author: NORRIS, Judge.

text:
    STANDARD LIFE & ACCIDENT INSURANCE COMPANY, Plaintiff-in-Concursus and Appellee, v. Doris M. PYLANT, Defendant-in-Concursus and Appellant, and Irene P. Jordan, Defendant-in-Concursus and Appellee.
    No. 15079-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Writ Denied Jan. 28, 1983.
    Hudson, Potts & Bernstein by Gordon L. James, Monroe, for plaintiff-in concursus and appellee.
    Travis M. Holley, Bastrop, for defendant-in concursus and appellant.

      Rankin, Yeldell, Herring & Katz by Charles E. Herring, Bastrop, for defendant-in concursus and appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

In this concursus proceeding, Doris M. Pylant appeals a judgment rejecting her claim as the beneficiary of two life insurance policies insuring the life of her deceased husband from whom she was legally separated. We affirm.

Because Doris M. Pylant and Irene P. Jordan, the mother of the deceased, had both filed claims as alleged beneficiaries under two insurance policies issued by Standard Life and Accident Insurance Company on the life of Wilburn E. Pylant, Standard Life initiated this proceeding and deposited into the registry of the court the net proceeds of the two policies in dispute. The material facts involved in this dispute were stipulated by the parties and are summarized as follows:

On June 1,1971 and February 1,1975, the policies in question were issued upon the application of Wilburn E. Pylant. At the insured’s request, the beneficiary named and written into each policy was his wife, Doris M. Pylant. Wilburn and Doris M. Pylant were judicially separated by judgment dated October 1,1981. Thereafter, on October 21, 1981, Wilburn Pylant wrote a letter to Standard Life in his own hand informing the company of the legal separation, identifying the policies in question, and requesting that the beneficiary on each policy be changed to his mother, Irene P. Jordan. This letter was received by Standard Life on October 26, 1981.

On November 1, 1981, Wilburn E. Pylant suffered a severe cerebrovascular accident, was hospitalized and subsequently died on November 19, 1981. While Mr. Pylant was hospitalized and before his death, Standard Life forwarded by mail on November 6, 1981, a company prepared and printed change of beneficiary form for his execution.

Shortly after November 6,1981, and prior to the death of Mr. Pylant, Doris Pylant, without the permission of Mr. Pylant, entered the former matrimonial domicile in Collinston, Louisiana, looked through certain personal effects of Mr. Pylant and discovered a copy of the letter sent by her husband to Standard Life requesting the beneficiary changes. Still without his permission or the permission of anyone else, she then opened the mailbox at her former residence, discovered the letter from Standard Life which contained the “Change of Beneficiary Forms” and opened it removing the forms and keeping them in her possession until after the death of Mr. Pylant. At no time did Mrs. Pylant advise her husband or anyone on his behalf that she was in possession of these forms. In short, Mrs. Pylant, wrongfully intercepted the change of beneficiary forms and held them without the knowledge of Mr. Pylant or Mrs. Jordan until after the death of Mr. Pylant.

Consequently, the forms were never executed by Mr. Pylant or returned to Standard Life, and Standard Life did not endorse the change of beneficiary on the policies or otherwise act on Mr. Pylant’s request.

Subsequent to the death of Mr. Pylant, both Mrs. Pylant and Mrs. Jordan made claims for the benefits due under the terms of the policies. After investigating both claims, Standard Life arrived at the conclusion that it could not determine with legal certainty which claimant was entitled to the proceeds thereby necessitating the institution of this concursus proceeding.

The policies in dispute contain the following pertinent provisions regarding beneficiaries:

Any beneficiary under this policy may be changed from time to time by proper written request filed with the Company at its Home Office ... Upon recording of the change of beneficiary by the Company, such change shall relate back and take effect as of the date the written request therefor was signed, but without prejudice to the Company on account of any payment made by it before receipt of such request. ..
******
Modification. No condition, provision or privilege of this policy can be waived or modified in any case except by an endorsement hereon signed by the President, Secretary or an Assistant Secretary of the Company.

In concise, well articulated written reasons for judgment, the trial court rejected the claim of Mrs. Pylant and recognized Mrs. Jordan as the beneficiary under the policies stating:

Mrs. Jordan’s argument is both factually and legally persuasive. It is obvious that the insured had done all he could do before his stroke to effect the desired change; and he had the unrestricted right to change the beneficiary. While at that time plaintiff’s letter of November 6 indicated its intention to require more, the act of Mrs. Pylant in surreptitiously obtaining and secreting that letter and its enclosed forms effectively prevented the insured(2) or anyone acting for him from complying with plaintiff’s request. Moreover, since the plaintiff has indicated its lack of interest in insisting upon compliance with that request and takes the position that it is willing to pay either claimant, such action must be considered a waiver of its policy provisions. The court therefore finds that the insured had done all he could do to effect the change, that plaintiff is not opposed to honoring the request and that Mrs. Jordan is therefore the new beneficiary on each policy. . .

It is from the judgment signed in accordance with these reasons that Mrs. Pylant appeals contending that when the policy provisions quoted above are construed together, it is clear that no change of beneficiary was effective because such change was never endorsed upon the respective policies over the signature of one of the specified Standard Life officers. Therefore, she contends that she remained the beneficiary at the time of Mr. Pylant’s death with rights which vested at that point.

Prior to further discussion we note that the issue of Mr. Pylant’s ability or capacity to contract after his cerebrovascu-lar accident was not covered by the stipulations entered of record. Nor was there any evidence adduced in connection therewith. Because the law of this state presumes the capacity to contract and favors and promotes the freedom to contract, we apply that presumption of capacity in our resolution of this matter. See First National Bank of Shreveport v. Williams, 346 So.2d 257 (La.App.3d Cir.1977).

