner spouse continue that role during the temporary period of litigation and adjustment.”

Considering plaintiff’s needs and defendant’s means, we conclude that plaintiff is entitled to the sum of $1,000 monthly as alimony pendente lite. Accordingly, the judgment of the district court is amended to increase the monthly alimony pendente lite award from $250 to $1,000 and, as amended, is affirmed, at appellee’s cost.

ON REHEARING

We granted a limited rehearing in this matter to consider questions raised concerning the date from which appellee-husband would owe the increased alimony pendente lite payments to appellant-wife, i.e., whether our judgment would be retroactive to March 19, 1981, the date fixed by the trial judge for the beginning of alimony payments, or the date of the finality of this court’s judgment.

Appellee contends that the increased payments should begin on the date of the finality of this court’s judgment, arguing that the rationale of Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir. 1979), which led this court to refuse to make our judgment decreasing an alimony pendente lite award retroactive, should apply with equal cogency to prohibit an appellate-ordered increase in alimony pendente lite from being retroactive. We do not agree.

It is axiomatic that a trial court has broad discretion in fixing both the amount of alimony pendente lite and the beginning date for the payments. As we pointed out in Cumpton v. Cumpton, 283 So.2d 846, 848 (La.App. 2d Cir. 1973):

“Compelling reasons may be presented to the court leading to a conclusion it would be impractical and inequitable to commence accrual of alimony ordered in the decree at the retroactive date of judicial demand. We know of no reason why a trial judge should not be accorded the same discretion in specifying a commencement date for alimony payments as he is given in determining the needs of the wife and ability of her husband to pay.”

Also see Hatch v. Hatch, 335 So.2d 707 (La.App. 2d Cir. 1976) and Whitmeyer v. Whitmeyer, 326 So.2d 884 (La.App. 2d Cir. 1976).

There is no logical reason why an appellate court should not exercise the same wide discretion in decreeing the effective date of its reversal or modification of a trial court judgment with reference to alimony pen-dente lite. For example, if we reverse a trial court judgment denying alimony pen-dente lite altogether, there seems no question but that we may as a discretionary act make the award retroactive to the date of judicial demand or at least to the date of the trial court judgment denying the award.

Exigencies of a particular case may require that retroactive effect be given to the appellate judgment dealing with this subject. In another case circumstances may conceivably mandate prospective effect only.

In this case our judgment expressly amended the judgment of the district court to increase the alimony pendente lite award. It was our intention, based upon a consideration of the evidence in the record, to exercise our discretion so as to give ret-roaetive effect to our judgment. The fact that a suspensive appeal may not be taken from a judgment relating to alimony in no way inhibits the possibility of retroactive effect being given to this judgment.

We do not construe Bruner as mandating the result espoused by the appellee-hus-band. Bruner held that our reduction of an alimony pendente lite award did not become effective until the date of the finality of our judgment, in contrast to the effect of the reversal or modification of trial court judgments in other devolutive appeal cases. The rationale for this distinction was based upon our construction of Article 3943 as reflecting a legislative intent to assure the spouse who received the award in the trial court of receiving necessary support pending the appeal. The reason for making an exception in that particular situation does not exist here. In fact, applying the Bruner rule in this case would have just the opposite effect — by not making the judgment retroactive we would be penalizing the spouse Bruner seeks to protect. In brief, we do not interpret Bruner as abolishing the broad discretion appellate courts may exercise in fixing the effective date of judgment reversing or modifying trial court awards of alimony pendente lite.

For these reasons, in order to clarify the effect of our original judgment in this matter, we amend that judgment to provide that the judgment of the district court is amended to increase the monthly alimony pendente lite from $250 to $1,000 effective March 19, 1981, and to allow legal interest on the increased alimony from the date this opinion becomes final until the date or dates that the increased alimony due from March 19,1981 is paid, and, as amended, the district court judgment is affirmed, at ap-pellee’s cost.

As thus amended, our original judgment is reinstated.

      . At the time, Article 160 provided in pertinent part: “If the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income. ...”

      . The legislature added specific criteria to assist the trial judge in determining whether a spouse is entitled to alimony and, if so, the amount. Most significant, the article now expressly requires the trial judge to consider the claimant’s earning capability in determining entitlement to alimony.

      . The word “spouse” or the phrase “claimant spouse” was substituted for the words “husband” or “wife” and the word “may” replaced the word “shall” with reference to the trial judge’s award of alimony pendente lite.

      . La.C.C.P. Art. 3943 provides:
      An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    INVESTOR INNS, INC., Plaintiff-Appellee, v. Melvin J. WALLACE, d/b/a El Pollino Mexican Food Restaurants, Defendant-Appellant.
    No. 14728.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Goff & Goff by A. K. Goff, Jr., Ruston, for defendant-appellant.
    Grant, Scott, Dean & Kneipp by Donald L. Kneipp, Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Defendant, a non-resident, appeals a judgment evicting him from certain leased premises for failure to timely pay rent. We affirm.

On December 12, 1974, defendant, Melvin J. Wallace, entered into a contract for the lease of restaurant facilities owned by plaintiff-corporation, Investor Inns, Inc., whose sole stockholder is Joe Bailey Grant. This lease, for a primary term of five years, was ultimately extended for an additional eight years pursuant to the provisions of the original agreement.

Under the terms of the lease, rental payments were to be calculated as a fixed percentage of the monthly gross receipts from the restaurant business. Rent was due and payable by the 20th day of each succeeding month. The agreement also contained the following provision regarding payment of rent:

. . . [I]f lessee should default in the payment of any two (2) consecutive installments of rent, Lessor may at its option declare all remaining installments of rent due and exigible and bring suit to enforce collection thereof or may demand the cancellation of this lease and of all rights and obligations of the parties hereunder.

During the course of the lease, defendant was frequently late in meeting his monthly rental obligations. On several occasions checks tendered by defendant for payment of rent were returned unpaid because of a lack of sufficient funds. However, at no time did defendant fail to pay two consecutive months rent within the time frame provided until the incident which precipitated this proceeding.

The December 1980 rent, due by January 20, 1981, was not timely paid by defendant. Sometime in early February 1981, plaintiff received a check drawn on a Texas bank for $5,695.55 which purported to be payment for the December 1980 rent. On February 20, 1981, the due date for January’s rent, Joe Bailey Grant flew to Texas and personally presented the December 1980 rent check to the bank for payment. Payment was refused because of insufficient funds to cover the obligation. At this point, defendant had failed to timely pay two consecutive months rent, thereby activating lessor’s option to cancel the lease.

A five-day notice to vacate the leased premises was mailed to defendant on February 23, 1981, which was received February 25, 1981. Plaintiff filed this eviction proceeding on February 24, 1981, alleging that since defendant had defaulted in payment of two consecutive rent installments, plaintiff was entitled to cancellation of the lease agreement. Personal jurisdiction over the non-resident defendant was obtained by use of the long arm statute (La. R.S. 13:3201 et seq.). Accordingly, certified copies of the citation and rule were served on defendant by certified mail.

On March 5, 1981, defendant filed an exception to the use of the long arm statute in a summary proceeding. Subsequently, defendant filed an exception of no cause of action and plea of prematurity, contending that any breach of the lease was passive, requiring a prior putting in default before institution of suit. Defendant also answered plaintiff’s suit and plead two affirmative defenses:

(1) compensation or set-off which allegedly occurred because of amounts owed by plaintiff to defendant in excess of the rent owed; and
(2) customary acquiescence by plaintiff in accepting late rental payments without complaint which has allegedly altered the lease provisions pertaining to collection of rent.

