text:
    Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana v. PATTERSON SERVICES, INC., D/B/A Patterson’s Rental Tools.
    No. 13004.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Art B. Haack, Baton Rouge, for plaintiff and appellant.
    Thomas C. Keller, Robert R. Casey, New Orleans, for defendants and appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Defendant Patterson Services, Inc. is engaged in the business of renting various items of drilling equipment. The terms and conditions of the rental agreement used by defendant include, inter alia, provisions that the lessee is responsible for equipment rented while it is out of the possession of defendant, and that the lessee will bear all transportation charges. In some cases, arrangements for delivery are made by defendant, and the charges for same are billed to the lessee separately from the rental charges. No surcharge or service charge is made by defendant for this service, and no increase in the rental charge is made.

This suit by Shirley McNamara, Secretary of the Department of Revenue and Taxation, alleges that defendant has failed to collect and remit sales taxes on transportation charges so billed to its lessees. It is contended that the transportation charge is part of the rental charge and is therefore subject to the sales tax under R.S. 47.302B and under the regulations promulgated by plaintiff pursuant to R.S. 47:1511.

R.S. 47:302B provides:
“There is hereby levied a tax upon the lease or rental within this state of each item or article of tangible personal property, as defined herein; the levy of said tax to be as follows:
“(1) At the rate of two per centum (2%) of the gross proceeds derived from the lease or rental of tangible personal property, as defined herein, where the lease or rental of such property is an established business, or part of an established business, or the same is incidental or germane to the said business.
“(2) At the rate of two per centum (2%) of the monthly lease or rental price paid by lessee or rentee, or contracted or agreed to be paid by lessee or rentee to the owner of the tangible personal property.”

R.S. 47:1511 gives the Secretary the authority to promulgate reasonable rules and regulations for the proper administration and enforcement of the provisions of law relative to the collection of revenues. Pursuant to that authority, a regulation has been adopted providing:

“Any freight, delivery charge, shipping expense or other charges of a similar nature billed to the lessee in connection with the lease or rental of tangible personal property shall be included in the amount subject to tax.”

Defendant contends that the foregoing regulation is not valid since it goes beyond the provisions of the law; and that the transportation charges are not subject to the tax since they are not part of the “gross proceeds” derived from the rental.

We agree with the trial judge that the defendant’s position is well taken. Defendant, by arranging for transportation, performs a service for which it is not compensated. The charge for transportation is no part of the rental charge. There is nothing in the language of R.S. 47:302B which indicates an intention to tax such a transaction as part of the rental charge. We therefore hold that the transportation charges are not subject to taxation under R.S. 47:302B, and that the regulation relied on is invalid because it goes beyond the terms of the statute.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    John Wayne SMITH v. Jenell (Janelle) Schexnayder SMITH.
    No. 13023.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Lennie F. Perez, Baton Rouge, of counsel, for plaintiff-appellant John Wayne Smith.
    Johnny C. Moore, Baton Rouge, of counsel, for defendant-appellee Jenell (Janelle) Schexnayder Smith.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Plaintiff John Wayne Smith brings this appeal from a judgment ordering him to pay alimony pendente lite to his wife Jenell (Janelle) Schexnayder Smith. Mr. Smith contends that the provisions of the Civil Code requiring him to pay alimony are gender based and therefore unconstitutional. Plaintiff alternatively contends that the trial court erred in finding that defendant was in need of alimony and that he was able to pay $300.00 per month.

The judgment herein was signed on May 15,1979. On June 29,1979, amendments to Articles 148 and 160, which removed the constitutional objections thereto, became effective. We must, therefore, consider the question of the constitutionality of Article 148 in its earlier form which is raised by plaintiff.

Article 148 of the Civil Code provides: “If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

In Williams v. Williams, 331 So.2d 438 (La.1976), the Supreme Court said:

“Upon consideration of article 148 in light of its objective, we conclude that the trial court erred in declaring the article unconstitutional. The article does not discriminate arbitrarily, capriciously, or unreasonably against males. Husbands and wives are not similarly situated under Louisiana’s community property system. The legislative conferral of the right of claiming alimony pendente lite only to wives bears a fair and substantial relation to the legitimate objective of the article — a fair and orderly termination of the community regime. Accordingly, article 148 does not deprive males of equal protection or due process of law under the fourteenth amendment to the federal constitution, nor does it violate article I, sections 2 and 3 of the Louisiana Constitution of 1974.”

Since that time, however, the United States Supreme Court has handed down its opinion in the case of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), in which it found unconstitutional a provision of the Alabama law, similar to Article 148, supra. In that case, the theories of constitutionality advanced in the Williams case, supra, were considered and rejected, and the Alabama provision was found to be unconstitutionally discriminatory because it was unreasonably gender based. In addition, the United States Supreme Court has vacated a decision of the Louisiana Supreme Court which found Article 160 of the Civil Code constitutional, and remanded the case with instructions to reconsider the opinion in the light of the Orr decision. See Loyacano v. LeBlanc, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979); Loyacano v. Loyacano, 358 So.2d 304 (La.1978); on remand, 375 So.2d 1314 (La.1979). Finally, in the recent case of Lovell v. Lovell, 378 So.2d 418 (La.1979), the Supreme Court of Louisiana found Article 160 to be unconstitutional. Article 160, similar to Article 148, provides for post divorce alimony for the wife out of the property and earnings of the husband.

In view of the foregoing, we find that Article 148 is unconstitutionally gender based, and cannot form the basis for an award of alimony pendente lite. In so finding we realize that a gap in the law has been created, as there are no other specific provisions for payment of alimony pendente lite. However, there are other provisions of the law which give us guidance in filling the gap so created, as we are obliged to do in our civilian system of law. Article 21, Civil Code.

Article 119 of the Civil Code provides:

“The husband and wife owe to each other mutually, fidelity, support and assistance.”

Although the word “support” therein is a mistranslation of the French “secours”, which means “help” or “aid”, we think that Article 119 evidences a legislative intent that, so long as a marriage persists, either spouse must come to the assistance of the other, if the other is in need thereof. Plaintiff herein is therefore obligated to render such assistance to his wife if she is in necessitous circumstances and unable to provide for herself.

Plaintiff argues that he should not be compelled to pay alimony to his wife when she is capable of supporting herself. The record shows that Mrs. Smith is 22 years of age and in good health. She had been married to plaintiff less than five months before the separation, and there were no children born of the marriage. She has a G.E.D. high school equivalency certificate and has worked at a number of jobs, both before and during her marriage. She is, however, essentially untrained. At the time of the hearing, she was unemployed and living with her parents. She had made no effort to find work except to apply to the Baton Rouge Police Department, where there was no prospect of immediate employment.

Plaintiff, at the time of the trial, was a bricklaying contractor whose business in the year preceding the trial produced a substantial gross income, but a net income of less than $1,000.00. He had no job at the time of the hearing, but was waiting to hear about a couple of jobs on which he had bid. He testified that he was about to go out of business. He asserts that he is unable to pay any support, much less the $300.00 per month ordered by the court.

Heretofore, under Article 148 of the Civil Code, a wife in necessitous circumstances has not been compelled to seek employment as a precondition to receiving alimony pen-dente lite. On the other hand, a husband, who is employable, has not been able to evade his alimentary responsibility by failing to seek employment. See Zaccaria v. Beoubay, 213 La. 782, 35 So.2d 659 (1948); Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir., 1973).

We find that the change in social circumstances, which has compelled the finding of unconstitutionality of Article 148, also compels a different result in the award of alimony pendente lite under Article 119, as interpreted herein. In a case such as this, in which no impediment exists to the employment of the wife, she should not be entitled to alimony pendente lite unless it is made to appear that she is unable to find employment with which to support herself. Of course, each case of this nature must be decided on its own facts.

The judgment appealed from is therefore reversed, and there will be judgment herein in favor of plaintiff dismissing defendant’s alimony rule at her cost.

REVERSED AND RENDERED.


author: CHIASSON, Judge.

text:
    Otis L. BAHAM v. Ernest FAUST.
    No. 12623.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Duncan S. Kemp, III and John Mark Rolling, Hammond, for plaintiff.
    Joseph H. Simpson, Amite, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Defendant-appellant Ernest Faust appeals from judgment rendered upon confirmation of a preliminary default and ordering cancellation of a predial lease for appellant’s failure, as lessee, to pay taxes on the lease property.

This matter was previously before this court in May of 1979. Baham v. Faust, 373 So.2d 725 (La.App. 1st Cir. 1979). Rehearing was thereafter granted and the case was remanded to the trial court for the sole purpose of filing into evidence certain documents which, although properly introduced, were not then part of the record.

The record is now complete and we must now consider whether the evidence introduced at the confirmation of default hearing was sufficient to establish a prima facie case.

We will not recite all of the facts of this case because they are fully and completely set forth in the previous decision, Baham, supra.

La.C.C.P. Article 1702 provides that a judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.

The basis of appellee’s claim for cancellation of the lease was the alleged failure of appellant to comply with a lease provision requiring appellant to pay any increase in ad valorem taxes on the property over the taxes in existence at the time the parties entered into the lease agreement in 1972.

The record does not contain any evidence establishing the tax base existing at inception of the lease from which the trial court could reasonably conclude that a tax increase occurred.

Having failed to prove an essential element of the claim, plaintiff-appellee did not carry his burden of establishing a prima facie case for cancellation of the lease. Wall v. Sun Insurance Company of New York, 189 So.2d 713 (La.App. 1st Cir. 1966), writ denied 249 La. 764, 191 So.2d 141 (1966). So concluding, we pretermit consideration of the other alleged errors of the trial court assigned by appellant.

It is ordered, adjudged and decreed that the judgment of the trial court cancelling the lease be and the same is hereby annulled, reversed and set aside, and judgment rendered herein remanding the matter to the lower court, for further proceedings according to law; all costs of this appeal to be paid by plaintiff-appellee.

