author: GUIDRY, Judge.

text:
    Carvel Wayne GOODRICH, Plaintiff-Appellee, v. Sandra Denise Thrash GOODRICH and Regina Goodrich, A Minor, Defendants-Appellants.
    No. 82-141.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.

      George A. Guidry, Alexandria, for defendants-appellants.
    Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

This action for disavowal was consolidated for trial with an action for divorce instituted by Carvel W. Goodrich against Sandra D.T. Goodrich. The cases remain consolidated on appeal and we this day render a separate decision in the companion matter entitled Carve] Wayne Goodrich v. Sandra Denise Thrash Goodrich, 421 So.2d 962, our docket number 82-142.

On January 14, 1981, plaintiff, Carvel W. Goodrich, filed an action seeking a judgment of divorce from his wife, Sandra D.T. Goodrich, based upon the parties living separate and apart for one year (LSA-R.S. 9:301). The defendant answered plaintiff’s petition, and in addition, she filed a recon-ventional demand requesting that a judgment of divorce be entered in her favor; that she be awarded custody of the minor child, Regina Goodrich; and, that she be granted child support in the amount of $300.00 monthly. Thereafter, on March 12, 1981, plaintiff filed the instant suit seeking to disavow paternity of Regina Goodrich, a child born to defendant, Sandra Goodrich, on November 6, 1979. Sandra Denise Thrash Goodrich and the minor, Regina, were named as parties defendant. Prior to trial, the district court appointed counsel to represent the interests of the minor child. Upon defendant’s motion, the divorce action and plaintiff’s disavowal suit were consolidated for trial. Thereafter, in answer to plaintiff’s denial of paternity, counsel for the minor child filed exceptions of no cause and no right of action and prescription. On April 21, 1981, Sandra filed a peremptory exception of prescription contending that plaintiff failed to bring his action for disavowal of paternity within one hundred and eighty days after receipt of knowledge of the birth of the minor child as required by Louisiana Civil Code Article 189. On July 13, 1981, the trial court rendered judgment overruling the aforesaid exceptions. On December 21,1981, after trial on the merits, the district court rendered judgment in the consolidated matters in favor of plaintiff, Carvel Goodrich and against defendant Sandra Goodrich, granting to plaintiff a judgment of absolute divorce and dismissing Sandra’s claim for child support. In addition, the trial court held in favor of Carvel in regard to his paternity disavowal action concluding that he is not the father of the minor child, Regina Goodrich. Sandra Goodrich has appealed from the aforesaid judgments only as to the issues of the paternity of the minor child, Regina Goodrich, and her claim for child support. There has been no appeal from the aforesaid judgments filed by counsel appointed to represent the minor child. Plaintiff has neither answered the instant appeal nor appealed from the aforesaid judgments.

FACTS

Plaintiff, Carvel Goodrich, and the defendant, Sandra Goodrich, were married on December 9,1977 in Rapides Parish, Louisiana. Thereafter, the couple moved to Fa-yetteville, North Carolina where Carvel was stationed while in the military. The parties returned to Louisiana for a Christmas visit during the latter part of December of 1978. On or about the first week in January of 1979, the parties returned to North Carolina. Plaintiff asserts that he departed for Panama for a period of 30 days immediately after his return to North Carolina. Carvel stated that the parties have lived separate and apart since his trip to Panama. Sandra testified to the contrary. On or about February 6, 1979, Sandra departed from North Carolina for Louisiana where she has resided since that date. On November 6, 1979, Sandra gave birth to a child, Regina Goodrich. In January of 1980, Sandra filed child support proceedings pursuant to the Uniform Reciprocal Enforcement Support Act against Carvel in Rapides Parish, Louisiana. Carvel was personally served with notice of the pending child support proceedings on February 12, 1980. The record is not entirely clear as to what transpired subsequent to the filing of this reciprocal enforcement proceeding. Presumably, after being served with notice of this proceeding Carvel denied paternity of Regina. There is no evidence in the record to support a conclusion that Carvel made a formal response in this proceeding denying paternity either in personam or through counsel. There next appears in the record a request from the North Carolina authorities to the office of the district attorney of Rapides Parish, Louisiana, requesting information supporting paternity. Presumably, the authorities in Cumberland County, North Carolina received no information in response to their request. The reciprocal enforcement proceeding was voluntarily dismissed on request of the North Carolina authorities on August 21, 1980. Plaintiff was discharged from the service some time in early 1980. Upon his discharge, Carvel returned to Louisiana. Plaintiff filed the instant action for divorce on January 14, 1981 and thereafter filed a petition for disavowal of paternity on March 12, 1981.

ISSUES

(1) Is Carvel’s disavowal of paternity action prescribed?

(2) If not, did Carvel sustain his burden of proof in disavowing the paternity of Regina Goodrich?

PRESCRIPTION

LSA-Louisiana Civil Code Article 184 provides that the husband of the mother is presumed to be the father of all children born or conceived during the marriage. In the present matter, since the infant, Regina, was conceived and born during the marriage of the parties, in order for the plaintiff to disavow paternity, he must institute disavowal proceedings timely. Sandra contends that such proceedings were not filed timely and that the trial court erred in holding otherwise.

In rendering judgment for plaintiff on defendant’s exception of prescription, the trial court concluded that the legal maxim, “contra non valentem agere nulla curit par-aescripti”, that is, prescription does not run against a party who is unable to act, is applicable under the facts presented. In effect, the district court determined that Sandra’s failure to provide proof of paternity when she filed child support proceedings in January of 1980, provided plaintiff with reasonable grounds to assume that he need not institute disavowal proceedings. In so reasoning, the trial court, citing Naquin v. Naquin, 374 So.2d 148 (La.App. 1st Cir. 1979), concluded that in order for prescription to run against the plaintiff, he must be supplied with such facts as to indicate that defendant’s claim of paternity was a bona fide one. Absent such facts, according to the trial court, prescription does not run against the plaintiff. We disagree.

LSA-C.C. Article 189 provides:

“A suit for disavowal of paternity must be filed within 180 days after the husband learned or should have learned of the birth of the child; but, if the husband for reasons beyond his control is not able to file suit timely, then the time for filing suit shall be suspended during the period of such inability.”

It is undisputed that Carvel received notice of Regina’s birth on February 12, 1980. Upon receiving such notice, it was incumbent upon plaintiff to institute disavowal proceedings within 180 days. The record reflects that plaintiff’s petition for disavowal was not filed until March 12,1981, clearly in excess of the 180 day prescriptive period.

In Naquin v. Naquin, supra, the court concluded that the prescriptive period for the institution of disavowal proceedings by plaintiff was suspended due to the defendant mother’s material misrepresentations. In Naquin, it was established that the defendant mother had represented to the plaintiff and others that she had remarried and that the child in question was the issue of her alleged second marriage. The child’s surname was that of the man with whom the mother was living at the time of the child’s birth and a blood test established that the plaintiff could not possibly be the father of the child. The Naquin court in arriving at its decision stated:

“We are convinced, too, that the term ‘birth of child’ refers to learning of the birth under circumstances that would point to the possibility of assertion of plaintiff’s paternity.”

The court went on to hold that the plaintiff was unable to bring the suit timely because of the mother’s misrepresentations.

The trial court in the instant matter concluded that the facts of the present case are analogous to those existing in Naquin, supra. We disagree. Naquin is easily distinguished from the case presently before this court in that there has been no evidence that Sandra made any misrepresentations regarding Regina’s paternity to plaintiff or other persons. Rather, Sandra instituted child support proceedings as early as January of 1980 against plaintiff alleging that plaintiff is the father of the minor child, Regina. At that time, plaintiff was informed that the young child bore his name. Plaintiff does not deny that the parties were legally married to each other at the time of the child’s birth as well as at the time plaintiff received notice of such birth. We conclude that these facts alone provide adequate notice to plaintiff that, in order for him to deny paternity, it was necessary that he file a disavowal action within 180 days of receipt of notice of the birth. The facts of the ongoing marriage of the parties coupled with the birth of a child during the existence of such marriage as well as the representations by the mother that the infant is plaintiff’s daughter, clearly satisfies the test enunciated in Naquin, that is, “learning of the birth under circumstances that would point to the possibility of assertion of plaintiff’s paternity”. Nor do we consider the apparent informal denial of paternity made by Carvel to the North Carolina authorities in the proceeding heretofore referred to as constituting “... suit for disavowal of paternity” within the in-tendment of C.C. Article 189.

