author: PRICE, Judge.

text:
    William R. LOSEY, Plaintiff-Appellant, v. Patricia Burgess LOSEY, Defendant-Appellee.
    No. 14773.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Love, Rigby, Dehan, Love & McDaniel by Joe Cordill, Jr., Shreveport, for plaintiff-appellant.
    Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and FRED W. JONES. Jr., JJ.
   PRICE, Judge.

Plaintiff, William R. Losey, appeals a judgment in favor of defendant, Patricia Burgess Losey, for expenses and attorney fees incurred in litigation of a child custody matter pursuant to the Uniform Child Custody Jurisdiction Act (La.R.S. 13:1700, et seq.). We affirm.

Plaintiff and defendant were married in Baton Rouge, Louisiana on December 30, 1967, and thereafter established a matrimonial domicile in Delaware where plaintiff was stationed as a member of the United States Air Force. Two children were born of the marriage, Keith and Joshua, who were respectively eight and three years old at the institution of this suit. On September 12, 1979, after his separation from the Air Force, plaintiff secured employment in Shreveport, Louisiana. At this time plaintiff was informed that defendant and the children would not follow him to Shreveport.

On September 14, 1979, plaintiff removed Keith from the family home and brought him to Shreveport. Approximately two or three, weeks later, plaintiff returned to Delaware and forcibly removed Joshua from the family home.

On October 18,1979, plaintiff filed suit in Caddo Parish for a separation a mensa et thoro and custody of the children. An attorney was appointed to represent the absent defendant and by ex parte order plaintiff was granted provisional custody of the children. In July of 1980, after months of negotiation with plaintiff, defendant retained local counsel and filed a reconven-tional demand for a separation a mensa et thoro and custody of the children. On September 16,1980, plaintiff filed a supplemental petition seeking a divorce on the grounds of living separate and apart for one year and again praying for custody of the children.

When the matter came to trial on September 26, 1980, defendant objected to the court’s jurisdiction over the subject matter under the Uniform Child Custody Jurisdiction Act. After an evidentiary hearing the court declined to exercise jurisdiction over the child custody issue while retaining jurisdiction for the divorce proceeding. The decision declining jurisdiction was not appealed and has become definitive.

Thereafter, defendant instituted a rule for reimbursement of those expenses incurred in defense of the custody question. (Judge James E. Clark rendered the judgment declining jurisdiction, and Judge Charles R. Lindsay rendered the judgment for expenses and attorney fees now under consideration.) After reviewing the earlier proceedings, Judge Lindsay found that plaintiff improperly removed the children to Louisiana, therefore, defendant was entitled to an award for those expenses and attorney fees attributable to the custody issue. Judgment was rendered awarding defendant $1,359.10 for expenses and $2,500 for attorney fees.

La.R.S. 13:1707 grants a court the power to decline jurisdiction in a child custody matter if the petitioner has “wrongfully taken” the child from another state or has engaged in “similar reprehensible conduct.” If jurisdiction is declined under this section, the court may award the opposing party those expenses and attorney fees which were necessary in litigating the issue. Plaintiff now contends the trial court erred in its determination that plaintiff’s conduct was of such a nature as to invoke the expenses and attorney fees provision of the statute.

In the ruling which declined jurisdiction, Judge Clark determined that plaintiff brought the children to Shreveport under circumstances which were “less than satisfactory” and in a manner which was “not acceptable in the eyes of this court.” After a hearing on the rule for expenses and attorney fees, Judge Lindsay held the conclusions reached by Judge Clark in the prior hearing constituted a finding that plaintiff had wrongfully taken the children from Delaware and had engaged in reprehensible conduct under La.R.S. 13:1707. Judge Lindsay further found that plaintiff had instituted suit in a clearly inappropriate forum, and thus expenses and attorney fees could also be awarded under La.R.S. 13:1706(G).

Although Judge Clark did not specifically state that he was declining to exercise jurisdiction under La.R.S. 13:1707, it can be reasonably inferred such was the intent of the court. Furthermore, our independent review of the record shows plaintiff did in fact wrongfully remove the children from the family home in Delaware. Therefore, Judge Lindsay was correct in his determination that an award for expenses and attorney fees was proper under the circumstances. Having found that a judgment for defendant was proper under La.R.S. 13:1707, we need not also decide if Louisiana was clearly an inappropriate forum under 13:1706(G).

Plaintiff further contends defendant should be estopped from seeking an award of expenses and attorney fees under the act since she had an expressed desire to litigate the custody matter in the Louisiana forum.

For the doctrine of estoppel to be applied, three elements must be present:

(1) a representation by conduct or word;
(2) justifiable reliance; and
(3) a change in position to a party’s detriment because of the reliance.

Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

In the instant case, the circumstances show defendant desired to litigate the custody matter in Louisiana only because it was the most expedient method to determine custody of the children after plaintiff had instituted suit in his chosen forum. Therefore, an essential element of estoppel, detrimental reliance, is totally lacking in this case.

Furthermore, estoppel is not favored in our law and properly applies only to representations of fact. State v. Mitchell, 337 So.2d 1186 (La.1976). Defendant’s representations related solely to subject matter jurisdiction, which cannot be obtained by mere consent of the parties. Since both parties were equally apprised of the actual law in this area, this is not a proper case for the application of estoppel.

Finally, plaintiff contends the trial court erred in its determination of the attorney fees which were awarded to defendant. Plaintiff argues that the trial court improperly awarded attorney fees for those matters which were not solely related to litigation of the child custody matter. The trial court is given great discretion in the assessment of attorney fees and absent a clear showing of abuse of discretion, the award will not be disturbed. Consolidated Sewerage Dist. of City of Kenner v. Schulin, 387 So.2d 1369 (La.App. 4th Cir. 1980); Garden Hill Land Corp. v. Cambre, 354 So.2d 1064 (La.App. 4th Cir. 1978), writ denied 356 So.2d 439. In the instant case the trial court undertook the difficult task of separating those matters which were germane to the custody issue and those matters related to defendant’s other recon-ventional demands. After a review of the record, we find the trial court did not abuse its discretion in the award.

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

      . La.R.S. 13:1707 Jurisdiction declined by reason of conduct
      A. If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
      B. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
      C.In appropriate cases a court dismissing a petition under this Section may charge the petitioner with necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses.

      . La.R.S. 13:1706(G)
      If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.


source: Caselaw Access Project

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

license: Public Domain

text:
    Jackie Ray KING and Cecile Ford King, Plaintiffs-Appellants, v. PEOPLES BANK & TRUST COMPANY et al., Defendants-Appellees. Julius D. GILL, Plaintiff-Appellee, v. Jackie Ray KING et ux., Defendants-Appellants. PEOPLES BANK AND TRUST COMPANY, Plaintiff-Appellee, v. Julius D. GILL, Defendant-Appellee, Jackie Ray King et ux., Intervenors-Appellants.
    Nos. 14775, 14776 and 14894.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.
    Writ Denied June 4, 1982.

