author: BOUTALL, Judge.

text:
    Michael NERTAVICH v. Carmella NERTAVICH.
    No. 5-207.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Mary Hotard Becnel, Law Office of Daniel E. Becnel, Jr., Reserve, for Carmella Nertavich defendant-appellee.
    Robert R. Faucheux, Jr., Reserve, for Michael Nertavich plaintiff-appellant.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOUTALL, Judge.

Plaintiff-appellant Michael Nertavich, having been domiciled in Louisiana for over one year, sued for divorce from his nonresident wife Carmella on the grounds of living separate and apart for one year. In his petition for divorce plaintiff also prayed that support in the amount of $100 per week be granted to the defendant wife, and that she be awarded custody of their minor child. A judgment of divorce was granted to plaintiff husband in accordance with all the particulars of his prayer, nonetheless he has appealed.

It is a rather puzzling occurrence when a party appeals from a judgment granting him exactly what he petitioned for.' From what we can glean from his brief, plaintiff-appellant has raised issues of lack of subject matter jurisdiction, lack of personal jurisdiction, and excessiveness of the child support and alimony award. We find the errors raised on appeal to be wholly without merit.

It is clear that the trial court had subject matter jurisdiction to hear this action by virtue of C.C.P. Article 10(A)(7), (B) and La.R.S. 9:301.

Similarly the court had personal jurisdiction over both the husband and the wife. Plaintiff-husband affirmatively invoked the jurisdiction of the courts of this state by filing for divorce in Louisiana. The defendant wife waived any exception to the trial court’s personal jurisdiction over her in this action when she made a general appearance through her attorney.

Additionally, since there was personal jurisdiction over the husband in the divorce action, it follows that the trial court was empowered to render a money judgment against him. Imperial v. Hardy, 302 So.2d 5 (La.1974), DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2nd Cir.1977).

As to the excessiveness of the child support and alimony judgment rendered against appellant, we find that it was not an abuse of discretion for the trial court to award Carmella Nertavich $50 per week for alimony and $50 per week child support.

Appellant has leave to return to the trial court at any time to seek a modification of the award upon proof of changed circumstances of either party. This is the proper avenue of relief for appellant. This appeal is clearly frivolous. For the foregoing reasons the judgment of the District Court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    SUCCESSION OF Donald E. DILLEY.
    No. 5-171.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Philip R. Riegel, Jr. (of), Parlongue & Riegel, New Orleans, for appellants.
    Harry R. Cabral, Jr., Metairie, for appel-lee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal from the trial court’s judgment dismissing a petition to annul the probate of the decedent’s statutory will and to declare the will a nullity. The facts surrounding the controversy on appeal are simple and are not disputed. The litigation involves the Succession of Donald E. Dilley. The decedent’s statutory will was dated September 16, 1980, and was probated on April 1, 1981, and the widow of the decedent, Mrs. Leah Elizabeth Ziegler Dilley, was appointed as testamentary executrix, under the terms of decedent’s testament.

Shortly thereafter, a suit was brought by the decedent’s three major children of a prior marriage, to annul the probate of the statutory will. The trial judge dismissed the petition to annul and from that judgment, appellants have perfected this appeal.

We affirm.

The sole issue presented to this court, is whether the attestation clause is in substantial compliance with the requirements of LSA-R.S. 9:2442.

The requirement, which is germane to this appeal under LSA-R.S. 9:2442, is as follows:

“B. The statutory will shall be prepared in writing and shall be dated and executed in the following manner:
(1) ....
(2) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar:
“The testator has signed this will at the end and on each other separate page, and has declared or signified in our presence that it is his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names this_day of_, 19_”

The attestation clause in the testament under consideration reads as follows:

“Signed on both pages and declared by Donald E. Dilley, testator above named, in our presence and in the presence of each other, to be his last will and testament, we have hereunto subscribed our names as witnesses, on the day and date first above -written, in the Parish of Jefferson, State of Louisiana.”

The appellants argue that the attestation clause does not indicate that the notary and witnesses signed the will in the presence of the testator and each other. They assert that, because of this failure, the will is an absolute nullity. Furthermore, they contend there is simply a failure to recite that the notary and witnesses affixed their signatures in the presence of the testator and of each other.

The only thing the notary and witnesses attest to in the subject case, is that the testator signed in their presence and that they signed the will on the date first above written in the Parish of Jefferson, State of Louisiana. They argue that “this attestation clause, therefore, would be truthful if, in fact, the notary and witnesses had signed the will later in the day in another office”. We do not agree.

All of the formal requisites for the composition of a statutory will must be observed, under penalty of nullity. However, the form is not sacrosanct. In Succession of Morgan, 257 La. 380, 242 So.2d 551 at 552, the Supreme Court of Louisiana announced:

“It may follow the form suggested in the statute or use a form substantially similar thereto. The attestation clause is designed to evince that the facts and circumstances of the confection and execution of the instrument conform to the statutory requirements. In construing the attestation clause of this type of will, this court has been most liberal in its determination of whether the clause complies in form and whether it evidences the requisites to supply validity to the instrument.

In Succession of Thibodeaux, 238 La. 791, 116 So.2d 525, the Supreme Court of Louisiana reiterated a basic principle of construction of wills, “that the validity of a will is to be maintained if possible”.

In Morgan, supra, 242 So.2d at 553, the Louisiana Supreme Court stated:

“In construing an attestation clause, we will not require strict, technical, and pedantic compliance in form or in language. Rather, we will examine the clause to see whether there is substantial adherence to form and whether it shows facts and circumstances which evidence compliance with the formal requirements for testamentary validity.”

We have no reservation that the subject attestation clause properly fulfills the substantial compliance requirement mandated under Louisiana law. We conclude that the language of the clause is sufficient to establish that the notary and witnesses signed the will in the presence of the testator and each other.

For these reasons, the decision of the trial court dismissing the appellants’ petition to annul the probate of the statutory will is affirmed.

AFFIRMED.


text:
    James DUNN, Individually and on Behalf of His Minor Child, Rachel DUNN v. Sitman FOSTER and Southeastern Fire Insurance Company.
    No. 5-166.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Micheline V. Gomila of Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellant.
    Ronald P. Thibodeaux, Giles Duplechin, Gretna, for plaintiffs-appellees.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Defendants-appellants, Sitman Foster and his home liability insurer, Southeastern Fire Insurance Co., appeal from a jury verdict awarding $15,000 to plaintiffs-appel-lees, James Dunn and his minor child, Rachel, for injuries suffered by the child at Foster’s home.

The facts are uncontested. The house was damaged by fire some two months before Rachel’s injury, and was uninhabited during repairs. On the day of the injury, Foster’s fifteen year old son Jessie, Rachel, and a third teenager, Pat Exsterstein, were playing at the empty house. It was stipulated that the children were legally on the premises.

During a game of chase with Pat, Rachel ran out the back door into the yard. On exiting the door, she noticed that it was somewhat stuck, but she was nonetheless able to open it and close it behind her. She then returned running to the door to reenter the house. As she reached the door, she put out her hand to push it open. Unfortunately, her hand missed the wood frame and struck instead, one of the small glass panes at the top of the door. The glass shattered and lacerated her hand and arm.

Plaintiffs argued successfully at trial that the sticking of the door was the cause, in fact, of the accident, and that this sticking was a dangerously defective condition which was left uncorrected by Foster, in violation of his duty to one legally on the premises, and therefore that he was negligent.

Defendants argue to the contrary here, that even though the stuck door was the cause of the injury, such a door is not an inherently dangerous condition such as to impose on Foster a duty to correct it. He therefore could not have negligently breached a duty which did not exist.

Because we agree that the stuck door did not create a duty on Foster to correct that condition, under the circumstances of this case; we reverse the jury verdict, which cast him in judgment for negligent breach of that duty.

In tort cases, a court must first determine the cause in fact of the injury. If the injury was caused by some act or omission of the alleged tort-feasor, the inquiry then becomes whether there was a legal duty which encompassed the particular risk that caused plaintiff’s harm. Jones v. Robbins, 289 So.2d 104 (La.1974).

In the present case, there was sufficient evidence for the jury to infer that because the door stuck, the glass pane shattered and cut Rachel’s hand and arm. The stuck door was thus the cause in fact of the injury.

Our next inquiry then becomes whether the defendant owed any legal duty to the plaintiff, which encompassed the risk of the injury suffered.

There is no question that a homeowner has a duty to discover, and either correct or warn a guest of any unreasonably dangerous conditions on his premises. However, this duty does not make the owner an insurer of his guests, against all possibility of accident. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, 410 (La.1976); Taylor v. National Indemnity Co., 215 So.2d 203 (La.App. 3rd Cir.1968). Neither is this duty breached by failure to repair or warn a guest, unless there is some inherently dangerous condition on the premises, which could foreseeably cause an unreasonable risk of harm, under the circumstances. Cook v. Central Mutual Insurance Co., 345 So.2d 1013 (La.App. 2nd Cir.1977).

Here, the only alleged dangerous condition, was a door which required more than usual effort to be opened. We find that such a condition was not so inherently dangerous as to constitute an unreasonable risk of harm, under the circumstances of this case. See Renfro v. South Coast Corp., 374 So.2d 122 (La.App. 1st Cir.1979).