Plaintiff-appellee, in opposing defendant’s exception of prescription, alternately urges that the prescriptive period was suspended in that he was unable to institute disavowal proceedings timely “due to circumstances beyond his control”. In so urging, plaintiff avers that he was prevented from filing such action timely due to being stationed in North Carolina pursuant to his military service. We conclude that plaintiff’s argument is without merit. There is no evidence in the record to substantiate a finding that plaintiff could not have retained a legal representative in Louisiana to pursue his action for disavowal. Clearly, geographical distance does not prevent one from obtaining counsel and pursuing one’s legal rights in a foreign jurisdiction. Additionally, the record confirms that plaintiff was discharged from the military service and returned to Louisiana during the early part of 1980 but did not file this disavowal action until March 12, 1981.

For the foregoing reasons, we conclude that the exception of prescription filed by the defendant is well taken and the trial court erred in overruling same.

Since we have determined that Carvel’s disavowal action has prescribed, we need not consider the issue of paternity on its merits. Accordingly, the judgment appealed from in this matter is reversed and set aside and it is now ordered, adjudged and decreed that plaintiff’s action for disavowal of the minor, Regina Goodrich, is dismissed with prejudice. Plaintiff-appellee, Carvel Wayne Goodrich, is cast for all costs of these proceedings, both at the trial level and on appeal.

REVERSED AND RENDERED.


source: Caselaw Access Project

license: Public Domain

text:
    Carvel Wayne GOODRICH, Plaintiff-Appellee, v. Sandra Denise Thrash GOODRICH, Defendant-Appellant.
    No. 82-142.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.
    George A. Guidry, Alexandria, for defendant-appellant.
    Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

In the companion matter entitled Carvel Wayne Goodrich versus Sandra Denise Thrash Goodrich and Regina Goodrich, a minor, 421 So.2d 958, our docket number 82-141, we determined that plaintiff, Carv-el Wayne Goodrich, was barred by prescription from asserting his non-paternity of the infant child, Regina Goodrich. Considering this conclusion, it necessarily follows that the trial court judgment rendered in the instant matter insofar as it denies reconve-nor-appellant’s demand for child support must be reversed and set aside.

Although the trial court did not consider this issue on its merits, we do not consider a remand necessary, in that, the record is complete and sufficient upon which to formulate a proper award of child support.

In her reconventional demand, Sandra prayed for permanent custody of Regina as well as an award of child support in the sum of $300.00 per month. Carvel does not contest the award of permanent custody of the child to Sandra.

LA-C.C. Article 227 imposes on parents a mutual obligation of support, maintenance, and education of their children. As noted by our court in Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3rd Cir.1981),

“The degree of support is determined by the needs of the child as well as the circumstances of those who are obligated to pay it. See LSA-C.C. Articles 230 and 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978); Marcus v. Burnett, 282 So.2d 122 (La.1978); Stickland v. Strickland, 277 So.2d 537 (La.App. 3rd Cir.1979).”

The record reflects that Carvel has a present gross income of $1,060.00 per month. At trial, he estimated his expenses as follows: rent — $285.00; phone — $70.00; loan — $25.00; insurance — $42.00; clothing —$200.00; food — $800.00; laundry — approximately $25.00; transportation— $200.00. Carvel testified that he has a net income of $900.00. Clearly, Carvel’s estimated expenses exceed his net income. Carvel testified that a young woman and her infant son are residing with him and that neither contributes to the expenses of the household. Carvel further testified that the money expended for the support of the woman and her child constitutes approximately one-third of his monthly expenses.

Funds expended by Sandra on behalf of Regina as reflected by an affidavit introduced into evidence total $518.00 per month. At the time of trial, Sandra and Regina were residing with Sandra’s boyfriend. Sandra testified that her boyfriend is presently supporting her and Regina. Defendant stated that her only out of pocket expenses at the present time are her doctor bills which according to the aforesaid affidavit total $25.00 per month.

It is well settled that an amount which a spouse is ordered to pay in fulfillment of his pbligation to support his child must be determined in light of the totality of the circumstances. See Dugas v. Dugas, 374 So.2d 1278 (La.App. 3rd Cir.1979); Marcus v. Burnett, 282 So.2d 122 (La.1973); Cowen v. Cowen, 375 So.2d 118 (La.App. 3rd Cir.1979). However, it must be borne in mind that plaintiff’s primary obligation is to support, maintain and educate his child. Dugas v. Dugas, supra; Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (La.1959); LSA-C.C. Article 227. Clearly, plaintiff’s obligation to support his legitimate child may not be prejudiced by his voluntary assumption of an obligation to support persons for whom he is not legally responsible. Further, Sandra’s boyfriend, regardless of his willingness to do so, is not legally obligated to support plaintiff’s child. After carefully reviewing the record, we conclude that defendant, Sandra Goodrich, is entitled to a judgment in her favor and against plaintiff, Carvel Goodrich, awarding to her child support in the sum of $150.00 per month.

For the above and foregoing reasons the judgment of the trial court in the above numbered and entitled matter is reversed and set aside insofar as it denies the child support claim of Sandra Denise Thrash Goodrich. Accordingly, we amend and recast the trial court judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Carvel Wayne Goodrich and against Sandra Denise Thrash Goodrich granting unto Carvel Wayne Goodrich an absolute divorce from Sandra Denise Thrash Goodrich. It is further ordered, adjudged and decreed that permanent care, custody and control of the minor child, Regina Goodrich, is awarded to Sandra Denise Thrash Goodrich.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Carvel Wayne Goodrich is ordered to pay Sandra Denise Thrash Goodrich the sum of $150.00 monthly for the support of the minor child, Regina Goodrich, the first payment to be due upon the finality of this judgment. Carvel Wayne Goodrich-is cast for all costs of these proceedings both at the trial level and on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


text:
    O’BRIEN FLYING SERVICE, INC., Plaintiff-Appellee-Appellant, v. Melvin BELL, Melvin R. Bell and Harold Scott Mills, Jr., Defendants-Appellees-Appellants.
    No. 82-145.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    D. Michael Mooney, Lake Charles, for pláintiff-appellee-appellant.
    Errol D. Deshotels, Oberlin, for defendants-appellees-appellants.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, O’Brien Flying Service, Inc., a Louisiana corporation domiciled in Jefferson Davis Parish, sued defendants, Melvin Bell, Melvin R. Bell, and Harold Scott Mills, Jr. on a Thirty-five Thousand Dollar ($35,-000.00) promissory note dated September 22, 1978. The aforesaid note is signed by defendants as makers and is made payable to the order of plaintiff on or before November 30, 1978 and bears 9ViWo per annum interest. Defendants filed an answer alleging lack of consideration for the aforesaid note, and in addition, filed a reconventional demand individually and on behalf of Bell Flying Service, Inc. in which they alleged that O’Brien Flying Service, Inc., Zoren O’Brien, and Phillip Miller are indebted to reconvenors in the sum of Two Hundred Twenty-eight Thousand and Twenty-five Dollars and eighteen cents ($228,025.18). In the alternative, reconvenors prayed for a credit as a set-off for any amounts adjudged due on the subject promissory note. Thereafter, defendants-in-reconvention, O’Brien Flying Service, Inc., Zoren O’Brien and Phillip Miller filed an answer to re-convenors’ demand coupled with a third party demand against Melvin Bell alleging that Melvin Bell, pursuant to an indemnity and hold harmless agreement executed by Bell in favor of O’Brien and Miller, is responsible for all amounts due should plaintiffs-in-reconvention be successful in their action. Additionally, defendants-in-recon-vention filed a peremptory exception of no cause of action in response to reconvenors’ demand contending that the aforesaid indemnity and hold harmless agreement executed by Bell in favor of Miller and O’Brien precludes Bell’s reconventional demand. It was stipulated at trial that the aforesaid exception would be referred to the merits. On the date of trial, defendants-in-recon-vention made an oral exception of no cause of action as to the reconvenors’ demand based upon a document titled “Stockholders Unanimous Consent Agreement” and an alleged compromise settlement between the parties which was also referred to the merits.

After a prolonged trial of the matters, the district court, assigning written reasons for judgment, ordered that both the original demand and all incidental demands be dismissed with cost of the proceedings to be shared equally by the parties. Plaintiff, defendants and Bell Flying Service, Inc. have appealed the judgment of the trial court. Zoren O’Brien and Phillip W. Miller did not appeal nor did they file an answer to the appeals.