REVERSED AND REMANDED.


text:
    Patrick D. CAMEL and Ellen H. Waller v. Joseph G. HYNES.
    No. 13002.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Joseph T. Mickel, Baton Rouge, of Counsel, for plaintiffs-appellants, Patrick D. Camel & Ellen H. Waller.
    Robert L. Kleinpeter, Baton Rouge, of Counsel, for defendant-appellee, Joseph G. Hynes.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is a suit for recovery of damages allegedly resulting from an assault and battery that occurred at a condominium complex. Appellant, Patrick D. Camel, owned and lived in a unit at the complex and co-owned another unit which he leased to appellee, Joseph G. Hynes.

In March of 1977 at approximately 8:30 P.M., Hynes and a companion were attacked by a group of youths outside the complex and sought refuge behind an iron gate located at the rear of the complex. The gate would not lock and Hynes and his companion attempted to hold it closed while Hynes began calling for help. Upon hearing the noise, Camel, who was inside a condominium owned by a third person, opened the door and looked outside. Upon observing the altercation, Camel reentered the unit, closed the door and called the police. Shortly thereafter, when a neighbor appeared with his two dogs, the attackers fled. Hynes then proceeded to the condominium where Camel was visiting and began pounding on the door. When Camel opened the door, Hynes struck him in the face. Camel asserts and Hynes denies that he struck appellant several more times. The most serious resulting injury to Camel was damage to his teeth.

Camel brought suit seeking recovery for property damages (torn clothing), pain and suffering and medical expenses. Hynes reconvened seeking damages resulting from the attack by the group of youths, alleging that appellant was liable for failure to maintain the lock on the gate in working condition and for failure to come to his assistance.

The trial judge awarded Camel $1,850.00, plus interest and costs and denied Hynes’ reconventional demand.

Camel appealed contending that the trial judge erred (1) in finding that his actions justified a mitigation in damages, and (2) in not awarding appellant a reasonable sum for expert witness fees.

Appellee neither appealed nor filed an answer to the appeal.

“Words which are calculated to provoke and arouse to the point of physical retaliation may mitigate the damages in a civil action . . Morneau v. American Oil Company, 272 So.2d 313 (La.1973). Presuming, arguendo, that actions without words may also justify mitigation of damages, we are unable to conclude under the evidence presented that Camel’s actions merited such mitigation.

Camel observed the altercation and promptly called the police. Although it is true that he did not go to the aid of Hynes, he was under no duty to do so. From Hynes’ position, it is understandable that he would be angered by what he perceived as a denial of assistance in a time of peril. However, from Camel’s viewpoint, he did that which he thought was prudent under the circumstances. His action, in calling the police rather than personally going to the aid of Hynes, cannot be construed as an action calculated to provoke and arouse Hynes to the point of physical retaliation. No mitigation of damages should have been allowed by the trial court.

Appellant’s medical expenses alone amounted to $1,500. We hold that an appropriate award for appellant’s property damages, pain and suffering is in the amount of an additional $1,500.

Appellant also contends that he is entitled to expert fees. We agree. The only testimony elicited from an expert was that of Camel’s dentist which was taken by deposition and introduced into evidence by stipulation of counsel in lieu of the doctor testifying at the trial.

The trial court made no mention of the expert fee in its reasons for judgment nor in the judgment itself. It was apparently an oversight by the trial court and, because we have all the facts necessary to determine the issue, we shall decide it rather than remand the case to the trial court. The deposition took 55 minutes and we fix the fee of the expert witness at the sum of $75.00 to be taxed as costs.

For these reasons the judgment of the trial court in favor of Patrick D. Camel is amended to the sum of $3,000.00 and the fee of the expert witness is fixed at the sum of $75.00 and taxed as costs. In all other respects, the trial court’s judgment is affirmed.

All costs are assessed against appellee.

AMENDED, AFFIRMED AND RENDERED.


author: PONDER, Judge.

text:
    Janice Fussell LEWIS v. John Robert LEWIS.
    No. 12997.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Anthony J. Marabella, Jr., Baton Rouge, for plaintiff-appellee Janice Fussell Lewis.
    L. Wayne Paxton, Fred H. Belcher, Jr., Baton Rouge, for defendant-appellant John Robert Lewis.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff in rule, the husband, has appealed from a judgment denying a reduction in child support.

The sole issue is the proof of changed circumstances.

We affirm.

Previously, the trial court had granted a divorce to the husband; gave custody of four minor children to the wife; and ordered the father to pay $2,000.00 per month in child support, and $600.00 per month in alimony. Janice Lewis subsequently married and no longer receives alimony.

The husband moved that the amount of child support should be reduced to $175.00 per child per month because of changed circumstances. The trial court issued a directed verdict finding no change of circumstances sufficient to warrant a reduction in child support.

Suggested changes in circumstances were the remarriage of the former wife and the contribution of approximately $800.00 per month to the community. However, it was also shown that upon remarriage the $600.00 alimony payment was discontinued.

She works as a real estate salesperson and had contributed $5,000.00 to the community in the months prior to the hearing on the rule. The amount of money she contributes fluctuates greatly as she works on a commission basis.

Mover argues that his wife must contribute to the financial support of the children. Grava! v. Grava!, 355 So.2d 1057 (La.App. 4th Cir. 1978). However, the Supreme Court found in Ducote v. Ducote, 339 So.2d 835 (La.1976) that the services performed by the custodial parent such as preparing' meals, washing clothes, providing transportation and furnishing care and guidance contributed substantially to the obligation of mutual support. The mother testified that she did these things and she also used some of her earnings to support the children.

The Supreme Court in Ducote, supra, also held that children are entitled to the same standard of living as if they resided with their father whenever financial circumstances of the father permits. Mr. Lewis earns in excess of $200,000.00 per year. The trial court ordered him to continue paying support of $500.00 per child. That amount has been held not to be excessive when a man earned $85,000.00 in 1975. Meyers v. Meyers, 344 So.2d 451 (La.App. 2nd Cir. 1977).

We find no abuse of discretion by the trial court. The judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Nolan KELLER d/b/a Keller Pool Company v. Ray RYTLEWSKI.
    No. 13008.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Conrad S. Adkins, Baton Rouge, for plaintiff-appellee Nolan Keller, d/b/a Keller Pool Co.
    Robert E. Tillery, Baton Rouge, for defendant-appellant Ray Rytlewski.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment awarding plaintiff the balance due on the construction price of a swimming pool.

The issues are: (1) the refusal of trial court to allow testimony of an expert whose •name was not revealed within the time set by the court and (2) failure to allow credit for claimed redhibitory defects.

We reverse and remand.

At a pretrial conference the trial court allowed defendant five days to reveal the name of his expert “as to the workmanship and claims of defendant.” When the name was unrevealed some eleven days after the conference, the plaintiff presented, and the judge signed, an ex parte order preventing defendant from calling such an expert witness. The name was offered some eight days later, still some 42 days before trial. At the trial the expert testimony was presented in a proffer when the trial judge excluded the testimony under Rule VII, See. 6 of the rules of court of the Nineteenth Judicial District Court.

The purpose of Sec. 6 of Rule VII is the orderly preparation and trial of the cases. The time still remaining before trial when the name was furnished leads us to believe that the case could be prepared prior to trial without undue hardship. We therefore believe that the trial court was in error.

We do not suggest that the trial court could not take action against the delinquent attorney. Here the incidence of the punishment is on the client, not the attorney.

We believe that the court should have received the expert testimony. However, unless the plaintiff is given an opportunity to rebut or impeach that testimony an injustice might result.

We therefore reverse the judgment and remand the case for the limited purpose of receiving plaintiff’s evidence to rebut or impeach defendant’s expert’s testimony now ordered included in the record and for a decision on the evidence including the expert testimony and the rebuttal and impeachment testimony.

The cost of this appeal is assessed to appellee. All other costs are to await the final outcome.

REVERSED AND REMANDED.

      . Rule VII, Sec. 6:
      “Section 6. The proposed pretrial order shall set forth:
      ******
      “(J) A list of witnesses (except those called for impeachment or rebuttal) each party may call and a short statement as to the nature (but not as to the content) of their testimony. Except for the witnesses listed, and impeachment and rebuttal witnesses, no other witnesses may be called to testify except for good cause shown.

      . See for instance Sec. 12 of Rule VII providing for contempt proceedings.


text:
    Larry Jack INGRAM v. Dawn Trahant INGRAM.
    No. 13022.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Wiley J. Beevers, Metairie, for plaintiff.
    Timothy R. Higgins, Amite, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a default judgment granting a divorce and the custody of three children to her husband.

The issues are:
(1) Waiver of service and citation
(2) Timeliness of motion for a new trial
(3) Custody of the children.

We affirm in part and reverse and render in part.

It is difficult to understand and analyze this case because of the involved procedure or rather the lack of it.

On January 5, 1978, plaintiff husband filed a petition for divorce and the custody of three children born of the marriage. The court set the hearing of the rule for custody on January 27. On January 23, an order to consolidate this case with another involving the same parties was signed. We have only vague references thereafter to the other suit. There is a minute entry that on January 27,1978, both parties were represented by counsel, that the temporary custody of the children was awarded to the defendant mother and that a welfare investigation was ordered. A rule for contempt was filed by plaintiff on January 17, 1979, and set for hearing on the 26th. There is a minute entry on January 26 that both parties were represented by counsel, that defendant counsel asked for and got a continuance without date and that plaintiff’s counsel asked for and got a continuance without date of the rule.

On February 20,1979, on motion of plaintiff’s counsel a preliminary default was entered. On February 26, 1979, on confirmation of default, the court granted plaintiff a divorce and the permanent custody of the children.

On March 26, 1979 defendant filed an answer and reconventional demand. The court signed on April 10, an order setting for April 27, 1979 a rule for a preliminary injunction and for child support.