While any defect in a house could fore-seeably cause injury, the law does not impose an absolute duty on the homeowner to correct that defect, unless it is so dangerous as to create an unreasonable risk of harm. Put another way, if the magnitude of the risk created is outweighed by the utility or social value of the conduct creating it, then that risk is not unreasonable, and therefore the condition creating that risk is not unreasonably dangerous. Goff v. Carlino, 181 So.2d 426 (La.App. 3rd Cir.1965). Stuck doors in homes are quite common, and the cost of repairing such doors is generally deemed to outweigh the minor difficulty of opening and closing them. Neither are such doors considered dangerous, much less unreasonably dangerous.

We therefore conclude, that under the circumstances of this case, the residential door, which required more than usual effort to open, was simply not a condition which created an unreasonable risk of the harm suffered; and therefore that Foster had no duty to correct that condition. As there was no duty owed, Foster cannot be held liable for negligently breaching that duty.

This court recognizes that, where children are concerned, the duty of the homeowner is more burdensome, because children often fail to perceive dangers which would be obvious to adults. Taylor v. National Indemnity Co., 215 So.2d 203 (La.App. 3rd Cir.1968). However, to invoke this principle, there must still be some inherently dangerous condition that creates an unreasonable risk of harm, which the child failed to appreciate because of his immaturity. Cook v. Central Mutual Insurance Co., 345 So.2d 1013 (La.App. 2nd Cir.1977). As we have concluded that the stuck door was not inherently dangerous, under the circumstances of this case, we need not consider Rachel’s age nor her appreciation of danger.

Because we find that Foster breached no duty owed to a guest on his premises, we need not consider other issues raised on appeal.

For the foregoing reasons, the decision of the trial court is reversed. All costs of this appeal are to be paid by the plaintiffs.

reversed;


author: BOWES, Judge.

text:
    N-Y ASSOCIATES, INC., Represented Herein By the President, Frank NICOLADIS v. ST. CHARLES PARISH POLICE JURY Represented Herein By Its President, Sterling MELANCON and Board of Commissioners of Gravity Drainage District No. 2 of St. Charles Parish, Louisiana, Represented Herein By Its Administrative Secretary, A.A. Robichaux.
    No. 5-58.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Leon C. Vial, III, Hahnville, for defendant-appellee.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Plaintiff, N-Y Associates, Inc. has appealed from the judgment rendered in favor of defendants on a contract to perform certain engineering and consulting services for and on behalf of the Gravity Drainage District Number 2 of St. Charles Parish. The Board of the Gravity Drainage District was, in 1977, interested in securing a professional engineer to correct certain drainage problems in Norco. On May 2, 1977, the Board passed a resolution authorizing the president of the Board of Commissioners (of the Drainage District) to execute a contract for consulting engineering services with plaintiff for the specified project.

On May 5, 1977, such a contract was entered into between plaintiff and the Drainage District. The contract provided for enumerated services, in several phases, which were to be compensated under a basic fee. Certain additional services not included in this basic fee were also detailed and were to be paid by the Owner (Drainage District). A schedule of payments was provided, by which a percentage of the basic fee would become due upon completion of certain phases of the project. The basic fee itself was determined to be a percentage (here, 6.56%) of the entire cost of construction. This basic fee was to constitute complete compensation for services (excluding the additional services in section IV of the contract). •

Funds for payment were to be furnished as follows:

“XI. SPECIAL PROVISIONS
A. No payment shall be due and payable to the Engineer by the Owner, except as specifically provided for in Paragraph XI, B below, unless funds are made available for this project through the sale of bonds or certificates or upon funds being made available therefor out of the general fund, by federal grants, state grants or any other source.
B. The engineering fee for the preliminary phase as described in Paragraph IV, B, shall be due and payable if a bond election to finance this project is not called for within one calendar year after the submittal of the preliminary report by the Engineer to the Owner.”

In July, 1977, plaintiff issued a report entitled “Storm Drainage and Improvements for Gravity Drainage District No. 2 of St. Charles Parish, Norco, Louisiana” and numbered “N.Y. Job No. 415-77E.” It was further marked “Not Final.”

According to the testimony adduced at trial, the costs estimates in this report exceeded the bonding capacity of the District and plaintiff was advised to reduce the plans to conform with the financial abilities of the Board. The estimate of that report showed the Total Construction Cost of Phase 1 to be $1,038,310.00 and the Total Project Cost, including legal, administrative and survey costs (15%), at $1,194,000.00. Plaintiff testified at the trial:

“The maximum amount of the bond issue under the assessment was $689,000.00.” (Trans, p. 93)

No evidence was presented, nor any testimony elicited, which would contradict this statement.

Plaintiff filed suit in July, 1979, after the Board failed to call a bond election to finance the project within the one year allowed by the contract, alleging that 30% of the basic fee, or $88,723.54, was due. Plaintiff further alleged that the Police Jury and Board hired new engineers to perform work provided by the contract, resulting in his economic loss of that specified sum.

An Exception of No Cause of Action was filed on behalf of the Police Jury and an Answer filed by the Board. The trial judge maintained the exception as to the Police Jury, dismissing them as a party to the suit. At the trial on the merits, the Court rendered judgment in favor of the defendant Board.

The contract, prepared by N-Y Associates, provided in Section IV B that payment would become due “upon completion and approval of the preliminary phase as outlined ... an amount equal to 30% of the basic fee.” The testimony indicates that having informed the plaintiff that costs would have to be cut to correspond with their bond capacity, the Board never received or approved a final report. One witness states that a final report was received; but no such report was introduced into evidence. The then-president of the Board and another member testified that no final report was ever received. The plaintiff himself testified that the two reports in evidence, only one of which was marked “final”, appeared identical, as they do to this court. He testified also that he was aware by virtue of a memo from his staff that certain cuts would have to be made, but that no later report was issued.

Accordingly, we are of the opinion that the Board properly and reasonably withheld approval of an unusable report furnished by plaintiff, and that no revised report was ever submitted, and no further approval of the Board was ever solicited for a second usable proposal. Thus, a basic provision of the contract, a prerequisite for the fee sought by plaintiff, was never satisfied. For this reason, we are persuaded that Section XI B of the contract, on which plaintiff’s suit is predicated, never became operative.

Most revealing, perhaps, is the fact that the fee in question is 30% of the costs specified in the preliminary report. Plaintiff testified at the trial that he arrived at the fee in question based on the figures in the preliminary report.

Civil Code article 1798 is clear:

“As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”

Plaintiff and defendant obviously could not have united on the final price inasmuch as one was evidently never submitted, much less approved. There was no meeting of the minds on that vital issue. The minds of the contracting parties must have met, as regards the substantial elements of the contract, as a condition precedent to its validity. Woodward v. Barringer, 24 So.2d 200 (La.App. 2nd Cir.1945); Civil Code article 1766 requires expressed consent.

The Fourth Circuit Court of Appeal, in National Roofing and Siding Co., Inc. v. McIntosh, 359 So.2d 1315 (La.App.1978), put it thusly:

“Civil Code article 1798 provides a contract comes into being when something proposed by one is accepted by another. The agreement remains incomplete until the offer is accepted. Civil Code article 1800. In this case plaintiff cannot base a claim on a written agreement which, by plaintiff’s own stipulation, never became binding.” (p. 1316)

Plaintiff is clearly not entitled to the 30% fee, under the law and by the terms of his own contract. He may be entitled to actual expenses, as for those services covered under section E. However, since the plaintiff did not advance this argument, we are not able to determine any of those damages.

The theory of unjust enrichment urged by plaintiff must also fail. There is no evidence that the defendant Board benefited from the plans submitted; plaintiff himself could not state whether his plans were used, only that certain “similar” work was performed. His information, even on that, was something that he had read or “heard.” In Edmonston v. A-Second Mortgage Co., 289 So.2d 116 (1974), the Louisiana Supreme Court set forth the prerequisites for unjust enrichment cases to include, of course, an “enrichment”, and that prerequisite remains unproven in the present case. The value of the report is questionable, to say the least, in terms of its usefulness to the Board. In any case, the plaintiff might have included some provision in the contract to allow for payment for his report in the event that he might not, for whatever reason, perform the actual work. That he did not do so may be a customary business practice in his profession. In any event, for whatever reason, plaintiff drew up the contract himself and must live by its contents.

Because we have decided that the contract in question did not come into being as pertains to plaintiff’s fee, it is unnecessary for us to decide the propriety of the trial court’s judgment on the exception.

AFFIRMED.

      . C.C. art. 1800
      The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.”


text:
    Catherine C. VIAL v. Dr. Richard H. VIAL.
    No. 5-222.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Olden C. Toups, Jr., New Orleans, for plaintiff and appellee.
    Gerald A. Stewart, New Orleans, for defendant and appellant.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Defendant, Richard H. Vial, appeals from a judgment by the District Court, Wallace C. LeBrun, Judge, increasing previously awarded child support from $250.00 a month for each of two children to $750.00 per month per child and a corresponding decrease in alimony from $1,700.00 per month to $757.71 per month.

Appellant and appellee agree that the original judgment of alimony and child support was a consent judgment arid that the amounts of alimony and child support awarded were divided as they were to give appellant, Dr. Richard H. Vial, a tax advantage. Mrs. Vial had originally asked for $1,100.00 per month child support and $1,100.00 per month alimony. By increasing the alimony award to $1,700.00 and decreasing the child support award to $500.00, Dr. Vial was able to obtain a $600.00 per month tax deduction. Appellant then sought to take further advantage of the original award by filing a rule to reduce the child support to a total of $400.00 per month and to terminate the permanent alimony award. Appellee, Catherine Vial, countered that action by filing a rule for an increase in alimony and child support.