FACTS

On or about January, 1975, Zoren O’Brien and Phillip Miller formed a corporation, in which they were the only stockholders, named O'Brien Flying Service, Inc. (hereafter O’Brien, Inc.) located in Iowa, Louisiana. Shortly thereafter, on January 24, 1975, O’Brien, Miller and Melvin Bell incorporated a business known as O’Brien-Bell Flying Service, Inc. (hereafter O’Brien-Bell) located in Kinder, Louisiana. O’Brien, Miller and Bell were the only stockholders in O’Brien-Bell. Both of the aforesaid corporations were engaged in the business of aerial applications or “crop-dusting”. The record reflects that the two corporations were closely associated and frequently utilized the same equipment, personnel, and supplies. Miller served as bookkeeper for both businesses.

During the Spring of 1978, Miller and O’Brien decided to divest themselves of their stock in O’Brien-Bell. Negotiations were thereafter instituted among Miller, O’Brien and Melvin Bell regarding Bell’s purchase of Miller’s and O’Brien’s stock in O’Brien-Bell. The Articles of Incorporation of O’Brien-Bell contained a provision granting preemptive rights to its stockholders, thus, Melvin Bell possessed the right to purchase the aforesaid shares of stock prior to such stock being offered for sale to non-shareholders. Testimony at trial indicates that the majority of the negotiations relative to Melvin Bell’s purchase of O’Brien’s and Miller’s stock were conducted between Bell and Miller. The result of these negotiations is evidenced by a document introduced into evidence at trial and denoted as “Stockholders Unanimous Consent Agreement” dated September 22,1978, which provides as follows:

“CALCASIEU PARISH STOCKHOLDERS UNANIMOUS CONSENT AGREEMENT
STATE OF LOUISIANA
WE the undersigned, being ail the shareholders of O’Brien-Bell Flying Service, Inc., do hereby make the following unanimous agreement.
Whereas the undersigned stockholders were the original incorporators of this corporation and also have always been the sole and only stockholders thereof, we do hereby waive any restrictions upon alienation of shares of stock for the purpose of confecting a sale of stock, which has been agreed upon by all the stockholders and the terms of which are as follows:
Zoren Oren O’Brien agrees to sell to Melvin Bell his 500 shares of stock in this corporation and Melvin Bell agrees to purchase same for the sum of $50.00 per share or a total price of $25,000.00.
Further, Phillip W. Miller agrees to sell to Melvin Bell his 500 shares of stock in this corporation and Melvin Bell agrees to purchase same for the sum of $50.00 per share or a total price of $25,000.00.
As a further consideration of this transfer the pruchaser (sic) Melvin Bell hereby agrees that he will assume any personal liability or indebtedness as surety or otherwise which Phillip W. Miller and Zoren Oren O’Brien may have related to this corporation and the said Melvin Bell agrees to indemnify and hold harmless the said Zoren Oren O’Brien and Philip (sic) W. Miller from any indebtedness associated with this corporation.
It is further agreed that this sale shall be confected and completed within 30 days from the date of this instrument and should the purchaser, Melvin Bell, default and/or fail or refuse to confect this sale in its full terms within 30 days from the date of this instrument, then Zoren Oren O’Brien and Philip (sic) W. Miller shall have the right to offer their shares of stock to any prospective purchaser, and any previous restraints upon alienation thereof are fully waived.
It is further agreed by the stockholders that 0‘Brien-Bell Flying Service, Inc., is indebted presently unto O’Brien Flying Service, Inc. in the full legal sum of $35,-000.00 for labor, materials and services and to secure payment of this sum O’Brien-Bell Flying Service, Inc. through its President, shall execute in favor of O’Brien Flying Service, Inc., a promissory note in the sum of $35,000.00, payable at 9¥¿% interest in whole or in part on or before November 30, 1978, with payment in full no later than April 30,1979.”

On the same date, September 22, 1978, the promissory note sued on was executed by Melvin Bell, Melvin R. Bell, and Harold Scott Mills, Jr. in favor of O’Brien Flying Service, Inc. It is plaintiff’s contention that this promissory note is the one contemplated by the “Unanimous Stockholders Consent Agreement” and formed an integral part of the negotiations regarding Melvin Bell’s purchase of the stock of O’Brien-Bell.

The record reflects that Melvin Bell planned to purchase O'Brien's and Miller's shares of stock, and thereafter, such shares would be sold by Bell to defendants, Melvin R. Bell and Harold Scott Mills, Jr., who would then become equal shareholders with Melvin Bell in O’Brien-Bell. Melvin testified that he paid $25,000.00 in cash to O’Brien for his stock and executed a $25,-000.00 promissory note in favor of Miller as payment for his interest in O’Brien-Bell.

There is extensive testimony regarding the circumstances leading to the execution of the $35,000.00 promissory note, which forms the basis of the instant dispute, much of it in direct conflict. Harold S. Mills, Jr. testified that at the time he signed the disputed note, he did so with the understanding that the note would be a pledge to the bank and used as collateral by O’Brien, Inc. He stated that he signed the note solely to expedite the resolution of the negotiations regarding the sale of O’Brien-Bell to Melvin Bell. In effect, Mills testified that the note sued on was not given for consideration but solely to accommodate O’Brien, Inc. Melvin R. Bell testified similarly, stating that he did not owe O’Brien, Inc. nor any of its shareholders any money, but rather, signed the note to «accommodate O’Brien, Inc.’s collateral needs. In addition, Melvin R. Bell stated that even after becoming a shareholder in O’Brien-Bell, he never authorized Melvin to pay $35,000.00 or any other sum to O’Brien, Inc.

Melvin testified that the promissory note at issue was executed merely as a pledge for use as collateral by O’Brien, Inc. and is not the promissory note contemplated in the “Unanimous Stockholders Consent Agreement”. Melvin testified that the note referred to in the aforesaid agreement was never executed. Melvin also testified extensively regarding alleged debts for services rendered owed by O’Brien, Inc. to Mm, personally, and to O’Brien-Bell. Melvin Bell’s testimony demonstrates the close association of the two corporations and the frequent interchange of services, materials, and equipment between the two businesses.

In contrast to the aforementioned witnesses, Zoren O’Brien and Phillip Miller both testified that the promissory note sued upon is the note referred to in the “Unanimous Stockholders Consent Agreement”. In this regard, O’Brien stated that at the time of the stock purchase negotiations, the parties discussed at length the various debts owed by O’Brien-Bell to O’Brien, Inc. O’Brien testified that as a result of such discussions, the parties agreed that Melvin Bell would pay $50,000.00 for O’Brien’s and Miller’s stock in O’Brien-Bell and in addition, O’Brien-Bell would pay the sum of $35,000.00 to O’Brien, Inc. in settlement of debts owed by the former to the latter corporation. O’Brien’s testimony refuted Melvin’s allegations concerning debts owed by O’Brien, Inc. to Melvin, personally, as well as that corporation’s alleged debts to O’Brien-Bell. O’Brien’s testimony regarding the debts and liabilities existing between the two corporations was essentially in direct conflict to Melvin’s testimony. In sum, O’Brien stated that O’Brien, Inc. owes neither Melvin Bell, nor O’Brien-Bell any money, but rather, O’Brien-Bell is indebted to O’Brien, Inc. in the sum of $35,000.00 pursuant to an agreement between the parties.

Phillip Miller stated at trial that he maintained the financial records of both corporations. He testified that at the end of the fiscal year adjustments were made on the books of the two businesses to determine which corporation owed what amounts to the other. His testimony reiterated the extensive involvement of each corporation in the other’s operations. Miller also stated that it was ultimately agreed upon by O’Brien and Melvin that O’Brien-Bell would pay to O’Brien, Inc. the sum of $35,000.00 in settlement of certain debts and that an adjustment was made in the books of the two businesses to reflect their agreement. Miller stated that the $35,000.00 promissory note at issue was executed by Melvin Bell and Melvin’s prospective business associates in satisfaction of the aforesaid settlement.

Patrick Reddin, a certified public accountant and partner in the CPA firm handling the accounts of both corporations testified that he was informed by Miller that an agreement had been reached between the parties whereby O’Brien-Bell’s obligation to O’Brien, Inc. would be reflected in the books of the corporations as $35,000.00. Reddin admitted that the figures which he employed in maintaining the aforesaid corporate accounts were derived from information supplied to him by Miller.