At first glance, the jurisprudence appears to support the position of Mrs. Pylant. In Giuffria v. Metropolitan Life Insurance Company, 188 La. 837, 178 So. 368 (1938), the court stated:

It will be observed that the policy expressly provides that no change of beneficiary shall be effective unless and until it is indorsed on the policy at the home office of the insurer. The parties having agreed to that contractual provision, the courts of this state are bound to recognize and enforce the agreement as the law of the contract. Until that condition is fulfilled, a change of beneficiary is not effected. New York Life Insurance Co. v. Murtagh, 137 La. 760, 69 So. 165.
The insured’s notice of change of beneficiary was regular in form, and it was mailed to and received by the insurance company prior to the insured’s death. But that of itself was not sufficient to effect the change of beneficiary. Under the terms of the policy something more was required to be done; namely, the insurer’s indorsement of the change of beneficiary upon the policy itself. No such indorsement was made by the insurer.
Upon the death of Clesi, the insured, the rights of his wife, Mrs. Madlyn Clesi, the original beneficiary, became fixed, and could not be affected by any subsequent acts of the insurance company. New York Life Insurance Company v. Murtagh, 137 La. 760, 69 So. 165.
******
We do not mean to hold, and we do not hold, that the provision in an insurance policy fixing the manner in which the beneficiary may be changed cannot be waived by the insurance company before the death of the insured. Circumstances might arise where it would be advisable for the company to do so. But we do mean to hold, and we do hold, that no such waiver can take place after the insured’s death, when the rights of the original beneficiary or beneficiaries have become vested.

In the majority of cases this rule of “strict construction” has been followed in Louisiana on the theory that the policy of insurance is a contract which constitutes the law between the parties; thus, if the policy provides that a change of beneficiary is not effective until the policy itself is endorsed, then strict construction requires nothing less than its accomplishment. See Wickham v. Prudential Ins. Co. of America, 366 So.2d 951 (La.App. 1st Cir.1978) and cases cited therein.

However, we conclude that the particular facts and circumstances present in the instant case justify a different result from the cases cited hereinabove, a result which is supported by the rationale set forth and/or indicated in another line of cases which we choose to apply and follow. See Sbisa v. Lazar, 78 F.2d 77 (5th Cir.1935); Smith v. American National Ins. Co., 25 So.2d 352 (La.App. 2d Cir.1946); and Ahrens v. First National Life, Health and Accident Ins. Co., 6 La.App. 661 (Orl.1927).

In Sbisa, Julia Pollock was the beneficiary on a policy insuring the life of her husband, Dr. Ernest Pollock, from whom she was divorced in 1924. In the divorce proceedings, Dr. Pollock was declared to be the owner of the insurance policy in question; however, Mrs. Pollock retained possession of the policy refusing to surrender it to enable Dr. Pollock to change the beneficiary thereon in accordance with the terms of the policy. At the time of Dr. Pollock’s death, Mrs. Pollock was still the named beneficiary on the policy. The insurer interpleaded the rival claimants, Mrs. Pollock and the administrator of Dr. Pollock’s estate. The appellate court found in favor of the administrator stating:

... Mrs. Pollock’s name, it is true, still remains indorsed on the policy as beneficiary, but that is so only because Dr. Pollock, with the aid of the court, was never able to get possession of the policy so that he could send it to the insurance company and have the name of the beneficiary changed. The policy stands as though no beneficiary had been named, and is therefore payable to the administrator of the insured for the benefit of the heirs. Appellees can hardly say with straight faces that appellants ought to be defeated for the reason that Dr. Pollock failed to send in the policy to the home office of the company and have the name of a new beneficiary indorsed on it. The provision of the policy as to the method of effecting a change of beneficiary was one for the benefit and protection of the insurance company only; and the insurance company clearly waived it by filing the bill of interpleader and depositing the amount of the policy to be paid to those entitled to receive it as the court might direct. [Citations omitted.] [Emphasis added.]

In Smith, Stella Smith, wife of the insured, was the original beneficiary on the policy issued in 1928. In 1941, the insured moved into the home of his son, Vernon Smith. The policy was and remained in the possession of Stella Smith after the move. Stella Smith was asked by Mrs. Vernon Smith if she had possession of the policy, and she denied having it. Desiring to change the beneficiary, the insured applied for and received a duplicate policy, subsequently making a written application to the insurer to change the beneficiary on the policy to Vernon Smith. The application was approved and endorsement of the change in beneficiary made on the duplicate policy. Thereafter, the insured went to live with his nephew, Joseph Smith, who on October 5,1942, upon written application of the insured was substituted as beneficiary under the policy. Endorsement to that effect was made on the duplicate policy. The proceeds of the policy were paid to Joseph Smith after the death of the insured in 1943. Stella Smith filed suit against the insurer. In rejection of her claim, the court stated:

It is made clear from the cited authorities and from many others not cited, that if the insured, in a policy of the character before us, substantially does all that lies within his power, under the provisions of the policy, to effect a change in beneficiary, and if the desired change is not contrary to law or public policy, and does not affect vested rights, such efforts will be held to have accomplished their purpose; and especially is this true where the insurer has approved the change. In the present ease the only reason the changes in beneficiary were not endorsed upon the original policy was due to plaintiff’s possession of it. Surely, under the facts and circumstances, she should not be allowed to capitalize upon her own lack of fairness. [Emphasis added.]

In Ahrens, the insurance company issued a policy to Pritchard on December 11, 1922. On November 11,1924, Pritchard made Mrs. Ahrens the beneficiary of the policy. On December 18, 1925, Pritchard again changed or tried to change the beneficiary from Mrs. Ahrens to Mr. Wiltz by filing with the company an application signed and acknowledged before a notary which was duly noted by the company. However, Mrs. Ahrens refused to surrender the policy to Pritchard or to the insurance company. After Pritchard died, suits were brought by Mrs. Ahrens and Wiltz, each claiming to be the beneficiary of the policy. The policy contained the following provision:

The beneficiary or beneficiaries named herein may at the request of the insured be changed at any time to any person or persons having an insurable interest in the life of the insured, provided this policy is returned to the company at its home office, and the endorsement of the change made upon the policy.

In holding for Wiltz the court stated:

The evidence shows that Mrs. Ahrens refused to surrender the policy when requested to do so by the company and by the assured. In other words, she now seeks to profit by her own acts. She wishes to claim proceeds of policy for failure to comply with a provision, when she herself caused that failure.

On this point Ruling Case Law, (Volume 14, Section 556), says:

If the member does all that is within his power to effect a change in beneficiaries and fails to surrender the certificate * * * only because such certificate is in the possession of the original beneficiary who refuses to surrender it, the beneficiary thus thwarting the wishes of the member will not be allowed to profit thereby, and his rights to the proceeds of the certificate are subordinate to those of the new beneficiaries selected by the member. [Emphasis added.]