The District Court judgment, from which Dr. Vial appeals, insignificantly changed the total monthly liability of Dr. Vial (from $2,200.00 per month to $2,257.71 per month). What the judgment did, apparently in response to appellee’s rule to increase child support, was to reapportion almost the exact amount per month that Dr. Vial had agreed to pay at the time of his divorce to more accurately represent how that money should be used in support of his ex-wife and their two children. While the judgment of the District Court does change both the alimony and child support awards, this court takes note that for all practical purposes the monthly obligation of Dr. Vial to his former family is unchanged.

In a ease very similar to the one before this court, the Louisiana Supreme Court was called upon to determine the burden of proof a spouse must carry to be successful in a rule to reduce alimony. Addressing that question, the Court stated:

(3) In the case at bar the original alimony award, contained in the 1971 divorce decree, was rendered with the consent of Dr. Loyacano. This consent amounted to a judicial admission on his part that his wife was entitled to alimony. Therefore, when Dr. Loyacano filed his rule to decrease or revoke the alimony, it was incumbent upon him to prove that Mrs. Loyacano’s circumstances, or his own, had changed in order to obtain a reduction or revocation of the alimony. Loyacano v. Loyacano, 358 So.2d 304 (La.1978), Rehearing Granted April 10,1978 and the cases quoted therein.

The well-settled jurisprudence of our state is that in dealing with alimony two different determinations, are to be made. The first determination, whether or not the spouse seeking alimony is entitled to such alimony, is made upon the divorce of the spouses or at the time either spouse first applies for alimony. This determination need be made only once and, at that time, all the factors enunciated by the Supreme Court in Loyacano, supra, should be considered by the court in reaching a conclusion, namely: Income and property of the spouse; cost of food, shelter and clothing; reasonable and necessary transportation or automobile expenses; medical and drug expenses; utilities; household expenses; income tax liability generated by the alimony payments to the former spouse; the liquidity of the spouse’s assets; the relative financial positions of the parties; the type of asset under consideration and the consequences of its liquidation.

The second determination is a continuing one; that is, if a substantial change of circumstances has occurred since the award of alimony (or since the last change in that award). This second analysis is made each time either spouse files a rule to increase, decrease, or terminate alimony previously granted. Oliver v. Oliver, 417 So.2d 1278 (La.App. 1st Cir.1982) Rehearing Denied; Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir.1981); Sonfield v. Deluca, 385 So.2d 232 (La.1980). In making this second decision, the court is bound to limit its inquiry into a substantial change in circumstances of either or both spouses. To go beyond this would be to relitigate the first determination each time a rule was filed or, to- put it another way, looking beyond a change of circumstances would allow a spouse condemned to pay alimony to appeal this judgment each time a rule affecting the amount of the judgment was filed.

In the case before this court, we can find no substantial change in circumstances of either Dr. Vial or the former Mrs. Vial between the original consent judgment of alimony and child support in July, 1979, and the judgment of July, 1981, from which this appeal was perfected, which would justify a reduction in total support payments. In fact, the only change of any significance appears to be an $8,100 increase in Dr. Vial’s income. The income tax return of Richard and Catherine Vial for the year 1978 shows their gross income at $47,908.00. The reluctant testimony of Dr. Vial at the hearing on October 9, 1980, after being faced with documentary proof, placed his gross income at approximately $56,000.00. This $56,000.00 figure was once again testified to on June 5, 1981.

Appellant contends that he has remarried and now has two children by his second wife; that his second wife is no longer working and hence his income has been reduced by $16,000.00; and that the expenses of his second marriage make it impossible to make the payments awarded by. the court. He further contends that his former wife, Catherine, owns a one-third interest in a million dollar apartment complex and that she has specialized training that would enable her to earn approximately $24,000.00 per year and, thus, she does not need alimony.

In Kirk v. Kirk, 413 So.2d 592 (La.App. 1st Cir.1982), our brothers of the 1st Circuit stated, “Although it is true that the expenses of a subsequent marriage are a factor to be considered in determining whether alimony should be reduced, generally this factor is given little weight.’’ (emphasis added). Similar language was used by our Supreme Court in Sonfield v. Deluca, supra, wherein Justice Marcus stated:

We agree with the finding of the trial court that placed little emphasis on the expenses of plaintiff’s second marriage. While these expenses, like other circumstances, should be taken into account in determining the amount of alimony plaintiff must pay, we are unable to see how these expenses could completely negate his obligation to support his ex-wife under art. 160. See Marcus v. Burnett, 282 So.2d 122 (La.1973).

This factor was fully brought out in the testimony and there is no evidence that the trial judge did not fully consider this in arriving at his decision.

Dr. Vial was not remarried at the time of the original support award, and the record is devoid of any proof that the present Mrs. Vial was contributing to his income, hence the gain and subsequent loss of his second wife’s salary cannot be considered a change of circumstances.

At the time of her divorce from Dr. Vial, Catherine Vial was not working and had custody of and the responsibility of caring for the two children. She also possessed all the property which Dr. Vial calls to the court’s attention in his attempt to show that his former wife has no need for alimony. ■ Appellee has not increased these holdings; in fact, if any change has taken place, it would be a depletion of some assets by Mrs. Vial.

Clearly, appellant failed completely to carry his burden of showing that Mrs. Vial’s circumstances or his own had changed to such an extent as to cause this court to conclude that the July, 1981, judgment of the District Court was either manifestly erroneous or an abuse of discretion.

For the foregoing reasons, the decision of the District Court is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Edward J. ROSENBURG v. Charles CARR, Roger Jackson, the Travelers Insurance Companies, St. Paul Fire and Marine Insurance Company.
    No. 5-223.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Edward J. Lassus, Jr., New Orleans, for plaintiff-appellant.
    Michael F. Grennan, New Orleans, Robert E. Birtel, Metairie, for defendant-appellee.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

Plaintiff, Edward J. Rosenburg, filed a petition for damages arising from an automobile accident occurring on January 19, 1981. He sued his uninsured motorist insurer, Travelers Insurance Company; the driver of the other vehicle, Charles Carr; the owner of the vehicle Carr was driving, Roger Jackson; and subsequently the ap-pellee, St. Paul Fire and Marine Insurance Company as the liability insurer of Jackson, Carr’s employer.

St. Paul Fire.and Marine Insurance Company moved for summary judgment alleging that a policy issued to Jackson had been cancelled for nonpayment of the policy and was no longer in effect at the time of the accident. The policy was issued for the period of June 4, 1979 to June 4, 1980, and notice of cancellation was mailed on October 25,1979, to become effective November 5,1979. The accident occurred on February 4, 1980. No other policy was issued to defendant Carr. Summary judgment was granted by the trial court on October 22, 1981, giving rise to this appeal by plaintiff.

The sole issue in this case is whether the evidence shows no genuine issue of material fact entitling mover to a judgment as a matter of law. LSA-C.C.P. art. 966.

In support of the motion for summary judgment, defendant introduced an affidavit executed by the claims manager of St. Paul Fire and Marine Insurance Company, acknowledging that policy No. 066HA3496 was issued to defendant Jackson. He attested to the fact that the coverage period commenced on June 4,1979, and terminated on June 4, 1980. Defendant further declared that the coverage was subsequently cancelled for nonpayment of the premium and that a written notice of cancellation dated October 24, 1979, was mailed to defendant Jackson on October 25, 1979, and made effective November 5, 1979. Copies of the policy issued to defendant Jackson and the notice, bearing the certificate of mailing stamped by the postal service, were made part of the record.

In opposition to the motion, plaintiff introduced copies of letters mailed to the Louisiana Department of Public Safety requesting information regarding insurance coverage on defendants, Carr and Jackson. He further attached copies of the Department’s response which reflected coverage under the alleged cancelled policy. The information, appellant argues, is sufficient to raise the issue of whether or not defendant’s coverage was cancelled at the time of the accident.

In determining whether to grant or deny a motion for summary judgment, the pleadings, depositions, answers to interrogatories, admissions on file and affidavits must be reviewed. LSA-C.C.P. art. 966. The burden of proof is on the mover to show that no genuine issue as to material fact exists, and any doubt is resolved against granting the motion in favor of trial on the merits. Charles Ray v. Asso. Indemnity Corp., 373 So.2d 166 (La.1979).

The cancellation procedures used by appellee herein met all the requirements of law. LSA-R.S. 22:636.1(F), which regulates such proceedings, states that, “Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.” However, allegations of cancellation can be defeated, but the insured must prove that notice was not received. Robertson v. Travis, 393 So.2d 304 (La.App. 1st Cir.1980); writ denied, 397 So.2d 805, 806 (La.1981). Denial of receipt of notice would raise a genuine issue of material fact sufficient to preclude granting a summary judgment. Ray, supra; Cuccia v. Allstate Ins. Co., 262 La. 545, 263 So.2d 884 (1972).

In the case herein, appellant failed to raise, or introduce any evidence related to the issue of notice or payment of the premium. The only evidence produced by appellant derives from the Department of Public Safety, that public body charged with implementation of the Louisiana Motor Vehicle Safety Responsibility Law. The Department in turn receives its information directly from the parties involved in the type of accident subject to its provisions. The documents provided by appellant, however, do not indicate anything more than at some time such coverage was reported to the commissioner. We conclude that the Department’s report standing alone is insufficient to raise a genuine issue of the material fact of coverage in this case.

Accordingly, the trial court’s adjudication granting the motion for summary judgment is affirmed.