Finally, Raymond Aucoin, vice-president of Gulf National Bank, testified that O’Brien, Inc. had a $250,000.00 line of credit at his bank and that, at the time in question, O’Brien, Inc. had utilized only $180,-000.00 of such credit. Aucoin stated that the bank had not requested any additional collateral from O’Brien, Inc. However, Au-coin admitted that it is banking practice to accept any additional collateral offered by its clients. Aucoin further stated that the promissory note at issue was maintained by Gulf National Bank in the collateral portfolio of O’Brien, Inc.

ISSUES

(1) Did the trial court err in concluding that the promissory note sued upon was executed by defendants for the sole purpose of maintaining O’Brien, Inc. with adequate collateral, and accordingly, such note is unenforceable by plaintiff due to a want or failure of consideration?

(2) Did the trial court err in dismissing defendants’ reconventional demand?

Plaintiff contends that it is a holder in due course of the promissory note sued upon, in that, O’Brien, Inc. took the instrument for value, in good faith and without notice that it was overdue or had been dishonored. In this regard, plaintiff urges that the note was executed in conjunction with the document entitled “Unanimous Stockholders Consent Agreement”, and was given in settlement of debts owed by O’Brien-Bell to O’Brien, Inc. In contrast, defendants contend that the note was executed solely to accommodate the collateral needs of O’Brien, Inc.

The trial court, after reviewing voluminous testimony and extensive documentary evidence, concluded that “the execution of the note was for the sole purpose of keeping O’Brien Flying Service with adequate collateral.” The trial court further reasoned that as between the defendants-makers of the note and the plaintiff-payee there exists a total want or failure of consideration, thus, plaintiff cannot be a holder in due course of the note sued upon.

The trial court’s conclusion is supported by the language of the “Unanimous Stockholders Consent Agreement” wherein it is agreed that “... O’Brien-Bell Flying Service, Inc. through its President, shall execute in favor of O’Brien Flying Service, Inc., a promissory note in the sum of $35,-000.00, payable at 9V2% interest in whole or in part on or before November 30, 1978, with payment in full no later than April 30, 1979.” (Emphasis ours)

Although the promissory note sued on is consistent in some particulars with the note contemplated in the aforesaid agreement, it differs in one extremely important aspect. The stockholders agreement provides that the note shall be executed on behalf of O’Brien-Bell through its President. The note sued upon is signed by Melvin Bell, Melvin R. Bell, and Harold Scott Mills, Jr. with no indication that the note was signed by the makers in any representative capacity. In addition, the record clearly reflects that at the time the instrument was executed, neither Mills nor Melvin R. Bell owned any interest in O’Brien-Bell nor did they owe any monies whatsoever to O’Brien, Inc. With the exception of the self-serving testimony of O’Brien and Miller, the record is devoid of any evidence establishing that either of the aforesaid defendants received any consideration for their signatures on the disputed instrument. Additionally, there is no indication that Melvin Bell signed the disputed note as part of the purchase of stock agreement between he and O’Brien and Miller. Rather, Bell testified that the note contemplated in the stockholders agreement was never executed.

The trial judge, in his written reasons for judgment, clearly indicates that he found the testimony of the defendants and the evidence presented on their behalf more credible than that presented by plaintiff. Accordingly, the trial court concluded that the note sued upon was unenforceable for failure of consideration.

It is well settled that a decision of the trier of fact, which is based upon conclusions drawn from the facts and a credibility evaluation of the witnesses, cannot be reversed by a Court of Appeal if the record supports the reasonable inferences of fact and reasonable evaluations of credibility made by the trial court. Nash v. La Fontaine, 407 So.2d 783 (La.App. 4th Cir.1981); Canter v. Koehring Co., 283 So.2d 716 (La. 1973). After carefully reviewing the record, we discern no manifest error on the part of the trial court in its conclusions.

The final issue for consideration is whether or not the trial court erred in dismissing defendants’ reconventional demand. Reconvenors, Melvin Bell, Melvin R. Bell, Harold Scott Mills, Jr., and Bell Flying Service, Inc. contend that defendants-in-re-convention, Zoren O’Brien, Phillip Miller and O’Brien, Inc. are indebted to them in the sum of $228,025.18. In this regard, reconvenors aver that the aforesaid debt is the consequence of various overcharges, unpaid wages, unpaid airplane leases, and unauthorized withdrawals from the accounts of O’Brien-Bell.

In dismissing reconvenors’ demand, the trial judge concluded that the defendants simply failed to establish by a preponderance of the evidence that the defendants-in-reconvention are indebted to reconvenors in any amount whatever.

Our review of the record reveals considerable testimony by all parties and their witnesses which establishes the extensive involvement of both corporations in the operations of the other. The exchange of services, personnel, equipment, and supplies between the two businesses was commonplace. Such a comprehensive interchange of the corporations’ resources and assets makes the resolution of reconvenors’ demand extremely difficult, if not impossible. O’Brien, Miller and Melvin Bell testified at length regarding various sums due by one corporation to the other. The testimony of Miller and O’Brien regarding such debts is completely irreconciable with that of Melvin Bell.

After a careful evaluation of the testimony and documentary evidence received at trial, we conclude that the trial court did not commit clear error in its determination that reeonvenors failed to sustain their burden of proof regarding defendants-in-recon-ventions’ alleged indebtedness to them. See Canter v. Koehring, supra.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed one-half to plaintiff, O’Brien Flying Service, Inc., and one-half to defendants, Melvin Bell, Melvin R. Bell, and Harold Scott Mills, Jr.

AFFIRMED.

      . Although this pleading is styled as a “Supplemental Answer and Reconventional Demand”, it was considered by the trial court as a petition of intervention, insofar as it relates to Bell Flying Service, Inc. and insofar as it joins Zo-ren O. O’Brien and Phillip W. Miller as defendants.

      . The record reflects that on October 2, 1978, the Articles of Incorporation of O’Brien-Bell Flying Service, Inc. were amended so as to change the name of the aforesaid corporation to Bell Flying Service, Inc. At the time of trial, Harold Scott Mills, Jr. was no long a shareholder in Bell Flying Service, Inc.


author: LABORDE, Judge.

text:
    Patricia Ann Campbell TOWNSEND, Plaintiff-Appellant, v. Earl K. TOWNSEND, Defendant-Appellee.
    No. 82-151.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.

      James L. Fortson, Jr., Shreveport, for plaintiff-appellant.
    Kelly & Salim, Donald G. Kelly, Natchi-toches, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

Appellant, Patricia Ann Campbell Townsend sued her previous husband, Earl K. Townsend, for an increase in child support, accrued alimony, contempt of court, and attorney’s fees. The trial court denied each of appellant’s demands. We affirm the rejection of the increase in child support, of contempt and of attorney’s fees, but reverse the refusal to make executory the accrued child support payments.

Patricia appeals the lower court’s decision. The issues presented on appeal are: 1) Did the trial court err in rejecting Patricia’s claim for accrued alimony? 2) Did the trial court err in failing to hold Earl Townsend in contempt of court? 3) Did the trial court err in its denial of an increase in child support? 4) Did the trial court err in refusing to award attorney’s fees and costs to Patricia?

This couple obtained a judicial separation in May of 1979. The judgment awarded Patricia the custody, care and control of the minor children born of the marriage. Earl was ordered to pay child support of $200.00 per month, plus an additional $150.00 per month as alimony for the maintenance and support of Patricia.

On April 11,1980, Earl filed for a divorce based upon having lived separate and apart for more than one year. The petition sought to maintain the child support at the same rate as in the separation judgment. Patricia reconvened for an increase in child support of $500.00 per month, apportioned $250.00 per child.

The trial court rendered a judgment of divorce on May 9, 1980, which ordered Earl to pay $200.00 per month in child support and $150.00 per month in alimony.

Earl, after the payment due on August 15, 1981, discontinued the payment of the alimony in favor of Patricia Townsend without any judicial action whatsoever and solely upon his own initiative. In the judgment of May 9, 1980, the parties to this proceeding consented to the phraseology and form of the decree. On November 3, 1981, Patricia instituted the initial proceeding by filing a petition for contempt and a rule to make alimony arrearages executory, to increase child support, and to obtain attorney’s fees. After trial on this rule nisi, the trial court rendered judgment denying all demands of plaintiff-in-rule, Patricia.

There is a dispute as to the meaning of the following language in the divorce decree:

“. .. said sum to continue until such time as same shall become unnecessary within the meaning of Article 160 of the Louisiana Civil Code ... ”.