      Donald R. Miller, A Professional Law Corporation, Shreveport, for plaintiffs-appellants.
    Roland V. McKneely, Jr., Shreveport, for plaintiff-defendant-appellee, Julius D. Gill.
    Touchstone & Wilson by David M. Touchstone, Shreveport, for plaintiff-defendant-appellee, Peoples Bank & Trust Co.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

In No. 14,775, filed on August 21, 1978, Jackie Ray King and his wife sued Peoples Bank' & Trust Company and Julius Gill to have two mortgages, one for $35,000 and the other for $85,000, cancelled and for a declaratory judgment fixing the indebtedness of plaintiffs to Gill on a building contract.

In No. 14,894, filed on August 22, 1978, Peoples Bank & Trust Company sued Gill to foreclose by executory process on the two described mortgages. The Kings intervened seeking to enjoin further proceedings until questions raised concerning ownership of the mortgaged property and validity of the mortgages could be settled.

The two cases were consolidated for trial purposes. After the trial judge sustained the bank’s exceptions of no cause of action and no right of action, the Louisiana Supreme Court granted writs and in King v. Peoples Bank & Trust Company, 371 So.2d 257 (La.1979) held:

(1) The Kings had deeded their lot to their building contractor, Gill, to secure interim financing for construction of their house; the Kings could not attack the deed as a simulation; the Kings had expressly consented to Gill’s execution of the $35,000 mortgage to secure the bank’s loan; foreclosure on the $35,000 mortgage could proceed in accordance with law.
(2) Through its attorney, the bank knew that when the Kings deeded their lot to Gill the latter executed a counter-letter acknowledging that his vendors remained the true owners of the property; the bank knew that Gill did not have authority to execute the second mortgage, for $85,000, on the property; the $85,000 mortgage was a nullity and the bank was enjoined from foreclosure on it.

The case was remanded to the trial court to permit public sale of the property, determination of the indebtedness of the Kings to Gill, and adjudication of the rights of all parties, including the bank, to proceeds of the sale.

In No. 14,776, filed on June 25, 1979, Gill sued the Kings for the alleged balance owed on the building contract and for attorney fees.

On June 23, 1980, the Kings secured the release of the property in question from foreclosure under the $35,000 mortgage by paying the Caddo Parish sheriff a total of $49,362.85 — including interest, costs and attorney fees.

Nos. 14,775 and 14,776 were tried by jury and No. 14,894 was tried by the judge alone. Judgment was rendered in the consolidated matters as follows:

(1) Rejecting the Kings’ claims against the bank and Gill for damages and attorney fees.
(2) In favor of Gill against the Kings for $60,062.77 due on the building contract, subject to a subrogation in favor of the Kings for the $49,362.85 they had paid the Caddo Parish sheriff to release the foreclosure; for $850 per month rent for occupancy of the newly constructed house by the Kings from August 9, 1978 until repurchase of the property by the Kings; rejecting Gill’s demands against the Kings for attorney fees.
(3) Ordering cancellation of the $35,000 and $85,000 mortgages.
(4) Ordering Gill to convey the property back to the Kings when they paid him the sums due under this judgment.
(5) In favor of the bank and against Gill for amounts due on the two mortgage notes, subject to a credit for the sum of $49,362.85 received from the Kings through the sheriff.
(6) Assessing court costs against the bank, Gill and the Kings in the proportion of Va to each.

The Kings appealed this judgment, asserting as substantial errors that:

(1) Under the counterletter Gill was obligated to deed the property back to the Kings upon demand. Therefore, the trial judge incorrectly construed it to require payment by the Kings to Gill of sums due under their building contract before Gill was required to execute the act of conveyance. Further, the trial judge erred in awarding Gill a judgment against the Kings for rental of their own property.
(2) The trial judge should have awarded them damages and attorney fees from the bank because of wrongful foreclosure under the invalid $85,000 mortgage.
(3) The trial judge erred in failing to find that the papers executed by the Kings, Gill and the bank amounted to the creation of a security interest in the Kings’ property, requiring compliance with the Truth-in-Lending Act.

The bank answered the appeal, contending that (1) the trial judge should have dismissed Kings’ claims against the bank, since the import of the Louisiana Supreme Court decision was to affirm the trial court judgment sustaining the exceptions of no cause of action and no right of action; and (2) the trial judge erred in assessing the bank for any portion of the court costs.

Gill also answered the appeal, arguing that (1) the trial court should have only allowed the Kings credit for $35,000 of the amount paid the sheriff rather than “subro-gation” for $49,362.85; and (2) Gill was entitled to legal interest at the rate of 12% after September 11, 1981 on the sums due him by the Kings.

Since the context facts of this litigation were given in detail in the cited Louisiana Supreme Court opinion, they will not be repeated here.

Legal Effect of the Counterletter

As pointed out in Louis v. Garrison, 64 So.2d 254 (Orl.Ct. of App. 1953), the only mention of counterletters in our Civil Code is found in Article 2239 Our jurisprudence has elaborated upon this by holding that various secret acts which modify or suppress apparent contracts fall within the definition of “counterletter”. Delcambre v. Dubois, 263 So.2d 96 (La.App. 3rd Cir. 1972). For example, the following uses of counter-letters have been countenanced: (1) a security device agreeing to reeonvey property after payment of a loan or the occurring of some other condition; (2) a means of recognizing that the apparent contract is a pure simulation and of no effect between the parties whatever; (3) a recognition that the true owner is someone other than the person named in the apparent contract; or (4) a device for changing the nature of the apparent contract, as by acknowledging that a sale is actually a donation. See Karcher v. Karcher, 138 La. 288, 70 So. 228 (1915); LaFleur v. Guillory, 181 So.2d 323 (La.App. 3rd Cir. 1965); Schwarz v. Friedenburg, 135 So.2d 371 (La.App. 4th Cir. 1961); Haggard v. Rushing, 76 So.2d 52 (La.App. 2d Cir. 1954); Louis v. Garrison, supra.

The counterletter addressed to the Kings, dated December 8, 1977, provides:

“This is to acknowledge that you have this date deeded to me property described as (description omitted). The purpose of this conveyance was to allow me to obtain the necessary interim financing to construct you a residence on the above described property.
“This is to further acknowledge that you are the true owners of said property, and I will reconvey same to you at the time of the closing of the permanent financing loan, or any other time you request. (Emphasis added).
Julius D. Gill”

This counterletter was expressly confect-ed to protect the Kings, by explaining that the property was placed in Gill’s name solely to enable him to secure interim financing for the construction of the Kings’ residence. This procedure was suggested by the bank (supplier of interim financing) because it preferred to deal directly with the building contractor. The question posed for our consideration on appeal is whether, under the counterletter, Gill was obligated to convey the property back to the Kings upon their request without the Kings first having to pay Gill any amount due under the building contract.

The language of the pertinent clause in the counterletter indicates it was contemplated that the property would probably be reconveyed to the Kings when construction of their house was completed by Gill and the Kings were ready to close their long-term loan for permanent financing. At that time, of course, in accordance with the usual practice, the lender would withhold sufficient funds from the loan proceeds to liquidate the interim financing indebtedness, cancel the $35,000 mortgage, take care of any liens that might have been filed, and pay Gill the balance due on the contract price. But, the counterletter then goes on to give the Kings the option of having Gill reconvey the property to them at “any other time you request.”