AFFIRMED.


text:
    Gertrude TAYLOR v. SOUTH CENTRAL BELL.
    No. 82-C-9.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Robert T. Hughes, New Orleans, for plaintiff-appellant.
    George W. Byrne, Jr., Steven Hymowitz and Howard Shapiro, McCalla, Thompson, Pyburn & Ridley, New Orleans, for defendant-appellee.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

Suit was filed by Gertrude Taylor on June 24, 1981, against her employer, South Central Bell, for disability benefits due under a “group” policy of insurance. Defendant filed a motion for partial summary judgment alleging the plaintiff had failed to exhaust her administrative remedies before filing suit. The trial court maintained defendants’ motion and dismissed plaintiff’s suit. We affirm.

Defendant, South Central Bell Telephone Company, established a Plan for Employees’ Pensions, Disability Benefits and Death Benefits (hereinafter referred to as the Plan). The Plan is the only administrative vehicle through which employees can recover disability (group) benefits. The Plan is administered and maintained pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq.

The Plan provides a two-step process for the review of claims for benefits. First, after a claim has been filed, an initial review of the claim is made by the Plan’s Employees Benefit Committee. If the initial review is adverse to the claimant, the claimant must be notified in writing. Secondly, once notified, the claimant has sixty (60) days to file for appellate review with the Plan Review Committee. If a claimant has an adverse initial finding and fails to appeal, the initial finding becomes final at the expiration of the sixty (60) day period.

Plaintiff filed a claim for disability benefits with her employer through the Employees Benefit Committee. Her claim was denied by the Committee in its meeting of March 26, 1981. Plaintiff was notified of the denial on April 1, 1981, by receipt of a letter dated March 26, 1981. The letter further informed her she had sixty (60) days in which to appeal the adverse decision of the Committee. Instead, prior to exhausting internal administrative remedies, plaintiff retained counsel and filed the instant suit seeking a judicial determination that she is entitled to receive disability benefits.

Plaintiff asserts that the trial court erred in granting defendant’s motion and argues plaintiff was never informed of the denial. However, the record discloses plaintiff signed a return receipt on April 1, 1981 for the denial letter dated March 26, 1981.

Plaintiffs counsel additionally argues that the defendant should have notified him as to the denial, since defendant was made aware of plaintiff’s representation. We are not aware of any duty imposed upon the defendant to inform plaintiff’s counsel of the denial, nor has this court been informed of such. According to the Plan, the Committee need only inform the employee of the claim denial.

Plaintiff further argues the Plan grants her the right to file suit if a request for materials is made upon the Committee and the Committee fails to comply within 30 days. This right to file suit is found in the Plan on page 6, and is as follows:

Under ERISA, there are steps you can take to enforce your various rights. For instance, if you request materials from the Pian and do not receive them within 80 days, you may file a suit in federal court.

Plaintiff’s counsel requested medical reports on February 11,1981. She contends that nothing was received within the allotted thirty days, not even a response pertaining to the request for medical reports. Thus, plaintiff argues the above quoted right was automatically triggered. However, the record contains a letter dated March 4, 1981, in which defendant notified plaintiff’s counsel that the request had been referred to defendant’s legal department.

It is well established that the failure to pursue and exhaust administrative remedies precludes judicial relief. Amato v. Bernard, 618 F.2d 559 (9th Cir.1980); Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719 (La.1976).

Whenever a genuine issue of material fact is presented to the court, summary judgment is inappropriate. LSA-C.C.P. art. 966. There is no question that plaintiff failed to exhaust her administrative remedies in that she filed suit prior to appealing the Benefit’s Committee’s adverse decision to the Benefit Review Committee within the allotted sixty days. The failure to exhaust administrative remedies is a substantive legal omission and precludes judicial relief.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    William David BOYD v. Shelby WRIGHT, Matthews-McCracken-Rutland Corporation, and State Farm Mutual Automobile Insurance Company.
    No. 5-225.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Daniel L. Avant, Baton Rouge, for plaintiff-appellant.
    Burt K. Carnahan and David V. Batt, Lobmann & Carnahan, Metairie, Richard L. Edrington and George Ann Hayne Graug-nard, Carville & Edrington, LaPlace, for defendants-appellees.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

Plaintiff, William David Boyd, was injured on February 9, 1980, by the alleged negligent acts of his fellow employee, Shelby Wright. Plaintiff was injured while attempting to disembark from a pickup truck driven by Shelby Wright and owned by Matthews-McCracken-Rutland Corporation. Both Boyd and Wright were employed by Matthews-McCracken-Rutland Corporation and both were engaged in the course and scope of their employment when Boyd sustained his injuries. Plaintiff brought suit on January 29,1981, against Shelby Wright, Matthews-McCracken-Rutland Corporation and State Farm Mutual Automobile Insurance Company, seeking damages for his personal injuries. State Farm was sued in its capacity as plaintiff’s own uninsured motorist insurer, claiming that neither Wright nor Matthews-McCracken-Rutland Corporation were insured. Subsequently, by supplemental and amending petition, plaintiff brought suit against Aetna Casualty and Surety Company as liability insurer of Matthews-McCracken-Rutland Corporation.

Defendants Wright, Matthews-McCracken-Rutland Corporation and State Farm moved for summary judgments, all of which were granted by Honorable Edward A. Dufresne, Jr., Twenty-Ninth Judicial District Court for the Parish of St. Charles, by judgment dated and signed October 28, 1981. From that judgment, plaintiff has appealed.

On appeal, plaintiff-appellant asserts the trial court erred in granting defendants’ summary judgments by finding that the exclusive remedy provisions of the Louisiana Workmen’s Compensation Act could be invoked by State Farm to insulate it from affording plaintiff coverage under the provisions of its uninsured motorist policy.

The single issue raised before this court is whether a fellow employee, who is immune from suit by virtue of the Workmen’s Compensation Statute, is an uninsured motorist within the meaning of the Louisiana Uninsured Motorist Statute.

LSA-R.S. 22:1406(D), the Uninsured Motorist Statute, provides in pertinent part as follows:

D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. (Emphasis added)

Plaintiff-appellant’s uninsured policy with State Farm provides in pertinent part as follows:

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.... (Emphasis added)

Consequently, in order for plaintiff-appellant to recover under his uninsured motorist policy, he must be “legally entitled to recover” damages from defendant Shelby Wright.

Under LSA-R.S. 23:1032, Workmen’s Compensation Statute, fellow employees of an injured worker are immune from tort liability:

The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.

Correct connotation of this provision is that plaintiff-appellant is not legally entitled to recover damages from Shelby Wright, his co-employee. Without any legal basis entitling recovery of damages, then plaintiff-appellant is not entitled to recover under the uninsured motorist provisions of his insurance policy with State Farm.

In the recent case of Gray v. Margot, Inc., 408 So.2d 436 (La.App. 1st Cir.1981), the identical issue was raised. In that case, the plaintiff, Jerald Gray, had been injured in a vehicular accident while riding with his co-employee, Michael Gray. Both were acting within the course and scope of their employment at the time of the incident. Jerald Gray filed suit against numerous defendants seeking to recover damages for injuries he sustained in the accident. Among the named defendants were Michael Gray, a co-employee who was driving, and Travelers Insurance Company, Jerald Gray’s uninsured motorist carrier.

Travelers was dismissed by the trial court pursuant to a motion for summary judgment. In affirming the trial court, the First Circuit concluded:

An uninsured motorist carrier is liable only for the damages which an insured is “legally entitled to recover” from owners or operators of uninsured motor vehicles. The Workmen’s Compensation Statute provides that a fellow employee is immune from suit by another employee when he sustains an injury which is com-pensable by Workmen’s Compensation benefits. Thus, an employee injured while working within the course and scope of his employment is not “legally entitled” to collect damages from a fellow employee and, therefore, may not recover from his uninsured motorist insurer.

We agree.

For the foregoing reasons, the judgment of the trial court, granting defendants’ motions for summary judgment and dismissing plaintiff’s suit against Shelby Wright, Matthews-McCracken-Rutland Corporation and State Farm Insurance Company is affirmed.

AFFIRMED.


text:
    John R. TATE and Donald Hebert v. William (Kohlman) MYERS, Rimmer & Garrett, Inc. and Their Liability Insurance Carrier, Liberty Mutual Insurance Company.
    No. 5-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Daniel E. Becnel, Jr., Becnel & Faucheux, Reserve, for plaintiffs-appellants.
    Victor A. Dubuclet, III, Metairie, for defendants-appellants.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

Plaintiffs-appellants, John R. Tate and Donald Hebert, were traveling in a westerly direction on U.S. Highway 61 in a 1965 Ford van driven by plaintiff-appellant John R. Tate. Defendant-appellee, William K. Myers, an employee of Rimmer and Garrett, Inc., was operating a 1979 half-ton Chevrolet pickup while within the scope and course of his employment. Mr. Myers was placing construction work warning signs out in order to close one lane so that work on that shoulder could begin. One of the signs, measuring four feet by four feet and approximately six feet high on stands, fell out of the truck as the truck completed a U-turn across U.S. Highway 61. Plaintiff, John Tate, noticed the car ahead of him was trying to stop or turn. Once the other vehicle cleared the object, plaintiff realized it was a sign. There was oncoming traffic to plaintiff’s left and a tractor-trailer truck occupied the right lane next to plaintiff. Plaintiff applied his brakes, but struck the sign. The sign became lodged under plaintiff’s vehicle and remained there until he came to a complete stop. After striking the sign, plaintiff’s vehicle was struck by another vehicle in the oncoming lane. Plaintiff-passenger, Donald Hebert, was thrown clear of the van after being struck by the oncoming vehicle.