On April 23, 1979, the court set for hearing on May 25 a rule to hold the defendant in contempt. On April 20, the court set for hearing on May 25, 1979 a motion for new trial filed by the defendant. On that date the court denied the motion for a new trial but granted a stay order on all proceedings pending an appeal. The defendant filed an appeal from the default judgment of February 27 and the denial of a new trial on May 25.

Admittedly, the petition for divorce was never served on the defendant. However, counsel for defendant did move for a continuance; this comprised a general appearance. Kamo v. Louisiana Tax Commission, 233 So.2d 592 (La.App. 4th Cir. 1970). The general appearance waived citation and service of process. Stelly v. Quick Mfg., Inc., 228 So.2d 548 (La.App. 3rd Cir. 1969). The entry and confirmation of default was therefore proper.

However, there is no evidence of notice of signing of a default judgment as required by La.C.C.P. Art. 1913. The motion for a new trial was therefore timely filed on April 20,1979, and the appeal taken on May 25, 1979 after the denial of the motion was also timely.

However, we have other difficulties with that judgment. The court awarded the custody of the three children to plaintiff. One of these children was offspring of appellant’s previous marriage to another person. We find no legal basis for this award. Furthermore, the award of the other two is evidently based upon adultery of the mother. We say evidently because there is no other evidence of unfitness of the mother, who had physical custody on the date of the award.

Whatever evidence of adultery there was, there was none of any occurring in the presence of the minors. Furthermore, there is testimony that the defendant took good care of the children. We therefore believe the custody of the children should be awarded to the defendant.

For these reasons, we amend the judgment of the trial court so as to award the custody of the children to the defendant Dawn Trahant Ingram. The judgment of divorce is affirmed. The costs in both courts are assessed to appellee.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.


author: EDWARDS, Judge..

text:
    Carla St. Amant BLANKENSHIP v. Bobby R. BLANKENSHIP.
    No. 13058.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Charles Braud, Jr., Baton Rouge, of counsel, for plaintiff-appellee Carla St. Amant Blankenship.
    A. J. Paul Fredrickson, II, Baton Rouge, of counsel, for defendant-appellant Bobby R. Blankenship.
    Before EDWARDS, LEAR and GREENE, JJ.
   EDWARDS, Judge..

Carla St. Amant Blankenship, plaintiff-appellee, sought to have past due child support made executory. Her former husband, Bobby R. Blankenship, was cast in judgment for $6,550.00 in arrearages. He appeals. We affirm.

The Blankenships were divorced on January 21,1975. Mrs. Blankenship was awarded custody of their three minor daughters and $250.00 per month in child support.

When the oldest daughter became eighteen, on July 14, 1975, Mr. Blankenship began sending support payments of only $166.67 to his former wife. He made other funds available directly to that daughter. Mr. Blankenship made further subsequent child support reductions which led to the rule and judgment now on appeal.

Mr. Blankenship urges that the reductions were agreed to by Mrs. Blankenship following a personal meeting and a telephone conversation. There were no witnesses to these alleged agreements and the record does not bear out his contentions.

Testimony of the two older Blankenship daughters was conflicting. Margaret testified that her mother never specifically agreed that Mr. Blankenship’s payments to Margaret were in lieu of the child support. Robin was convinced by her mother’s words and actions that the direct payments were to be made in lieu of alimony. However, no unequivocal statement of her mother to that effect was pointed out,

Mrs. Blankenship began to testify but the trial court’s forceful and conclusory statements that Mr. Blankenship must get credit for money paid to the daughters caused her attorney to cease questioning her. In brief, Mrs. Blankenship denied any agreement to reduce child support. Furthermore, the record contains four letters sent to Mr. Blankenship dated December 11, 1975, January 26, 1976, November 9, 1976, and April 29,1977. Each letter demands the payment of past due child support.

Past due alimony is the property of him in whose favor it has been given. The right to receive such alimony in a lump sum is not waived by plaintiff’s failure to make periodic demands on the defendant. Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954). The father’s obligation to pay child support is only satisfied by making payments to the mother and the only way a father can relieve himself of the obligation of child support is by initiating a proceeding to have the judgment amended, suspended or terminated. LSA-C.C. Art. 232; Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974), application denied 293 So.2d 187 (La. 1974).

There are two exceptions to this general requirement for alimony termination. Alimony is revoked by operation of law when a wife remarries. LSA-C.C. Art. 160. And, the party in whose favor the judgment was rendered may make arrangements with the party liable for payment of alimony or child support in a way other than direct payments or may waive rights under the judgment. Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir. 1979).

The facts in this case do not evidence an arrangement for other than direct payments or a waiver of rights.

In Thompson v. Gourville, 372 So.2d 579 (La.App. 3rd Cir. 1979), the father paid more than he had been ordered to through donations to the children and sums paid to physicians, schools, merchants and dentists on their behalf. Nevertheless, since the mother had neither waived payments nor requested the father to disburse funds as he did, the mother was owed the whole amount plus interest.

The cases of Seifert v. Seifert, supra; Hodge v. Hodge, 338 So.2d 161 (La.App. 2d Cir. 1976); Odum v. Odum, 273 So.2d 576 (La.App. 1st Cir. 1973); and Duplechan v. Duplechan, 270 So.2d 264 (La.App. 3rd Cir. 1972), are not applicable here since in each of those cases the mother agreed to a change in the manner of child support payments.

Mr. Blankenship, absent an agreement, had no authority to lower support payments. Where an award in globo has been made for two or more minors, the fact that one child is no longer eligible, even as a matter of law, for child support, is not a ground for the husband to unilaterally rer duce the child support payments proportionately because, after a contradictory hearing, the remaining minors might be found due an increase to offset the unilateral reduction. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2d Cir. 1978). Halcomb requires a judicial determination prior to reduction. Mr. Blankenship sought no reduction as required by LSA-C.C. Art. 232 and therefore he is due none.

While the trial court felt that Mr. Blankenship “had con'scientiously done his duty as a father to his three children,” on reviewing the law and jurisprudence he was unable to allow any credit. We agree with the trial court’s decision. Thompson v. Courville, supra; Halcomb v. Halcomb, supra.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Bobby R. Blankenship.

AFFIRMED.


author: EDWARDS, Judge.

text:
    David B. DOUCET v. PLANTATION MANOR, INC.
    No. 13068.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Clayton E. Lovell, Houma, for plaintiff and appellant.
    Laurence E. Best, Houma, for defendant and appellee.
    Before EDWARDS, LEAR and GREENE, JJ.
   EDWARDS, Judge.

David B. Doucet, plaintiff-appellant, sued Plantation Manor, Inc. for past-due wages, penalty wages and attorney fees pursuant to LSA-R.S. 23:631 and 632. Following trial, judgment was rendered awarding plaintiff $413.00 in wages and $300.00 in attorney fees. Plaintiff’s demand for penalty wages was rejected. Plaintiff appeals seeking both penalty wages and increased attorney fees. We affirm.

David Doucet was employed by the defendant corporation from December of 1977 until August 5,1978, at a salary of $1,100.00 per month. After quitting, plaintiff demanded his final paycheck on August 20, 1978, the next regular payday. Defendant’s agents refused payment on the basis „ that Doucet owed money for furniture previously purchased on his behalf. Plaintiff subsequently filed the suit now on appeal.

R.S. 23:632 is a penal statute and therefore must be strictly construed. Equitable defenses are available and penalty wages are not to be absolutely imposed irrespective of the circumstances. Granderson v. New Orleans Board of Trade, 355 So.2d 620 (La.App. 4th Cir. 1978), application not considered 357 So.2d 1165 (La. 1978); Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975); Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826 (La.App. 2d Cir. 1973), writ denied 286 So.2d 364 (La.1973).

A dispute as to wages due is a commonly asserted equitable defense to a claim for penalty wages. Even if the defendant’s contentions are ultimately rejected, penalty wages will not be awarded so long as the employer acted in good faith when resisting payment of sums allegedly past-due. Lazauskas v. Louisiana Offshore Caterers, Inc., 371 So.2d 1183 (La.App. 1st Cir. 1979), writ denied 373 So.2d 510 (La.1979); Carri- ere v. Pee Wee’s Equipment Company, 364 So.2d 555 (1978); Colbert v. Mike-Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (La.App. 3rd Cir.. 1976), application not considered 329 So.2d 753 (La.1976).

In the present case, plaintiff testified that the furniture purchased for him was a bonus, that he was not told he would have to pay anything back, and that, unlike the furniture purchase, any advances on salary were evidenced by slips signed by the employee and taken out of the next paycheck. Norman Mouracade, the general manager of Plantation Manor while plaintiff was employed there, testified to the same effect as Doucet.

On the other hand, John Thomas Campo, bookkeeper for the defendant, testified that Norman Mouracade’s instructions to him were to treat the furniture purchase as an advance to be repaid rather than as a bonus.

Mike Totah, owner of the defendant corporation, testified that while salary advances were sometimes made, bonuses were only granted if the business was making a profit. He stated that the Plantation Man- or Restaurant of Houma was a losing business proposition and that a bonus had not been given. Totah also testified that repayment of the furniture purchase price had been agreed to by Doucet and that certain sums had in fact been repaid.

The trial court weighed the testimony and apparently concluded that the furniture purchase was, indeed, a bonus. However, conflicting testimony also made clear that there was a valid wage dispute. Therefore, no penalty wages were awarded.

A careful examination of the entire record convinces us that the trial court’s evaluation of the facts was correct and that the judgment contained no manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by David B. Doucet.

AFFIRMED.

      . At trial, it was stipulated that the named defendant would be changed from Plantation Manor, Inc. to Plantation Manor Restaurant of Houma, Inc.

      . R.S. 23:631 provides:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.”
      R.S. 23:632 provides:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”


text:
    Joseph V. FOSTER, Jr. v. LOUISIANA DEPARTMENT OF CORRECTIONS.
    No. 13076.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Joseph V. Foster, Jr., in pro per.