The language of this last clause is clear and unambiguous, and stipulates no conditions to be met by the Kings prior to exercise of the right to reconveyance of the property. It was obviously designed to protect their “true ownership” of the property in the event of exigent circumstances that might jeopardize their investment, such as financial difficulties on the part of Gill or his failure to properly fulfill his contractual obligations — as the Kings contended had occurred here. The counterletter in no way indicates that the deed to Gill was intended to serve as security for payment of the balance due on the building contract.

We conclude, therefore, that Gill was obligated under the counterletter to reconvey the property to the Kings upon their request when they occupied the dwelling in August 1978, without their having to first pay him the balance of the contract price. Of course, the property would have been reconveyed subject to the $35,000 mortgage which secured interim financing and the holder of that mortgage note would have continued to be protected by this encumbrance upon the property.

For this reason, we find that the trial court erred in rendering judgment in favor of Gill and against the Kings for the rental value of the property to which they should have received record title, and by conditioning reconveyance of the property to the Kings upon their paying Gill the amount due under the judgment. Consequently, the district court judgment will be amended accordingly.

Claim for Damages and Attorney Fees for Wrongful Seizure

As we have previously noted, the Louisiana Supreme Court in King v. Peoples Bank & Trust Company, supra, ruled that the $85,000 mortgage under which the bank sought to foreclose by executory process was null and void because Gill did not have authority to encumber the property with another mortgage (in addition to the $35,-000 one) and enjoined foreclosure under that mortgage. The Kings now seek damages and attorney fees for that wrongful seizure.

A party aggrieved by wrongful seizure is entitled to recover not only the special damages sustained but also general damages for humiliation, embarrassment, inconvenience and mental anguish. Commercial Credit Corp. v. Nolan, 385 So.2d 1246 (La.App. 3rd Cir. 1980); Dawson v. Piazzi, 371 So.2d 283 (La.App. 1st Cir. 1979); Eseat v. National Bank of Commerce, 284 So.2d 832 (La.App. 4th Cir. 1973).

The record does not show that the Kings sustained any special damages as a result of the bank’s seizure under the invalid $85,000 mortgage. As to general damages, we note that the bank’s suit was directed against Gill and not the Kings. There was no reason, then, for the Kings to be embarrassed or humiliated by virtue of this constructive seizure. Second, the bank also foreclosed under the $35,000 mortgage, which the Louisiana Supreme Court in King, supra,.ruled to be valid. We do not glean from the record that the seizure under the invalid mortgage caused the Kings any more mental distress than the valid seizure. Therefore, we agree with the trial court’s rejection of the Kings’ claim for general damages for wrongful seizure under the $85,000 mortgage.

Reversing a line of cases allowing attorney’s fees incurred in enjoining wrongful seizure under executory process, the Louisiana Supreme Court in General Motors Acceptance Corp. v. Meyers, 385 So.2d 245 (La.1980) held:

“Generally, a successful litigant cannot recover attorney’s fees except where authorized by statute or contract (citation omitted). At the present time, there is no statutory authority for the recovery of attorney’s fees incurred to enjoin a wrongful seizure under executory proe-ess... The question is one which properly addresses itself to legislative action and not judicial fiat.”

Obviously, this ruling is dispositive of the Kings’ claim for an award of attorney fees for enjoining the wrongful seizure under the $85,000 mortgage.

Applicability of Truth-in-Lending Act

The Kings argue that the $35,000 mortgage should have been voided by the trial court because the bank did not comply with the Federal Truth-in-Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z.

Pretermitting the question of whether this .issue is now res judicata because of trial court rulings as affirmed by the Louisiana Supreme Court in King, supra, we conclude that the cited statute is inapplicable because Gill, not the Kings, was the bank’s customer in this transaction.

Furthermore, even if the Kings were the bank’s customers, they could not claim rescission of the $35,000 first lien under the Truth-in-Lending act.

Effect of Payment by Kings of Amount Due Under $85,000 Mortgage.

Gill contends that the Kings were paying off their own debt when they remitted the $49,362.85 to the sheriff and that, rather than being subrogated for that amount against Gill, they should simply have received credit for $35,000 on the contract balance owed Gill.

As we have explained, the property in question was transferred to Gill in order that he could secure interim financing under the $35,000 mortgage. The total indebtedness (not limited to $35,000) incurred in connection therewith was Gill’s, for which he was to be reimbursed by the Kings as part of the contract price of their house. The Kings were subrogated to the bank’s claim against Gill when they paid off the balance owed on the $35,000 mortgage, together with costs and attorney fees. However, the net effect of this subrogation was to give the Kings an offset against the amount they owed Gill on the building contract. Consequently, the judgment in favor of Gill against the Kings should be for $60,062.77, less a credit of $49,362.85 paid by the Kings on June 23, 1980.

Assessment of Court Costs

The bank complains that the trial judge erred in assessing it with one-third of the court costs, since no relief was granted on behalf of the Kings against the bank. Our review of the record does not convince us that the trial judge abused his broad discretion in his assessment of court costs. La.C.C.P. Art. 1920. Incidental to this, we do not agree with the bank’s argument that it was eliminated as a party to this litigation by the Supreme Court’s holding in King, supra. As pointed out, the case was remanded for adjudication of the rights of all parties, including the bank, to the proceeds of the anticipated public sale of the mortgaged property.

Conclusion

For the reasons set forth, we amend the trial court judgment in the following respects:

Paragraph 3 is amended to provide “that there be judgment in favor of Julius D. Gill and against Jackie Ray King and Cecile Ford King, in solido, in the amount of $60,-062.77 with interest at the rate of 7% per annum from July 1, 1978 until September 12, 1980, and 10% per annum thereafter, subject to a credit in favor of the Kings for $49,362.85 paid on June 23, 1980.”

Paragraphs 4 and 5 are deleted.

Paragraph 6 is amended to provide “that there be judgment in favor of Jackie Ray King and Cecile Ford King, and against Julius D. Gill, rejecting Julius D. Gill’s demands for attorney fees and rentals for their occupancy of the dwelling involved in these matters.”

Paragraph 7 is amended to provide “that there be judgment herein in favor of Jackie Ray King and Cecile Ford King and against Julius D. Gill ordering Julius D. Gill to execute a deed, with the customary warranty provisions and clauses, conveying to the Kings, in accordance with his obligation under the counterletter and for such other consideration as he may have received, the following described property:

Lot 88, North Park Estates, Unit No. 5, as per plat thereof recorded in Book 1400, at pages 451 — 453 of the records of Caddo Parish, La., with all buildings and improvements thereon.

As amended, the judgment of the trial court in these consolidated cases is affirmed. Costs of appeal are assessed one-half to the Kings and one-half to Gill.

AMENDED AND AFFIRMED.