After argument the exceptions of improper use of summary procedure and no cause of action were overruled. The plea of prematurity was referred to the merits.

Thereafter, on April 23,1981, the rule for eviction was heard. At the conclusion of the trial of the rule, judgment was granted in favor of the plaintiff. The trial court found there had been no acquiescence in acceptance of late rental payments because under the terms of the lease, plaintiff was forced to accept all late rental payments unless defendant was overdue with two consecutive months rent. The court further found defendant had taken advantage of this situation in the past and often attempted to pay rent with insufficient checks which were paid before the next rental installment came due. The trial court rejected the claim of compensation since defendant failed to prove that all of his claims were liquidated, which is a prerequisite for a plea of compensation.

The court also noted that plaintiff had failed to comply with La.C.C.P. Art. 4701, which requires a five-day notice to vacate before institution of eviction proceedings. However, since defendant did not raise lack of proper notice as a defense, the court deemed this requirement waived.

On appeal, the following issues are raised:

(1) Was it permissible to use the long arm statute to gain personal jurisdiction over a non-resident in this summary eviction proceeding?
(2) Did defendant effectively waive the notice requirement provided for by La.C.C.P. Art. 4701?
(3) Under this particular lease agreement, is the non-payment of rent a passive breach which requires a putting in default before institution of suit?
(4) Was the trial court correct in denying defendant’s claim of compensation or set off?
(5) Was a custom of accepting late rental payments by plaintiff proved?
(6) Should the trial court have exercised judicial control and have found the lease could not be dissolved for untimely payment of rent?

USE OF LONG ARM STATUTE

Citing this court’s decision in Clay v. Clay, 369 So.2d 1199 (La.App.2d Cir. 1979), defendant contends the long arm statute cannot be used to gain personal jurisdiction over a non-resident in an eviction proceeding.

In Clay, plaintiffs sought a writ of-quo warranto directing a non-resident defendant to show by what authority he held certain corporate offices in a Louisiana corporation. Defendant received certified copies of the pleadings on August 3,1978. The writ was made returnable on August 9, 1978. Prior to the hearing on the writ, defendant excepted to the jurisdiction of the court, contending the long arm statute was not applicable in summary proceedings, and that he received no citation as required by the statute. The trial court overruled the exception and the quo warranto proceedings were heard on August 9.

In reversing the trial court and sustaining defendant’s exception, this court found that the long arm statute was not intended to be used to assert jurisdiction over nonresidents in summary proceedings in instances where the defendant is ordered to appear in less than 10 days. The decision should be interpreted to limit the availability of the long arm statute in summary proceedings only when the non-resident is not afforded the same delays he would be entitled to in ordinary proceedings.

The Supreme Court in Clay v. Clay, 389 So.2d 31 (La.1979) sustained defendant’s exception to jurisdiction for reasons closely akin to those set out by this court. The Supreme Court held that personal jurisdiction did not attach over the defendant because the service of process did not comport with the service provisions of the long arm statute (La.R.S. 13:3204). The instrument mailed to the defendant did not include a citation, but rather consisted solely of certified copies of the pleadings. The court did not hold the statute could not be used under any circumstances in the summary proceeding.

In the instant case, defendant received certified copies of the citation and rule on February 26, 1981. The citation clearly shows that defendant had 30 days in which to file an answer. Although the rule was originally set for trial within that 30-day period, the trial of the rule was not actually held until April 23, 1981. Defendant was afforded a delay of almost two months to prepare his defenses to this eviction proceeding and was clearly provided due process of the law. Therefore, we hold that use of the long arm statute to gain personal jurisdiction over the defendant was permissible.

NOTICE TO VACATE

On appeal, defendant for the first time raises lack of proper notice as a defense to this eviction proceeding. Defendant cites well established jurisprudence to the effect that abrogation of leases is not encouraged in Louisiana, and such a remedy is to be granted only when the right thereto is clear beyond a doubt of both fact and law. Defendant contends notice to vacate is a prerequisite to eviction proceedings. He further argues that since such notice was not received until after institution of suit, plaintiff’s right to dissolution of the lease was not clear beyond a doubt and should not have been granted.

While La. C.C.P. Art. 4701 clearly contemplates a five-day notice to vacate before filing of suit, we are of the opinion this notice may be waived by a party’s failure to timely raise the issue. In Wrenn v. Miller, 161 So. 882 (La.App.2d Cir. 1935), this court was faced with the same problem under Act No. 55 of 1926, a precursor of the present codal articles dealing with eviction procedure.

Basically, the act provided that the owner:

. . . Shall give to the tenant a notice in writing to vacate, ten days before the expiration of the month, if the same be a monthly lease, or thirty days before the expiration of the said lease, if the said lease be in writing, and for a term of one or more years or otherwise, other than by the month.
And if the tenant shall refuse to comply with the said notice, after the expiration of such delay, to remove from the said premises, it shall be lawful for such lessor to cause the tenant to be cited summarily to show cause within two days after service of such rule, to appear before any court having competent jurisdiction, in order to be there condemned to deliver him the possession of the leased premises.

This court, in finding notice to vacate can be waived, made the following statement:

. . . [NJotice to vacate is a necessary preliminary step in an ejectment proceeding under the act, and that the failure to give the notice, if advanced by a plea of prematurity or in defense on the merits, would work a dismissal and delay in the proceeding. But if defendant, after citation, appears and defends on the merits without objection, the failure to give this notice is waived and cannot be urged....

In line with our prior decision, we find defendant effectively waived lack of proper notice as a defense when he failed to raise it at the trial level.

PUTTING IN DEFAULT

Defendant contends that nonpayment of rent is a passive breach of the lease agreement which requires a prior “putting in default” before institution of suit. In support of this position, defendant cites several cases, including Inabnett v. Pruett, 229 So.2d 150 (La.App.2d Cir. 1969), where the courts have held that failure to perform as agreed upon under a contract of lease is a passive breach of the agreement.

Contracts legally entered into have the force of law among the parties who have formed them. La. C.C. Art. 1901. The contract may provide that a party who fails to comply with the terms of the agreement shall be deemed to be in default by the mere act of his failure. La. C.C. Art. 1911. After careful study of this lease agreement, we conclude it was not necessary for plaintiff to place defendant in default before instituting this eviction proceeding.

The lease clearly shows that rental payments were due and payable by the 20th day of the month. Upon the failure to pay two consecutive installments when due, the lease unequivocally granted plaintiff the option of either declaring all remaining installments due and exigible or seeking cancellation of the lease. Under the very terms of this agreement, defendant’s failure to pay rent for two months triggered plaintiff’s right to institute eviction proceedings. Therefore, we hold it was not necessary for plaintiff to put defendant in default before filing this action.

COMPENSATION

Defendant alleges this eviction proceeding is improper because at the time of suit plaintiff was indebted to defendant in an amount larger than plaintiff’s claim for rent. Defendant argues that by operation of law, a compensation or set off occurred, thereby extinguishing plaintiff’s claim for rent.

At trial, over plaintiff’s opposition, defendant attempted to prove that plaintiff was indebted to him for the following:

(1) the cost of meals eaten at the restaurant by Joe Bailey Grant and his family for which no payment was ever received;
(2) costs incurred by defendant in securing ice for the operation of his business when the ice machine supplied by plaintiff failed to operate properly; and
(3) overpayment of rent by defendant for a period of four months.

To be applicable, compensation or set off requires the contemporaneous existence of distinct, liquidated, and equally demandable debts. Carter v. Morse, 8 Mart.O.S. 398 (La.1820); Saunier v. Saunier, 217 La. 607, 47 So.2d 19 (1950); Hartley v. Hartley, 349 So.2d 1258 (La.1977).