Earl argued in the trial court that the parties specifically agreed prior to and in contemplation of the judgment that the said alimony agreed to would cease automatically upon appellant either gaining employment, obtaining a degree in her present course of studies or upon remarriage, whichever event may occur sooner. Patricia argues that prior court approval is necessary to terminate the alimony payments. The trial court in enforcing the divorce judgment interpreted the disputed phraseology as meaning the alimony payment to Patricia Townsend automatically terminated upon her gaining employment. We disagree. From its nature, this question falls within Louisiana Civil Code Article 232:

“When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.” (emphasis added)

Earl bases his argument on the theory that the language in the judgment allows the alimony to be terminated without court approval. In essence, his argument is that the trial court enforced the judgment as written. A consent judgment is a bilateral contract wherein the parties adjust their differences by mutual consent, thereby putting an end to a lawsuit with each party balancing the hope of gain against the fear of loss. LSA-C.C. Article 3071. A consent judgment is a determination of the right of the parties and it acquires the authority of the thing adjudged. LSA-C.C. Article 3078. In our view, the following language does not constitute a clear expression of when the alimony will be terminated:

“... said sum to continue until such time as same shall become unnecessary within the meaning of Article 160 of the Louisiana Civil Code ... ”.

The language of the judgment does not designate how or when the alimony will be terminated. Absent a clearly worded, express and unequivocal clause to this effect, this court is unwilling to hold that the alimony is automatically terminated without prior suit. Support for this rule is found in a proper regard for the integrity of judgments. Such a regard does not condone a practice which would allow those cast in judgment to invoke self-help and unilaterally relieve themselves of the obligation to comply. To condone such a practice would deprive the party in whose favor the judgment has been rendered of an opportunity to present countervailing evidence, and at the same time deny the judge of an opportunity to review the award.

It is our view that the alimony payments were not automatically terminated. Therefore, the issue arises whether Patricia is entitled to have past due alimony made executory. The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alterations or annulment except by the method and for the causes prescribed by law. This liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought by suit or in answer to a suit to enforce payment. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). The court must award such a judgment when properly applied for. LSA-C. C.P. Article 3945.

The record discloses that Earl owes past due alimony. The judgment of May 8, 1980, ordered Earl to pay $150.00 on the 15th of each month, beginning May 15, 1980. Based on Patricia’s account of payments which was not contradicted or questioned by Earl, the discrepancy between the alimony set forth in the judgment and the payments actually made was $300.00. For the foregoing reasons we amend the judgment of the trial court to grant Patricia the $300 past due alimony.

We affirm the trial court’s denial of contempt and of attorney’s fees. Earl was in good faith when he terminated the alimony. The trial court concluded the parties had an agreement as to when the alimony would terminate. The parties agreed that the alimony would automatically terminate upon the appellant gaining employment. However, the wording of the agreement in the judgment is too ambiguous to enforce. Therefore, the record discloses Earl had just and proper cause in not making the payments. LSA-R.S. 9:305, Giddings v. Giddings, 412 So.2d 200 (La.App. 3rd Cir.1982).

The issue next presented on appeal is whether the trial court abused its discretion as to the amount awarded for child support. Patricia requested an increase in child support based on the ability of Earl to pay. A mutual obligation of support, maintenance and education of children is imposed by our law on both parents. The degree of support required of each is determined by the needs of the children and the circumstances of those who are obliged to pay it. In essence the court must consider, in calculating the award to be made, the totality of all pertinent circumstances. Warner v. Warner, 413 So.2d 977 (La.App. 3rd Cir.1982); LSA-C.C. Article 231. There is no limitation in Louisiana Civil Code Article 231 which would preclude considering expenses of the second marriage of the husband in determining his liability for child support of children of his first marriage. Marcus v. Burnett, 282 So.2d 122 (La.1973). The Louisiana jurisprudence establishes that a consent judgment of child support is not subject to modifications unless a change of circumstances supporting the modification is proved. The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). Patricia argues that the following language in the judgment does away with the necessity of showing changed circumstances:

“... To apply for an increase in same without the necessity of proving a change in circumstances ...”

A consent judgment is a determination of the right of the parties and it acquires the authority of the thing adjudged. LSA-C.C. Article 3078. Giving effect to the above phraseology does not limit the requirement of the court to consider the totality of all relevant circumstances.

Patricia is employed at Baptist Christian Academy and is earning $615.12 net per month. Earl is earning approximately $1,413.91 per month. Additional information disclosed by the record is: 1) Earl has remarried and has expenses of this second marriage, 2) his home was destroyed by fire prior to the initial proceeding. The trial judge, considering the totality of all the circumstances and in the wide discretion accorded in such cases, concluded that there should be no increase in child support provided by Earl. Our review of the record does not disclose error in this conclusion.

For the above and foregoing reasons, the judgment of the district court denying Patricia Ann Campbell Townsend’s motion to make past due alimony executory is reversed and it is now ordered that Earl K. Townsend pay $300.00 in past due alimony, plus legal interest beginning from the date when each alimony payment was due until paid. In all other respects the judgment is affirmed. The costs of appeal are assessed to both parties in equal proportions.

AMENDED: AFFIRMED AS AMENDED.

      . Dana Kellie Townsend and Bonnie Renee Townsend.

      . This rule has been modified to some extent by Dubroc v. Dubroc, 388 So.2d 377 (La.1980); see also Lachney v. Lachney, 399 So.2d 731 (La.App. 3rd Cir.1981).


author: STOKER, Judge.

text:
    Robert KELSO, et al, Plaintiffs-Appellees, v. Constance L. LANGE, Defendants-Appellants.
    No. 82-176.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.
    Writ Denied Feb. 4,1983.
    Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendants-appellants.
    Lauve & Hill, Lewis 0. Lauve, Alexandria, for plaintiffs-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a petitory action in which neither plaintiffs nor defendants are in possession. The trial court held that the plaintiffs “established the best claim to the property, and that judgment should be rendered declaring them to be .the owners of the property in question.” From a judgment to that effect the defendants appealed. We reverse.

The property consists of approximately 164.65acres of low marsh land located in the Rapides Parish, Louisiana, and is described in footnote one below.

The property was acquired by one George Y. Kelso on August 5,1876, from Robert P. Hunter through an act of cash sale which is recorded in Rapides Parish, Louisiana. This George Y. Kelso’s marital status is not set forth in the act of sale. Plaintiffs and defendants both claim the property through persons bearing the name George Y. Kelso. This case presents a unique issue because neither set of parties can trace a record title-to the George Y. Kelso who purchased the property. Neither set can establish ownership by prescription. The facts show that in all likelihood the property has never been occupied and has perhaps never been possessed in the legal sense, at least for any appreciable period of time.

The plaintiffs are descended from a George Y. Kelso who married Felonese Kel-so on April 20, 1887. Defendants claim through a George Y. Kelso who married Mary L. Baillio on November 10, 1869, according to a marriage certificate of record in Rapides Parish, Louisiana. (D-l) A discrepancy arises in defendant’s facts through an affidavit executed on September 29, 1950, in the Succession of Marie A. Mitchell (D-4) in which the affiants stated that George Y. Kelso was married but once and then in 1874 to Marie L. Kelso.

The plaintiffs, descendants of Felonese Kelso and the George Y. Kelso she married, either reside in Rapides Parish or show origins and close family connections in Rapides Parish. Some of the plaintiffs testified. The defendants are all located out of Louisiana and none of them testified. In fact, the defendants produced no testimonial proof and relied solely on documentary evidence.

The George Y. Kelso who married Felo-nese Kelso died in 1901 and her husband died in 1914. Marie L. Kelso died in 1921 and her husband died in 1900. The plaintiff-descendants of Felonese Kelso deny any knowledge of the existence of a George Y. Kelso who was married to Marie L. Baillio until just prior their bringing of this petito-ry action. The thing which sparked the action was the discovery by plaintiffs that the public records contained certain transactions and succession proceedings in which defendants or their ancestors (actual or in title) figure and which affected the 164 acres of property which is the subject of the litigation.

Plaintiffs have had minimum contact with the property and there is no evidence that defendants have ever had any physical contact with the property. The indifference to the property in previous years may possibly by explained by the fact that the land is marsh land completely enclosed by other lands owned by others, and there is no ready access to it. Moreover, the property is split by Bayou Boeuf, a major drainage stream which flows diagonally across the property.

From a factual standpoint the general facts of the case are as follows:

1. In 1876 an unidentified George Y. Kelso bought the property through a recorded act of sale.

2. After the 1876 purchase there is no recorded act translative of title (ownership) of the property out of the unidentified George Y. Kelso.

3. Neither of the parties can prove ownership through prescription. Although the defendants claim 30 years acquisitive prescription, there is no evidence of corporeal possession such as would begin prescription.