Both appellants saw Dr. Thompson on the day of the accident. Subsequent medical treatment was administered by Dr. Reyes. During his deposition, Dr. Reyes was not questioned as to a specific diagnosis regarding Mr. Tate. Dr. Reyes did, however, agree with the statement that Mr. Tate’s predominant problems involved his lumbo-sacral and cervical areas and headaches. Tandaril, an anti-inflammatory agent, Dal-mane, a sleep inducer and Fiorinal, for pain and headaches, were prescribed along with treatment consisting of steam packs, diathermy and massage. As to Mr. Hebert, Dr. Reyes’ diagnosis was a contusion and strain of the right ankle, lumbosacral-thor-acic-cervical spine sprain, posterior eephala-gia and insomnia. The record reveals Mr. Hebert received the same medicines as prescribed above for Mr. Tate. Dr. Reyes additionally testified he prescribed Elervil 25 for Mr. Hebert’s anxiety.

After hearing the evidence, argument of counsel and considering the law, the trial court found the sole and proximate cause of the injuries made the basis of this suit was the negligent operation of the vehicle insured by Liberty Mutual Insurance Company, operated by William K. Myers and owned by Rimmer and Garrett, Inc. Therefore, judgment was rendered in favor of plaintiffs, John R. Tate and Donald Hebert, and against Liberty Mutual Insurance Company. Special and general damages were awarded to John R. Tate in the combined sum of Five Thousand One Hundred Ninety-Three Dollars and Sixty-One Cents ($5,193.61). Special and general damages were awarded to Donald Hebert in the combined sum of Four Thousand Seven Hundred Dollars and Twenty Cents ($4,700.20). Plaintiffs have devolutively appealed.

On appeal, appellants have asserted the following specifications of error:

that

(1) The trial court erred by abuse of discretion in not truly awarding damages for lost wages to both plaintiffs;

that

(2) The trial court erred by abuse of discretion in inadequate awards for pain and suffering for both plaintiffs; and that

(3) The trial court erred in not awarding damages for property and concomitant costs to John R. Tate.

LOST WAGES

Obviously not satisfied with the evidence adduced at trial, the trial judge allowed plaintiffs an additional thirty (30) days to introduce proof of lost wages. When such proof was not forthcoming, the trial judge found plaintiffs had failed to prove lost wages. We cannot find that conclusion to be clearly wrong since it is amply supported by the record. Without a showing that such conclusions by the trial court are clearly wrong, we are bound to affirm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

AWARDS FOR PAIN AND SUFFERING

As an appellate court reviewing an award of damages, we may not substitute our own judgment for that of the trier of fact. Instead, we are relegated to the position of determining whether the trier of the ease has abused its “great discretion.” Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Appellants argue the trial judge erred in awarding inadequate general damages for pain and suffering to both. We cannot agree. While there is ample evidence to sustain the award below, such evidence is not sufficient for us to conclude that the trial judge abused his “much discretion.”

CONCOMITANT COSTS

Finally, appellants assert the trial judge erred in failing to award John Tate property loss and concomitant costs for towing and loss of use of his vehicle. Appellants contend this award should be $2,000.

Mr. Tate testified he had purchased a 1965 Ford Econoline van from his brother-in-law, co-plaintiff Donald Hebert, for $500 approximately a year and a half prior to the wreck. He further testified that during the time he owned the van he had the motor changed, a set of tires replaced and a radio installed.

After the wreck, the van was towed to his house. Subsequently, believing the van to be totalled, he had Hymel’s junkyard tow the van away without receiving any compensation for it.

Notwithstanding his testimony, there is no evidence in the record regarding this claim. There is no evidence to establish the fair market value of the van at the time of the accident or the condition of the van prior to the accident. We are not provided with the costs plaintiff incurred by changing motors, tires or installing the radio. Upon direct examination, he testified that even he did not know these costs. Similarly, we are not given the costs of towing nor did plaintiff testify as to the length of time he was without transportation.

By denying the claim, the trial judge apparently was not convinced of plaintiffs credibility. This is a factual finding by the trial judge that we do not believe is clearly wrong. We are therefore bound to affirm according to Arceneaux v. Domingue, supra.

Therefore, for the above assigned reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellants.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Curtis RAYMOND v. Sharon ZERINGUE, et al.
    No. 5-213.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Talbot, Sotile, Carmouche, Marchand & Marcello, Donald T. Carmouche, Donaldson-ville, for Insured Lloyds, defendant-appel-lee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

Curtis Raymond, plaintiff in this personal injury suit, appeals from a summary judgment dismissing defendant Insured Lloyds from the proceedings. We reverse for the reasons set forth below.

Raymond had filed suit against various defendants, including Insured Lloyds (hereinafter called Lloyds), for an accident occurring on December 1, 1979. He alleged Lloyds was his uninsured motorist (U/M) insurance carrier. Alternatively, if Lloyds declared that U/M coverage had been rejected by Raymond, he alleged Lloyds and Gros Insurance Agency were liable to him for “refusing to offer him U/M coverage as required by law and in misrepresenting to him the circumstances under which he was entitled to obtain U/M coverage and the value thereof * * *.”

Lloyds moved for summary judgment on the ground that it did not provide him with U/M coverage on the date of the accident because Raymond had rejected such coverage in writing. Raymond opposed the motion, contending in his opposition memorandum that the signature on the rejection of U/M insurance is not his signature. The trial judge granted summary judgment in favor of Lloyds.

In support of the motion, Lloyds had produced a copy of Curtis Raymond’s application for automobile insurance, showing the signed rejection of U/M coverage. Lloyds also attached the affidavit of Eldon C. Curtis, underwriting supervisor for Insured Lloyds, who stated that “Gros Insurance Agency is not a contractual agent of Insured Lloyds and as concerns Insured Lloyds is an independent agent for the various insureds”; that Insured Lloyds has never held itself out as being the principal for Gros Insurance Agency as its agent; that Insured Lloyds received from its general agent, Patterson Insurance Agency, an application for insurance produced by Gros Insurance Agency on behalf of Curtis Raymond; that the application had been signed by Curtis Raymond or by someone on his behalf specifically rejecting U/M coverage; and that Insured Lloyds, having received the application from other than an agent, was bound only by the contents of the application and the limitations thereof.

On appeal, Lloyds admits there is a question of fact as to who rejected the U/M coverage, but asserts this factual issue is not material to Lloyds’ liability. Lloyds contends the only factual question material to its liability is whether Lloyds received a signed rejection of U/M coverage. Since the documents filed in support of the motion establish Lloyds did receive such a written rejection, Lloyds contends summary judgment was properly granted.

A written insurance contract can be reformed to conform to the original intention of the parties thereto, whether for mutual error or for the negligent, mistaken or fraudulent conduct of the agent who issues the policy. If an insurance agent knows of a policyholder’s true intention as to the coverage desired, the insurance company is bound by the agent’s knowledge, and a policy erroneously issued will be reformed so as to conform to the original intention. Herbert v. Breaux, 285 So.2d 829 (La.App. 1st Cir.1973). An insurer is bound by its agent’s actions in completing a policy application, finer v. Aetna Life Insurance Company, 291 So.2d 774 (La.1974).

Insurance agents are persons employed by the insurance company to solicit risks and effect insurance. Insurance brokers solicit insurance from the public under no employment from any special company, placing the insurance with any company selected by the insured or, failing such selection, by the broker himself. The general distinction between them is that, in the absence of special circumstances, the broker is the agent of the insured in procuring the policy of insurance and does not represent the insurer. Foster v. Nunmaker Discount Company, 201 So.2d 215 (La.App. 4th Cir.1967). The acts of one procuring insurance as agent of the insurer are imputable to the insurer while those of one acting as agent of the insured, or as a broker, are not. Karam v. St. Paul Fire & Marine Insurance Co., 265 So.2d 821 (La.App. 3d Cir.1972), affirmed on other grounds, 281 So.2d 728 (La.1973).

Where an insurance' agent acting under the scope of his authority fills out an application for insurance, his acts, representations, and mistakes are those of the insurance company so that if the agent by reason of fraud, mistake, negligence, or omission inserts erroneous or untrue answers to questions contained in the application, the representations bind the insurer but not the insured, provided the insured is justifiably ignorant thereof, has been guilty of no bad faith, and has no actual or implied knowledge thereof. Harris v. Guaranty Income Life Insurance Company, 75 So.2d 227 (La.1954).

Statutes pertaining to the licensing of insurance agents, brokers and solicitors do' not prohibit a finding that the legal relationship of principal and agent exists, so as to bind the insurer, despite the failure of the person acting for the insurer to have been specifically licensed as its agent. Whether an insurance broker in any particular transaction acts as agent of the insured or of the insurer is a question of fact dependent on the particular circumstances of the case, Tiner v. Aetna Life Insurance Company, supra.

In view of these statements of law, it is apparent there remains an unanswered question of fact crucial to the liability of Lloyds: whether Gros Insurance Agency acted as an agent for Lloyds in this transaction. If Gros was Lloyds’ agent then any liability of Gros arising from its fraud, negligence, mistake or omission would also be imputable to Lloyds.