      Marvin H. Bruce, Louisiana Dept, of Justice, Baton Rouge, for defendant-appellee Louisiana Dept, of Corrections.
    Before EDWARDS, LEAR and GREENE, JJ.
   EDWARDS, Judge.

Joseph Vernon Foster, Jr., plaintiff-appellant, filed suit against the Louisiana Department of Corrections in an attempt to win good-time credits for pre-trial time served in jail. The Department filed a peremptory exception of no cause of action which was maintained by the trial court. Plaintiff has appealed. We affirm.

The particular circumstances surrounding plaintiff’s present incarceration are unclear save for the fact that he has been in the Department’s custody since 1973. The bases for appeal, as presented by plaintiff, who has represented himself, are twofold. First, plaintiff contends that the Department of Corrections must allow good-time credits for pre-trial time actually served in jail. Second, and as a consequence of the Department’s failure to permit such good-time credits, plaintiff argues that his Fourteenth Amendment right to equal protection of the laws has been violated. A review of the present Constitutional and statutory law forces us to disagree.

In Louisiana, a prisoner’s eligibility to earn good-time credits is controlled by LSA-R.S. 15:571.3(B) which provides:

“Every inmate in the custody of the Department of Corrections who has been convicted of a felony and sentenced to imprisonment for a stated number of years or months may earn a diminution of sentence by good behavior and performance of work or self improvement activities or both to be known as ‘good time’. Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might be commuted to a specific number of years. The director of corrections shall establish procedures for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed shall be as otherwise provided by law.”

The key phrase is “inmate in the custody of the Department of Corrections who has been convicted of a felony . . . .” Clearly, R.S. 15:571.3(B) does not allow good-time to be earned prior to conviction.

The jurisprudence supports this position. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), held that the United States Constitution does not guarantee good-time credit for satisfactory behavior in prison and that such credits are state matters. See also Paprskar v. Estelle, 566 F.2d 1277 (5th Cir. 1978), cert. denied 439 U.S. 843, 99 S.Ct. 136, 58 L.Ed.2d 142 (1978).

In McCormick v. Hunt, 328 So.2d 140 (1976), the Louisiana Supreme Court found neither a statutory nor a Constitutional basis for requiring pre-trial good-time credits.

In McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), the United States Supreme Court found that a New York statute virtually identical to the Louisiana law at issue did not violate prisoners’ rights.

Plaintiff-appellant’s reliance on Pruett v. State of Texas, 470 F.2d 1182 (5th Cir. 1973) is mistaken. In that case, the Texas practice of denying good-time to a defendant who had been sentenced and incarcerated but who was appealing was found unlawful because it infringed on the basic right of appeal. The court narrowly defined its holding by stating:

“we emphasize that the holding is limited to the unique situation concerning the lack of finality of convictions pending appeal which obtains in Texas . . .”

Plaintiff urges that if good-time is not available to pre-trial detainees unable to make bail, their equal protection rights will be violated.

This line of reasoning is analogous to the rejected argument that bail is excessive simply because one cannot pay it.

Bail exists to:

“insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.” Hodgdon v. U. S., 365 F.2d 679 (8th Cir. 1966), cert. denied 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676 (1967).

Thus, the test for excessiveness of bail is whether it has been fixed higher than reasonably calculated to insure the defendant’s appearance. As stated by the court in U. S. v. Radford, 361 F.2d 777 (4th Cir. 1966), cert. denied 385 U.S. 877, 87 S.Ct. 158, 17 L.Ed.2d 105 (1966):

“The mere financial inability of the defendant to post an amount otherwise meeting the aforesaid standard does not automatically indicate excessiveness. The purpose for bail cannot in all instances be served by only accommodating the defendant’s pocketbook and his desire to be free pending possible conviction.”

See also V. S. v. Wright, 483 F.2d 1068 (4th Cir. 1973); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

For the foregoing reasons, the trial court judgment is affirmed at plain tiff-appellant’s cost.

AFFIRMED.


text:
    Henry E. PACE v. PARKER DRILLING COMPANY AND SUBSIDIARIES.
    No. 13080.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      J. Donald Cascio, Denham Springs, for plaintiff.
    Lee C. Kantrow, Baton Rouge, for defendant.
    Before EDWARDS, LEAR and GREENE, JJ.
   EDWARDS, Judge.

Henry E. Pace, plaintiff-appellee, filed suit against Parker Drilling Company seeking penalty wages and attorney fees pursuant to LSA-R.S. 23:631 and 632. From a judgment in favor .of plaintiff awarding $1,177.60 in penalty wages and $1,500.00 in attorney fees, defendant appeals. We affirm as amended.

While it is uncontested that Henry Pace was employed by Parker Drilling Company from January 8 through January 15, 1978, other relevant facts, subsequent to the plaintiff’s discharge, are disputed.

Plaintiff testified that on January 16, 1978, he returned to the Parker Drilling Company rig where he had worked and demanded his final pay. This demand was made separately to both George Craig, who was in charge of keeping track of payroll hours, and to Don Lynch, the driller.

Timothy Wheat, another Parker employee discharged contemporaneously with the plaintiff, testified that he and Pace returned together on January 16, 1978, and demanded their wages from Don Lynch.

Sharon Pace, wife of the plaintiff, maintained that she too first sought payment on her husband’s behalf on January 16, 1978, from George Craig. She further stated that she returned to see Mr. Craig on January 18,19, 20,24,25 and every other day for a couple of weeks. On one particular day, January 20, Mrs. Pace made two visits to the rig. The first one bore fruit in that her husband’s payroll check had arrived. Mrs. Pace took the check home but, on discovering it was made out in an insufficient amount, returned to Parker Drilling to inform Mr. Craig of the shortage.

George Craig denied seeing either the plaintiff or Timothy Wheat on January 16. He admitted that Mrs. Pace had initially sought payment for her husband but insisted that she had only returned once, a “few days” or “several days” or a “couple of days” after she had picked up the check first sent out by Parker Drilling, to point out an insufficiency in that paycheck. Craig conceded that he had inadvertently shorted Pace one day’s pay and, on being notified by Mrs. Pace, had phoned in the additional hours to the company.

Harold Jennings, an administrative manager for the Parker Drilling division which included Louisiana, testified that plaintiff’s hours were first called in on January 16, 1978, and that payroll checks were mailed out on the same day. Jennings first learned that the initial payment was inadequate “several days” after January 16. He immediately informed the Tulsa, Oklahoma, office from which checks were sent that Pace had been shorted. Jennings testified that, at most, it would have taken thirty minutes for a supplementary payroll check to have been issued, based on George Craig’s word relayed to the Tulsa office by himself.

It is undisputed that Parker Drilling Company did not mail plaintiff’s supplementary and final paycheck until February 7, 1978.

On October 11, 1978, plaintiff filed the suit which resulted in Parker Drilling Company’s being cast in judgment and which is now on appeal.

Defendant-appellant specifies five grounds for appeal:

I.The trial court erred in not allowing defendant’s equitable defense to R.S. 23:632.
II.Attorney fees were improper.
III. Attorney fees were excessive.
IV. The time period used in computing penalties was incorrect.
V.Discovery pertaining to the plaintiff’s background should have been permitted.

I. EQUITABLE DEFENSE

R.S. 23:632 is a penal statute and therefore must be strictly construed. Equitable defenses are available and penalty wages are not to be absolutely imposed irrespective of the circumstances. Granderson v. New Orleans Board of Trade, 355 So.2d 620 (La.App. 4th Cir. 1978), application not considered 357 So.2d 1165 (La. 1978); Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975); Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826 (La.App. 2d Cir. 1973), writ denied 286 So.2d 364 (La.1973).

Whether or not there is an equitable defense to penalty wages depends on the particular facts of each case. The jurisprudential fact situations vary too widely to permit strict classification. Nevertheless, certain case groupings, however amorphous, do seem to exist.

Cases permitting equitable defenses include Lazauskas v. Louisiana Offshore Caterers, Inc., 371 So.2d 1183 (La.App. 1st Cir. 1979), writ denied 373 So.2d 510 (La.1979), a valid wage dispute; Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La. 1978); Colbert v. Mike-Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (La. App. 3rd Cir. 1976), application not considered 329 So.2d 753 (La.1976), cases in which the defendant claimed offsets against wages past-due based on either damage allegedly caused by the plaintiff or property of the defendant allegedly being improperly retained by the plaintiff; Berteau v. Wiener Corporation, 362 So.2d 806 (La.App. 4th Cir. 1978), writ denied 365 So.2d 242 (La. 1978), a dispute over whether vacation pay was owed to an ex-employee; Seal v. Marco’s, Inc., 343 So.2d 749 (La.App. 3rd Cir. 1977), where employer had employee’s last check but couldn’t mail it due to the employee’s fault in giving an incorrect address.

Cases denying equitable defenses include Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1st Cir. 1979), employer failed to pay last wages due to employee’s quitting suddenly; Duhon v. Prof Erny’s Music Company, Inc., 328 So.2d 788 (La.App. 3rd Cir. 1976), employer required employee to fill out separation from employment form prior to receiving terminal pay.

Basically, when there is a good-faith question of whether or not the employer actually owes past-due wages or whether there may be an offset to wages owed, resistance to payment will not trigger penalty wages. When the employer is arbitrary or sets out procedural pitfalls for the employee or is merely negligent in failing to pay past-due wages, penalty wages will be assessed. As the court stated in McCaskill v. Deviney Construction Company, 323 So.2d 178 (La.App. 3rd Cir. 1975), writ denied 325 So.2d 615 (La.1976):

“When the failure to pay wages due according to the statute is attributable to neglect or improper pay procedure of an employer, the equitable defense . is not available to an employer.”