A determination of the liquidity of a debt is an essential prerequisite to deciding whether the claim is a proper basis for a plea of compensation. Lack of sufficient liquidity and demandability will preclude such a plea. Hartley v. Hartley, supra.

In the instant case, the trial court found defendant was only able to prove a debt of $169 for unpaid meals. The court ruled that any other claim was conjectural and unsubstantiated by the evidence. After a review of the record, we find the trial court to be correct in its determination. Compensation is therefore not available in these proceedings to offset the debt owed by defendant for unpaid rent.

“CUSTOM” OF LATE PAYMENTS — JUDICIAL CONTROL

Defendant contends plaintiff’s past conduct in not insisting upon timely rental payments has created a custom which has effectively altered the lease agreement, lulling defendant into a false sense of security concerning such payments. Defendant further contends the evidence reveals a “scheme” on the part of plaintiff to cancel the lease. He alleges that if plaintiff had presented the rent cheek for payment through normal banking channels, plaintiff would have received payment for the December rent. Finally, defendant contends the facts and circumstances presented justify the court taking “judicial control” of this proceeding and denying cancellation of the lease.

Over the course of years, plaintiff has accepted many late payments from defendant. Plaintiff was concerned about these late payments and often inquired about his rent. Defendant, aware of the lease provision requiring two months default in rent, sometimes tendered rent checks which he knew were not covered by sufficient funds. Defendant chose instead to rely upon a system whereby he or an employee would call the bank each day to determine which checks had been presented for payment. At that time, a decision would be made to either “cover” a check or let it be returned unpaid.

Where a lessor has customarily accepted late rental payments, such “custom” has the effect of altering the original contract in respect to punctuality of rent payments. When such “custom” has been created, the lessor may not strictly enforce the lease rental provision unless he has given the lessee advance notice of his intention to collect the rent when due. Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926 (1908); Briede v. Babst, 131 La. 159, 59 So. 106 (1912); Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App.3d Cir. 1975).

The reasoning behind such a rule is the prevention of a lessor from “misleading or lulling a tenant into a false sense of security” by accepting late payments over a long period, and then cancelling the lease at a future date of his own choosing once payment becomes overdue. Himbola Manor Apartments v. Allen, supra.

However, where the lessor has made frequent demands for payment or where acceptance of late payments occurs because of “unwilling and forced” indulgence on the lessor’s part, the foregoing rules do not apply. Briede v. Babst, supra; Redon v. Armstrong, 215 La. 307, 40 So.2d 474 (1949); Wall v. Green, 228 La. 59, 81 So.2d 769 (1955); Himbola Manor Apartments v. Allen, supra.

Under the terms of this particular lease, plaintiff had no recourse but to accept late payment of rent until defendant failed to timely pay two consecutive installments. Furthermore, plaintiff often made inquiries about this rent. The record also reflects that defendant was well aware plaintiff had no choice but to accept these late payments. Under these circumstances, acceptance of tardy payments by plaintiff was an “unwilling and forced” indulgence which could not have “lulled” defendant into a “false sense of security.” Therefore, we find that defendant has failed to prove a “custom” of late rental payments.

Although a lessor may ordinarily dissolve a lease for failure of the lessee to pay rentals timely, this right is subject to judicial control according to the circumstances. Brewer v. Forest Gravel Co., Inc., 172 La. 828, 135 So. 372 (1931); Atkinson v. Richeson, 393 So.2d 801 (La.App.2d Cir. 1981).

In the instant case, defendant often attempted to satisfy his rental obligations with checks that were not covered by sufficient funds. Indeed, the record reflects that defendant’s employee knew there were insufficient funds to pay the December rent check when it was issued. We do not find any “scheme” by plaintiff to cancel the lease based upon his personal presentment of the December rent check for payment. Defendant chose the method in which he would satisfy his obligations. He was at risk that plaintiff would seek payment upon the instrument in any legal fashion. That plaintiff chose to fly to Texas to seek payment is of no legal significance. We find the circumstances presented do not warrant judicial control of this eviction proceeding.

For the reasons assigned, the judgment of the trial court is affirmed at defendant’s costs.

      . La. C.C.P. Art. 4701. Termination of lease; notice to vacate
      When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, non-payment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
      If the lease has no definite term, the notice required by law for its termination shall be considered as a notice to vacate under this article. If the lease has a definite term, notice to vacate may be given not more than thirty days before the expiration of the term.

      . See La.Civil Code Articles 1931 et seq.

      . 2. The concept of compensation or set-off is treated by La. Civ. Code, Arts. 2207-09, which provide as follows:
      Art. 2207. When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.
      Art. 2208. Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.
      Art. 2209. Compensation takes place only between two debts having equally for their object a sum of money, or a certain quantity of consumable things of one and same kind, and which are equally liquidated and de-mandable.
      The days of grace are no obstacle to the compensation.


text:
    Walter RUSH, Plaintiff-Appellant, v. RYAN CHEVROLET, INC., Defendant-Appellee.
    No. 14729.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Harvey R. Lexing, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein by Robert C. Downing, Monroe, for defendant-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, Walter Rush, instituted this suit against defendant, Ryan Chevrolet, Inc., his former employer, for penalties and attorney fees because of defendant’s failure to pay wages within three days following termination of his employment as required by La.R.S. 23:631-632. From a judgment denying him this relief, plaintiff appeals. We reverse.

The record shows that plaintiff’s employment was terminated on Friday, November 7, 1980. At 10:30 a. m. on that day, he went to the office of Jim Myrick, defendant’s business manager, and requested his check. Since this was a regular payroll day, plaintiff was told to return at 5:00 that afternoon, the normal time when the checks were ready for distribution. At this time, plaintiff refused to sign an employee termination statement which listed the reasons for his termination. He requested his check from Myrick at 2:30 p. m. and was told again to return at 5:00 p. m. Plaintiff testified he returned at 5:00 and was told by Myrick that he could not have his check because of his refusal to sign the termination statement. This testimony was disputed by Myrick, who testified plaintiff never returned at 5:00 that day for his check.

On Monday, November 10, 1980, plaintiff contacted Rodney Sanders, an official of the U. S. Department of Labor, Wage and Hour Division, concerning defendant’s refusal to pay him his wages. Sanders testified that he called Myrick who told him that plaintiff’s check was available for plaintiff to pick up, with no precondition that he sign a termination statement. Plaintiff testified he went directly to Myrick’s office and that Myrick again refused to give him his check because of plaintiff’s refusal to sign the termination statement. Myrick denied seeing plaintiff on this date.

Myrick testified that because plaintiff did not return to get his check, he mailed it to plaintiff on November 17, 1980. However, a postal employee, after examining the envelope the check was delivered in, testified that the postmark indicated it was actually mailed on November 24, 1980. Plaintiff testified he received the check around Thanksgiving, which was November 27, 1980. On the reverse side of the check, the following clause appears:

By my endorsement of this check, I hereby acknowledge receipt of $217.75 in full payment of all wages and other indebtedness due me, and release and forever discharge the- employer from any and all claims of every kind.

Because he believed this statement might affect his right to the sum of $7,400 he had in a company profit sharing fund, plaintiff did not cash the check.

The trial court ruled that plaintiff failed to establish by a preponderance of evidence that defendant failed to have the check available for him at the designated time. The court found that plaintiff’s complaint directed to the release statement on the back of the check was inconsequential because he could have rendered the clause ineffective by striking through it.