The affidavit of Eldon Curtis states that Gros Insurance Agency was an “independent agent for the various insureds” and that Lloyds is bound only by the contents of the application because it received the application from “other than an agent.” These, however, are mere conclusory allegations, not sufficiently borne out by the uncontested statements of fact otherwise appearing in the affidavit or elsewhere in the record. There are many circumstances, other than a contractual arrangement or licensing in accordance with statute, under which a principal-agent relationship between Lloyds and Gros might or might not be deemed to have arisen. See, for example, Britten v. Payne, 381 So.2d 855 (La.App. 1st Cir.1980), writ denied 384 So.2d 800; United Credit Plan of Jena, Inc. v. Hailey, 341 So.2d 58 (La.App. 3d Cir.1976); Tiner v. Aetna Life Insurance Company, supra; Karam v. St. Paul Fire & Marine Insurance Co., supra.

Accordingly, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


text:
    Lois P. GEORGE v. TOWN OF LUTCHER, et al.
    No. 5-205.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Kliebert, Heltz & Kliebert, Michael K. Heltz, Gramercy, for plaintiff-appellant.
    Sanders, Downing, Kean & Cazedessus, R. Gordon Kean, Jr., Charles S. McCowan, Jr., Baton Rouge, for Town of Lutcher, Freddie Butler, Gerald Zeller, Henry Vick-nair, Ted Detillier and Guy Poche, defendants-appellees.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

Lois George, assistant town clerk for the Town of Lutcher, Louisiana, from 1960 to 1978, sued the town, its mayor, and its aldermen for improper and illegal termination of her job. George filed suit in both federal court and state court; the federal case has been stayed pending determination of the state case. In the state court proceedings, the town and the aldermen moved for summary judgment, which was granted. Plaintiff has appealed. (The mayor did not join in the motion and therefore is not involved in this appeal.)

Immediately prior to the hearing on the motion, plaintiff filed a Notice of Reservation to the Disposition of the Entire Case, reserving the disposition of her claims under federal law for adjudication by the federal courts. Accordingly, the only issue before us, as before the trial court, is whether a non-civil service employee of a municipality subject to LSA-R.S. 33:321 to 33:481, known as the Lawrason Act, may be discharged only for misconduct or neglect of duty.

The statute applicable here is R.S. 33:401, which provides in pertinent part:

“A. The mayor and board of aldermen of every municipality shall have the care, management, and control of the municipality and its property and finances. They shall have power:
‡ s}s ‡ ¡je :}s *
(30) To provide for municipal officers other than those required by this Part who may be found necessary; to prescribe the duties and fix the compensation of all officers and employees, subject to any applicable civil service law; and to require bonds with sureties for the performance of duties from all officers and employees.
(31) To provide for the removal of officers and discharge of employees for misconduct or neglect of duty, subject to any applicable civil service law.”

There are no questions of material fact. Plaintiff was neither an elected official nor an officer appointed by the board of aider-men for a specific term, nor was she subject to civil service. Her termination was voted by a majority of the board of aldermen upon the recommendation of the mayor. Accordingly, the issue before us is wholly a matter of law.

Plaintiff-appellant contends that Subpar-agraph A(31) restricts the grounds for which a non-civil service municipal employee may be dismissed to misconduct or neglect of duty. Defendants-appellees, on the other hand, contend that a non-civil service municipal employee may be discharged at any time, with or without justification, and without the necessity of a pre-termination hearing.

R.S. 33:401(A)(31) has never been interpreted by our Supreme Court, and there are few cases from other courts of appeal involving it. The most definitive statement was made in the case of Chapman v. Bordelon, 132 So.2d 533 (La.App. 3d Cir.1961), affirmed in part, reversed in part on other grounds, 242 La. 637, 138 So.2d 1 (La.1962). In the Chapman case, the Board of Aider-men of the Town of Ville Platte appointed 27 persons in various capacities with the town, replacing the persons then holding those positions. All 27 appointments were vetoed by the mayor. The board of aider-men voted three to two to override the veto. The ousted town employees sued. The treasurer and chief gas clerk of the town intervened in the suit, claiming the board of aldermen’s attempt to replace him was illegal and unlawful because of the provisions of R.S. 33:401(A)(31). The court held, as to the intervenor’s claim,

“ * * * Since the position of town treasurer is not fixed under the Lawrason Act for a specific term, said treasurer may be dismissed at any time by a majority vote of the Board of Aldermen.
“The town treasurer is not under civil service for the Town of Ville Platte has no civil service law. The employees of the Town of Ville Platte likewise not being under civil service may be dismissed at any time by a majority vote of the Board of Aldermen.” 132 So.2d 533 at 537.

In Jamerson v. Village of South Mansfield, 297 So.2d 490 (La.App. 2d Cir.1974), the former deputy marshal for the village sued to be reinstated to his position. The court found he had been hired by the board of aldermen for an unspecified and indefinite term, and was not subject to civil service. In upholding summary judgment for the defendants, the court followed the Chapman holding, and also held the plaintiff therein was not entitled to a hearing prior to termination of his employment:

“Thus, the conclusion is inescapable that appellant was an employee of the defendant village, with no specified term of employment; that he held his position at the discretion of the village’s governing authority; and that his employment could be terminated at any time, subject, of course, to any applicable civil service law, with or without justification. However, there is no civil service law applicable to the Village of South Mansfield, and appellant, therefore, has no protected civil service status.
“Consequently, applicant herein was not deprived of any interest which would have required the governing authority to provide him with a statement of reasons and afford him a hearing of the matter prior to the termination of his employment.” 297 So.2d 490 at 494

In Clement v. City of Westwego, 250 So.2d 115 (La.App. 4th Cir.1971),. writ denied 259 La. 809, 253 So.2d 67, the court held a person who possessed no protective status under civil service could be terminated as an administrative function, without a hearing.

We see no reason to deviate from these holdings. The provisions of R.S. 33:401(A)(31) grant the mayor and board of aldermen the power to provide for removal of officers and discharge of employees for misconduct or neglect of duty. There is nothing in the statute, however, that restricts their powers to remove and/or to discharge to those grounds alone, except for applicable civil service laws. We believe the statute is intended to give them the power to provide for procedures to be used in cases of removal or discharge for misconduct or neglect of duty, but it was not intended to limit their discretion otherwise in exercising their administrative functions of hiring and firing non-civil service town employees.

In McCormick v. Edwards, 646 F.2d 173 (5th Cir.1981), cert. den. November 2, 1981, rehearing den. January 11, 1982, the court held that a non-civil service employee serves at the will of his superiors and can be discharged for any legitimate reason or even for no reason at all; however, he cannot be fired for exercising constitutionally protected rights unless some governmental interest outweighs the employee’s interest in exercising those rights. The McCormick case dealt with claims under 42 U.S.C. Sec. 1983. The issue of Mrs. George’s constitutional rights, and other such federal questions, are among the issues to be decided in her federal suit. We mention the McCormick case, however, because we believe it supports our interpretation of a governing authority’s administrative discretion to hire and fire non-civil service employees.

For the foregoing reasons, the judgment of the district court is affirmed, and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED AND REMANDED.


text:
    Julie Ann BAGSHAW v. Robert Carl SIEJA.
    No. 5-174.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17,1983.
    Hurley & Hoffmann, Herman C. Hoff-mann, Jr., Anita M. Warner, New Orleans, for plaintiff-appellee.

      Garland R. Rolling, Metairie, curator ad hoc for defendant-appellant.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

This is an appeal by the curator from a judgment rendered against an absentee father in the sum of $31,154.66 for past-due child support payments.

The proceedings originated in Louisiana in October 1978 when plaintiff Julie Ann Bagshaw, the former wife of defendant Robert Carl Sieja, filed a petition to have the court of this state'recognize a judgment of the circuit court in Wheaton, Illinois, rendered on April 23, 1975.

The portions of that judgment with which we are here concerned awarded plaintiff a divorce, granted her custody of the couple’s three children and awarded her $315 per month ($105 for each child) for their support.

The defendant answered the suit through an attorney of his choice admitting the divorce and custody allegations, but generally denying the balance of the allegations including those referable to the award for support and alleged arrears.

The chronology of the pleadings thereafter leading up to the appointment of a curator and the judgment complained of is as follows:

1. On December 5, 1978 plaintiff filed a motion for judgment on the pleadings which was served on defendant’s attorney and at a trial thereof the motion was denied.
2. Plaintiff filed a second motion for judgment on the pleadings on March 12, 1979, again serving defendant counsel. The judgment on this motion, signed April 24, 1979, granted “recognition of the entire judgment of the 18th Judicial Circuit, DuPage County, Wheaton, Illinois, including all final decrees, orders and judgments.”
3. After hearing of the aforesaid motion, but before the judgment was signed, plaintiff filed a rule for contempt and back-due alimony and served defendant attorney. The matter was set for trial on May 18, 1979.
4. The defendant attorney filed a motion for continuance for various reasons, including the fact he had not been able to contact defendant. The matter was continued until June 1, 1979.
5. On May 6, 1979 defendant attorney filed a motion to withdraw because he was discharged by defendant. The order of permission to withdraw was signed by the trial judge on May 18.
6. On June 1 when the matter came to trial no one was present and the rule was dismissed.
7. On July 31 plaintiff filed a rule for contempt and attempted to serve defendant under the Long Arm Statute in Laurel, Mississippi. This rule was dismissed when service was not perfected.
8. On November 26, 1979 plaintiff filed a motion to reset the rule once again attempting to serve defendant in Mississippi. This rule was also continued because of lack of success in serving defendant.
9. On October 17, 1980 plaintiff selected a new counsel to represent her and he was substituted as counsel on that date. He immediately filed a petition for the appointment of a curator and served him with a copy of the rule for contempt and back-due child support. The curator filed an exception of lack of jurisdiction and the matter was submitted on memoranda by consent of counsel. Judgment was rendered thereafter on the rule in favor of plaintiff and against the defendant in the sum of $31,154.66.