The present case is clearly one of employer negligence. Testimony convincingly established the fact of plaintiff’s demand (which need be made only once). Defendant’s employee, George Craig, admitted an error in payment, which information Harold Jennings conveyed to the defendant corporation on January 20, 1978. Yet, contrary to R.S. 23:631, Henry Pace was not paid in full until some 22 days after he was discharged. The penalty provisions of R.S. 23:632 were properly called into play.

II. AVAILABILITY OF ATTORNEY FEES '

Parker Drilling urges that since all past-due wages were paid prior to suit being filed, plaintiff may not recover attorney fees. This position is incorrect as a matter of law. Sifers v. Exxon Corporation, 338 So.2d 763 (La.App. 4th Cir. 1976), specifically allowed attorney fees though suit was solely for penalty wages. Were it otherwise, an employer might initially refuse to pay terminal wages. Then, after the employee contacted an attorney, the employer could make payment. The result would be that the employee’s final wages (often a small amount) would be used for attorney fees. Such a scenario would violate the basic principle of R.S. 23:631 and 632, that departed employees will be paid in full and swiftly. In the present case, attorney fees were proper.

III. AMOUNT OF ATTORNEY FEES

Appellant claims that the $1,500.00 award for attorney fees was “grossly excessive” and cites various cases as authority. We note that none of the cases cited is less than seven years old and that rampant inflation has taken its toll on the dollar in that time. Furthermore, we note that this case was strenuously defended both at trial and on appeal. Finally, we note that appellant failed to cite an older case permitting a similar award. In Simon v. Crowley Industries, Inc., 287 So.2d 549 (La.App. 3rd Cir. 1973), writ denied 290 So.2d 331 (La.1974), attorney fees of $1,190.00 were awarded while the penalty wages were $1,152.00 and actual wages were only $38.00. Considering all circumstances, the award of $1,500.00 in the present case was within the discretion of the trial court and will not be disturbed.

IV. COMPUTATION OF PENALTIES

Both parties agree that because the defendant mailed plaintiff’s final pay on February 7, 1978, penalty wages should not be awarded for that day. Therefore, the penalty wages are lowered by one day’s salary, $51.20, and are fixed at $1,126.40.

V. DISCOVERY

The trial court sustained plaintiff’s objections to certain interrogatories propounded by Parker Drilling and pertaining to plaintiff’s background. Appellant maintains that those interrogatories were needed to impeach the plaintiff at trial. This claim has no merit and is an attempt to obfuscate the real issue — whether penalty wages and attorney fees are owed. Plaintiff’s character is of no importance. Whether he made demand and whether he was paid were the only relevant questions. The trial court properly sustained plaintiff’s objections to the challenged interrogatories.

For the foregoing reasons, the trial court judgment is affirmed except that the award for penalty wages is lowered from $1,177.60 to $1,126.40. All costs, both trial and appellate, are to be paid by Parker Drilling Company.

AFFIRMED AS AMENDED.

      . Suit was originally filed against Parker Drilling Company and Subsidiaries and the suit continued against that named defendant. However, answer was made, the suit was defended, and appeal has been taken by Parker Drilling Company. Despite no stipulation as to defendant’s correct name, it is clear that Parker Drilling Company is the actual party defendant.

      . R.S. 23:631 provides:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.”
      R.S. 23:632 provides:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand , for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”


author: LEAR, Judge.

text:
    Wade G. FAULK v. STATE of Louisiana et al.
    No. 13070.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Kenneth 0. Privat, Crowley, for plaintiff-appellant Wade G. Faulk.
    William T. Reeves, Baton Rouge, for defendant-appellee State of Louisiana, through School Employees Retirement System.
    Before EDWARDS, LEAR and GREENE, JJ.
   LEAR, Judge.

Plaintiff-appellant, Wade G. Faulk, filed this suit against the State of Louisiana, through the School Employees’ Retirement System, seeking to have R.S. 42:701 (Act 672 of 1977) declared unconstitutional in that it prohibits his dual membership in two Louisiana public retirement systems.

The case was tried below on written stipulations. After considering the law and evidence, the trial court dismissed plaintiff’s suit. We affirm.

Plaintiff became a contributing member of the Louisiana School Employees’ Retirement System (school system) in 1962. In November, 1965, he also became a contributing member of the Sheriff’s Pension and Relief Fund (sheriff’s system). He contributed to both these systems until February, 1978. Since March, 1978, he has only been a contributing member of one retirement system, the sheriff’s system.

R.S. 17:896 required that plaintiff join the school retirement system as a condition of employment. R.S. 17:893 prohibits a person who is a member of the school retirement system from participation in any other system supported by public funds. In 1965, however, plaintiff became a deputy sheriff and a contributing member of the sheriff’s system.

In 1977, the Louisiana Legislature passed Act 672 (R.S. 42:701), which is the subject of this litigation. This statute simply required those who had dual membership in public retirement systems to choose one or the other and ordered that the system dropped refund all contributions at five (5%) percent simple interest.

Appellant’s main contention is that R.S. 42:701 divests a contractual right or interest and that it discriminates against him as a member of two retirement systems.

As the lower court held in adopting in its entirety the memorandum of defendant, appellant had not become eligible for retirement from the school system as of January 1, 1978, the effective date of the challenged statute. Retirement of right is fixed as of the time eligibility is obtained. See Bowen v. Board of Trustees of the Police Pension Fund, 76 So.2d 430 (La.App. Orl.Cir.1954) therein citing with approval Talbott v. Independent School District, 230 Iowa 949, 299 N.W. 556. In Young v. Department of Highways, 160 So.2d 391 (La. App. 1st Cir. 1964), this court followed Bowen and held, in effect, that regarding retirement systems, there is no vested right until eligibility is obtained. See also Patterson v. City of Baton Rouge, 309 So.2d 306 (La. 1975).

In conclusion, the presumption of constitutionality with which all statutes are clothed has not been overcome by appellant’s proof and authorities. As we stated in Bran ton v. Parker, 233 So.2d 278 (La. App. 1st Cir. 1970):

Discussion of the constitutionality of any legislation must perforce consider the general principle that constitutionality of legislation is presumed until the contrary be shown. Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113. He who alleges unconstitutionality of an act bears the burden of proof. Conway v. Lane Cotton Mills Co., 178 La. 626, 152 So. 312. The validity of acts is to be upheld if at all possible; all doubt is to be resolved in favor of legality and unconstitutionality will be decreed only when no other reasonable alternative presents itself. Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 177 So.2d 576.

Appellant’s allegation that the statute is unconstitutional in that it violates Article 10, Section 29(B) of the Louisiana Constitution of 1974 is also without merit. A reading of that article clearly shows that the persons affected are those jointly employed by a state and a federal agency, not, as here, two agencies under state jurisdiction.

The judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: GREENE, Judge.

text:
    COTTON BELT INSURANCE COMPANY, INC., et al. v. Clarence A. ARNOLD.
    No. 13056.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Victor L. Roy, III, Michael A. Patterson, Baton Rouge, for Cotton Belt Ins. Co., Inc.
    Randall J. Cashio, Baton Rouge, for Clarence A. Arnold.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

Plaintiffs secured a judgment against Clarence A. Arnold in the 19th Judicial District Court on December 2, 1974. On February 28,1975, Arnold filed a petition in bankruptcy in the United States District Court for the Middle District of Louisiana and was adjudicated a bankrupt. He was discharged by the bankruptcy court on July 24, 1975. Arnold then filed a rule to have plaintiffs’ judgment cancelled from the parish mortgage records in the 19th Judicial District. From a judgment cancelling this judicial mortgage, Cotton Belt Insurance Company, Inc. appeals.

The trustee in bankruptcy disclaimed and abandoned Arnold’s homestead to him on the basis that there was no equity in the property over and above the homestead exemption and the conventional obligations affecting the property. The record reflects stipulations and exhibits which show that appellant’s judicial mortgage affects Arnold’s homestead which had a fair market value of $13,000 with an outstanding mortgage of $11,105 when he filed his petition in bankruptcy. It was further stipulated that Arnold still owns this homestead.

Arnold filed this rule to cancel appellant’s judicial mortgage under Louisiana Revised Statutes 9:5166, which provides:

“Upon rule to show cause by any interested party against the clerk of court and ex officio recorder of mortgages of the several parishes and the recorder of mortgages for the parish of Orleans, the judgment creditor and a judgment debtor discharged in bankruptcy, the court shall order the cancellation of the inscription of any dischargeable judgment rendered twelve months previously unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment, or any judgment rendered in a tort proceeding wherein the judgment debtor’s liability arose out of his wilful negligence, or any judgment for taxes due or any other judgment otherwise not discharged in bankruptcy.”

Arnold maintained that he was exercising his right to have the judgment cancelled under § 67a(l) of the Bankruptcy Act, 11 U.S.C.A. § 107(a)(1), which states:

“Every lien against the property of a person obtained by . judgment, . within four months before the filing of a petition [in bankruptcy] . shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this title: . . . ”

The Court, in Credit Service Corporation v. Bagley, 364 So.2d 624 (La.App. 2nd Cir. 1978), faced with the question of the effect of § 67a of the Bankruptcy Act on a judgment recorded within four months of the filing by the judgment debtor of a petition in bankruptcy, held:

“Federal authority, which preempts and controls, now is clear that a judgment recorded within four months of the filing of a petition in bankruptcy may be voidable by either the Trustee or by the bankrupt even though property is set aside or disclaimed by the Trustee to the discharged bankrupt, provided the conditions of the Act are met. Fischer v. Pauline Oil & Gas Co., 309 U.S. 294, 60 S.Ct. 535, 84 L.Ed. 764 (1940), 4 Collier on Bankruptcy § 67.15 at 163 et seq. (14th Ed. 1971), Waddell v. Fleming, 510 F.2d 4 (10th Cir. 1975).”

The value of the bankrupt’s homestead in this case exceeded the amount of the conventional obligations existing against it, but did not exceed a total of these obligations and the homestead exemption.