      . This article provides in pertinent part: “Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others.. . . ”

      . Regulation Z, 12 C.F.R. 226.9(a) reads in part:
      (A) General rule. Except as otherwise provided in this section, in the case of any credit transaction in which a security interest is or will be retained or acquired in any real property which is used or is expected to be used as the principal residence of the customer, the customer shall have the right to rescind that transaction until midnight of the third business day, following the date of consummation of that transaction or the date of delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor by mail, telegram, or other writing of his intention to do so....
      “Customer” is defined in 12 C.F.R. 226.2(u) as:
      (1) a cardholder or (2) a natural person to whom consumer credit is offered or to whom it is or will be extended, and includes a co-maker, endorser, guarantor, or surety for such natural person who is or may be obligated to repay the extension of consumer credit.,

      . 12 C.F.R. 226.9(g) reads as follows:
      (g) Exception to the general rule. This section (rescission) does not apply to:
      (1) The creation, retention, or assumption of a first lien or equivalent security interest to finance the acquisition of a dwelling in which the customer resides or expects to reside.
      (2) A security interest which is a first lien retained or acquired by a creditor in connection with the financing of the initial construction of the residence of the customer, or in connection with a loan committed prior to completion of the construction of that residence to satisfy that construction loan and provide permanent financing of that residence, whether or not the customer previously owned the land on which that residence is to be constructed. (Emphasis ours)


author: HALL, Judge.

text:
    Donald Mouton QUINN, III, Plaintiff-Appellee, v. Judith Lynn Fletcher QUINN, Defendant-Appellant.
    No. 14780.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.

    Writs Denied June 4, 1982.

      Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for defendant-appellant.
    McLeod, Verlander & Dollar by Robert P. McLeod and David E. Verlander, III, Monroe, for plaintiff-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.

       SEXTON, J., dissents from refusal to grant rehearing on behalf of Plaintiff-Appellee.
      FRED W. JONES, Jr., J., dissents from refusal to grant rehearing on behalf of Plaintiff-Appel-lee and on behalf of Defendant-Appellant.

   HALL, Judge.

Plaintiff, Dr. Donald M. Quinn, III, filed suit in September 1980 against defendant, Judith Lynn Fletcher Quinn, seeking a separation on the grounds of cruel treatment and custody of their five-year-old son, Zachary. Temporary custody was awarded to Dr. Quinn by ex parte order. The defendant reconvened seeking a separation on the grounds of constructive abandonment and also seeking custody of the child. After a 17-day trial which took place over a period of several months and pursuant to written reasons for judgment, judgment was rendered granting a separation on the basis of mutual fault, awarding custody of the child to plaintiff and awarding defendant alimony pendente lite of $1,000 per month beginning April 1, 1981.

Defendant appealed contending that the trial court erred in failing to award her a separation on the grounds of abandonment, in failing to award custody of the child to her, in failing to award an adequate amount of alimony pendente lite and in failing to make the alimony award retroactive to the date the reconventional demand was filed. Plaintiff answered the appeal contending that the trial court erred in failing to award him a separation on the grounds of cruel treatment.

For reasons expressed in this opinion we affirm the judgment awarding custody to the plaintiff father. We set aside that part of the judgment awarding a separation on the grounds of mutual fault and render judgment awarding defendant a separation on the grounds of abandonment. We affirm the amount of the alimony pendente lite award, but modify the judgment to make the award effective from the date of filing the reconventional demand.

Background Facts

After going together for several years during college and while plaintiff served a tour of duty in the service, plaintiff and defendant were married in the summer of 1971. Plaintiff had grown up in Bastrop in north Louisiana where his father was an established dentist and defendant had grown up in Franklin in south Louisiana. Both attended and graduated from Northeast in Monroe, plaintiff majoring in psychology and defendant obtaining a degree in education. The couple moved to Baton Rouge in the fall of 1971 so that plaintiff could attend law school at LSU. Plaintiff attended law school for one semester and then obtained employment in Baton Rouge. Defendant taught school in the Baton Rouge area until the couple moved to Bas-trop in May 1973. In the fall of 1974 plaintiff and defendant moved-to New Orleans so that plaintiff could attend dental school. Their son Zach was born in New Orleans in February, 1975. Except for one semester surrounding the time Zach was born defendant taught school while they were in New Orleans. As graduation from dental school approached the couple considered a number of possibilities of where they would locate. Although defendant was apprehensive about moving to the small town of Bastrop in close proximity to plaintiff’s parents, a mutual decision was made to move back to Bastrop so that plaintiff could go into his father’s dental practice. They moved back in June 1978 and lived in a house next door to the dental office and within a few doors of plaintiff’s parents, where they continued to live until their separation in September 1980.

While plaintiff and defendant were living in New Orleans plaintiff began participating in a psychotherapy group organized by a friend and defendant also participated in some therapy sessions at that time. In January 1978 while still in New Orleans defendant began counseling and therapy with a transactional analysis therapist and continued to see the therapist for one hour a week until June when they moved back to Bastrop.

After moving back to Bastrop defendant resumed her therapy sessions, traveling to New Orleans once in September, once in October, and periodically in November and December of 1978. Defendant stopped going to New Orleans for therapy between December 1978 and October 1979 when she again began participating in her therapy group on a regular basis until the parties separated. She attended therapy sessions in New Orleans, usually on the weekends, at least once a month and on three occasions attended week-long therapy sessions in Mississippi and Florida.

Plaintiff thoroughly disapproved of his wife’s participation in the therapy sessions with what he regarded as incompetent therapists and which required her being away from home frequently. His suggestion that defendant obtain therapy closer to home was rejected by defendant. The marital relationship between plaintiff and defendant rapidly deteriorated. Obviously anticipating the breakup of their marriage, plaintiff talked to a lawyer, employed private investigators to investigate defendant’s activities in connection with the group therapy sessions, and began to make photocopies of defendant’s private diary she kept in connection with her therapy and of a letter defendant wrote to a male member of the therapy group. The diary and the letter caused plaintiff concern because of their sexual overtones and the indication of a sexual involvement by defendant with the man to whom she wrote.

In August 1980 defendant, over plaintiff’s protest, went to a therapy session in Florida with a Shreveport doctor, plaintiff’s cousin, and his wife. When the bus on which defendant was returning home a week or so later stopped at the bus station in Monroe, defendant was served by a deputy sheriff with the petition for separation and custody filed by plaintiff in this case. Plaintiff was at the bus station, put defendant’s luggage in the family Volkswagen, gave defendant $100, and told her she was no longer welcome at home and could not return there. Defendant went to the home of the Shreveport doctor and his wife, where she stayed through the trial of this matter which extended over a period of several months.

The Separation Judgment

The trial court found that the action of plaintiff in forcing defendant to leave the matrimonial domicile amounted to “forced” or constructive abandonment. The court further found, however, that defendant “was not free from fault in her mannerisms and in her activity with the therapy of which her husband disapproved.” The court held that the parties were entitled to a separation on the basis of their mutual fault which caused the dissolution of the marital relationship.

Both parties urge on appeal that the findings of the trial court are legally inconsistent. If defendant was guilty of fault giving plaintiff lawful cause to ban her from the marital home, then plaintiff’s actions could not amount to constructive abandonment. On the other hand, if defendant’s conduct did not amount to cruel treatment giving plaintiff grounds for a separation on that basis, then plaintiff’s actions did amount to constructive abandonment and defendant is entitled to the separation.