The curator has appealed.

The sole issue before this court is whether or not the trial court had jurisdiction to render a personal judgment against the absent defendant.

Both plaintiff and the trial court rely on the Supreme Court case of Imperial v. Hardy, 302 So.2d 5 (La.1974). This case establishes the concept of continuing jurisdiction. In Imperial the husband and wife were divorced in Michigan. The wife moved to Louisiana with the children, and Imperial became delinquent in support payments and the Michigan court rendered a judgment for the arrearage. He later filed a rule in Orleans Parish to change custody and she reconvened for arrearages which she was awarded and which he paid, and for future support which was also fixed.

About five years later the wife filed another rule for arrearages and served Imperial through his earlier counsel of record. The Supreme Court found “continuing jurisdiction” for the later proceeding, reasoning that a court which has jurisdiction to make an award should have the power to modify and enforce the award.

As pointed out by our Supreme Court in Imperial, the sufficiency of service of process on the husband’s counsel of record depends on whether the court had jurisdiction over the person of the husband. If the court does have jurisdiction the service is proper under Articles 1312, 1313, and 1314 of the Code of Civil Procedure, which permits service of process of every pleading subsequent to the original petition by delivering a copy thereof to the adverse party or his counsel of record. Walker v. Walker, 246 La. 407, 165 So.2d 5 (1964).

If the Twenty-Fourth Judicial District Court had personal jurisdiction over the defendant it would have authority to appoint an attorney to represent the absent defendant under the authority of C.C.P. art. 5091.

The record establishes that after the divorce, the plaintiff moved to California with two of the children, leaving one with her husband in Illinois. She later regained custody of the third child and now lives in Pennsylvania with the children. Neither the wife nor the children have ever lived in Louisiana. Defendant apparently moved to Mississippi and is now believed to be residing in Florida.

As pointed out by the curator, the instant case appears to involve a Pennsylvania resident suing a Florida resident upon an Illinois judgment in a Louisiana court. We do not believe the concept of continuing jurisdiction was intended to furnish a forum for the litigation of foreign matters between two non-residents involving children who do not reside here.

Furthermore it is clear in the instant case that the defendant had discharged his attorney and is no longer a domiciliary of this state, if indeed he ever was. We cannot agree that the Louisiana court retains jurisdiction to render a personal judgment against a non-resident simply because he at one time lived in this state.

As the curator correctly pointed out, all of the cases involving continuing jurisdiction in Louisiana involve children who are residents here and the concept has not been approved as it applies to needy non-domici-liaries based upon a foreign judgment.

The only service of the rule upon which the money judgment was rendered was that made upon the curator, conferring no jurisdiction. The prior rule was served on defendant-retained attorney, but the rule was dismissed without reaching the merits. The recognition proceeding did not result in an award, but only in the recognition of a foreign judgment.

Even if we were to find jurisdiction, the only evidence in the record upon which the award appears to have been based, is a deposition of plaintiff taken in Philadelphia, which is not even an original or certified copy, and a further exhibit of correspondence between plaintiff to her counsel enumerating the expenses she has made for college tuition, medical bills, etc. There is no testimony whatsoever in the record to support such an award for arrears.

•For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant Robert Carl Sieja dismissing plaintiff’s suit. All costs in both courts are to be paid by plaintiff Julia Ann Bagshaw.

REVERSED.


text:
    Lenore Davis MADDEN v. Thomas L. DAVIS.
    No. 5-164.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Leonard J. Cline, Metairie, for plaintiff-appellant.
    Vondenstein & Power, Michael J. Power, Kenner, for defendant-appellee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

Plaintiff Lenore Davis Madden appeals from a judgment in her favor in the sum of $6,700 for past-due child support payments. The following chronology is pertinent:

1. On November 27, 1979 plaintiff obtained a divorce from her husband Thomas L. Davis, custody of her minor daughter, and child support of $175 per week. The judgment rendered by the Chancery Court of Harrison County, Mississippi, where the parties were then domiciled, incorporated a separation agreement executed by the parties on August 30, 1979 wherein the custody, support and other matters had been mutually agreed upon.

Davis became delinquent in the support payments and his former wife, since remarried, invoked proceedings in the Chancery Court under the Uniform Reciprocal Enforcement of Support Act (URESA). As the defendant had become a resident of this state, the matter was heard before the Juvenile Court for the Parish of Jefferson, the proper forum for the URESA proceeding. LSA-R.S. 13:1664. (It is to be noted that in a URESA proceeding the prosecuting attorney of the responding state is charged with the duty of taking all necessary action in the matter.)

2. On May 27, 1980 in the URESA matter the juvenile court rendered an award for support in the sum of $400 per month, and an additional $200 per month on the arrears. The total amount of the arrears is not indicated in the judgment.

3. On December 16, 1980 plaintiff, now also a Louisiana domiciliary, instituted suit in the Twenty-fourth Judicial District Court for the Parish of Jefferson to have the Mississippi judgment recognized as the judgment of this state. This the court did by judgment of May 11,1980, and a rule for past-due child support was then filed. It is averred that defendant was not only delinquent under the Mississippi judgment, but also under the URESA judgment.

4. Following hearing on the rule, the district court, by judgment signed June 17, 1980, awarded plaintiff past-due and unpaid child support in the sum of $6,700, which was made executory. It is conceded that this award is based, in part, on the URESA judgment of $400 per month, as opposed to the Mississippi judgment of $175 per week.

RECOGNITION OF THE JUDGMENT FOR CHILD SUPPORT

LSA-C.C.P. art. 2541 provides, in pertinent part, that a party seeking recognition of a judgment or decree of a court of another state must bring an ordinary proceeding against the judgment debtor in a proper Louisiana court to have the judgment or decree recognized and made the judgment of the Louisiana court.

This the plaintiff did when she filed suit in the Twenty-fourth Judicial District Court along with a duly authenticated copy of the judgment from the Chancery Court of Harrison County, Mississippi, ordering defendant to pay her $175 per week for child support.

THE FULL FAITH AND CREDIT CLAUSE

Plaintiff contends that the trial court erred in failing to give full faith and credit to this judgment as required by U.S. Const. Art. IV, Sec. 1.

The general rule is that a foreign judgment ordering periodic payments of child support is entitled to full faith and credit as to accrued installments, where these are not subject to modification at the discretion of the court under the law of the state rendering the judgment. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944); Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Weston v. Weston, 177 La. 305, 148 So. 241 (1933); Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3d Cir.1976); Devore v. Devore, 172 So.2d 923 (La.App. 4th Cir.1965); Folds v. Folds, 160 So.2d 251 (La.App. 2d Cir.1964).

Defendant concedes that accrued installments are not subject to modification in Mississippi. Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980); Howard v. Howard, 191 So.2d 528 (Miss.1966). However he contends that installments falling due after the URESA judgment were properly based on the lesser award.

THE EFFECT OF THE URESA JUDGMENT

To determine the extent to which the URESA judgment affects the Mississippi judgment which the Louisiana district court recognized, we turn to LSA-R.S. 13:1643, which provides that URESA remedies are in addition to, and not in substitution for, any other remedies. Thus the URESA order of this state, acting as a responding state, did not supersede the previous judgment of support of the rendering state, and appellant had the right to petition the district court in this state to recognize her Mississippi judgment.

Defendant contends because the Mississippi courts have authority to reduce monthly payments as to future installments not yet due or in arrears, once the plaintiff sought enforcement pursuant to URESA (R.S. 13:1664) she is precluded from seeking a remedy in any other court. This contention is without merit. The courts of this state have always been open to the defendant to seek modification of a -decree by proper procedure. He could have applied to the Mississippi court or the Twenty-fourth Judicial District Court when the Mississippi judgment was recognized in this state for a reduction if his financial condition so warranted, but he did not elect to do this.

Clearly under R.S. 13:1685 once the district court of Jefferson Parish recognizes the Mississippi judgment it must allow full faith and credit to that judgment in the absence of a modification of its decree by a proper procedure. Defendant is entitled to credit for any amounts paid under URESA, but this does not mean a URESA judgment modifies the previous support judgment. Moreau v. Falgout, 304 So.2d 429 (La.App. 1st Cir.1974).

For the foregoing reasons we reverse the judgment appealed from and remand to allow plaintiff the opportunity to prove the amount of arrearage due under the Mississippi child support judgment which this court decrees is entitled to full faith and credit, subject to credit for any sums paid under the URESA judgment or otherwise. Assessment of costs is to await a final determination herein.

REVERSED AND REMANDED.


author: KLIEBERT, Judge.

text:
    Carolyn May Garner DANFORTH v. Roy DANFORTH.
    No. 5-190.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Ferdinand J. Kleppner, Law Offices of Ferdinand J. Kleppner, Metairie, for defendant-appellant.
    Floyd J. Reed, J.D., Reed & Reed, New Orleans, for plaintiff-appellee.
    Before SAMUEL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal brought by Roy Danforth (the father) from a judgment ordering him to pay to the plaintiff, Carolyn Danforth (the mother) $850.00 per month for the support of their minor daughter, Neola Danforth. The mother did not appeal or answer the appeal brought by the father.

On March 27, 1981, Carolyn Danforth filed a petition for divorce based on living separate and apart for more than one year. In connection therewith, an alimony and custody hearing was heard on May 6, 1981. This resulted in a judgment granting custody of the minor daughter to the mother and setting child support at $750.00 per month and alimony pendente lite for the wife at $750.00 per month.