In Kayda v. Johnson, 262 So.2d 171 (La. App, 1st Cir. 1972) the court refused to cancel the judicial lien when presented with a judgment recorded within four months of the filing of the petition in bankruptcy where the creditor’s inability to enforce his judgment against' the bankrupt was due to the homestead exemption rather than a lack of equity on the part of the bankrupt because of conventional obligations against the property.

We are presented here with the question of the effect of § 67a of the Bankruptcy Act on a judicial lien secured within four months of the filing by the debtor of a petition in bankruptcy. It is true, as stated in the Credit Service Corporation case, that no mention was made in the Kayda case of the effect of § 67a of the Bankruptcy Act on this action. After reexamining the decision in Kayda, in light of the express provisions of § 67a of the Bankruptcy Act, for the following reasons we agree with the second circuit in the Credit Service Corporation case that § 67a controls.

The Louisiana Supreme Court, in Schexnailder v. Fontenot, 147 La. 467, 85 So. 207 (1920), recognized that where state law and bankruptcy law conflict, the bankruptcy law prevails, stating:

“(I)t would seem that it was the purpose of Congress, in enacting a national insolvency law, to preserve, rather than destroy, any of the rights or advantages enjoyed by creditors under the laws of the states, save to the extent that they are repugnant to or inconsistent with the specific provisions of the act which it thus passed.”

To the extent that § 67a of the Bankruptcy Act conflicts with Louisiana Revised Statute 9:5166 concerning the right of a bankrupt to cancel a judicial lien secured within four months of his filing of a petition in bankruptcy, § 67a controls and enables the bankrupt to cancel the lien. Chicago, Burlington & Quincy Railroad Company v. Hall, 229 U.S. 511, 33 S.Ct. 885, 57 L.Ed. 1306 (1912). .

Counsel for appellant makes the argument that by virtue of Section 6 of the Bankruptcy Act, 11 U.S.C.A. § 24, the rights of a bankrupt to avoid liens on exempt property are strictly limited and controlled by the law of the state that created the exemption. We do not agree. Section 6 of the Bankruptcy Act provides:

“This title shall not affect the allowance to bankrupts of the exemptions which are prescribed by the laws of the United States or by the State laws in force at the time of the filing of the petition in the State wherein they have had their domicile for the six months immediately preceding the filing of the petition, or for a longer portion of such six months than in any other State: Provided, however, That no such allowance shall be made out of the property which a bankrupt transferred or concealed and which is recovered or the transfer of which is avoided under this title for the benefit of the estate, except that, where the voided transfer was made by way of security only and the property recovered is in excess of the amount secured thereby, such allowance may be made out of such excess.”

We read this provision to mean that the rights and protections provided a debtor by state law are available to a bankrupt in addition to rather than in lieu of the rights and protections provided by the Bankruptcy Act.

Before a lien can be voided under § 67a, it is necessary that the following conditions be met:

(1) The lien is obtained within the four month period of the filing of the petition in bankruptcy;
(2) The bankrupt is insolvent when the lien was obtained;
(3) The bankrupt is discharged in bankruptcy; and
(4) The property has not been sold to a bona fide purchaser.

Fischer v. Pauline Oil & Gas Co., 309 U.S. 294, 60 S.Ct. 535, 84 L.Ed. 764 (1940).

All four of these § 67 conditions precedent to cancelling this judicial lien are satisfied. The lien was obtained within four months of the filing of the petition in bankruptcy; the bankrupt was discharged in bankruptcy; and the property has not been sold to a bona fide purchaser. Also, from the stipulations and exhibits in the record we are satisfied that the bankrupt was insolvent on December 24, 1974, the date when the judicial lien was obtained. Therefore, this judicial lien should be cancelled.

Judgment of the lower court is affirmed.

Appellant is to pay all court costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Myrna Eschete GAUTREAUX v. Allen Anthony GAUTREAUX.
    No. 13037.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Keith M. Whipple, Houma, for plaintiff and appellee.
    Danny J. Lirette, Houma, for defendant and appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Defendant, Allen Anthony Gautreaux, appeals from a judgment which ordered him to pay the plaintiff, Myrna Eschete Gautreaux, the amount of $7,050.00 for past due alimony and child support. The judgment also reduced the alimony to the wife from $500.00 to $250.00 per month.

In the instant case there were two children. of the marriage, Duane Allen Gau-treaux and Toni Sue Gautreaux, and custody of both children was, without contest, given to the mother in the separation decree on November 4,1976. That judgment, by consent, fixed child support in the amount of $700.00 monthly in globo. In November, 1977, prior to the divorce decree, the mother voluntarily consented to the father taking physical custody of one of the children. The judicial award was not changed until the judgment of divorce on September 1, 1978, when it was reduced to $350.00 per month “for the support of Toni Sue Gautreaux . .

On March 16,1979, Mr. Gautreaux filed a rule to reduce the amount of his payments alleging, inter alia, that he has remarried, that his wife and her two stepchildren are living with him, that he is unable to pay the monthly sums, and that his former wife is no longer in necessitous circumstances. On April 5, the former wife filed a rule to make the arrearage executory and to increase the monthly award. On her motion, the rules were consolidated for trial.

There was entered into the record a “Narration of Facts Pursuant to Louisiana Code of Civil Procedure Article 2131,” which reveals more details as follows:

“Allen Gautreaux and Myrna Gautreaux were divorced by Judgment dated September 1,1978. Allen Gautreaux, by way of answer, consented to pay FIVE HUNDRED AND NO/100 ($500.00) DOLLARS per month alimony to his former wife. At the time of the consent judgment for alimony, Mr. Gautreaux was employed overseas. He earned $44,000 in overseas employment in 1977 and $70,000 in 1978. Myrna Gautreaux was not employed at this time.
“Myrna Gautreaux went to work November 1, 1978. Her net pay was and is $245.07 every two weeks.
“Plaintiff in rule, Allen Gautreaux, returned from overseas’ employment in December 1978. Since then he has sought and found employment in south Louisiana. Mr. Gautreaux now earns approximately $2,160 per month gross in domestic employment.
“Allen Gautreaux remarried in February of 1979. His current monthly living expenses are approximately $1,000 to $1,200 without including his present obligation to pay child support of THREE HUNDRED FIFTY AND NO/100 ($350.00) DOLLARS per month and alimony of TWO HUNDRED FIFTY AND NO/100 ($250.00) DOLLARS per month to Myrna Gautreaux. Myrna Gautreaux’s expenses are in the record as prepared by her for September of 1978. Myrna Gautreaux owns approximately $7,000 in jewelry. She owns 103 shares of First National Bank stock presently valued at $35.00 per share totaling $3,605.00. She has four (4) trailer spaces that are rented and one rent house that rents for $80 per month. The expenses and notes being paid by Mrs. Gautreaux are approximately equal to the income derived from the rental income. In the community property settlement of January 4, 1978, Myrna Gau-treaux received the family home located on lots 7 and 8, block 3, Broadmoor Heights Subdivision and all furniture therein; a 1975 Cadillac, and four (4) lots in Allemand Subdivision. Attached hereto and made a part hereof are a copy of the community property settlement, a copy of Mrs. Gautreaux’s savings account, copies of Mr. Gautreaux’s income tax returns and a copy of Mrs. Gautreaux’s records showing receipts of alimony and child support from Mr. Gautreaux.
“In November 1977 Allen Gautreaux got physical custody of Duane Allen Gau-treaux with the consent of his wife and has had physical custody since that date. Mr. Gautreaux ex-parte reduced his child support payments to THREE HUNDRED FIFTY AND NO/100 ($350.00) DOLLARS after November 1977 until the judgment of divorce.”

The original alimony award of $500.00 monthly was rendered with the consent of Mr. Gautreaux. This consent amounted to a judicial admission by him that Mrs. Gautreaux was entitled to alimony; therefore, when he filed his rule to reduce the alimony, it was incumbent upon him to prove that his or his wife’s circumstances had substantially changed in order to obtain a reduction of the alimony. Loyacano v. Loyacano, 358 So.2d 304 (La.1978).

The appellant contends that there has been a change in both his and his wife’s circumstances in that his earnings have been reduced from $70,000.00 to $26,000.00 annually, and that he has remarried; and in that Mrs. Gautreaux is now working, earning $245.07 every two weeks. There is no evidence that her assets are productive of income, or could be reasonably liquidated.

It is axiomatic that the trial court has great discretion, under LSA-C.C. art. 160, in fixing the amount of alimony. The award will not be disturbed on appeal in the absence of a showing of an abuse of such discretion. Loyacano v. Loyacano, supra; Dowler v. Dowler, 304 So.2d 871 (La.App. 2 Cir. 1974).

Under all of the circumstances of this ease, we find that the trial judge did exercise sound discretion, did not decide arbitrarily, and reached a reasonable and just result. His decision on the question of alimony was not contrary to the principles of law announced in Loyacano v. Loyacano, supra.

On the question of child support, the appellant contends that he had the right to unilaterally and ex parte take credit for one-half of the child support for the time during which he had physical custody of one of the two children.

The general rule is that a judgment for child support remains in full force and effect in favor of the party to whom it was awarded until the party held liable applies to the court and obtains a modification. Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2 Cir. 1978).

In Wisdom v. Wisdom, supra at 1113, the Court said:

“Where there is an in globo award of child support for more than one child, the father is not entitled, without seeking court modification of the judgment, to reduce the child support payments on a pro rata basis even where the child support is no longer due for one of the children because of majority or other reason.”

In the case at bar, the judgment was an in globo award; the father, unilaterally and extrajudicially, attempted to reduce the child support payments by one-half. The law does not permit this.