The principal issue on this appeal is whether defendant complied with its duty under La.R.S. 23:631, and if it did not so comply, whether penalties and attorney fees provided for in La.R.S. 23:632 are warranted. La.R.S. 23:631 reads as follows:

Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

As the trial court noted, there is conflicting testimony concerning plaintiff’s appearances at the instructed time of 5:00 p. m. on his termination date and on the following Monday. However, resolution of the issue in this case is hot dependent on whose testimony is correct. The evidence clearly shows that on the two occasions on November 7, 1980, when he demanded his check, plaintiff was told receipt of the check was contingent upon signing a company form releasing all rights against the company. Plaintiff reasonably believed that by signing the release form, he would be forfeiting his right to withdraw his money from the profit sharing fund. Although the profit sharing fund was controlled by another corporate entity set up by defendant for this special purpose, it could reasonably be assumed that plaintiff did not understand this technical arrangement. In addition plaintiff could not be expected to know what effect this release might have upon future claims for unemployment compensation. A similar situation existed in Duhon v. Prof. Erney’s Music Company, Inc., 328 So.2d 788 (La.App. 3d Cir. 1976). There the employer refused to pay a discharged employee her final wages because of her refusal to sign a “Removal from Payroll” form. The court, in holding that the employer’s actions violated La.R.S. 23:631, stated that the statute did not permit an employer’s “desires, conveniences, or procedures to condition the payment of wages.” We hold that defendant’s conditioning payment of wages upon signing such release forms in the instant case violated La.R.S. 23:631.

We next consider whether defendant is liable for penalties and attorney fees as set forth in La.R.S. 23:632, which provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Defendant contends it acted reasonably in making plaintiff’s check available to him as promised, and that its mailing of the check after plaintiff failed to pick it up was in keeping with its customary business practices concerning discharged employees. Plaintiff further contends this is an equitable justification which renders penalties and attorney fees inapplicable. See Carey v. Orleans, Ins. Co., 337 So.2d 317 (La.App. 4th Cir. 1976).

The reason and spirit underlying La.R.S. 23:632 is to ensure that an employer promptly pays his discharged employee all wages due him. Soday v. Mall Snacks Inc., 374 So.2d 138 (La.App. 1st Cir. 1979). We do not feel that under the circumstances of this case defendant has acted in furtherance of this policy. Although there is a dispute in the record concerning the date defendant mailed plaintiff’s check to him, we find the preponderance of the evidence shows it was not mailed until November 24, 1980. Therefore, the mailing of the check was not within the three-day period prescribed by La.R.S. 23:631 and did not absolve defendant from the penal provisions of the statute. Furthermore, the placing of the release clause on the back of the check which was mailed to plaintiff was not an unconditional payment of wages and did not constitute a tender. As discussed heretofore, plaintiff acted reasonably in refusing to endorse and negotiate the check under the circumstances. We find that the imposition of penalties and an award of attorney fees are warranted in this case.

The final issue for our determination is calculation of penalty wages and attorney fees. It is clear that plaintiff made at least two demands for his check on November 7, 1980. This is sufficient to constitute a demand under the statute for the determination of the amount of penalties due. Simon v. Crowley Industries, Inc., 287 So.2d 549 (La.App. 3d Cir. 1973). As there has been no unconditional tender of wages through the present date, plaintiff is entitled to the maximum period of ninety days provided by La.R.S. 23:632. Plaintiff earned $217.75 weekly or $43.55 daily at the time of his discharge by defendant. He is therefore entitled to penalty wages in the sum of $3,919.50. He is further entitled to attorney fees. Considering the minimum amount of time required in the trial of this proceeding in the district court and briefing on appeal, we find the sum of $750 is reasonable for attorney fees.

For the reasons assigned, the judgment of the trial court is reversed and judgment is hereby rendered in favor of plaintiff, Walter Rush, and against defendant, Ryan Chevrolet, Inc., for the sum of $169.26 for past due wages; for the sum of $3,919.50 as penalty wages; and for the sum of $750 for attorney fees. It is further ordered that interest at the legal rate to run from date of judicial demand be paid on the past due wages, and that payment of the judgment for past due wages be conditioned on the return of the check previously issued to defendant.

Costs of these proceedings, including this appeal, are assessed to defendant.


author: HALL, Judge.

text:
    Jacquetta Benedict ELLIS, Plaintiff-Appellee, v. Dorris BENEDICT a/k/a Dorris Benedict Sinclair, Defendant-Appellant.
    No. 14730.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.

      Walker, Holstead & Smith by R. Wayne Smith, Ruston, for plaintiff-appellee, Jac-quetta Benedict Ellis and intervenor-appel-lee, Marshal Benedict, individually and as administrator of the succession of Earl P. Benedict.
    Before HALL, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff filed suit against her sister, the defendant, to obtain a judgment recognizing that an inter vivos donation of immovable property made by the parties’ now deceased father to the defendant is subject to collation or, alternatively, reduction or, in the further alternative, is null and void as a donation omnium bonorum. Plaintiff also sought reimbursement of her pro rata share of funds received by the defendant from the rental of the property which was the subject of the donation. Marshal Benedict, brother of plaintiff and defendant, intervened individually and in his capacity as administrator of the succession' of the donor, Earl P. Benedict, adopting each of the allegations contained in the petition of the plaintiff. Defendant filed an answer in the nature of a general denial praying that plaintiff’s and intervenor’s demands be rejected. Defendant alternatively alleged the payment of certain expenses for preservation of the property and prayed for reimbursement of the amount expended.

After trial of the matter, the district court declared the donation null and void as a donation omnium bonorum and rendered judgment against defendant in favor of the Succession of Earl P. Benedict in the sum of $3,800, representing the rental income received by the defendant from the date of the donation until the date of the trial on the merits. The trial court also rendered judgment against the succession in favor of the defendant in the sum of $8,027.55, the amount expended by defendant for maintenance of the property. Defendant appealed. We reverse.

The facts of the case are as follows. On July 1,1966 the defendant and her husband bought a lot with improvements in Taylor, Louisiana, for a total price of $10,650.90. A cash down payment of $640 was made, with the balance, $10,010.90, secured by a mortgage on the property. Defendant’s monthly mortgage note payment was $95.66. On May 28, 1973, the defendant and her husband sold to Earl P. Benedict the lot and improvements for $2,727.81, assumption of the mortgage on the property which at that time had a balance owed of $5,176, and cancellation of a mortgage from defendant and her husband to Earl P. Benedict in the sum of $2,795.

On November 16, 1973, Earl P. Benedict made an inter vivos donation of the lot and improvements to the defendant. The act of donation did not describe the gift as an extra portion over and above the forced portion which would be due the defendant. Nor was there any mention of the mortgage which had been assumed by the donor in 1973. The evidence established that the donor had lived in the house during the time he owned it and continued to live there subsequent to the donation until the time of his death in September 1974. After the donation, the defendant paid all of the mortgage payments as they became due, paid all taxes and insurance on the property and incurred other expenses necessary for maintenance of the property. From September 1976 until the time of trial, the defendant rented the house and lot to several tenants and received the rental income from it. This suit was filed January 6, 1978.

The evidence establishes that at the time of the donation, the only immovable property owned by the donor was the property which was the subject of the donation. At the time of the donation and up until the time of his death, the donor was receiving monthly social security and veterans’ benefits and a small monthly pension from the Woodard-Walker Company. Based on this evidence, the trial court found that at the time of the donation, the donor had a monthly income of approximately $200 per month. The trial court determined that defendant’s father donated all of his property to the defendant and did not reserve enough for his subsistence in contravention of LSA-C.C. Art. 1497. Therefore, the donation was declared null and void.