It is conceded by both litigants in the instant case that the policies require no specific form for the change request and that if the company had elected to endorse the policies upon receipt of Mr. Pylant’s letter, the change would have been effected. Mrs. Pylant solely contends that since no such endorsement occurred her rights became vested upon the death of Mr. Py-lant because no change of beneficiary was completed.

However, it is well settled that our law does not allow one to profit from his own wrongdoing. See Lloyd v. Dickson, et al, 116 La. 90, 40 So. 542 (1906); Fuselier v. United States Fidelity and Guaranty Co., 301 So.2d 681 (La.App. 3d Cir.1974); Sbisa v. Lazar, supra; Smith v. American National Ins. Co., supra; Ahrens v. First National Life, Health and Accident Ins. Co., supra. For example, pursuant to this rule of law as a matter of public policy, a beneficiary named in a life insurance policy is not enti-tied to the proceeds of the insurance if he or she feloniously kills the insured; and arson has been recognized for many years in this state as a defense to a claim on a fire insurance policy. See American National Life Ins. Co. v. Shaddinger, 205 La. 11, 16 So.2d 889 (1944); Fuselier v. United States Fidelity and Guaranty Co., supra.

We are of the firm opinion that the aforementioned rule is a just one and is equally applicable to the facts of the instant case. Because of her wrongful and illegal act in intercepting the change of beneficiary forms and secreting them from Mr. Pylant until after his death, Mrs. Pylant is prohibited from reaping any benefit resulting from her obstructive misconduct. Since Mrs. Pylant is legally precluded from profiting by her own wrongful conduct, we conclude that her rights never vested under the policies upon the death of Mr. Pylant.

Therefore, in the instant case, the insured did substantially all that was within his power to effect a change of beneficiary under the provisions of both policies. It is even conceded by both parties that had Standard Life noted the change properly on the policies pursuant to the written request of October 21, 1981, this litigation would not be before this court. Furthermore, the provisions of the policies as to the method of effecting a change of beneficiary were for the benefit and protection of Standard Life only. Therefore, the company could waive those provisions because Mrs. Pylant’s wrongful conduct prevented the vesting of her right as the named beneficiary. Consequently, under these facts and circumstances, Standard Life could and did waive these provisions by filing the instant concursus proceeding and depositing the amounts due under the policies to be paid to those entitled to receive them as determined by the court. See Wickes v. Metropolitan Life Insurance Co., 170 So. 48 (La.App.Orl.1936).

We further conclude that the result which we have reached herein is not incompatible with the holding in Giuffria v. Metropolitan Life Insurance Co., supra. Had the Giuffria court been faced with the facts as they exist here, the result would have been the same. In Giuffria, the insured’s wife who was the named beneficiary had possession of the policy but surrendered it within three or four days after the request of the insured. The court specifically commented on her return of the policy as follows:

We do not find anything unusual in the conduct of Mrs. Madlyn Clesi in failing to immediately comply with the request of her husband that she turn over the policy to him. There was no fraud perpetrated by her.. . [Emphasis added.]

Furthermore, earlier in its opinion, the court had distinguished Sbisa v. Lazar, supra, based on the wrongful conduct issue. However, the following language of the Giuffria court indicates implied approval of that decision:

. .. [T]he real issue in the case of Sbisa v. Lazar was whether Mrs. Pollock could defeat the rights of Dr. Pollock’s heirs by willfully withholding the policy from Dr. Pollock so that he was never able to send it to the insurance company to have the name of the beneficiary changed. The court held she could not...

Accordingly, we hold that where the insured has done all acts within his power to effectuate a change of beneficiary, and it is due to the willful misconduct of the originally named beneficiary that this change is prevented, the original beneficiary will not be allowed to profit from that wrongdoing by receiving the proceeds from the policy. By so holding, we will not sanction such conduct and allow justice to be thwarted.

For the foregoing reasons, the judgment of the trial court is affirmed, and in accordance with the order signed by the trial court on March 24, 1982, all costs of this proceeding including costs of appeal are ordered deducted from the funds deposited into the registry of the court.

JUDGMENT AFFIRMED.

      . Footnote 2 in Reasons for Judgment states:
      The stipulation does not mention Pylant’s physical and mental condition between the date of his stroke and his death, except that he was hospitalized.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    In re GLASS APPLYING FOR ADOPTION.
    No. 15080-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Wilson & Veatch by Thomas A. Wilson, Jr., Shreveport, for appellant.
    Weinstein, Moak & Hiller by Nelson A. Moak, Benton, for appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

The instant appeal is brought by appellant CDS to challenge the adoption decree which severed his legal ties to his two natural children. The names of the parties involved have been omitted in the title and in this opinion in accordance with LSA-R.S. 9:437. The decree conferred CDS’s parental rights with respect to the two children upon the children’s stepfather, SDG, who is now married to the children’s natural mother. The trial court found, in granting the adoption decree, that CDS had forfeited his legal right to oppose the adoption of his natural children, and that the adoption was in the children’s best interest. We reverse.

Although the record is unclear as to the date, it appears CDS married KS(G) in the late nineteen-sixties or early seventies. The couple’s matrimonial domicile was Houston, Texas. The marriage produced a son and a daughter, Se and Si, now aged eleven and eight years, who are the subject of these proceedings. This marriage ended in divorce on December 5,1978, with KS(G) receiving custody of the two children.

On December 29, 1978, KS(G) [hereinafter referred to by her current initials KG] married her current husband, SDG. Since that time, she has resided with her children in SDG’s Shreveport home. SDG, as the stepfather of KG’s two children and the husband of their natural mother, has petitioned the juvenile court to adopt the children and be declared their father for all legal purposes. His wife, KG, the children’s mother, has formally consented to his petition for adoption.

The children’s father CDS married his present wife, PS, on October 17, 1979. Since that time they have lived in the Houston home he formerly shared with his ex-wife KG.