4. Both sets of parties claim their alleged ancestor in title is the George Y. Kelso who purchased in 1876, but there is no concrete evidence to support the claim of either party.

5. Plaintiffs deny any kinship with the Kelso who is the ancestor of the defendant set of Kelsos. There is no evidence or suggestion that the two George Y. Kelso’s of plaintiffs and defendants were ever married twice.

6. The Succession of George Y. and Fel-onese Kelso does not dispose of nor mention the property but the Succession of Marie A. Mitchell, the starting point of defendants’ title, does purport to dispose of the property. An affidavit in the succession alleges that Marie A. Mitchell was a daughter of George Y. Kelso and Marie L. Kelso.

7. George Robert Kelso, Jr., the grandson of George Y. Kelso of the plaintiffs, testified that in the middle 1940’s he helped Irion LaFargue, a surveyor, survey the property while his father, George Robert Kelso, was present. The elder George Robert Kelso was a petitioner in the Succession of the George Y. Kelso who married Felo-nese. Such a survey was in fact made on August 19, 1944. (See P-4)

8. The elder George Robert Kelso paid the taxes on the property several times, according to George Robert Kelso, Jr.’s testimony, but stopped when told someone else was paying them.

9. Mr. Kirby Joseph Gleason, a son-in-law of the plaintiffs’ George Y. Kelso, testified that his wife attempted to pay taxes but was prevented on one occasion after being informed that someone else was paying them.

10. Mrs. Katie Kelso Swift testified that her father told her that her grandfather, who was George Y. Kelso of the plaintiffs, said he bought the property in question.

11. It was stipulated at trial that since 1920 tax notices on the property were sent to persons in the defendants’ family.

12. Several acts which encumbered or alienated the property were introduced by the Marie Kelso group which indicates that they have regarded the property as their own: a timber sale dated June 16, 1916; a mineral lease dated May 3,1922; the January 3, 1951, judgment in the Succession of Marie A. Mitchell, daughter of Marie Kelso, which devolved upon Patricia Nichley, Marie Mitchell’s daughter, a one-half interest in the land; a September 6, 1957, sale by Patricia Nichley to Constance L. Lange of % interest in the land; a September 3,1968, right-of-way grant from Constance Lange to Rapides Parish.

THE BURDEN OF PROOF

This is a petitory action where neither party claims to be or is in possession and the burden of proof in such an action is set forth in Civil Code article 531 which reads as follows:

Art. 531. Proof of ownership of immovable
“One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.”

and Code of Civil Procedure article 3653, which reads as follows:

Art. 3653. Same; proof of title; Immovable
“To obtain a judgment recognizing his ownership of immovable property or real 'right therein, the plaintiff in a petitory action shall:
“(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
“(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
“When the titles of the parties are traced to a common author, he is presumed to be the previous owner.”

The trial court decided this case in favor of the plaintiffs, the Felonese Kelso group, on the basis of finding that they had “established the best claim to the property in question.” (Emphasis supplied.) As noted in the codal articles quoted above, the burden of proof which plaintiffs bore at the trial of this case was to prove a better title to the property than that of the defendants. Hence, the first thing which plaintiffs must have proven was that they have a title.

As recently noted by Judge Culpepper of this court in Weaver v. Hailey, 416 So.2d 311 (La.App. 3rd Cir.1982), the word “title” is not defined in our codes. That case did not deal with a petitory action in which neither party was in possession of the property in dispute. Therefore, the case was governed by the 1979 adoption of Civil Code articles 531 and 532 and the 1981 amendment of Code of Procedure article 3653. In their present form, where the defendant is in possession, these articles refer to “ownership” rather than “title”. In Weaver v. Hailey, it was concluded that “title” was equivalent to “ownership”. If the same meaning is applied in the case before us, in which neither party is in possession, it would result in construing the burden of plaintiffs as proving “better ownership”. Such a theoretical concept would appear to us to be somewhat strained or obscure. Therefore, we think it was significant that the Legislature retained the word “title” in providing for the contingency of both parties in a petitory action being out of possession whereas it focused on the word “ownership” in providing for the contingency of the defendants being in possession.

PLAINTIFFS FAILED TO ESTABLISH IDENTITY WITH 1876 GEORGE Y. KELSO VENDEE

Although we mention the conceptual difficulties discussed above, such discussion provides little aid in our resolution of this case. Whether we focus on “title” or “ownership,” our inquiry is the same. The last record title holder is that George Y. Kelso who purchased the property on August 5, 1876, whose marital status was not mentioned and whose act of sale is on record in the records of Rapides Parish. The practical burden of plaintiffs is to establish an identity between that George Y. Kelso and the George Y. Kelso who married Felonese Kelso, from which union they descended. There is no evidence of such an identity.

Presumably, the George Y. Kelso who bought the property in 1876 is deceased. If plaintiffs could show that fact and also that they are descendants of that George Y. Kelso, they would be in a position to seek a judgment of possession evidencing their ownership of the property in question. Aside from such opposition as they might draw in such a proceeding from the present defendants, plaintiffs are unable to establish any identity between their ancestor George Y. Kelso and the 1876 vendee George Y. Kelso.

All that plaintiffs have shown is a tradition among some family members to the effect that their biological ancestor named George Y. Kelso had at some time purchased the property. They have not proved this ancestor and the 1876 vendee, George Y. Kelso, are one and the same.

The plaintiffs not only have no record title to the property in question, they have not proved ownership through inheritance from the 1876 vendee, George Y. Kelso. They have not produced any evidence to show that their biological ancestor, George Y. Kelso, ever treated the property as his. They have not shown, for instance, that he used it, paid taxes on it, or left any records pertaining to it. Most damaging to plaintiffs is the fact that those of his descendants who handled the succession of the biological ancestor failed to list the property in his succession.

For the foregoing reasons, we conclude that plaintiffs have not proved any title to the property, much less a better title than any title defendants may have. Defendants have not shown any act translative of title out of the 1876 vendee, George Y. Kelso. Likewise, they have not shown ownership through proof of identity between the 1876 vendee, George Y. Kelso, and the person of the same name who married Marie L. Kelso. Defendants did not reconvene and request that they be declared owners of the property. On the state of evidence, we are not disposed to consider this question even in the absence of a prayer for such relief, as was done in Weaver v. Hailey, supra, following Clayton v. Langston, 311 So.2d 74 (La.App. 3rd Cir.1975). Nevertheless, defendants’ evidence is considered- as evidence adverse to plaintiffs’ case. This is not to say that defendants should prevail over plaintiffs and we make no pronouncement on that question. What we do say is that it is a fact to be considered against plaintiffs that there appears to have been at least one other George Y. Kelso whose descendants have seen fit, as early as 1916, to treat the property as their own.

For all we know there may have been three George Y. Kelsos. Conceivably, the 1876 vendee of the property was not biologically related to plaintiffs or the Kelsos in the defendant line.

For the foregoing reasons, the judgment of the trial court is reversed and judgment is now rendered in favor of defendants and appellants rejecting the demands of plaintiffs and appellees. The costs of court, including the costs of this appeal, are assessed to plaintiffs-appellees.

REVERSED.

      . The property involved in the petitory action is described in plaintiffs’ petition as:
      “A certain tract of land, together with all buildings and improvements thereon and all rights, ways and privileges thereto belonging, being, lying and situated in Rapides Parish, Louisiana, and being the Southeast Quarter of Section 29, T 3 N, R 1 W, Rapides Parish, Louisiana, containing 164.75 acres, more of less.”


author: YELVERTON, Judge.

text:
    Harold GRANGER, Individually and for the minor, Timothy Granger, Plaintiffs-Appellants, v. Charles Rodney ROBERTSON, et al., Defendants-Appellees.
    No. 82-185.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.
    Writ Denied Feb. 4,1983.
    Chris J. Roy and Michael Shannon, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, David Hughes, Stafford, Stewart & Potter, Larry A. Stewart, McLure & McLure, John C. McLure, Alexandria, for defendants-ap-pellees.
    Before DOMENGEAÜX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

On December 31, 1979 Timothy Granger, 16, and Danny Robertson, 17, along with several other teenagers attended a night service at a church in Kingsville, Rapides Parish. Several of the teenagers, including Timothy and Danny, left the services and purchased some fireworks including bottle rockets. They then returned to the church grounds and began to engage in a bottle rocket “war”. While so engaged in this playful but dangerous sport, Danny aimed and fired a bottle rocket at Timothy which struck him in his left eye causing permanent damage.