A separation may be granted although both spouses are mutually at fault in causing the separation. LSA-C.C. Art. 141. Mutual fault is conduct which would provide each of the parties with an independent ground for separation under LSA-C.C. Art. 138. Adams v. Adams, 389 So.2d 381 (La.1980); Ebey v. Ebey, 403 So.2d 790 (La.App.2d Cir. 1981); Miller v. Miller, 398 So.2d 1162 (La.App.2d Cir. 1981).

A separation may be granted on grounds of abandonment if it is established that one of the parties withdrew from the marital domicile without lawful cause and constantly refused to return. LSA-C.C. Art. 143; Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980). Similarly, barring a spouse from the matrimonial domicile without lawful cause constitutes constructive abandonment. Kriger v. Kriger, 397 So.2d 21 (La.App.2d Cir. 1981); Gipson v. Gipson, 379 So.2d 1171 (La.App.2d Cir. 1980), writ denied 383 So.2d 799 (La.1980); Burnett v. Burnett, 349 So.2d 488 (La.App.3d Cir. 1977). Lawful cause justifying withdrawal from or barring the other spouse from the common dwelling is substantially equivalent to a cause giving the withdrawing spouse grounds for a separation under LSA-C.C. Art. 138. Mere friction, dissatisfaction or incompatibility, however intense, are not enough to constitute lawful cause. See: Lewis v. Lewis, 345 So.2d 1010 (La.App.2d Cir. 1977); Hatch v. Hatch, 335 So.2d 707 (La.App.2d Cir. 1976), writ denied 338 So.2d 113 (La.1976); Burnett v. Burnett, 324 So.2d 622 (La.App.2d Cir. 1975); Barron v. Barron, 279 So.2d 208 (La.App.2d Cir. 1973). But compare: Mahmud v. Mahmud, 384 So.2d 823 (La.App. 4th Cir. 1980); Anderson v. Anderson, 379 So.2d 795 (La.App. 4th Cir. 1980); Levine v. Levine, 373 So.2d 1380 (La.App. 4th Cir. 1979); Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir. 1979); Sykes v. Sykes, 321 So.2d 805 (La.App. 4th Cir. 1975).

Plaintiff argues that he is entitled to a separation on the grounds of cruel treatment because of defendant’s absence from home on numerous occasions to attend the therapy sessions, because of the defendant’s changes in behavior in a number of respects such as withdrawing from social relationships with their friends, withdrawing from a normal marital sexual relationship, keeping dolls and toys for herself around the house, allowing the house to be messy and failing to provide adequate meals for plaintiff and the child, and in having a sexual affair with the man to whom she wrote the letter and perhaps with other men in the therapy group.

Defendant argues that she is entitled to a separation on the grounds of abandonment because she gave plaintiff no lawful cause for ejecting her from the home. Defendant contends she participated in the therapy sessions because of her depression and apprehension and was making an effort to improve and cope with her life situation and with her husband’s seemingly hostile attitude toward her and their child. Defendant denies that her behavior was in any way bizarre or that she was not a good housekeeper or in any way neglected her husband or the child. Defendant emphatically denies any sexual involvement with the man to whom she wrote the letter or any sexual overtones in the therapy sessions.

There was evidence and testimony supporting plaintiff’s contentions and there was also evidence and testimony supporting the defendant’s position.

The evidence is not at all convincing that defendant neglected her home, her husband, or her child to any significant degree. While plaintiff understandably objected to defendant’s absences from home, the absences were for what she perceived to be good reasons, in the best interest of her and her family, and were not that extensive. The dolls or toys were part of the regression or reparenting aspects of the transactional analysis therapy. Defendant’s suggestion that there would be times when she did not want to have sex during a certain phase of her therapy was not a permanent or extended rejection of normal marital sexual activity. In fact, at the time this matter came up, plaintiff had become dissatisfied with sleeping with the defendant and it was plaintiff who decided to start sleeping in another room.

Tie diary and letter which plaintiff discovered and copied do contain language that is suggestive of sexual overtones in the therapy sessions and sexual involvement with the man to whom the letter was written. Plaintiff’s concern after reading these items is understandable. Plaintiff was also probably getting disturbing feedback from two friends in whose wives defendant had confided.

The evidence is convincing, however, that there were, in fact, no sexual overtones to the therapy sessions and no sexual involvement by defendant with the other man. Many of the terms used in transactional analysis could have sexual connotations— stroking, touching, sexualizing, fantasizing. The therapy involves regression to childhood stages and reparenting, as well as the experiencing and expressing of emotions and fantasy thoughts connected therewith. The writings giving rise to the allegations of sexual misconduct were satisfactorily explained and no sexual misconduct on the part of defendant was established.

The conduct and activities of the defendant, although disapproved of by the plaintiff with some reason from his point of view, did not rise to the level of or amount to cruel treatment such as would render the continuation of their life together insupportable. Since defendant’s conduct was not substantially equivalent to that which would give plaintiff legal grounds for a separation, he was not justified in forcing her to leave the family home and his action in doing so amounted to constructive abandonment.

Accordingly, the judgment awarding a separation on the grounds of mutual fault will be set aside and judgment will be rendered granting defendant a separation from the plaintiff on the grounds of abandonment.

The Custody Judgment

On the issue of custody the trial court made the following findings of fact:

“The Court will now address itself to the issue of custody of the minor child, Zach. Throughout the lengthy trial of approximately 16 to 17 trial days, attempts were made by both counsel to put on trial ‘the therapy’ Mrs. Quinn was undergoing. Much to do was made about the type of therapy, what it involved, who it'involved, how beneficial it was, the training which the persons had in administering the therapy and the Court, frankly, does not feel that it must rule on ‘the therapy’ or put ‘the therapy’ on trial. The Court had before it two parents who obviously love dearly their son, Zach. Both parents actively desire the custody of this child and the Court spent the better part of its 16- to 17-odd trial days examining and viewing and evaluating independently the two persons seeking custody.

“The Court finds that Mrs. Quinn is a well-educated, attractive, well-mannered individual who is certainly capable of raising her son, loving her son and providing her son with the necessities of life. On the other hand the Court finds that Dr. Quinn is a healthy, well-mannered, qualified dentist enjoying a successful practice in More-house Parish. There does not exist any question in the Court’s mind that both of these parties would be able to financially support and care for the minor child involved in this litigation. Much was made to do about trying to evaluate and analyze Mrs. Quinn as to different tests and scores she had as a result of an evaluation by Dr. Goebel. The Court felt that it understood Dr. Goebel’s evaluation and analysis of Mrs. Quinn and the Court also understands that Dr. Thrasher disagrees somewhat with not the evaluation of Mrs. Quinn but the actual computation and analysis of the test scores. However, again the Court observed these persons in various situations, some stressful, some happy and feels that it made an accurate evaluation of the individuals who seek the custody of this minor child.