The record unequivocally indicates that petitioner SDG and his wife KG have labored diligently — and with admirable results — to provide a good home for the children. It is particularly noteworthy that SDG has two sons and two daughters from a former marriage, as well as a two year old son who is the issue of his current marriage to KG. Despite providing a home for — and guidance to — the children from three different marriages, SDG has treated all the children equally and impartially. He has designated Monday night as a family night, in which family members are expected to be present, and all — even the youngest of the children — are allowed to voice their opinions and complaints.

SDG has painstakingly taught the children lessons of self discipline, hard work, and responsibility, and has inculcated them with religious instruction. He assists Se in learning the skills required for cub scouts and provides supervision and transportation in the summer when Se mows lawns to earn spending money and learn the lessons of thrift and labor. SDG has set up guidelines whereby the children put a specific portion of their earnings into savings and contribute another portion to the church. In accordance with their parents’ Mormon faith, the children do not use caffeinated drinks. SDG disciplines the children with patience and reason, and as family friend, MW relates:

“[SDG] is a very thorough and he is very fair and when he tells [Se] to do something or [Si] to do something, he gives them a reason why. He explains why he should be doing it and how to do it and if they disagree with him, he talks to them until they understand.’’

As the foregoing demonstrates, the petitioner SDG and his wife have a very profound love and concern for the two children. However, the evidence demonstrates with equal clarity, a close and loving relationship between CDS and his natural children.

The children are generally guests at the Houston home of CDS and his current wife PS four times a year — at Christmas, Thanksgiving and Easter holidays, and during the summer. The duration of these stays ordinarily ranges between three and seven days, with the average stay lasting approximately five or six days. The CDSs plan a number of activities with the children well in advance of the children’s arrival. Christmas and Thanksgiving holidays generally include holiday dinners at the home of the children’s grandmother in which the children’s uncles, aunts and cousins on their father’s side are included. According to PS, she and her husband “always wait to have Christmas until we pick up the children,” and plan such that their vacation time corresponds with the children’s Christmas visitations. In summary, the children’s visits to Houston are characterized by the CDSs attempts “to do as much as we can cram into one week .... ”

When the children are at their home in Shreveport, CDS and PS periodically converse with them over the telephone. They buy both Christmas and birthday gifts for the children, including bicycles, phonographs and clothing, and provide them with spending money for their visits to Houston.

CDS’s past behavior has not been flawless. The record indicates he has had some difficulties with alcoholic beverages. However, the testimony unequivocally indicates that he is a diligent worker, his reputation in the community being that “he is a very upstanding, respectful, hard working man.” In order to avoid endangering his visitation privileges with the children, CDS has totally abstained from alcohol since Labor Day of 1980 and takes his children to church on the Sundays that they visit. The trial assessment of clinical psychologist Donald Gucker was that CDS did not manifest any emotional pathology upon evaluation and “looked very acceptable.”

The uncontroverted testimony adduced at trial was that CDS and PS enjoy a stable and loving marital relationship, unmarred by physical separations. As five witnesses fully attested, PS herself enjoys a very loving relationship with the children. According to family friend JB:

“[H]is present wife, [PS], she is a very loving person and uh, [the children], they will come down, you know, and I know that she loves on them quite a bit and [Si] will crawl up in her lap and tell her or call her mother or mommie and tell her how much she loves her and [PS], she returns the love and, you know, it is always a constant, you know, an arm around one of the children, you know, or I sure do love you or something of this effect and she also does her own children the same way, plus my children.”

PS has two children from a former marriage, furthermore, and it appears from the record that they treat Se and Si — affectionately — as their brother and sister.

In the Texas divorce decree of December 5, 1978, which dissolved the marriage of CDS and KG, CDS was ordered by the court to make total child support payments of $200 per month. CDS did not make any support payments from January 1,1979 until January 1, 1980. After a year of nonpayment, CDS made four payments for January, February, March and April of 1980. Following these four successive payments, there was a fifteen month lapse from May of 1980 until August 1, 1981 in which no payments were made. Payments were then made for August, September, October, November and December of 1981; a payment was made also in January of 1982, shortly before the trial from which this appeal was perfected. Additionally, the CDSs in June of 1981 sent a cashier’s check for $1,000 — payable to KG — to the Department of Health and Human Resources caseworker assigned to this adoption case. At the rate of $200 per month, a total support obligation of $7,200 had accrued in the 36 months spanning the original due date in January of 1979 and the time of trial in January of 1982. CDS has discharged $3,000 of this obligation, leaving an unpaid arrearage, as of the trial date, of $4,200.

CDS attempted to establish, at trial, that his failure to make support payments was justified. CDS was a self-employed building contractor. His business virtually stopped and he suffered substantial losses when construction slowed in the Houston area prior to his divorce. At the urging of a friend, he started his own backhoe business as an independent contractor. This business venture, after a significant investment, also failed. He subsequently made an unsuccessful attempt to return to the contracting business, then worked for Design Fabricators at an hourly wage for eight and a half months. CDS ultimately returned to the contracting business. Although his employees were paid weekly he himself often went without pay for up to a month. There were intervals, during this succession of jobs, when he was without work for several weeks.

LSA-R.S. 9:432(B) provides the ultimate criteria for determining whether, in a given instance, an adoption should be granted. This statute provides, in pertinent part, that:

“The court, after hearing and after taking into consideration information from all sources concerning the adoption, may enter a final decree of adoption; or it may deny the adoption. The basic consideration for this decree ... shall be the best interest of the child." (emphasis added).

It is a well settled jurisprudential rule, moreover, that an adoption may not be granted absent the consent of both natural parents. In re Plaisance, 394 So.2d 776 (La.App. 4th Cir.1981); In re Genin, 240 So.2d 46 (La.App. 4th Cir.1970). The exceptions to this fundamental rule are provided by LSA-R.S. 9:422.1. This statute stipulates that the consent of the non-custodial parent is not essential where the petitioner is a step-parent married to the custodial spouse, and one of the following conditions is met:

“(1) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year.
(2) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.
(3) The other legitimate parent has refused or failed to visit, communicate, or attempt to communicate with the child, without just cause, for a period of two years.” LSA-R.S. 9:422.1(1)-(3).

The legal consequences of an adoption are abrupt, severe and irrevocable: the relationship between the child, and the non-custodial natural parent is severed. LSA-C.C. Art. 214 provides, with respect to that relationship, that:

“the blood parent ... [is] relieved of a11 of [his] legal duties and divested of all of [his] legal rights with regard to the adopted person, including the right of inheritance ...; and the adopted person ... [is] relieved of all of [his] legal duties and divested of all of [his] legal rights with regard to the blood parent .... ” (emphasis added).