The appellant cites the case of Caraway v. Caraway, 321 So.2d 405 (La.App. 2 Cir. 1975), writ denied, 323 So.2d 479 (La.1975), in support of Mr. Gautreaux’s actions. In Caraway, the Court held the husband was entitled to credit on child support payments where, with the wife’s consent, he had had physical custody of the only child of the marriage for an extended period of time. That case is factually distinguishable from the case before us. In Caraway, there was only one child; here, there were two children and only one was in the actual physical custody of the father.

Where the father has been ordered to make a periodic lump sum payment for the support of all of his minor children, the fact that one or more attains majority, or custody of one or more is changed to the father, does not necessarily mean that the father’s obligation should be reduced rat-ably. It can not be presumed that the initial amount was necessarily fixed on the basis of an equal amount for each child. That would presuppose a fallacy; i. e., that the costs incurred in rearing two children is, ipso facto, twice as much as for one; this ignores the fact that certain basic costs, such as shelter, may well be as expensive for one child as for two. Before a reduction is granted there should be a new determination of the needs of the remaining minor children as well as the father’s ability to pay. The circumstances must be reevaluated and the rule requiring the father to seek a judicial adjustment affords the court an opportunity for such reevaluation. Wallace v. Wallace, 316 So.2d 496 (La.App. 2 Cir. 1975).

Appellant argues that a notation on ap-pellee’s financial records of support indicates that there was an agreement between the parties that support “should be” $350.00 per month while Duane was with his father. However, the court is bound by the attorneys’ Narration of Facts. It does not mention any such agreement. Rather, it recites, inter alia, that “ . . . Mr. Gau-treaux ex-parte reduced his child support payments . . . (emphasis supplied)

Accordingly, we find that the trial court properly denied credit to the defendant for a pro rata portion of the child support payments due during the period of time in question.

The judgment of the trial court is affirmed at the appellant’s costs.

AFFIRMED.


text:
    Myrna Eschete GAUTREAUX v. Allen Anthony GAUTREAUX.
    No. 13038.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Keith M. Whipple, Houma, for plaintiff and appellee.
    Danny J. Lirette, Houma, for defendant and appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

For the reasons assigned this date in Myrna Eschete Gautreaux v. Allen Anthony Gautreaux, 382 So.2d 996, Number’ 13-037 on the docket of this Court, the judgment of the trial court is affirmed.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Maybelle Estopinal, wife of/and John L. HEBERT, Sr. v. Mary Ann Ferran, wife of/and Peter J. RUDESILL and the St. Tammany Parish Police Jury.
    No. 13035.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Roy K. Burns, Jr., Covington, for plaintiffs-appellants.
    Elaine W. Guillot, Slidell, for defendants-appellees Peter J. Rudesill, et ux.
    Ronald W. Guth, Slidell, Marion B. Farmer, Covington, for defendant-appellee St. Tammany Parish Police Jury.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by John and Maybelle Esto-pinal Hebert for a declaratory judgment to have a road declared a private road, and for a permanent injunction enjoining the defendants, Peter and Mary Ann Ferran Rudesill and the St. Tammany Parish Police Jury, from using the roadway and tearing down plaintiffs’ fencing. The defendants, Rudesills, reconvened for damages. From a judgment dismissing plaintiffs' suit, plaintiffs have appealed.

The road in question was built in July, 1972, by the St. Tammany Parish Police Jury on property owned by Charles F. Spe-dale. It is apparent from the record that the police jury did not have a right of way, but it did have permission of the property owner. This road allowed other property of Mr. Spedale access to Louisiana Highway No. 41. On October 16, 1973, defendant, Rudesill, purchased a certain parcel of ground from Mr. Spedale and commenced using this roadway as an access drive to La. 41. Rudesill and the police jury contend that the Parish of St. Tammany has continuously maintained this roadway for an excess of three years, thus making it a public road under La.R.S. 48:491.

On June 30, 1975, plaintiffs purchased a parcel of ground from Mr. Spedale and others, which parcel includes the location of the roadway. In a letter dated June 30, 1975, but admittedly not delivered to the Police Jury of St. Tammany Parish on that date, but some time later, plaintiffs objected to the maintenance of the roadway. This letter was apparently misplaced by the jury, and a copy was filed for record in the clerk of court’s office on July 13, 1976.

The defendant, police jury, contends it has maintained the roadway for three years, and on October 30, 1975, adopted a resolution recognizing the road as a public road.

In appealing, plaintiffs contend the trial judge erred (1) in holding that they had judicially admitted in their petition that the road had been maintained for three years; (2) in holding that plaintiffs’ objection to the maintenance was ineffective and that the letter must be recorded in the clerk of court’s office to be effective; and (3) in finding as a fact that the police jury had maintained the roadway for three years.

In their brief, defendants-appellees, Peter J. Rudesill and his wife, argue that the trial judge was in error in not awarding damages as requested in their reconventional demand. These defendants-appellees have neither appealed nor answered the appeal, thus judgment as to them is final.

ERROR NO. 1

Though the trial judge in his written reasons for judgment makes mention of the admission by plaintiffs in their petition of the maintenance by the police jury of the roadway for three years, we do not find that the trial judge relied on this for his decision. We note in the record an amended petition filed by the plaintiffs correcting the apparent typographical error in their original petition wherein originally they said the police jury had maintained the roadway for three years.

ERROR NO. 2

We do not find that the trial judge held that for the letter of objection to be effective it must be recorded in the clerk of court’s office. It is obvious, however, that what the trial judge did conclude from the facts presented was that a letter was written, that though it was dated June 30,1975, it was not delivered to the police jury office on that date, nor could plaintiff prove a definite date of delivery. It is apparent that the trial judge could not conclude what date the letter of objection was delivered to the police jury office, and thus he ultimately concluded that if any letter was delivered to the police jury office, it was more than three years after the road had been constructed. We do not find the trial judge to be in error in this finding of fact.

Interestingly, we note that prior to the act of sale on June 30,1975, plaintiffs knew of this gravel road. Additionally, it appeared on the initial survey of the property prepared for the sale. When the attorney handling the act of sale could find nothing in the public records indicating a dedication, he instructed the surveyor to delete any reference to the roadway from the survey. This was done. With all this information available, rather than have the attorney prepare and submit an objection of continued maintenance to the police jury, concurrently with the execution of the act of sale, plaintiffs chose self help.

ERROR NO. 3

Mr. Claude Polk, an employee of the St. Tammany Parish Police Jury at the time that the road was constructed, testified that construction commenced sometime in July of 1972. He subsequently became a member of the police jury and testified that the roadway was continuously maintained. Additionally Mr. and Mrs. Rudesill testified that whenever potholes appeared in the road, the police jury repaired them. Thus, the trial judge concluded the roadway had been maintained for 3 years. We find no error.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: ON MOTION TO DISMISS LOTTINGER, Judge.

text:
    Larry ABERNATHY, Sr. v. STANLEY A. LAFARGUE AND ASSOCIATES, INC. and Imsusa Corporation.
    No. 13323.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Raymond C. Vinet, Sr., Baton Rouge, for plaintiff-appellant Larry Abernathy, Sr.
    E. Wade Shows, Baton Rouge, for defendants-appellees Stanley A. Lafargue and Associates, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   ON MOTION TO DISMISS

LOTTINGER, Judge.

Defendant-appellee has moved this court to dismiss the appeal of plaintiff as not being timely.

Judgment was rendered on May 25, 1979, and read and signed on May 31, 1979. Notice of the judgment was mailed the same day. A new trial was not applied for, thus the appeal period commenced to run on June 12, 1979, and ended on August 10, 1979. La.C.C.P. arts. 1974 and 2087.

The motion for appeal was filed with the clerk of the trial court on August 10, 1979; however, it was not signed until August 13, 1979. La.C.C.P. art. 2121 is clear when it in part says, “[a]n appeal, is' taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” (Emphasis supplied). Willie v. Otasco, 347 So.2d 1215 (La.App. 1st Cir. 1977).

The timeliness of an appeal order is jurisdictional. Thus we conclude that since plaintiff-appellant did not obtain an order of appeal within the time allowed, this court is without jurisdiction, and the appeal must be dismissed.

Therefore, for the above and foregoing reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


author: COLE, Judge.

text:
    Adam CHERAMIE et al. v. Mrs. Lorina Cheramie ST. PIERRE.
    No. 13025.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Edward T. Diaz, Charlton J. Cheramie, Golden Meadow, for plaintiffs-appellants Adam Cheramie and Lucille Cheramie Pi-tre.
    Francis Dugas, Thibodaux, for defendant-appellee Lorina Cheramie St. Pierre.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

The judgment appealed is affirmed for the following reasons given by the trial court, which we quote with approval:

I. FACTS

This is a suit to rescind an act of cash sale on the grounds of lesion beyond moiety. George Cheramie was married to Margerite Vegas Cheramie on January 3, 1918. The sole and only lawful issue of this marriage were Adam Cheramie and Lucille Cheramie Pitre, the plaintiffs herein, and Lorina Cheramie St. Pierre, the defendant herein. On May 15, 1943, Mrs. Margerite Vegas Cheramie purchased from Alfred Vegas a certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche at about forty-five miles below the town of Thibodaux in the Cut Off Community, measuring one-fourth (Vi) arpent front along Bayou Lafourche by forty arpents in depth, which property was bounded above or north by property of Alfred Vegas and below or south by property belonging to Pierre Vegas. The deed stated that the property was acquired by Alfred Vegas by inheritance from his deceased father, Antoine Vegas. The consideration for this sale was five hundred and no/100 ($500.00) dollars cash. This sale further contained the following provisions:

This property is acquired by purchaser herein with her own separate and para-phernal funds, is not to be a part of the community existing between her and her husband and is to be and remain under her separate control and domination.

This sale is recorded in the conveyance records of Lafourche Parish in COB 107, folio 56, under entry number 61566. On November 20, 1974, Margerite Vegas Cheramie died intestate.