Timothy and Harold Granger, his father, filed suit against Charles Robertson, the father of Danny, and his insurer State Farm Fire & Casualty Company. Also named as an additional defendant was Preferred Risk Insurance Company, the insurer of the church and its pastor, Jim Spencer. The suit alleged that the accident was caused by the combined negligence of Danny Robertson in shooting the rocket at Timothy and Jim Spencer in failing to supervise the activities of the youths.

The case was tried before a jury and submitted to the jury on five interrogatories. The first interrogatory called for a yes or no response to the question “Was Danny Robertson guilty of negligence which was a cause of the accident?” After a three hour deliberation the jury by a vote of nine to three answered this interrogatory in the negative. The jury reported to the court that they were unable to agree on the remaining interrogatories. After consulting with the attorneys, the trial judge concluded that since the required number of jurors answered Interrogatory No. 1 in the negative, this resulted in a verdict in favor of the defendants, Danny Robertson and his father and their insurer, State Farm Fire & Casualty Company. He declared a mistrial as to the matters contained in the remaining four interrogatories. The trial court then signed a judgment rejecting and dismissing the demand of plaintiffs against the defendants whose liability was predicated upon the negligence of Danny Robertson. He declared a mistrial as to the demand of plaintiffs against Preferred Risk Insurance Company (whose liability was predicated upon the alleged negligence of Reverend Jim Spencer.)

Plaintiffs appeal. They urge us to find that the jury’s verdict exonerating Danny Robertson of negligence was clearly wrong. Appellants argue that, after we find the jury’s response to Interrogatory No. 1 was clearly wrong, then we should remand the case for further proceedings. We agree that the jury’s response to this interrogatory was clearly wrong. In fact, counsel for defendants in the judgment appealed from virtually concedes that that interrogatory response can hardly withstand appellate review. Not only did Danny Robertson admit that he aimed the bottle rocket at Timothy, but the testimony of all of the several other youths who were engaged in the game confirmed that Danny and Timothy were, indeed, shooting the bottle rockets at each other. However, a finding that the jury was clearly wrong in its answer to this interrogatory does not end our responsibility. The entire record of the judgment appealed from is before us, and it is our responsibility to render a proper judgment. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). This means that we have to consider the defenses of contributory negligence and assumption of the risk raised by the parties dismissed in the judgment appealed from.

The evidence as clearly establishes that Timothy Granger assumed the risk as it does that Danny Robertson was negligent. Although Timothy was reluctant to testify that he participated in the fireworks activities, the testimony of the six other participants makes it clear that Timothy and Danny both participated in the “war” firing rockets at one another. The testimony reveals that Timothy freely and voluntarily joined the group for the express purpose of shooting rockets at each other. At the time of the accident the contest was reduced to a “war” between Timothy and Danny. The danger of a rocket striking one of the contestants was ever present, and Timothy must have been aware of the fact that Danny was going to throw rockets toward him, because he had been doing so.

A strikingly similar case involving teenagers and bottle rockets and an eye injury is Lefebvre v. Fireman’s Fund American Insurance Companies, 304 So.2d 69 (La.App. 1 Cir.1974), writ denied 307 So.2d 631 (La. 1975). There, the injured boy was one of a group of boys ranging from 13 to 16 years of age who pooled their pocket money and bought some bottle rockets and engaged in a game they called “battle”. The injured boy participated in the game. He was struck in the right eye by a rocket. Assumption of the risk was pleaded in defense of the suit brought as a result of that injury. The trial court based its dismissal of the suit on the ground that the injured youth assumed the risk attendant to the shooting of the rockets. On appeal, the court said:

“Herein Leslie Lefebvre freely and voluntarily joined the party for the express purpose of shooting rockets at the other group. The danger of a rocket striking a member of the group was ever present. Further, Leslie must have anticipated and contemplated the action of A.C. Fer-achi, a member of the opposing group, of throwing rockets toward his group. Also Leslie was aware of the erratic behavior of a thrown rocket.”

On the facts of the instant case we, like the trial court and First Circuit in Lefebvre, supra, conclude that the injured plaintiff in this case assumed the risk of being struck by a bottle rocket and therefore he is barred from recovering for his injuries caused by the negligence of Danny Robertson.

Our decision means that, while we disagree with the jury’s response to the only question it answered on its verdict sheet, we nevertheless affirm the result, the result being the judgment dismissing the defendants whose liability is predicated upon the negligence of Danny Robertson. We affirm that judgment of dismissal. We remand for further proceedings. Regarding costs, the judgment appealed declares that “assessment of court costs await the outcome of this litigation”. The trial court thus retained jurisdiction not only over the issues regarding which a mistrial was declared but also as to the determination of costs at the trial level.

Plaintiff will pay costs of this appeal only.

The judgment appealed from is affirmed at plaintiffs’ costs limited to this appeal only. Affirmed and remanded.

AFFIRMED.

      . A bottle rocket “war” is where individuals form opposing groups and fire bottle rockets at each other.

      . The remaining interrogatories dealt with the questions of the Reverend Jim Spencer’s negligence and whether it was a cause of the accident, Timothy Granger’s contributory negligence, the latter’s assumption of the risk of this accident, and the amount of damages.


author: CUTRER, Judge.

text:
    JAMES NOEL FLYING SERVICE, INC., Plaintiff-Appellee, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellant.
    No. 82-194.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.

      Pugh & Boudreaux, Charles J. Bou-dreaux, Jr., Lafayette, for defendant-appellant.
    Paul G. Moresi, Jr., Abbeville, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a trial court judgment awarding damages to James Noel Flying Service, Inc. (Noel Flying Service) as a result of a breach of contract by Rockwell International Corporation (Rockwell) for the sale of a jet airplane.

Noel Flying Service sued Rockwell for damages in the form of lost profits it would have realized in the resale of the aircraft Rockwell had allegedly contracted to sell to Noel Flying Service. Noel Flying Service alternatively sued in quantum meruit/un-just enrichment for compensation of its efforts which contributed to Rockwell’s subsequent sale of the same jet plane.

The trial court found that Noel Flying Service and Rockwell had entered a contract in which Noel Flying Service was to buy and Rockwell was to sell a particular aircraft. As this sale never occurred the trial court found that Rockwell breached its obligation to sell, and awarded Noel Flying Service $40,000.00 in damages. This is the amount of profit that the trial court found that Noel Flying Service would have realized had it been able to resell the aircraft Rockwell had allegedly agreed to sell to Noel Flying Service. Rockwell appealed. We reverse.

The issues of this appeal are:

(1) Whether a contract of sale for a jet plane entered into by Noel Flying Service and Rockwell existed; and
(2) If no contract of sale was entered, whether Noel Flying Service is entitled to relief under the principle of unjust enrichment.

FACTS

The facts of this case are somewhat complex. The situation began with Lafayette businessman, Robert Petifils, being interested in acquiring an airplane. Petifils notified Douglas Sonnier, president of Cypress Aviation, in February or March 1980 about the prospect of buying a plane. Cypress Aviation was owned by Sonnier, Petifils and three others. Petifils, who had known Sonnier for quite sometime, left the choice of the plane up to Sonnier. Sonnier had been flying a Rockwell Commander at the time. Being impressed with this plane, Sonnier decided the Rockwell Commander was the plane for Petifils.

Pursuant to Petifils’ request, Sonnier contacted Span Air, a Rockwell dealer. Span Air quoted Sonnier a price of $967,000.00 for a 1980 Rockwell Commander 840.

James Noel, president of Noel Flying Service, Inc. and a friend of Sonnier, approached Sonnier with the proposition that if Noel could purchase the plane that Sonnier wanted and either match or better the price given by Span Air, Sonnier would buy the plane through Noel. Sonnier agreed to Noel’s proposition.

After contacting a number of people who either are or formerly were Rockwell dealers Noel got in touch with Pete Holcombe, a regional sales manager of Rockwell at that time, on or about February 27, 1980. Hol-combe’s duties consisted of securing orders for aircraft and finalizing these sales.

Conversations between Noel and Hol-combe ensued wherein Noel told Holcombe of his intention to consummate the sale of the plane to Petifils with Rockwell paying Noel Flying Service a commission. Hol-combe found out that Rockwell had a policy of not paying commissions to persons for the sale of a plane who were not under contract to Rockwell. In view of this Rockwell policy, Noel and Holcombe decided to pursue another procedure. This plan involved a sale of the plane to Noel and resale to Petifils. It was agreed that, to effectuate the sale-resale, Noel would obtain a purchase order from Petifils with a $35,-000.00 deposit. After this purchase order was consummated Noel would then execute a purchase order to Rockwell.