The analytic framework for determining whether an adoption may be granted derives from the interaction of Sections 9:432 and 9:422.1. This statutory interaction has been treated by the Supreme Court in Adoption of Latiolais, 384 So.2d 377 (La.1980), and considered by this court in In re Hinton, 390 So.2d 972 (La.App. 2d Cir.1980). The basic observation of these two landmark decisions is that a court may not properly grant an adoption merely because one of the conditions of LSA-R.S. 9:422.1 has been met, and the necessity of the natural parent’s consent has thus been statutorily dispensed with. The court must still satisfy itself that the adoption is in the best interests of the child. A court may find that a parent has lost his or her natural right to oppose an adoption without finding that an adoption is in the best interests of the child.

It is of course clear, in the first instance, that an adoption may be defeated by the opposition of a natural parent alone unless one of the three enumerated conditions of LSA-R.S. 9:422.1 has been met. We find, however, that in the instant case a condition of LSA-R.S. 9:422.1 has transpired, and that the consent of the natural father, CDS, is therefore not essential to this adoption.

It is apparent that under the literal terms of'LSA-R.S. 9:422.1 CDS has lost his right to unilaterally oppose the adoption of his natural children. Under our facts: the petitioner (SDG) is the spouse of the children’s legitimate parent (KG); the petitioner’s spouse, KG, has been granted custody of the children; and the other legitimate parent, CDS, “has refused or failed to comply with a court order of support for a period of one year,” insofar as he violated a court order by failing to make support payments for a fifteen month period from May of 1980 to August 1, 1981.

It is too well settled to require citation that just cause or circumstances beyond one’s control excuse non-support and prevent parental consent from being dispensed with as a pre-requisite to adoption. Nevertheless, once non-payment is shown, the natural parent has the burden of proving that this failure is with just cause or has been occasioned by circumstances beyond his control. In re Plaisance, supra; Berry v. Berryhill, 330 So.2d 405 (La.App. 3d Cir.1976). CDS has not proven, with the requisite thoroughness and specificity, that his failure to make support payments was based on just cause, or factors beyond his control. CDS did not establish, with respect to the time period involved, what his total income was, what his assets were, whether any sources of outside income were available to him, whether and at what wage his present wife was employed. He did not establish precisely how long he was unemployed, how much loss resulted from his business failures, the amount of legal expense incurred in the suit pending against him, or the amount of the medical expenses incurred in treating his wife. The amount of his present wife’s assets, and the quantity of assets which his former wife has donated to him is left unclear, as is the size of the community debt from his former marriage, and the question of who, if anyone, has been discharging this debt. In short, fundamental questions remain unanswered. We do not find that CDS’s failure was without just cause — indeed the record supports the inference that CDS encountered genuine financial difficulties. We do find, however, that because of the incompleteness of the evidence adduced, CDS has not sufficiently discharged his burden of proving just cause.

While finding that CDS has not proven that his failure to make support payments was justified, and that he has therefore lost his right to unilaterally block the adoption, we nevertheless vacate the adoption decree rendered by the trial court on the grounds that this adoption is not in the best interests of the children.

The Louisiana courts have historically articulated a pronounced reluctance to sever the parent-child relationship and derogate from the natural rights inherent therein. A parent’s failure to make support payments, has never meant — in and of itself — that it is in the best interests of the child for his or her filial ties with the natural parent to be severed. Thus the courts have often found that, even where a natural parent has failed to make support payments, it is not in the best interests of the child to sever his or her relationship with that natural parent. In re Hinton, supra; Adoption of Latiolais, supra. See also, Adoption of Edwards, 369 So.2d 210 (La.App. 3d Cir.1979). As was stated in In re Hughes, 176 So.2d 158 (La.App. 4th Cir.1965), children have a “right to know and love their parents. It should not be denied them except when the parent has proven himself unworthy of their love. Failure to make support payments ... is not, of itself, sufficient proof of that unworthiness.” Id. at 164.

The more subtle point implicit in both Latiolais and In re Hinton is that a dual focus is appropriate in determining the best interests of the child. It is not enough to examine the love and home environment provided by the petitioner/step-parent. It is necessary as well to examine the depth and closeness of the child’s ties with the non-custodial natural parent, and the effect which the loss of this relationship would have on the child. A “best interest” evaluation is by its very nature a factual or ad hoc analysis. Thus each case must turn on the particular circumstances underlying the child’s relationship with both the petitioner/step-parent and the non-custodial natural parent. However, we note with particularity the cases in which an adoption has been denied even though it appears from the facts that the petitioner/step-parent provides a good home for the child. Latiolais, supra; In re Hinton, supra, Steed v. McKenzie, 344 So.2d 689 (La.App. 1st Cir.1977).

It was the uncontradicted testimony of five witnesses that CDS has a very close and loving relationship with his children; JB testified that CDS spoke of his children virtually everytime she saw him. Furthermore, several witnesses testified that the children deeply love their father. At trial even SDG and KG did not dispute the bond of love between CDS and his two children. The trial testimony, moreover, was unequivocally to the effect that there is a reciprocal love between CDS’s present wife, and the two children. It is also clear that PS’s own son is very close to the children.

The testimony of clinical psychologist Donald Gucker, who evaluated Se and Si on two occasions, is particularly instructive. Gucker testified that Se, as “the spokesman for the two,” indicated that:

“he wished to remain a S and he wished not to be adopted and that he felt very close to his natural father.... It was clear to me, from these reactions, that the children have a significant emotional investment in the relationship with their natural father and I felt like, you know, these two kids were not saying simply words, but there was a lot of feeling going on with the words, and they didn’t want to lose that relationship and I felt that that was important for them”

Furthermore, Gucker testified, Se

“talked to me about that he would really prefer to live with his natural father .and basically the message was, you know, we — we want to still be close to our dad. So, somehow they interpreted adoption as either diminishing or decreasing or terminating that relationship.”

Mr. Gucker concluded that CDS “obviously ... enjoys a relationship with [the children]. There is no question in my mind about that, none.”