On appeal to this court the defendant argues that the trial court erred in finding that the donor’s income was only $200 per month and erred in finding the donation null and void as being, in contravention of LSA-C.C. Art. 1497. Defendant’s arguments have merit. It was established at trial that Earl Benedict’s income at the time of the donation was $396 per month and not $200 per month as the trial court found. The testimony of the defendant establishes that Earl Benedict received social security payments in the sum of $227 per month, veterans’ benefits in the sum of $139.14 per month, and retirement pay from Woodard-Walker Company in the sum of $30.76 per month. The trial court was, therefore, clearly wrong in finding that the donor’s income was only $200 per month.

The trial court also erred in finding that the donation here was a donation omnium bonorum. The trial court determined that the donor, having an income of only $200 per month, did not reserve to himself enough for his subsistence, considering that the act of donation did not make mention of the mortgage which the donor had assumed when he bought the property from the defendant several years prior to the donation. Since the donor was obligated to pay the monthly mortgage note of $96 per month, the trial court reasoned that the donor retained insufficient assets to pay for his necessities of life.

In Owen v. Owen, 325 So.2d 283 (La.App.2d Cir. 1975), this court held that an inter vivos donation by which the donors divested themselves of all of their immovable property was a donation omnium bono-rum, even though the donors had a monthly income from welfare and social security. The amount of the donor’s monthly income is not stated in the opinion. That decision was reversed by the supreme court on other grounds in Owen v. Owen, 336 So.2d 782 (La.1976); however, the supreme court made the following comments regarding the court of appeal’s determination that the Owen donation was a donation omnium bo-norum:

“In order to sustain an attack on a gift as a donation omnium bonorum, the heirs must prove conclusively that the donation divested the donor of all of his property. Whitman v. Whitman, 206 La. 1, 18 So.2d 633 (1944); Potts v. Potts, 142 La. 906, 77 So. 786 (1918); Hearsey v. Craig, 126 La. 824, 53 So. 17 (1910); Hinton v. May, 241 So.2d 583 (La.App.2d Cir. 1970). In light of the stringent requirements set forth in the aforementioned cases, we are not as certain as were the lower courts that the requirements of Article 1497 were met so as to brand I. M. Owen’s disguised donations as donations omnium bonorum . . . ."

This comment indicates that an inter vivos donation which divests the donor of all of his immovable property should not necessarily be termed a donation omnium bono-rum where the donor is entitled to and is receiving a fixed, vested monthly income in the form of government and private benefits.

Several cases, though not factually on point with the instant case, refused to declare donations void where the donor gave away substantially all of his property, but had remaining some income or the ability to earn income. See: Succession of Quaglino, 232 La. 870, 95 So.2d 481 (1957); Pardue v. Turnage, 383 So.2d 804 (La.App. 1st Cir. 1980); Blossman v. Olsen, 365 So.2d 545 (La.App. 1st Cir. 1978), writ denied 365 So.2d 1374 (La.1978).

Plaintiff has the burden of proving conclusively that the donation divested the donor of all of his property and that the donor did not reserve enough for his subsistence. The evidence in this case established that the donor divested himself of all of his immovable property and retained only his personal belongings, and that the donor was entitled to and did receive monthly social security and veterans’ benefits plus a small monthly pension. The question then becomes, did the donor reserve enough for his subsistence?

Plaintiff did not offer any evidence as to what the donor’s living expenses were. Although the donor, as the trial court noted, had assumed the obligation of paying the monthly payment on the mortgage affecting the donated property, defendant was primarily responsible for the payment and the evidence establishes that subsequent to the donation the defendant paid all of the mortgage payments as they became due. At the time of the donation in 1973, an income of approximately $400 per month was probably sufficient to supply the elderly donor’s needs in the rural area where he lived. The evidence reflects that the needs of the donor were, in fact, met from his income during the several months that he lived after making the donation.

Plaintiff failed to prove that the donor did not retain sufficient income for his subsistence. Therefore, the judgment of the trial court declaring this donation to be null and void and requiring that defendant restore rental income from the time of the donation until the time of trial, with a credit for the defendant’s expenses in preservation of the property, is reversed and set aside.

The donation, although not null and void, is subject to collation since the donor did not declare the gift to be an advantage or extra portion. See LSA-C.C. Art. 1227, et seq. Defendant concedes that collation is due.

Collation is made only to the succession of the donor, LSA-C.C. Art. 1242, and a demand for collation must be brought incident to a succession proceeding, and not made part of a suit to nullify a sale. Owen v. Owen, supra; Blossman v. Olsen, supra; Jackson v. Jackson, 175 So.2d 360 (La. App.2d Cir. 1965).

Although the demand for collation in this . instance was not made incidental to the succession proceedings, the administrator of the succession and all heirs are parties to this suit and the issues related to collation were joined and fully tried without objection in the district court. Under the authority of LSA-C.C.P. Art. 2164 and in the interest of judicial economy and efficiency we will proceed to decide and render judgment on the issues presented in this case. The judgment ordering collation can, however, only be effectuated in the succession proceedings as a part thereof.

The trial court ruled that defendant is entitled to be reimbursed for all taxes and ■insurance paid on the property and further that she is entitled to receive credit for all principal and interest payments made on the mortgage note. Judgment was rendered in favor of defendant against the succession for $8,027.25 for these items and other expenses incurred by defendant. Plaintiff and intervenor did not appeal, nor answer defendant’s appeal, and make no complaint about the judgment in this respect. LSA-C.C. Art. 1256 provides that the donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the expenses which have improved the estate in proportion to the increase in value it has received thereby. Article 1257 provides that the coheirs are bound to allow to the donee the necessary expenses which he has incurred for the preservation of the estate, though they may not have augmented its value. See also LSA-C.C. Arts. 1258 and 1259. In connection with the collation, defendant is entitled to be reimbursed the sum fixed by the district court.

The district court ruled that defendant must collate rental income received by her in the amount of $3,800, being all of the rent received by her after her father’s death in September 1974. Judgment was rendered against defendant in favor of the succession for that amount.

Defendant contends on appeal that she must only restore rent received after demand for collation or reduction was made by the filing of this suit in January 1978, more than one year after the donor’s death, relying on LSA-C.C. Art. 1515. Article 1515, which appears in the section of the Code dealing with reduction of dispositions inter vivos or mortis causa, provides:

“Art. 1515. The donee restores the fruits of what exceeds the disposable portion only from the day of the donor’s decease, if the demand of the reduction was made within the year; otherwise from the day of the demand.”

We find no Louisiana cases which have directly addressed this issue. Clark v. Hedden, 109 La. 147, 33 So. 116 (1902) seems to have applied Article 1515 in a collation case, affirming a judgment ordering the donee to account for revenues from the donated property only from the date of judicial demand and not from the date of the donation. Succession of Weber, 110 La. 674, 34 So. 731 (1903), another collation case, held that the donee owed rent from the donated property subject to collation from the date of the donor’s death, offset by taxes, insurance, and maintenance paid. See also Succession of Pierson, 339 So.2d 1337, 1351 (La.App.3d Cir. 1976), writs denied 342 So.2d 216 and 217 (La.1977), for a discussion of collation of fruits of things collated. None of the cited cases involved a situation, as in the instant case, where the demand for collation was made more than one year after the death of the donor.

Article 1515 applies to reduction of donations exceeding the disposable portion; it does not apply to collation of donations to equalize the inheritance of co-heirs. Reduction and collation are entirely separate and distinct matters, governed by separate codal rules. See Jordan v. Filmore, 167 La. 725, 120 So. 275 (1929).