On February 10, 1975, by act of cash sale, George Cheramie sold to Lorina Cheramie St. Pierre, “ALL OF HIS RIGHTS, TITLE AND INTEREST IN AND TO THE FOLLOWING DESCRIBED” property, which was essentially the description contained in the conveyance from Alfred Vegas to Mar-gerite Vegas Cheramie. The consideration for this sale was five hundred and no/100 ($500.00) dollars cash. The sale further provided that “Vendor hereby reserves usu-fruct over the property conveyed until his death.” This act is recorded in the conveyance records of Lafourche Parish in COB 534, folio 558, under entry' number 402226.

On April 7, 1975, a petition for possession was filed in the succession of Margerite Vegas Cheramie, No. 9360, on the probate docket. On that same date, a sworn descriptive list was filed which listed the deceased as having an undivided one-half (Vs) interest in the property here in question and valued this interest at five thousand and no/100 ($5,000.00) dollars.

On April 14, 1975, a judgment of possession was rendered in the succession of Margerite Vegas Cheramie placing George W. Chera-mie in possession of one-half (V4) of the community property and confirming his usufruct of the remaining undivided one-half (%) of the community property. The three children were placed into possession of an undivided one-third (%) each of the one-half (Vz) interest in the community of Margerite Vegas Cheramie subject to the usufruct in favor of George W. Cheramie.

On May 23, 1975, a supplemental and amending sworn descriptive list was filed in the succession proceeding listing an undivided one-half (Vfc) interest in the property here in question as community property in the Estate of Margerite Vegas Cheramie and valuing this interest at five thousand and no/100 ($5,000.00) dollars. A supplemental and amending judgment of possession was then rendered on July 23, 1975, listing the one-half (V2) interest of Marger-ite Vegas Cheramie in the property in question as community property.

On November 13, 1975, Lucille Cheramie Pitre and Adam Cheramie filed a petition to traverse the sworn descriptive list contending that the property in question belonged solely and only to Margerite Vegas Chera-mie as her separate property.

On December 5, 1975, Lorina Cheramie St. Pierre and George W. Cheramie answered the petition to traverse the sworn descriptive list contending that the property in question was community and that the sworn descriptive list and judgments of possession were correct. The trial of this matter was held on September 23, 1976 and judgment was rendered from the bench, decreeing that the property was correctly listed as community property in the sworn descriptive list and judgment of possession and rejecting the plaintiffs’ demands at their costs. This judgment was read and signed on September 28,1976 and no appeal was taken therefrom. It is now res judica-ta.

George Cheramie died on September 8, 1976.

The instant suit was filed on March 18, 1977, by Adam Cheramie and Lucille Chera-mie Pitre as heirs of George Cheramie contending that the act of sale of February 10, 1975 should be rescinded for lesion beyond moiety. Answer was filed by the defendant on September 13, 1978. A pre-trial conference was held in this matter on November 29, 1978. The trial on this matter was held and completed on February 16,1979 and the parties were ordered to submit briefs.

II. APPLICABLE LAW

It would appear that the law applicable to cases of this type, is well set forth in White v. Oakley, 191 So.2d 904 ([La.App.] 1st Cir. 1966), at p. 906 of the Southern Reporter as follows:

Rescission of a sale of an immovable on the grounds of lesion beyond moiety is a remedy afforded for an injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy is founded upon an implied error or imposition upon the person selling, for in every commutative contract, equivalents are supposed to be given and received. LSA-CC Article 1860. The party alleging lesion must prove value of the immovable in the state in which it was at the time of the sale. LSA-CC Article 1870. Those transactions which involve the sale of immovables that are speculative and conjectural as to identity and value are not subject to rescission on the grounds of lesion beyond moiety.

Thus, if the purchase price of the immovable is less than one-half (V2) of its value at the time of the sale the vendor has a right to demand rescission of the sale. Articles 1861 and 2589 et seq. of the Revised Civil Code. If lesion is proven by the vendor the purchaser has the option of either restoring the thing sold and taking back the purchase price or making up the just price and keeping the thing. Article 2591, Revised Civil Code.

III. VALUE OF IMMOVABLE INTEREST SOLD

The valuations given by the five expert appraisers who testified at the trial, Brent Duet, Filton Terrebonne, Ambroise Landry, Bobby Theriot and Freddie Trosclair, for the entirety of the property in question, range from thirty-two thousand three hundred eighty-three and no/i.00 ($32,383.00) dollars to fifteen thousand eight hundred fifty and no/100 ($15,850.00) dollars. However, the February 10, 1975 act of sale did not convey the entirety of the property in question. It conveyed “all of the right title and interest” of George Cheramie and it was subject to a reservation of a life-time usufruct. There is no testimony in the record to show the value of that which was actually conveyed. The expert appraisers testified that they either did not appraise the interest of George Cheramie or that they were unable to appraise the interest conveyed because of its speculative nature at the time of the sale. In order to prevail in cases of this type the burden is on the party claiming lesion beyond moiety to prove that at the time of sale the value of the immovable interest sold was more than twice the consideration actually paid. Arti-cíes 1870, 1871 and 2590 Revised Civil Code and White v. Oakley, supra. The plaintiffs in this case have failed to prove the value of the immovable interest sold by George Cheramie on February 10,1975, and accordingly, they have failed to prove their claim to the degree of certainty required by the law.

IV. SPECULATIVE NATURE OF INTEREST SOLD

As pointed out in the quotation from White v. Oakley, supra, transactions which involve the sale of immovables that are speculative and conjectural are not subject to rescission on the grounds of lesion beyond moiety. The reason for this rule of law is set forth in Fernandez v. Wilkinson, 158 La. 137, 103 So. 537 (1925), at p. 541 of the Southern Reporter as follows:

In Copley v. Flint, 16 La. 380, also 1 Rob. 125, and in Martin v. Delaney, 47 La.Ann. 719, 17 So. 264, this court held that the action of rescission for lesion beyond moiety was intended for the protection of those who have been driven by their necessities, or have through weakness or improvidence suffered a loss on the sale of land of more than half its value; and (in effect) that it was not intended to afford a means of speculating in real estate and on the titles thereof; hence that it might be shown what the plaintiff’s pretensions, title, or claim was really worth without being confined to the mere intrinsic value of the land. Or, in other words, that all the circumstances surrounding the sale should be examined and inquired into; that, even as to the intrinsic value of lands, no conjectural or speculative values were to be considered.

See also Fleming v. Irion, 132 La. 163, 61 So. 151 (1913).

At the time of the sale on February 10, 1975, George Cheramie had no record title to the property in question. He did, however, have a legal basis to make a claim. Under the law all property acquired during marriage is presumed to belong to the community. That the property is in the name of only one spouse and there is a statement of paraphernality in the act of sale does not change this presumption. Articles 2334, 2402, and 2405 of the Revised Civil Code; Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); Fleming v. Fleming, 211 La. 860, 30 So.2d 860 (1947); Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Perkins v. Ray, 365 So.2d 1189 ([La.App.] 3rd Cir. 1978); McGee v. Harris, 333 So.2d 440 ([La.App.] 3rd Cir. 1976); Milton v. Milton [Succession of Milton], 278 So.2d 159 ([La.App.] 1st Cir. 1973). This claim, however, could only be confirmed by subsequent court action which ultimately occurred in the Succession of Margerite Vegas Cheramie.

Further, the interest conveyed was subject to a lifetime usufruct in George Cheramie. No evidence was introduced to show what his life expectancy was on the date of the sale and what effect this would have on the value of that which was conveyed.

This case is very similar to White v. Oakley, supra, where the court held that the sale was speculative because the seller did not know the extent of the land involved, did not know the size of undivided interest and where these matters were only subsequently determined after the expense of a survey, a succession proceeding and a suit for partition by licitation.

George Cheramie could not convey a marketable title to Lorina Cheramie St. Pierre on February 10, 1975. Certainly, Lorina Cheramie St. Pierre would have had a most difficult time to market an unspecified and unconfirmed interest that was subject to a lifetime usufruct. Because of the speculative nature of that which was sold on February 10, 1975, the expert appraisers in this case were unable to give a proper valuation.

Costs of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.


text:
    Thomas C. BLAKELY v. CAMERON IRON WORKS, INC.
    No. 13040.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    William Henry Sanders, Jena, for appellant.
    Edward C. Abell, Jr. and Chris G. Robbins, Onebane, Donohoe, Bernard, Torian Diaz, McNamara & Abell, Lafayette, for appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is an appeal from a judgment denying workmen’s compensation benefits. We affirm. Plaintiff has failed to prove by a preponderance of evidence that his disability was causally connected to a work-related accident. La.R.S. 23:1031; Blacher v. Matlack, Inc., 349 So.2d 916 (La.App. 1st Cir. 1977). Costs are to be paid by plaintiff-appellant.

AFFIRMED.


text:
    FIDELITY ACCEPTANCE CORPORATION v. Wallace R. BROWN and Vera P. Brown, aka Verat Brown.
    No. 13063.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Maurice E. Clark, Jr., New Orleans, for plaintiff, appellant.
    Jacqueline Carr, Slidell, for defendants, appellees.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Plaintiff appeals a judgment rendered by the trial court upon its own motion dismissing this suit, with prejudice. The issue is whether plaintiffs failure to appear on the scheduled trial date is sufficient cause for such a dismissal considering that defendants’ counsel also failed to timely appear and the record is devoid of any meaningful fact other than counsel for plaintiff’s explanation that the failure to appear and proceed with the merits was due to a clerical error in his office.

We hold that under the stated circumstances the trial court abused its discretion in dismissing with prejudice plaintiff’s cause of action. C.C.P. arts. 1631, 1672. Cf. Bradford v. J. Ray McDermott & Co., Inc., 347 So.2d 1218 (La.App. 1st Cir. 1977), writ denied, La., 351 So.2d 155. We vacate the judgment appealed from and remand for dismissal without prejudice or for further proceedings in accordance with law. Costs of the appeal are to be borne by plaintiff.

VACATED and REMANDED.