Our assessment of the testimony in guided by the principles enunciated in In re Hinton:

“The seriousness and finality of the severing of the relationship between the parent and child is a factor to be considered. The importance and benefit to the child of a continued relationship with a parent is to be considered.
“The fact that the father has forfeited his parental right to insist on continuation of his legal relationship with his children does not mean that the children should necessarily have their right to a relationship with the father legally terminated. Where the evidence indicates a real probability that the children can have and enjoy and benefit from a continuing relationship with their father, this is an appropriate factor to be considered in determining the best interest of the children.” Id. at 976.

We do not condone non-support, and find that under our facts CDS has lost his unilateral right to oppose and thwart the adoption of his children Se and Si. We nevertheless hold that even though this petitioner/step-parent provides a loving home for Se and Si, it is not in the best interest of the children to deprive them of their close relationship with their natural father.

The trial court is thus reversed, and the decree of adoption vacated at appellee’s costs.

REVERSED AND VACATED.

      . In re Plaisance, supra; In re Ragas, 393 So.2d 925 (La.App. 4th Cir.1981); Adoption of Jarreau, 373 So.2d 1352 (La.App. 1st Cir.1979); Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977); Adoption of Fouts, 254 So.2d 649 (La.App. 4th Cir.1971); In re Spraggins, 234 So.2d 462 (La.App. 1st Cir.1970); Adoption of Schieman, 204 So.2d 433 (La.App. 4th Cir.1967); In re Hughes, 176 So.2d 158 (La.App. 4th Cir.1965).

      . In re Plaisance, supra; In re Ragas, 393 So.2d 925 (La.App. 4th Cir.1981); In re Whitten, 391 So.2d 44 (La.App. 3d Cir.1980); In re Hinton, supra; Adoption of Latiolais, supra; Haynes v. Magnham, 375 So.2d 103 (La.1979); Adoption of Jarreau, 373 So.2d 1352 (La.App. 1st Cir.1979); Adoption of Rapp, 348 So.2d 107, (La.App. 4th Cir.1977); Steed v. McKenzie, 344 So.2d 689 (La.App. 1st Cir.1977); Adoption of Fouts, 254 So.2d 649 (La.App. 4th Cir.1971); In re Genin, supra; In re Spraggins, 234 So.2d 462 (La.App. 1st Cir.1970); Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); Adoption of Bickerstaff, 190 So.2d 117 (La.App. 4th Cir.1966); In re Hughes, 176 So.2d 158 (La.App. 4th Cir.1965); In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963).


author: PRICE, Judge.

text:
    Rachel GRANT, Plaintiff-Appellant, v. E. Linus CARROLL, Jr., M.D., et al., Defendants-Appellees.
    No. 15081-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Paul Henry Kidd, Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Ronald L. Davis, Jr., Monroe, for defendants-appel-lees.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   PRICE, Judge.

This is an action for damages as a result of alleged medical malpractice. Plaintiff, Rachel Grant, alleges that defendant, Dr. E. Linus Carroll, Jr., negligently performed a hemorrhoidectomy on plaintiff. Also named as a defendant is Hartford Accident and Indemnity Company, medical malpractice insurer of Dr. Carroll. From a judgment sustaining defendants’ peremptory exception of prescription, plaintiff appeals. We affirm the judgment of the trial court for the following reasons.

In her petition, plaintiff alleges that defendant, Dr. Carroll, performed the hemor-rhoidectomy on August 6, 1976 and in performing the operation damaged the rectal sphincter and muscles which control plaintiff’s bowel movements resulting in the inability to control this bodily function. Plaintiff states she continued under the care of Dr. Carroll from the date of the operation until 1978 with the doctor’s assurance that the problem would correct itself. Plaintiff saw Dr. F. H. Hammonds on February 7, 1978 who, in turn, referred her to Dr. Harold Keeling. Dr. Keeling then referred plaintiff to Dr. John Ray. Plaintiff states that she went to see Dr. Fred Marx on July 17, 1978 who performed corrective surgery. Plaintiff states that following this surgery, she began to “suspect” that Carroll had negligently performed the hemorrhoidecto-my and for that reason contacted an attorney. The attorney refused to handle the claim for personal reasons but referred plaintiff to another attorney who advised plaintiff that her claim against Dr. Carroll had prescribed. Plaintiff consulted a third attorney who also advised plaintiff that prescription had run on her action. Plaintiff had further corrective surgery by Dr. Ray on August 28, 1979, and in late 1980 once again began to seek legal assistance. The instant action was filed by plaintiff on July 10, 1981.

A hearing on defendants’ exception was held on May 25, 1982. At the hearing, plaintiff testified that she had an eighth grade education. Plaintiff stated she began to seek legal advice shortly after the consultation with Dr. Marx who performed corrective surgery on July 17, 1978. Plaintiff testified that Dr. Marx told her “... he had never seen such a mess in his life, that it didn’t even look like a job a doctor had done.” Plaintiff further testified that at this time she was positive something had gone wrong and that Dr. Carroll was responsible. Plaintiff stated she and her husband continued to seek legal advice from numerous attorneys but the case was either refused for personal reasons or plaintiff was informed that the claim had prescribed until plaintiff ultimately consulted her present attorney.

In its written reasons for judgment, the trial court found that plaintiff was fully aware that defendant, Dr. Carroll, had committed possible malpractice in excess of two, maybe three years, before filing the instant action. The court pointed specifically to the statements made by Dr. Marx who operated on plaintiff in July 1978. The court found the claim had prescribed due to passage of one year following knowledge of facts of a negligent surgical operation. The court held that the failure to file suit due to information from an attorney was not attributable to the defendant-physician and did not act to toll the running of the prescriptive period. The court further held that the claim was prescribed under LSA-R.S. 9:5628 as three years had passed from the date of the alleged negligent act on August 6, 1976 until suit was filed on July 10, 1981.

On appeal, plaintiff argues that prescription did not begin to run until July 1978 when she was apprised by Dr. Marx that the operation was improperly performed by Dr. Carroll. Plaintiff contends that the running of prescription was interrupted by erroneous legal advice from numerous attorneys and that plaintiff brought suit as soon as she found a willing attorney. Plaintiff argues that the doctrine of contra non valentum agere nulla currit praescrip-tio is applicable as attorneys erroneously concealed her cause of action from her. Corsey v. State Dept. of Corrections, 375 So.2d 1319 (La.1979).