Since this special rule keyed to the date of making demand is not applicable to collation, it seems only logical that the expenses incurred by the donee in preserving and maintaining the property for which the donee is entitled to reimbursement should be offset by the revenues from the property received by the donee after the date of the donor’s death. Succession of Weber, supra, is authority for this decision. In this case there were no revenues received by the donee prior to the donor’s death and, therefore, we need not deal with the question of whether revenues from property to be collated received prior to the donor’s death must be collated or offset against expenses.

The trial court correctly determined that defendant owes the succession $3,800 for rents received after the death of the donor.

The judgment of the district court is reversed and set aside. Judgment is rendered in favor of the Succession of Earl P. Benedict against the defendant, Dorris Benedict Sinclair, ordering collation in kind of the following described property, to-wit: ■

Lot 34 of Unit 1 of Ada Subdivision, as per plat and map thereof on file and of record in the office of the Clerk of Court, Bienville Parish, Louisiana, together with all improvements and all rights thereunto belonging;

the collation to be effectuated in the succession proceedings in accordance with law. Judgment is further rendered recognizing defendant’s entitlement to be reimbursed the sum of $8,027.55 for expenses incurred for improvement and preservation of the property, subject to a credit or offset of $3,800 for rent received by the defendant. Costs of this proceeding, including the cost of appeal, are assessed one-half to the Succession of Earl P. Benedict and one-half to defendant, Dorris Benedict Sinclair. Reversed and rendered.

      . “Art. 1497. The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”


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

text:
    SUCCESSION OF Mrs. Clara Pepper LAWSON.
    No. 14731.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Horton & Jones by Donald G. Horton, Coushatta, for plaintiffs in rule-appellants.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for defendant in rule-appel-lee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The opponents to a private sale by the testamentary executor to himself of succession immovable property appeal a trial court judgment dismissing their opposition. We affirm.

On January 16,1980 Robert Lawson filed a petition to probate the will of his mother, Clara Pepper Lawson, who died on December 30, 1979. Under the terms of the will, which was duly probated, the petitioner was named executor and was bequeathed one-third (the disposable portion) of the decedent’s property. The remaining two-thirds of decedent’s property was bequeathed in equal undivided proportions to decedent’s six children, including Robert Lawson.

The executor filed a detailed descriptive list (subsequently amended) showing the estate of his deceased mother as consisting of undivided interests (totaling 65 acres) in several tracts, some of which were non-eon-tiguous. The succession property was valued by the executor at the total sum of $52,000.

On July 11, 1980 the executor filed a petition seeking court authority to sell to himself for $52,000 cash ($800 per acre) the succession property listed in the detailed descriptive list “to realize sufficient funds to pay debts and charges of the succession.” Two of the executor’s coheirs, Winona Lawson Marshall and Gertrude Lawson Taylor, filed an opposition to the proposed private sale, asserting that the only debts owed by the succession were executor’s and attorney’s fees and that “a bona fide offer to purchase the property owned by the Succession has been made to the heirs of the decedent in a sum far in excess of that offered by the executor.”

After a hearing on the opposition, the trial judge in a written opinion concluded that there had been no genuine offer to purchase the succession property for a sum in excess of that offered by the executor; that the succession appeared to owe debts of at least $7,000; and that it was in the best interest of the succession to sell all of its property rather than undivided interests in some of the tracts.

Opponents-appellants contend that the trial judge erred in finding that (1) the succession owed the indebtedness testified to by the executor; (2) all of the succession property should be sold to pay debts which amounted to considerably less than the value of that property; and (3) there had been no offers to purchase the succession property for a figure in excess of that offered by the executor.

Louisiana Code of Civil Procedure, Article 3261 provides:

“A succession representative may sell succession property in order to pay debts and legacies, or for any other purpose, when authorized by the court as provided in this Chapter.”

Louisiana Code of Civil Procedure, Article 3281 provides:

“A succession representative who desires to sell succession property at private sale shall file a petition setting forth a description of the property, the price and conditions of and the reasons for the proposed sale.”

At the hearing on the opposition to the private sale, Robert Lawson testified that the succession owed funeral expenses of $1590 and a “sitter’s” bill of $296 (both of which he had paid and was due reimbursement); medical expenses of $2736.94; $3725 for advances made by him; and $14,909.20 for nursing services rendered by his wife to the decedent. In addition, of course, the succession would owe the executor’s fee, attorney’s fee and court costs. The trial judge observed that while “the debt for nursing services may be seriously in question, there seemed no serious opposition to the other debts listed amounting to something over $7,000.00.” This finding of fact is amply supported by the record. Consequently, this sale of succession property to pay debts is sanctioned under the provisions of Article 3261. Opponents’ right to question in subsequent proceedings any of the asserted succession charges is adequately protected by law, specifically La.C.C.P. Arts. 3305-3307.

We also agree with the trial judge that the best interest of the succession will be served by selling all of the succession property rather than the undivided interests in some of the tracts. There was no evidence presented at the hearing of an offer by anyone to purchase only a part of the succession property nor was there evidence that such partial sale would realize a sufficient sum to pay the succession indebtedness.

The most serious assertion made by opponents-appellants is that the succession property could be sold for more than the executor was offering.

It is axiomatic that a succession representative stands in a fiduciary relation to the succession. La.C.C.P. Art. 3191.

The requirement of public advertisement and court approval before a representative has the authority to convey succession property at private sale affords the succession and interested parties protection against maladministration by the representative— particularly his disposal of succession property for an inadequate consideration. Hamilton v. McKee, 371 So.2d 1115 (La.1979).

As the executor of his mother’s succession, Robert Lawson had a legal obligation to secure the best price reasonably available as consideration for the conveyance of the succession property. The factual question here posed, as raised by opponents-appellants, is whether bona fide offers had been made to purchase that property for a figure in excess of that offered by the executor.

Mrs. Taylor, one of the opponents, testified that Sam Mondello, a farmer who lived in the area, told her he would pay $900 per acre for the property. However, she conceded that their discussion contemplated a sale of the full ownership in the 170 acres rather than the undivided interests owned by the succession. Furthermore, even though Mrs. Taylor referred Mondello to Robert Lawson as the succession representative, there was no evidence that Mondello ever made a formal offer to Lawson for purchase of the property.

Both Mrs. Taylor and her brother, John Lawson (who did not join in the opposition) testified at the hearing that they would pay more than $800 per acre for the succession property. However, as pointed out by the trial judge, these general statements of intent quoted no specific figures or terms nor did these witnesses refer to any concrete arrangements made by them for the financing of this rather substantial purchase price. There was also no evidence that either had extended a formal offer of purchase to the executor.

Under these circumstances, the trial judge correctly concluded that no bona fide offer had been made to purchase the succession property for a sum in excess of that offered by the executor, which was the same figure at which the property was valued on the detailed descriptive list.

For these reasons, we agree with the trial judge that the proposed private sale of the succession property to the executor is in the best interest of the succession. Therefore, he acted properly in dismissing the opposition and we affirm that judgment, at appellants’ cost.

      . It appears that decedent owned a lh interest in some 85 acres, a 'M interest in some 80 acres, and a ‘As interest in about 5 acres. The record indicates that decedent’s children owned the other undivided interests by virtue of inheritance from their deceased father.