“There was evidence introduced that Judy Quinn was a poor housekeeper and poor cook and there was evidence introduced that Judy Quinn was a good housekeeper and a good cook. As stated earlier, the Court feels that Judy Quinn, if given custody, would provide adequate meals, clothing, shelter and a basic environment that would not be physically detrimental to her son. There was testimony that if Dr. Quinn receives custody that the child would basically be raised by his grandparents in lieu of Dr. Quinn. However, the Court feels this would not be the case. The Court will note that it did not talk with the minor or allow any expressions of the minor’s preference to be offered in open court; however, this was done through an offer of proof which an appellate court may or may not choose to review.

“Mrs. Quinn, when questioned about where she intends to reside, indicated that it would probably be Shreveport, Lafayette or New Orleans. Dr. Quinn, when questioned about where he would live, indicated Morehouse Parish. The Court must look to the traumatic events which have taken place in this young child’s life and must attempt at this point to give some stability to this young child’s life in order that it will not be considered ‘a product of a broken home’ which the Court finds so often in dealing with the juvenile court. After reviewing the entire facts, considering the entire evidence, the persons who spoke in behalf of Mrs. Quinn, persons who spoke in behalf of Dr. Quinn, and analysis of the situation by this Court, this trier of fact feels that the minor child, Zachary Quinn, needs would best be suited by being raised by his father in Morehouse Parish where there are definite roots and family ties. The Court feels this child desperately needs a stable, familiar environment at this stage of his life. The Court will allow liberal visitations to the mother. ...”

On appeal the defendant emphasizes the recognized fact that in many, if not most, cases it is in the best interest of a child of tender years to be in the custody of the child’s mother where the mother has been the primary nurturing parent and a close bond exists between the child and the mother. Thornton v. Thornton, 377 So.2d 417 (La.App.2d Cir. 1979); Nale v. Nale, 409 So.2d 1299 (La.App.2d Cir. 1982). The plaintiff emphasizes the recognized fact that it is often in the best interest of the child to remain in a secure environment to which the child is accustomed. Hegan v. Hegan, 367 So.2d 147 (La.App.2d Cir. 1979). Plaintiff also emphasizes the important rule that in a custody case the trial court’s decision is entitled to great weight and should not be set aside in the absence of a clear abuse of discretion. See: Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Jowers v. Jowers, 393 So.2d 790 (La.App.2d Cir. 1981).

The sole consideration in determining custody is the best interest of the child. LSA-C.C. Art. 157.

In this case the trial court’s findings of fact in regard to the fitness and ability of both parents to adequately care for the child are amply supported by the evidence. The trial court’s decision that it is in the best interest of the child for the father to have custody is supported by the evidence and sound reasons.

Some of the best interest factors tending to favor custody in the mother and weighing against the father’s custody are:

(1) The defendant mother has been the primary nurturing parent of the five-year-old child since the child’s birth and a close bond exists between the mother and the child. Even according to plaintiff and his relatives the bond is unusually close, even to a fault according to plaintiff’s witnesses;
(2) Defendant’s present insecure situation and unknown future were created by plaintiff’s election to bar her from their home and to terminate the marital relationship without lawful cause; and
(3) A certain degree of lack of compassion and understanding is demonstrated by plaintiff in his attitude toward defendant and her therapy and his decision to terminate the marriage.

Some of the best interest factors favoring the father’s custody and weighing against custody in the mother are:

(1) Plaintiff has been and is a loving, attentive father, more so than in the usual family situation, and has provided nurturing care for the child;
(2) If the father is given custody the child will continue to reside in the home in surroundings where he was living at th' time of the separation and to which he is accustomed. The child will not be moved to another locale;
(3) The child’s paternal grandparents live nearby and are available to assist in providing love, care and attention to the child;
(4) The father’s work situation is such that he can get away during the noon hour, in the early afternoon, and at other times in order to provide attention to the child and the child’s needs, more than is the usual situation for the working father;
(5) Some degree of instability on the part of defendant at this stage in her life is evidenced by her failure to cope with and adjust to life in Bastrop and her feeling of need for psychotherapy;
(6) There is a lack of plans or direction by the mother as to where she will live and under what circumstances she would care for her son. This lack of plans was partially explained by the fact that defendant was uncertain as to custody, alimony and child support, but at the conclusion of several months of litigation the mother still had no definite plans in the event she was awarded custody;
(7) With the father the child would be in a religious, ehurchgoing environment. Defendant did not attend church with the father and child while they lived together; and
(8) The environment in which the child would live with his father is certain, safe, and secure whereas the environment in which the child would live with his mother is somewhat speculative.

On balance, the trial court’s discretion was soundly exercised in awarding custody of the five-year-old son to the plaintiff father in this case.

The Alimony Judgment

In reasons for judgment handed down April 20, 1981, the trial court “found that Mrs. Quinn was unemployed, although a trained and qualified and employable person” and made “an award of alimony pen-dente lite in the amount of $1,000 per month effective April 1, 1981”. The reasons for judgment contain no findings of fact in regard to the amount of alimony and articulate no reasons why the award was not made effective as of judicial demand in September 1980. Defendant argues on appeal that the amount awarded is insufficient and that the award should have been made effective as of the date of judicial demand.

Defendant prayed for alimony and child support in the amount of $1,500. Defendant testified at trial as to her anticipated expenses if she were to rent an apartment and the like, but her actual expenses through the time of trial were less because she was living with her friends in Shreveport. Plaintiff is well able to pay the amount of the award or more. All factors considered, the amount of the award is on the low side but does not amount to abuse of the trial court’s discretion as to amount.

The alimony issue was tried along with the custody and separation issues, resulting in a delay of several months from the time of judicial demand until decision. Generally, alimony pendente lite is set from date of judicial demand. Nolte v. Nolte, 258 So.2d 118 (La.App.2d Cir. 1972), writ denied 261 La. 538, 260 So.2d 321 (1972). However, the court does have discretion to fix the effective date of alimony pendente lite at a later date provided the action is fair and reasonable under the circumstances presented and if reasons are presented leading to a conclusion that it would be impractical and inequitable to commence accrual of alimony at the retroactive date of judicial demand. Cumpton v. Cumpton, 283 So.2d 846 (La.App.2d Cir. 1973).

In this case it was established that defendant was without income, except for some amounts given to her by plaintiff, from the time of the separation through the trial of the matter. No reasons were presented why the alimony award should not have been effective from judicial demand and it was not demonstrated that there would be any unfairness or hardship on the plaintiff in making the award retroactive to judicial demand. The record does not reveal any sound reason for commencing alimony at a later date. Accordingly, we will amend the judgment to make the award of alimony pendente lite effective October 1, 1980.