Defendants claim that plaintiff’s action clearly prescribed in July 1979, one year after statements by Dr. Marx alerting plaintiff to possible malpractice. Further, the running of the prescriptive period was not interrupted due to erroneous advice by attorneys as to viability of plaintiff’s claim. Additionally, defendants argue that plaintiff’s claim was extinguished by the running of the three year peremptive period under LSA-R.S. 9:5628.

The issue before this court is whether the trial court erred in finding that plaintiff’s action had prescribed under LSA-R.S. 9:5628.

LSA-R.S. 9:5628 provides as follows:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.”

Under this statute, a plaintiff must bring the medical malpractice action within one year from the date of the alleged malpractice or within one year from the date of discovery of the alleged negligent act. Applying the statute to the facts in the instant case, it appears that plaintiff’s action has prescribed.

Plaintiff was operated upon on August 6, 1976, which is the date of the alleged negligent act. However, when plaintiff experienced pain and incontinence after the operation, she was told by the defendant, Carroll, that the problem should correct itself in approximately a year. It does not appear that plaintiff had knowledge of any possible negligence at this time. Plaintiff continued to experience difficulties and eventually consulted Dr. Marx who performed corrective surgery on July 17, 1978. Although the running of prescription does not begin when plaintiff has a “mere apprehension” that something may be “wrong”, Cordova v. Hartford Acc. & Indem. Co., 387 So.2d 574 (La.1980), plaintiff’s testimony clearly showed that the statements made by Dr. Marx made her aware of possible malpractice by Dr. Carroll. Shortly thereafter, plaintiff began to seek legal advice. It is clear that plaintiff had actual or constructive knowledge of the alleged negligent act, the damage and the causal relationship between the two. Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App. 2d Cir.1979); Hebert v. Confederate Memorial Medical Center, 381 So.2d 545 (La.App. 2d Cir.1980); Reed v. General Motors Corp., 400 So.2d 919 (La.App. 1st Cir. 1981) and citations therein. Therefore, the prescriptive period began to run at this time. It is necessary to examine whether the prescriptive period had been suspended or interrupted.

Plaintiff argues that the doctrine of contra non valentum should be applied to prevent the running of prescription. It is the opinion of this court that it does not apply.

The supreme court in Corsey, supra, outlined the application of the doctrine of contra non valentum in the following instances: (1) where there was a legal cause which prevented the courts or their officers from taking cognizance of or acting on plaintiff’s claim; or (2) where the plaintiff is prevented by some act of the defendant from availing himself of his cause of action; or (3) where there was some condition coupled with the contract or connected with the proceedings which prevented the plaintiff from suing or acting on his claim; or (4) where the cause of action is not known or reasonably knowable by the plaintiff provided such ignorance is not attributable to plaintiff’s willfulness or neglect.

The court noted that the first three exceptions are generically different from the fourth in that the cause of action had accrued but external reasons prevented plaintiff from enforcing it such as an administrative or contractual condition, some conduct by the defendant or the closure of the courts due to wartime conditions. See also Henson v. St. Paul Fire & Marine Ins. Co., 363 So.2d 711 (La.1978); Cordova, supra; Andrus v. Patton, 394 So.2d 714 (La.App. 3d Cir.1981); Bill Nolan Livestock Inc. v. Simpson, 402 So.2d 214 (La.App. 1st Cir.1981); Stewart v. Highland Hospital, 412 So.2d 680 (La.App. 2d Cir.1982) and numerous citations therein.

In the instant case, the defendant, Carroll, did not act to prevent plaintiff from timely pursuing her claim nor was plaintiff ignorant of her cause of action against Dr. Carroll. Further, there was no legal cause which prevented the attorneys from taking cognizance of or acting upon plaintiff’s claim. Rather, the attorneys either declined for personal reasons or because they were of the opinion that plaintiff’s claim had prescribed. Therefore, the prescriptive period of one year from the date of plaintiff’s knowledge of the alleged negligent act was not tolled.

In any event, the claim of the plaintiff was prescribed by the passage of three years from the date of the alleged negligent act on August 6, 1976. The statute clearly provides that a malpractice claim must be filed within a period of three years from the date of the alleged malpractice even as to claims filed within one year of the date of discovery. This provision performs a valid function in that it acts to protect the defendant from extended, possibly indefinite, liability to possible malpractice claims. Further, if an action could be brought ten or twenty years after the date of the alleged malpractice, it would be virtually impossible for a defendant to properly defend himself.

For these reasons, the judgment of the trial court sustaining defendants’ peremptory exception of prescription is AFFIRMED at plaintiff’s costs.


text:
    Jeannine Elizabeth Tobin HAMITER, Appellee, v. James Jewell HAMITER, Appellant.
    No. 15083-CA, 15084-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    James E. Franklin, Jr., Shreveport, for appellee.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell and Joseph L. Shea, Jr., Shreveport, for appellant.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

James Jewell Hamiter appeals a judgment making past due alimony pendente lite executory and for attorneys’ fees and costs. We affirm.

This appeal is another in a continuous series of appeals and writ applications arising out of this domestic litigation. On April 2, 1980, Mrs. Hamiter filed for a legal separation, alimony pendente lite, and related relief. This petition was twice amended ultimately seeking a final divorce and permanent alimony. Mr. Hamiter answered the petitions and reconvened seeking a separation on other grounds. The suits involved in this matter were consolidated at the trial court level and on September 25, September 29, and October 1, 1981, the issues of divorce, alimony pendente lite, permanent alimony and permanent injunction were tried. Subsequently, a judgment was rendered which, in addition to granting other relief, awarded Mrs. Hamiter alimony pendente lite in the amount of $2200 per month from date of judicial demand. On November 18, 1981, Mrs. Hamiter filed a rule for contempt which also sought judgment for past due alimony, both pendente lite and permanent, plus attorneys’ fees and costs.