      . The first petition for authority to sell succession property at private sale was subsequently dismissed on motion of the executor, without prejudice, because of errors in the property descriptions. Another petition seeking the same authority to sell was filed on August 4, 1980, to which the same opposition was filed by Mrs. Marshall and Mrs. Taylor.


author: JASPER E. JONES, Judge.

text:
    Thomas Wayne BONNER, Plaintiff-Appellee, v. Rhonda Rene Gilbert BONNER, Defendant-Appellant.
    No. 14732.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Hamilton, Carroll & Miller by O. N. Hamilton, Jr., Oak Grove, for plaintiff-appellee.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for defendant-appellant.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Rhonda Bonner appeals a judgment awarding her husband, Thomas Bonner, custody of their two and one-half year old daughter who had initially been awarded to appellant in January, 1981 in an uncontested separation judgment. We affirm.

Rhonda Bonner is a licensed practical nurse. She was unemployed at the time of trial. Rhonda supported herself and daughter, Krystal, with income from unemployment insurance, child support and her “boyfriend.”

Rhonda and Krystal resided in the Centennial Apartments in Bastrop, Louisiana. Rhonda spent quite a bit of time with Krystal and sometimes took the little girl to the zoo or movies or to get ice cream, all of which were greatly enjoyed by Krystal. The primary play area at the Centennial was a parking lot where Krystal played along with many other children who lived in the complex. There is testimony that while Krystal lived with her mother she was well cared for, happy and well adjusted.

Thomas Bonner is employed at a paper mill in Bastrop where he works from 8:00 a. m. until 4:30 p. m. Thomas owns a home in Bastrop, as do his parents. Mr. Bonner’s parents would assist him by caring for Krystal while he is at work.

While Rhonda had custody of Krystal she would spend weekends with Thomas. Thomas did not often take Krystal out for activities during those visits. Thomas and Krystal spent much time watching television. They would also visit Krystal’s paternal grandparents and attended church regularly with them on Sundays.

Most of the record and excellent briefs in this case concern the extra-marital sex activity of this 24 year old couple. Thomas was the first to experiment with adultery.

In May 1980, Thomas had a brief affair with a co-employee at a nursing home where he was working. Both Thomas and bis co-employee were unhappy and their initial relationship was to discuss their problems and commiserate with each other. Unfortunately, their relationship took a sinister turn and the pair met at a house trailer on three different occasions for sex. The affair quickly ended when the spouses of both participants learned of it. There is no evidence that Thomas ever again ventured into infidelity.

Rhonda began her affair shortly before the marriage broke up. She took her car to a used car lot to have it repaired. There she met David Johnson, a 57 year old used car salesman. Rhonda and David fell into a discussion of their respective marital problems. Rhonda and David then began meeting, first at Mike’s Motel in Oak Grove and later at the Bastrop Motel, for sex. Apparently Rhonda was never charged for the repairs to her car.

On one of the occasions when Rhonda and David met at the Bastrop Motel they were discovered by Johnson’s wife and daughter. This encounter was accompanied by sufficient fanfare for the police to be summoned. Soon after this incident the Bon-ners separated.

Johnson then installed Rhonda and Krystal in the apartment and paid the rent on it. Johnson secured lodging for himself at the Bastrop Motel. At this point Johnson was staying overnight in the apartment with Rhonda only occasionally.

After a time Rhonda and David decided that the motel room was a needless expense and Johnson moved into the apartment with Rhonda and Krystal. David and Rhonda slept in one bedroom and Krystal slept in the other. This arrangement continued for about six weeks, until five days before the trial, when Johnson moved out in order to avoid prejudicing Rhonda’s chances of retaining custody. The relationship between Rhonda and David is a continuing one and they have discussed the possibility of getting married once their divorces are final. Rhonda testified that in the future she would not allow David to remain overnight in the apartment.

Rhonda’s attitude about the situation is best shown by her testimony:

“Q. What led up to the decision for Dave [Johnson] to actually move into the apartment with you and Crystal? (sic) [Krystal].
A. We just talked about it and he just decided he would move in because he was paying so much rent for the motel room.
Q. Okay. Did you feel like that this was good example to set for Crystal (sic), having a live in boy friend?
A. I don’t think it’s hurt Crystal (sic) at all.
Q. Well, Ma’am in .. . would you recommend this to everyone that has small daughters?
A. Well, I can’t tell anyone what to do -uh as far as my child is concerned and my situation I can’t see where it has hurt my little girl at all.
Q. Would you agree, ma’am, that people generally feel that it is immoral to have a live in boy friend when you have a living husband?
A. Some people might. Not as many now as use to would though.
Q. Yes ma’am. I would agree with you that people’s opinion do change. You do not feel that it is immoral yourself?
A. No sir.
Q. I see. Because you feel this way, you would pass on your beliefs I take it to your daughter?
A. If that’s what she wanted to do.
Q. Well, you would have to teach your daughter what you believe is right; otherwise, you wouldn’t be true would you?
A. No sir.” [Tr. 79-80]

The trial judge found Rhonda morally unfit for the custody of a young female child and awarded custody to Mr. Bonner. On appeal Mrs. Bonner makes only one assignment of error: the finding that she is morally unfit for custody.

Custody is not awarded on the basis of which parent buys the child the most ice cream cones or who has the nicest house. The award of custody is to be made in accord with the best interest of the child. LSA-C.C. art. 157; Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Monsour v. Monsour, 347 So.2d 203 (La.1977). The trial judge, who saw and heard the witnesses, determined that it would be in the best interest of Krystal to be in the custody of her father due to her mother’s moral unfitness. It is not our province to substitute our judgment for that of the trial judge. In custody matters the trial judge’s determination must be given great weight and his discretion may not be disturbed in absence of clear abuse. Fulco; Monsour, supra; Coltharp v. Coltharp, 368 So.2d 793 (La.App.2d Cir.1979), writs denied 370 So.2d 578 (La.1979); Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Ferguson v. Ferguson, 398 So.2d 1238 (La.App.4th Cir.1981); Shackleford v. Shackleford, 389 So.2d 825 (La.App.3d Cir.1980). Thus, our inquiry is: was there a clear abuse of discretion by the district judge in his award of custody?

Though it is usually in the best interest of a young child to be in the custody of its mother, that is not the case when the mother is morally unfit. Parker v. Parker, 304 So.2d 681 (La.App.3d Cir.1974); writs denied 307 So.2d 641 (La.1975). With this in mind we turn to the trial judge’s conclusion that Rhonda Bonner is morally unfit.

That a mother has committed one or more acts of adultery with the same person does not alone show that she is morally unfit. Cleeton; Parker, supra. However, a course of open and public adultery in disregard of generally accepted moral principles is generally considered to make a mother unfit. Beck v. Beck, 341 So.2d 580 (La. App.2d Cir.1977); Parker, supra; McCurdy v. McCurdy, 369 So.2d 1216 (La.App.2d Cir.1979); Hildebrand v. Hildebrand, 391 So.2d 577 (La.App.4th Cir.1980), writ denied 396 So.2d 922 (La.1981).

The record shows that Mrs. Bonner, during her marriage, began an affair with a married man who was thirty-three years her senior. Rhonda admitted that she met that man at various motels for the purpose of committing adultery. This affair was exposed in an incident so ostentatious that the police were called.

Following those events Rhonda Bonner became what the trial judge aptly described as a “kept woman” and lived with Krystal in an apartment paid for by her lover, who also provided her with other items. Mrs. Bonner then had her lover move in and live with her and Krystal. That was discontinued only five days before, and for the sole purpose of the trial of this matter.

The testimony of Rhonda Bonner makes it clear that she sees nothing wrong with her conduct. She would apparently approve should Krystal someday pursue a similar lifestyle.

The only redeeming factors Mrs. Bonner can call on are that she had Johnson move out and testified that he would not stay overnight in the future. There is slight evidence that Mrs. Bonner may have paid one month’s rent on the apartment.