Decree

For the reasons assigned the judgment awarding a separation on the grounds of mutual fault is set aside and judgment is hereby rendered in favor of defendant, Judith Lynn Fletcher Quinn, and against plaintiff, Donald Mouton Quinn, awarding a separation between the parties on the grounds of plaintiff’s constructive abandonment of the defendant. The judgment is further amended to make the effective date of the award of alimony pendente lite October 1, 1980 rather than April 1, 1981, subject to a credit for any amounts paid by plaintiff to defendant after October 1,1980. The judgment of the district court is otherwise affirmed. Costs of the appeal are assessed to the community.


text:
    Marcia Slagle GUNDERSON, Plaintiff-Appellee, v. LIBBEY GLASS and Administrator of the Department of Employment Security, Defendants-Appellant-Appellee.
    No. 14781.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Hargrove, Guyton, Ramey and Barlow by Glenn L. Langley, Shreveport, for defendant-appellant, Owens-Illinois, Inc., d/b/a Libbey Glass.
    Sam N. Gregorio, A Professional Law Corp. by James G. Cowles, Jr., Shreveport, for plaintiff-appellee, Marcia Slagle Gun-derson.
    Willie D. Maynor, Baton Rouge, for defendant-appellee, Administrator of the Office of Employment Sec.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Defendant employer appeals a district court judgment in favor of claimant employee reversing a denial of unemployment compensation benefits by the Board of Review for the Louisiana Office of Employment Security. Claimant answered, asking for damages for frivolous appeal. We affirm the judgment of the district court.

The claimant, Marcia Gunderson, worked for Libbey Glass from April 28, 1979 until she was fired for excessive absenteeism on September 13, 1980. Upon receiving her application, the Office of Employment Security made an initial determination that claimant was entitled to unemployment benefits. The employer appealed to the Appeals Referee for the Office of Employment Security, who held a hearing at which the employer’s assistant industrial relations director and the claimant testified. Thereafter the Appeals Referee made the following pertinent finding of facts:

“During 1980 claimant compiled what the employer considered an unsatisfactory attendance record that eventually led to her discharge. All employees were required to call in no later than 30 minutes before the beginning of their shift to report an absence. In January, 1980 claimant was out sick two days and properly called in. She was absent three additional days in February due to illness and also called in. She was given a written warning that she was having an excessive number of absences at that time. Later in February she was again absent for a three day period. The second day of that absence she did not call in until five minutes after her shift started, which was 35 minutes later than allowed to call. This was considered an unexcused absence. As a result, she was given a one day disciplinary lay off upon her return in early March. In April she was late to work one day when she had an accident on the way to work. She called in sick on 4-4 and 4-21-80. On 4-24-80 she was given a disciplinary lay off of three days because of her continued absenteeism. On 5-13-80 she was returning from her honeymoon and her car broke down in East Texas. She called in and was allowed to take one day of her vacation. The next day she still had not gotten her car repaired in order to get to work and called in and asked for another day of vacation but this was denied and counted as an unexcused absence. On 6-5-80 she left work early one day sick. On 6-12-80 and 6-13-80 she called in sick with a cold. On 7-14-80 she was due at work at 11:00 p. m. when her water bed broke. She called in saying she would be about an hour late. Her husband called back about 10:55 p. m. saying claimant would not be in at all that night. On 8-14-80 she called in sick and again on 9-11-80 and 9-12-80. That time she had a cold. Upon her return she was suspended and after reviewing her file she was terminated for her overall attendance record.”

The Appeals Referee then concluded that “although most of her absences were for reasons beyond her control and with proper notice to the company, the facts show some of them were not.” Consequently, the referee held that claimant was disqualified for unemployment compensation benefits because her discharge was for misconduct connected with her employment. The Board of Review for the Office of Employment Security affirmed the referee’s ruling.

Claimant petitioned for judicial review of the decision by the Board of Review. The employer contested this appeal, but the Administrator of the Office of Employment Security answered and joined claimant in requesting that the ruling by the Board of Review be reversed.

In written reasons given for reversing the Board of Review the district court stated:

“It is the opinion of the court that the facts shown in the record of these proceedings do not support a finding of misconduct on the part of the claimant. There is no evidence to support a conclusion that claimant had an intent to do anything wrong. Instead, the record establishes that her absences, although excessive, were beyond her control.”

Appellant-employer contends the trial judge erred in finding that the claimant-employee’s excessive absenteeism did not constitute misconduct connected with her employment.

One basis for disqualifying an individual from receiving unemployment compensation benefits is a finding that “he has been discharged for misconduct connected with his employment.” La.R.S. 23:1601(2).

Our jurisprudence has defined “misconduct” under the cited statute as “an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules.” Gastinell v. Lockwood, 393 So.2d 907 (La.App. 4th Cir. 1981); Pilgram Manor Nursing Home, Inc. v. Gerace, 337 So.2d 660 (La.App. 3rd Cir. 1976); Atkins v. Doyal, 274 So.2d 438 (La.App. 1st Cir. 1973). Further, as pointed out in Banks v. Adm. of Dept. of Employment, 393 So.2d 696 (La.1981), “the word ‘misconduct’ in LSA — R.S. 23:1601 is used to connote intentional wrongdoing . . . Thus, an employee can be unsatisfactory to the employer without being guilty of disqualifying misconduct. An intent to do wrong must be present.”

The employer has the burden of establishing the disqualifying misconduct of the employee by a preponderance of the evidence. Ealy v. Sumrall, 401 So.2d 520 (La.App. 2d Cir. 1981); Caldwell v. Gerace, 378 So.2d 1045 (La.App. 2d Cir. 1979).

La.R.S. 23:1634 limits the scope of review in cases of this nature to (1) a determination of whether the findings of fact by the Board of Review are supported by sufficient evidence and, if so, (2) whether the decision of the Board of Review is correct as a matter of law.

There is no question but that the evidence in the record supports the finding that the claimant was guilty of excessive absenteeism. The central issue on appeal is whether that amounted to disqualifying misconduct under the law.

Absence from work without sufficient reason, particularly in the face of warnings by the employer, may amount to willful misconduct so as to preclude an employee discharged therefor from obtaining unemployment benefits. A chronic absence of the employee from work without notice and without permission shows a willful disregard of the employer’s interests amounting to misconduct. Goff v. Adm. of Div. of Employment Security, 157 So.2d 268 (La.App. 3rd Cir. 1963).

In Gastinell v. Lockwood, supra, the court affirmed a Board of Review determination that a series of employee absences, including eight excused absences and twelve unexcused absences over a seven month period, constituted disqualifying misconduct. Likewise, in White v. Gerace, 372 So.2d 756 (La.App. 4th Cir. 1979), ten unexcused and twenty-seven absences for alleged personal illness during nine months of employment were classified as misconduct connected with the employment.

The claimant in this case was not discharged for failure to notify her employer of anticipated absences, although the record indicates that she usually gave the required advance notice. The reason given for her termination was excessive absenteeism. The Appeals Referee conceded that “reasons beyond her control” dictated most of those absences. He did not attempt to isolate those few absences that were unexcused, as we are unable to do by our review of the record. Consequently, we cannot say that any of the absences were for frivolous or capricious reasons.

While this employer was fully justified in viewing the series of absences as excessive and in terminating the claimant for that reason, this does not result in an automatic classification of the excessive absenteeism as disqualifying misconduct. In fact, since there was no evidence of a willful or wanton disregard by the employee of the employer’s interest, we agree with the trial judge that the excessive absenteeism did not constitute misconduct under La.R.S. 23:1601. Accordingly, the judgment of the district court is affirmed, at appellant’s cost.