On March 7,1980, Holcombe went to Lafayette and presented Noel with Rockwell’s purchase order which included the price and description of the plane and a list of equipment to be installed on it. The base price of the plane was $927,000.00. The Rockwell purchase order was left at Noel’s office to be signed after Noel secured a purchase order from Petifils.

Noel went to Petifils and a purchase order was signed by Petifils and an acceptance of same was signed by Noel. A check for $35,000.00 was given to Noel as a deposit.

Holcombe returned to Lafayette later and picked up the Rockwell purchase order which had been signed by Noel. Holcombe returned to his office in Oklahoma with the Rockwell purchase order. Noel then mailed Noel Flying Service’s check to Holcombe for $35,000.00.

A few days after he signed the Rockwell purchase order Noel instigated a test flight in a similar airplane to Miami for Petifils and his associates. Holcombe made arrangements for the plane and a Rockwell pilot. The Rockwell pilot flew Petifils and his associates to Miami from Lafayette and returned the next day.

After the Miami trip, complications arose concerning the sale of the plane to Noel. Holcombe informed Noel that Rockwell would not accept the purchase order in the form as signed by Noel. Rockwell’s objection arose by virtue of a financing condition inserted by Noel after the purchase order was left with him by Holcombe. The purchase order, as prepared by Holcombe, in addition to describing the plane, also listed a number of pieces of special equipment to be installed on the plane. The order also contained the following provision inserted by Noel:

“PURCHASE PENDING ROCKWELL FINANCING OF ROBERT PETIFILS TERMS: 10 YEARS, 12% APR”

Holcombe informed Noel that Rockwell’s credit department had a policy of financing only purchasers who purchased directly from Rockwell. Petifils was not named as purchaser in the Rockwell purchase order. Noel Flying Service was named as purchaser. Since the Rockwell purchase order contained the clause inserted by Noel, conditioning the sale upon Rockwell financing Petifils’ purchase (a second purchaser), Rockwell refused to accept the purchase order. No further steps were taken by Noel to rectify the problem.

Shortly afterward, Rockwell, through Holcombe, sold the plane directly to Petifils for the price of $927,000.00, the same price that was quoted to Noel. Petifils arranged the financing with a bank in Lafayette.

Noel then filed suit alleging that he and Holcombe had consummated a contract of sale through their negotiations and that when he signed the purchase order and issued his check for $35,000.00 to Rockwell through Holcombe, the sales agreement was complete and enforceable.

The trial court agreed with this position and rendered judgment awarding Noel $40,-000.00 as damages for the profits Noel had lost. We disagree.

WAS A CONTRACT CONSUMMATED?

We have concluded that the contract of purchase and sale of the plane was not consummated under the facts and circumstances presented.

From the inception of the sale-resale plan agreed to by Noel and Holcombe, it was undisputedly understood that such procedure would be consummated by the execution of the purchase orders from Petifils to Noel and from Noel to Rockwell. Noel was experienced in the purchase and sale of airplanes as this was his business which was conducted under the name of James Noel Flying Service, Inc. He was fully cognizant that a purchase order had to be signed by the proposed purchaser and accepted by the seller. The purchase order from Petifils to Noel is in evidence and contains provisions similar to those found in Rockwell’s purchase order. The two purchase orders, crucial to this appeal, contain the following provisions.

The agreement from Petifils to Noel provides as follows:

“This purchase agreement when accepted by James Noel Flying Service, Inc., becomes a binding contract of purchase and sale of the products shown hereon upon the terms and conditions herein specified. This agreement can be accepted for James Noel Flying Service, Inc. only by its President, or any corporate officer (hereinafter ‘authorized representative’). No other person has any authority, express or implied, to accept this agreement for James Noel Flying Service, Inc.”

The Rockwell purchase order provides as follows:

“This Purchase Order when accepted by Seller becomes a binding contract of purchase and sale of the airplane products shown on the face hereof, upon the terms and conditions thereon set forth and upon the following additional terms and conditions:
“This Purchase Order, when accepted by Seller, is the only contract controlling this purchase and sale. It contains all agreements between Purchaser and Seller and there are no other agreements, express or implied, either oral or in writing, and Purchaser acknowledges receipt of a copy of this Agreement. No part of this Purchase Order may be modified except by written agreement by both parties hereto. ”

It must be noted that each instrument requires the signature of both the seller and purchaser. Until this is complied with the contract is not consummated.

The record clearly reflects that these parties contemplated reducing their negotiations to writing and, upon execution of the written instruments, the contracts would be binding and enforceable.

Holcombe had no authority to approve the financing condition of Petifils’ purchase inserted in the Rockwell purchase order by Noel. Noel testified as follows in this regard:

“Q. Did you believe that Mr. Hol-combe had authority for financial approval?
“A. Not financial approval, no.
“Q. Is this the part that you said you added to the Rockwell purchase order?
“A. Right.”

Holcombe stated that he attempted to get Rockwell’s credit department to agree to finance Petifils’ purchase from Noel but Rockwell refused this request.

The Rockwell purchase order, containing the financing condition inserted by Noel and signed by him, provides that, when accepted by Rockwell, the purchase order “[i]s the only contract controlling this purchase and sale.”

It also provides that the instrument contains all the agreements by the parties and that “[t]here are no other agreements, express or implied, either oral or in writing. .

Until this agreement was accepted and signed by Rockwell, it did not become an enforceable contract. The jurisprudence is well established that when parties agree to reduce their contract to writing, the contract is not perfected and there is no contract until the writing is duly executed. Brewer v. Loewer, 383 So.2d 1325 (La.App. 3rd Cir.1980), writ den., 391 So.2d 456 (La.1980).

In the case of Van Way v. Communications Broadcasting, Inc., 228 So.2d 175 (La. App. 3rd Cir.1969), writ ref’d, 229 So.2d 736 (La.1970), it is stated:

“... The jurisprudence is established that when the negotiating parties agree that the final contract will be reduced to writing and signed, it is not binding until this is accomplished and either nartv mav refuse to abide by what was orally aereed upon. West v. Carbone, 150 So.2d 37 (La.App.); Stewart v. Schmauss, 191 So.2d 882 (La.App.); Rawlinson v. Moor, 68 So.2d 271 (La.App.).” (Emphasis ours.)

Applying these principles to the facts at hand, we conclude that the parties contemplated that their agreement was to be reduced to writing before the contract would be binding on either party. Until such contract was executed by the parties, an enforceable contract did not come into existence. The trial court erred by ruling that the contract was consummated before accepted and signed by Rockwell and the judgment will be reversed in this regard.

UNJUST ENRICHMENT

Noel alternatively pleads that he is entitled to recovery contending that Rock-well was unjustly enriched as a result of the sale of the plane directly to Petifils.

The price that Rockwell received by a direct sale to Petifils ($927,000.00) was the same price that was set forth in the Rockwell purchase order signed by Noel. The only party that benefited from the failure of the sale-resale plan was Petifils who saved $40,000.00 (the amount of profit contemplated by Noel). Petifils is not before this court.

Since Rockwell was not enriched by the failure of the sale-resale plan, we cannot make an award on this basis of unjust enrichment.

Noel also contends that Rockwell was unjustly enriched by the profit it made through the sale of the plane which sale took place through the efforts and labor of Noel. We disagree. Petifils’ agent, Sonnier, had made a decision to buy a Rockwell plane and had gotten a price from Span Air of $967,000.00. After these negotiations with Span Air, Noel entered the picture asking that the purchase be made through him if he could match or better the price of Span Air. Noel was given the opportunity to accomplish this but failed to consummate a purchase of the plane from Rockwell. Noel lost the chance to make a $40,000.00 profit but it cannot be said that he was the reason for the purchase of the plane by Petifils. The decision to buy this particular type plane had been made before Noel entered the negotiations. We cannot say that Rockwell was unjustly enriched by making the sale directly to Petifils. A recovery on the basis of unjust enrichment will be denied.

For the reasons set forth, the judgment of the trial court shall be reversed and set aside. Judgment is hereby rendered in favor of Rockwell International Corporation and against James Noel Flying Service, Inc., dismissing the suit. Costs of the trial court and this appeal are to be paid by plaintiff-appellant.

REVERSED AND RENDERED.

      . James Noel was president of this corporation and we will refer to him as “Noel.”