We recognize that in today’s society conduct that would once have been scandalous is acceptable or, perhaps, even the norm. However, we do not believe that even today’s more permissive society accepts or condones conduct of the nature engaged in by Mrs. Bonner. In view of that and Mrs. Bonner’s attitudes about her conduct, we cannot conclude that the trial judge committed any abuse of discretion in determining that she is morally unfit for the custody of Krystal. As we pointed out in Beck, supra, a child learns by example and a mother’s disregard for moral guidance and social standards can but harm the child. We note that here, as in Beck, the mother’s conduct discloses no basis to believe she has truly reformed and would give good moral guidance to her young daughter in the future.

The judgment is AFFIRMED at appellant’s cost.

      . The testimony of David Johnson was as follows:
      “Q. The motivating fact of your moving out was this pending litigation?
      A. Yes.” [Tr. p. 10]
      Mrs. Bonner testified:
      “Q. If you feel that it nothing wrong with your occupying this apartment with Mr. Johnson as husband and wife as you have done, — uh why did you require Dave to move out last Wednesday?
      A. Because of this custody case and if it meant either David staying or going, I just told him he would have to go if it meant keeping my little girl or not.” [Tr. p. 80]

      . C.C. art. 157 — A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent. Such custody hearing may be held in private chambers of the judge. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.
      B. If subsequent to the granting of a divorce or separation one of the parties to the marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.


text:
    BANK OF COUSHATTA, Plaintiff-Appellee, v. Alice Maurine Hunter DRY, Defendant-Appellant.
    No. 14733.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    Bethard & Davis by Walter E. Dorroh, Jr., Coushatta, for plaintiff-appellee.
    Gahagan & Gahagan by Fred S. Gahagan, Natchitoches, for defendant-appellant.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Alice Dry appeals from a judgment denying a preliminary injunction of the sale of her property and dismissing her reconven-tional demand for damages for wrongful seizure. We affirm.

Dry and her deceased husband were comakers of a demand note payable to bearer. The note is secured by a mortgage on a tract of land located in Red River Parish. Plaintiff, Bank of Coushatta, is the holder and owner of the demand note.

The bank instituted executory proceedings to enforce the mortgage and a writ of seizure and sale was issued and the property seized. The curator for Mrs. Dry, a non-resident, answered by filing a general denial. Upon learning of the suit, Dry employed present counsel and filed a petition for injunctive relief and reconvened for damages for wrongful seizure. A temporary restraining order was issued to stop the sale of the property. The judgment appealed from was rendered after a hearing on the rule for the preliminary injunction.

Dry makes only one assignment of error on appeal: that it was error for the district judge to find that the writ of seizure and sale was not wrongfully issued. Dry argues that since the petition contains no allegation of breach of the mortgage or default by her that it was insufficient. The substance of the contention is that the petition does not state a cause of action and is, therefore, insufficient to support executory process.

Dry’s argument is as follows: a petition in executory process must comply with LSA-C.C.P. art. 891; that article requires the petition to state the facts on which the cause of action is based; a suit on a note requires some allegation of a breach of the mortgage or note which “matured” it and makes it due; that this petition contains no such allegation and, therefore, does not comply with Article 891.

The bank’s petition contains only four paragraphs. Paragraph one names Dry as the defendant. The second paragraph alleges that the bank is owner and holder of the note. The third paragraph alleges that the note is secured by the mortgage. The final paragraph alleges that the mortgage contains a confession of judgment and consent to the use of executory process. The petition concludes with a prayer that a writ of seizure and sale issue and that the property be sold to satisfy the note.

Executory process is a harsh remedy and each step must be carried out in strict compliance with the letter of the law. Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir. 1976). The petition in an executory proceeding must comply with LSA-C.C.P. art. 891; LSA-C.C.P. art. 2634. The petition must contain a statement of the material facts on which the cause of action is based. LSA-C. C.P. art. 891.

This case turns on whether or not it was necessary for the petition to allege some breach which makes the obligation due. We conclude that such an allegation was unnecessary in this case.

LSA-R.S. 10:3-122. provides as follows;

(1) A cause of action against a maker or an acceptor accrues
(b) in the case of a demand instrument upon its date, or if no date is stated, on the date of issue.

Paragraph 2 of the petition here alleges that the note was made “due on demand”. On a demand note a cause of action accrues on the date of the instrument even though no demand had been made. Bank of St. John v. Hibernia Bank & Trust Co., 189 La. 1, 179 So. 15 (1938); Knick v. Green, 545 S.W.2d 269 (Tex.Civ.App., Waco, 1976); Cantonwine v. Fehling, 582 P.2d 592 (Wyo.1978). Suit on a demand note can be brought at any time without any other demand unless the parties intended otherwise. Bank of St. John, supra. A demand note is properly payable immediately upon execution and filing suit constitutes a demand for payment and failure to pay in response thereto puts the maker in default. DiFatta v. Campagna, 190 So.2d 157 (La.App. 4th Cir. 1966); Wood v. Kelly, 359 So.2d 742 (La.App. 4th Cir. 1978); LSA-C.C. art. 1911. No allegation of a previous demand for payment is required before a mortgagee can have property seized. Pargoud v. Richardson, 30 La.Ann. 1286 (La.1878). See also Bank of St. John, supra.

The note sued upon in this case is a demand note. Therefore it required no breach of any condition of the mortgage or note to “mature” the obligation. The obligation was “mature” from the moment of the execution of the note. LSA-R.S.-10:3-122; Knick; Cantonwine, supra. The bank’s petition served as a demand for payment and when Dry did not pay she was in default. LSA-C.C. art. 1911; DiFatta; Wood; supra. Therefore, the petition alleges all necessary facts on which the cause of action is based and complies with LSA-C.C.P. arts. 891 and 2684. Thus, the writ of seizure and sale was properly issued.

Dry relies on the cases of Commercial Credit Corp. v. Nolan, 385 So.2d 1246 (La.App.3d Cir. 1980), and May Co., Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App.3d Cir. 1977), for the proposition that the petition must include an allegation that the obligation sued on is in default and due. Those cases are not controlling here because of an important factual difference. In both of those cases the note in question was an installment note rather than a demand note as we have here. In a suit on an installment note where some condition must occur in order to make all the installments due it is easy to understand why the occurrence of that condition must be alleged. In the Nolan case the court found as a fact that the seizure was wrongful because the installment which plaintiff relied upon to trigger the acceleration cause was found to have been timely paid by the defendant. The court in May stated:

“The petition in the instant suit does not satisfy these requirements. Nowhere do we find an allegation that the obligation is in default and due.” Id. p. 918.

However, since there need not be any breach or the occurrence of a condition to make a demand note due no allegation is required other than that found in paragraph 2 of the petition wherein the note is described and the affirmative statement is made to the effect that it was “made due on demand.”

The judgment of the district court is affirmed. All costs are taxed to appellant.

AFFIRMED.

      . Art. 2634 — A person seeking to enforce a mortgage or privilege on property in an execu-tory proceeding shall file a petition therefor, praying for the seizure and sale of the property affected by the mortgage or privilege. This petition shall comply with Article 891, and the plaintiff shall submit therewith the exhibits mentioned in Article 2635.

      . Art. 891 — The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.

      . Art. 1911 — The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
      1. By the terms of the contract, when it especially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.
      2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.
      3. By the operation of law. This takes place in cases where the breach of the contract alone is by law declared to be equivalent to a default. The law having declared that the neglect to return a thing loaned for use, at a stipulated time, or the application of it to another use than the one for which it was lent, puts it at the risk of the borrower; this, without any act of the lender, puts the borrower in default, and forms an example of this part of the rule.