According to the testimony of the father, taken at the hearing on the alimony rule, he received a salary of $42,267.00 per year with a take home pay of $2,424.00 per month, plus the use of an automobile and his employer made a yearly contribution of $5,072.00 to his annuity fund. The wife was employed and had earnings of approximately $600.00 per month. The wife cited the expenses for herself and her children at $3,385.20 per month. The husband listed his expenses at $1,650.00 per month. At the conclusion of the hearing, the court set the child support and alimony at $1,500.00 per month and cited the following reasons:

“The Court has reviewed this matter as we always have in the separation cases, there is not enough money to keep two households, in connection with this matter the Court is going to set $1,500.00 a month plus hospitalization for his wife and child support. For the record here we are taking care of two persons rather than one person and the needs of the child, and also here we are talking about a man with capabilities.”

This was divided equally between child support and alimony pendente lite in the judgment rendered by the trial judge.

A hearing on the merits was held on June 25,1981. At this hearing the wife voluntarily withdrew her request for alimony but maintained her demand for child support, stating her demand was for $850.00 per month child support. She stated her income and expenses were about the same as at the time of the alimony hearing, except that her adult daughter living in the same home with her was contributing $50.00 every two weeks for her support. The parties also stipulated that the husband’s income and expenses were substantially the same as at the alimony hearing. At the conclusion of this hearing the trial judge said:

“When we previously discussed this matter as I recall there was not enough money to go around at that time. Mrs. Dan-forth has now waived alimony, I am going to set the child support $850.00 per month.”

On the appeal the father seeks a reduction of the child support to $350.00 per month and in addition strenuously complains about the increase from $750.00 to $850.00 per month because of the elimination of the alimony award to the wife.

Counsel for the father argues that an increase in child support cannot be granted merely because there was a decrease in alimony payments. He cites Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978) in support of his contention. On the other hand, counsel for the mother argues the elimination of the alimony to the wife enhanced the ability of the father to pay child support and that enhancement alone is sufficient to support an increase in the child support payments. He cites Long v. Long, 347 So.2d 513 (La.App. 2nd Cir.1977) in support of his contention.

In the Long case, supra, there was ample evidence to show an increase in the needs of the children with a corresponding increase in the ability of the father to pay because of the decrease in the alimony. On the other hand, in the Graval case, supra, although the decrease in the alimony amount enhanced the father’s ability to pay, there was no evidence showing the needs of the child required an increase in child support.

Child support is to be set in accordance with the needs of the child and the ability of the parents to meet those needs. La.C.C. Arts. 227, 231; Ducote v. Ducote, 339 So.2d 835 (La.1976). In the instant case, the court recognized there were insufficient funds to meet the needs of the child and the mother. Hence, he reduced the combined payment to meet the needs of both. When the alimony payment was decreased, the father’s ability to pay was increased. Therefore, the trial judge increased the child support payments to fill the previously unfilled needs of the child. We cannot say in doing so he abused his discretion, nor can we say he was clearly wrong in setting the child support payment at $850.00 per month, considering the child’s needs and the ability of the father to pay. Trial judges have a wide discretion in setting alimony and child support payments and his award will not be disturbed unless there is a clear abuse of his discretion. Bettencourtt v. Bettencourtt, 407 So.2d 804 (La.App. 4th Cir.1981).

Accordingly, the judgment of the trial court is affirmed. Each party to pay his own cost.

AFFIRMED.


author: GAUDIN, Judge.

text:
    Kerry JONES v. DEPARTMENT OF PUBLIC SAFETY OFFICE OF MOTOR VEHICLES.
    No. 5-147.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Robert L. Roshto, Dept, of Public Safety, Baton Rouge, for defendant-appellant.
    Michael A. Britt, Leach, Paysse & Baldwin, New Orleans, for plaintiff-appellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is the Department of Public Safety, Office of Motor Vehicles, contending that the trial judge exceeded his authority by granting to appellee Kerry Jones full driving privileges when Jones had petitioned only for a restricted driver’s license.

Jones’ license was suspended for one year pursuant to LSA-R.S. 32:415, the suspension due to terminate on October 6, 1981. His petition in the 24th Judicial District Court sought a restricted permit so he could “... continue his employment...”

A judgment signed June 30, 1981, restored Jones’ “. .. full and complete driving privileges on an unrestricted basis...”

The trial judge apparently was misled by a December 23, 1980, letter from the Department to Jones stating that Jones was not under suspension as of December 6, 1980. On appeal, the Department contends that this letter was inadvertently mailed, and that Jones was in fact then under suspension at the time.

We agree with appellant’s position, noting (1) that the relief given clearly went beyond the petitioner’s prayer and (2) that the record does not indicate that Jones, at the conclusion of a very brief hearing, asked that his pleading be broadened to conform to the evidence, as authorized by LSA-C.C.P. art. 1154.

Therefore, the aforesaid judgment of June 30, 1981, giving Jones full and complete driving privileges must be amended to state that Jones is granted restricted driving privileges, allowing him to operate a motor vehicle only in relationship to his employment. The pleadings and evidence justify such relief.

As a consequence of this amendment, Jones “owes” the State 98 days of restricted driving, i.e., the number of days from June 80, 1981, to October 6, 1981.

The 98-period will commence on February 1, 1983, unless the parties mutually agree on either an earlier or later starting date.

For these reasons, the judgment of the 24th Judicial District Court dated June 30, 1981, is amended whereby Jones is given a restricted driving license permitting him to operate a motor vehicle only in direct association with his employment.

Further, the duration of Jones’ restricted driving shall start on February 1, 1983, unless an earlier or later beginning date is mutually agreed to, and end 98 days thereafter.

AMENDED.

      . See McInnis-Peterson Chevrolet, Inc. v. Plain, 391 So.2d 1251 (La.App. 1st Cir.1980); Harrison v. Alombro, 341 So.2d 1165 (La.App. 1st Cir.1976); Ermis v. Government Employees Insurance Co., 305 So.2d 620 (La.App. 4th Cir.1974).


text:
    Joseph L. DILEO v. Roy CADOW.
    No. 5-74.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    J. Thomas Nelson, Nelson, Nelson & Koch, Ltd., New Orleans, for plaintiff-ap-pellee.
    Donald S. Klein, Klein & Klein, New Orleans, for defendant-appellant.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant Roy Cadow and appellee Dr. Joseph DiLeo executed a contract whereby Dr. DiLeo was to purchase a residence situated at 3020 Tolmas Drive, Metairie, Louisiana, from Cadow. Following a judgment in Dr. DiLeo’s favor voiding the agreement because appellee was unable to borrow funds under terms and conditions recited in the contract, Cadow has taken this appeal.

The contract clearly states:

“This sale is conditioned upon the ability of the purchaser to borrow upon this property as security the sum of $85,900.00 by a mortgage loan or loans at a rate of interest not to exceed 9% per cent per annum ...”

Dr. DiLeo attempted to obtain 9% per cent financing by assuming Cadow’s Dryades Homestead 9% per cent loan, but his efforts were unsuccessful. Dr. DiLeo was offered instead an 11% per cent loan, which he declined.

It is Cadow’s contention that the transaction was not predicated on Dr. DiLeo’s ability to obtain a 9% per cent loan; rather, the agreement was that Dr. DiLeo would move into the Tolmas Drive house and make payments on Cadow’s low interest loan until Dr. DiLeo sold his residence at 6329 Cartwright Street in New Orleans. Then, Dr. DiLeo would pay cash for Cadow’s Tolmas Drive property, eliminating the need for a mortgage loan.

There are parts of the contract suggesting that Cadow’s version is accurate. For example, hand-printed into the agreement, and initialed by the parties, is this clause:

“Upon receipt of all equity, contract to be recorded and seller gives all rights of ownership to purchaser.”

According to Cadow, this paragraph means that when Dr. DiLeo sold his Cartwright Street home and paid Cadow in full for the Tolmas Drive house, the contract was to be recorded, transferring “rights of ownership” to Dr. DiLeo.

The trial judge considered Cadow’s allegations, heard the testimony of the witnesses, including an officer of Dryades Homestead, and concluded that the contract was conditional and that it became void upon Dr. DiLeo’s inability to secure 9% per cent financing.

As the agreement was contested and in some respects unclear, the trial judge was correct in receiving extrinsic evidence. Thus, the credibility of the witnesses came into substantial focus, and this issue was resolved in appellee’s favor. Dr. DiLeo and his wife both said that they meant to purchase Cadow’s house only if favorable financing (as stipulated in the contract) could be obtained.

It should be noted that the contract was executed on a Roy Cadow Real Estate form, and is entitled, “Agreement to Purchase or Sell.”

As in Canter v. Koehring, 283 So.2d 716 (La.1973), findings of fact in the trial court must be given considerable credence, particularly when the findings involve credibility of witnesses.

The Fourth Circuit, in Huisman v. Southern General Insurance Company, 203 So.2d 404, said:

“The trial court’s factual conclusions are entitled to great weight particularly those involving the credibility of witnesses and will not be disturbed unless they are found to be clearly erroneous.”

We cannot, in this case,.cast aside factual determinations as the record does not indicate that they are “clearly erroneous.”

The judgment nullifying the sued-on contract and ordering the return of the deposit to Dr. DiLeo is affirmed, with Cadow to bear all costs.

AFFIRMED.

      .This witness confirmed the fact that Dr. Di-Leo’s request for a 9A per cent loan was turned down.

      . In accord with LSA-C.C. art. 2457.

      . See Meaux v. Southdown Lands, Inc., 361 So.2d 974.