Damages for frivolous appeal, as requested by appellee, are awarded under La.C.C.P. Art. 2164 only when it clearly appears that the appeal was taken solely for the purpose of delay or that counsel for the appellant does not seriously believe in his legal position. Goad v. May, 376 So.2d 340 (La.App. 3rd Cir. 1979); Frank & Co., Inc. v. Devillier’s Foodliner, Inc., 365 So.2d 501 (La.App. 4th Cir. 1978). There was no evidence that this appeal was taken merely for delay purposes, nor was there any reason to believe that appellant’s counsel was insincere in his legal argument — particularly in view of the fact that both the Appeals Referee and the Board of Review had taken the same position. Therefore, we reject the demand for damages for frivolous appeal.

AFFIRMED.


author: MARVIN, Judge.

text:
    Robert COLLINS, Plaintiff-Appellee, v. Frank WRIGHT and Barry Tift, Defendants-Appellants.
    No. 14782.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Kennedy, Goodman & Donovan by John Y. Kennedy, Shreveport, for defendants-appellants.
    Harold D. Vaught, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN, and JASPER E. JONES, JJ.
   MARVIN, Judge.

The defendant-owners of an automobile repair shop appeal a judgment in favor of a plaintiff-customer for damages arising out of the theft of the customer’s automobile from the shop.

The trial court found that defendants were a compensated depositary (or bailee) under CC 2937-2938 and had not diligently preserved or protected the deposited automobile against theft. We affirm.

Defendants contend that under the circumstances of this case, a depositary relationship, if existing at all, was not in effect when the automobile was stolen, that an express disclaimer signed by plaintiff relieved defendants of responsibility, and alternatively, that defendants must be found to have fulfilled their duty of diligence owed to the customer.

Plaintiff delivered his automobile to defendants for repairs on September 26, 1980, and, at defendants’ request, signed a “work order” containing this provision:

“I hereby authorize the repair work to be done along with the necessary materials. You and your employees may operate the above vehicle for the purposes of testing, inspection, or delivery at my risk. An express mechanic’s lien is acknowledged on the above vehicle to secure the amount of repairs thereto. It is also understood that you will not be held responsible for loss or damage to cars or articles left in cars in case of fire, theft or any other cause beyond your control.”

Defendants explained that it was their routine procedure (or customary practice) to protect against theft by placing the keys of customer automobiles in a bottom desk drawer without any identification so that persons visiting the premises would not know what key went to what automobile even if a visitor saw the keys. When the repairs to plaintiff’s automobile were completed on September 30, defendants did not follow this practice, but placed the key on top of the desk with the work order clearly identifying the automobile to which the key belonged. Defendants thought that plaintiff, who had telephoned and requested defendants to hurry the repair, would promptly pick up his automobile.

About 2:30 p. m. on September 30, defendants discovered that an unknown person had taken plaintiff’s key from the desktop and had left in its place a similar key. Defendants notified the police and the plaintiff of this. Defendants said that plaintiff informed them that he would get a spare key and either pick up the car or allow defendants to move the car from the lot into the shop building. Plaintiff said he told defendants that he would “attempt” to do this. Plaintiff was unable to contact his wife who had the extra key. He was at work and could only travel by public transportation after working hours. When plaintiff went by the repair shop on a public bus after 6:00 p. m. he saw no sign of activity and thought that the shop had closed at 6:00 p. m. Defendants, however, were inside the building. Plaintiff had no telephone at his apartment and there was no further communication between defendants and plaintiff.

Before leaving their business premises at approximately 8:00 p. m., defendants unsuccessfully attempted to open plaintiff’s locked car. The police confronted the defendant who was attempting to get into the car. Eventually, defendants succeeded in removing the rotor from the distributor of the automobile in an attempt to “disable” the car and prevent theft. Defendants testified, however, that they suspected that the key was stolen by another customer who had sold defendants a used motor on one or more occasions and who probably had some mechanical knowledge of automobiles. Defendants acknowledged that removal of the rotor from the distributor of an automobile would not stop a thief with mechanical expertise.

After defendants left the shop, plaintiff’s automobile was in fact stolen later that night from an unfenced lot adjacent to the shop. The automobile was recovered about a month later, stripped of its motor and other items. The judgment below awarded plaintiff $877 for his losses and damages.

The owner’s delivery of an automobile to a repairman with the implied or express promise to pay for the repairs to be made constitutes a compensated deposit. Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La.1977). The depositary’s duty of diligently preserving the property is rigorously enforced against a compensated depositary. La. CC 2937, 2938. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973). See also Harper v. Brown & Root, Inc., 391 So.2d 1170 (La.1980); La. CC 2926.

The trial court found that the disclaimer on the work order was nothing more than a declaration of the duty legally imposed on a depositary and that plaintiff’s loss was not beyond the control of the depositary. We find no error. Mintz v. Audubon Ins. Co., 140 So.2d 809 (La.App. 4th Cir. 1962). See United States F. & G. Co. v. Dixie Parking Serv., Inc., 262 La. 45, 262 So.2d 365 (1972); Grabert v. James C. Noel Flying Service, Inc., 360 So.2d 1363 (La.App. 3d Cir. 1978). Compare Johnson v. Allright New Orleans, Inc., 357 So.2d 1210 (La.App. 4th Cir. 1978).

Defendants admittedly were well aware that the key was stolen to facilitate the theft of the automobile. See Saunders Leasing System v. Neidhardt, 381 So.2d 979 (La.App. 4th Cir. 1980). Defendants admittedly were aware that the removal of the rotor would not stop a thief from stealing the car, if the thief had any mechanical knowledge of automobiles, as defendants suspected.

The depositary’s duty clearly extends to damage or loss that is reasonably foreseeable. Grabert, supra. There the depositor of an airplane in a hangar left the key in the ignition of the airplane with knowledge that the hangar would be unguarded and accessible to almost anyone. Grabert held that such circumstances did not relieve the depositary of its duty. Once the depositary relationship is shown, it is presumed that the loss resulted from the depositary’s lack of care, and the depositary has the burden of exonerating himself. Harper, supra.

The action against a depositary is in contract. Even should we agree that either or both assumption of the risk and contributory negligence is a defense to the action, we cannot agree that plaintiff’s failure to retrieve the car after he was notified that the key was stolen avails defendants in any respect. See Grabert, supra. The issue is not judged by what plaintiff might have done after being notified that his car was likely to be stolen, but by what the depositary defendants did or failed to do when plaintiff did not remove the car before the workday ended. Plaintiff’s version, which was obviously accepted by the trial court, is summarized in this statement of plaintiff:

“He [defendant] told me that there was a young man in there that was selling him a motor and he suspected that young man of taking the key. He also asked me if I was going to come and pick the car up and I told him that I would try if I get off of work in time, and he said well if you don’t come pick it up I’m going to take the rotary off and that would prevent the car from being stolen.”

Under these circumstances, we find no error. For reasons assigned below and summarized here, and at appellants’ cost, judgment is AFFIRMED.