Thereafter, an application for supervisory writs was filed with this court and denied. A motion and order of appeal was filed, the appeal was considered by this court and on August 14, 1982, an opinion was rendered affirming the award of alimony pendente lite and reducing the permanent alimony awarded, making the reduction prospectively effective from the date of the finality of our decision. While the appeal was pending in our court on May 12, 1982, a judgment was rendered in the trial court in the aforementioned rule in favor of Mrs. Hamiter awarding her $16,839.26 for unpaid and past due alimony pendente lite with legal interest thereon from the date each installment became due and awarding $500 for attorneys’ fees and costs. It is from this judgment that Mr. Hamiter suspensively appeals assigning as his only error:

The district court erred in awarding the amount of Sixteen Thousand Eight Hundred Thirty-Nine and 26/ioo Dollars ($16,-839.26) for unpaid and past due alimony pendente lite. In making said award, the district court erroneously enforced an unconstitutional judgment awarding alimony pendente lite.

The crux of Mr. Hamiter’s argument on this appeal is that it is constitutionally impermissible to enforce a judgment awarding alimony pendente lite where the constitutionality of the original award of alimony pendente lite has been questioned but has not yet been finally adjudicated. In connection with this argument, he contends that an unconstitutional law has no effect and that since an unconstitutional law has no effect, a judgment based upon an unconstitutional law cannot be enforced. In essence, he seems to assert the contention that because appellant’s assertion of unconstitutionality has not been finally adjudicated that the judgment in question is not enforceable.

It appears that Mr. Hamiter’s constitutional argument is that La.C.C.P. Art. 3943, which provides for no suspensive appeal from an alimony award, is unconstitutional as applied by Frederic v. Frederic, 302 So.2d 903 (La.1974), and its progeny because this jurisprudence in effect denies him a right of review of the trial court’s determination of the award as required by Article 1 § 19 of the 1974 Louisiana Constitution. At the outset, we note that this identical argument was addressed and disposed of by this court in the appeal on the merits from the trial court’s judgment awarding alimony penden-te lite and permanent alimony. See Hamiter v. Hamiter, 419 So.2d 517 (La.App. 2d Cir.1982). In that opinion, we found that this argument was without merit because this statute is a reasonable and valid legislative restriction on the right of judicial review which is necessary in order that a spouse can be provided support during the pendency of an appeal.

In the present appeal, Mr. Hamiter is obviously contending that the decision of this court affirming the trial court’s alimony pendente lite award is not final because a writ application is presently under consideration by the Louisiana Supreme Court from our earlier opinion and because the judgment appealed from is not final it is unenforceable.

We conclude that the cases cited in support of Mr. Hamiter’s argument are inapplicable to the instant situation because there has never been a holding that La.C.C.P. Art. 3943 is unconstitutional as applied by Frederic. Therefore, until such time as Art. 3943 is declared to be unconstitutional or unconstitutionally applied, it must be given legal effect. This is particularly true in light of the well established principle that a statute is presumed to be constitutional. See Factors’ & Traders’ Ins. Co. v. City of New Orleans, supra.

Clearly, under La.C.C.P. Art. 3943 no sus-pensive appeal lies from a judgment awarding alimony. Even though the judgment making such an award may be amended on appeal, its effect continues until the appellate court judgment becomes final. Frederic v. Frederic, supra; Tisby v. Tisby, 382 So.2d 1053 (La.App. 2d Cir.1980); Langham v. Langham, 381 So.2d 1284 (La.App. 2d Cir.1980); Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir.1979). Under the existing jurisprudence, we find Mr. Hamiter’s argument to be without merit.

Because under the existing jurisprudence, an alimony award remains in full force and effect until such time as a judgment by an appellate court modifying or eliminating the award becomes final, Mrs. Hamiter was not precluded from filing a rule to make the accrued alimony pendente lite due and owing executory. Mr. Hamiter makes no effort to question the right of his former wife to cumulate the award nor has he at any point questioned the accuracy of the amount found to be due and owing.

Accordingly, for the foregoing reasons, the judgment of the trial court awarding the past due alimony is affirmed at the cost of appellant.

JUDGMENT AFFIRMED.

      . State v. Cormier, 171 La. 1035, 132 So. 779 (1931); Factors’ & Traders' Insurance Co. v. City of New Orleans, 25 La.Ann. 454 (La.1873).

      . Flournoy v. First National Bank of Shreveport, 197 La. 1067, 3 So.2d 244 (1873).

      . See footnotes 1 and 2, infra.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana In the Interest of Christy QUILTER and Angela Quilter.
    No. 15086-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Earl Cox, Asst. Dist. Atty., Monroe, for appellee.
    James Sharp, Jr., Monroe, for appellants.
    Before HALL, JASPER E. JONES, NORRIS, JJ.
   JASPER E. JONES, Judge.

Mrs. Ethel Aswell, mother of Christy and Angela Quilter, and her husband, Sidney Aswell, appeal a judgment awarding custody of the minors to the Department of Health and Human Resources, terminating Mrs. Aswell’s visitation rights and ordering the State to commence proceedings to terminate her parental rights. We amend and affirm.

Appellants set out four assignments of error. They contend the trial judge erred in: 1) denying their motion for continuance; 2) holding an evidentiary hearing over their objection; 3) refusing to reopen testimony; and 4) ruling contrary to law and evidence.

The Facts

Ethel Aswell is 32 years old. Psychological tests indicate she is a slow learner. She is the mother of eight children, the first of whom was born when she was only 14. Ethel’s six oldest children were released by her for adoption. Christy, age 7, and Angela, age 4, are Ethel’s two youngest children.

In September, 1977, the department first learned that Ethel was not providing adequate care for Christy. The department then began providing Ethel with services such as counseling for herself, day care and medical treatment for Christy in an effort to improve the situation. However, after Angela’s birth in July, 1978, the situation again deteriorated. In November, 1978, Ethel voluntarily gave custody of the two little girls to the department. Thereafter Ethel had almost no contact with the girls until August, 1979, at which time she began to show some interest in regaining custody of the girls.

In October, 1979, Ethel married Sidney Aswell. Mrs. Aswell continued to express an interest in regaining custody of her daughters and on July 15, 1980, the department allowed the girls to begin living with the Aswells on a trial basis.

The record shows that the marriage of Ethel and Sidney has been full of discord. Their relationship has been characterized by almost constant heated arguments which usually include grave threats and which have led to physical blows on several occasions. Though the girls received adequate physical care while living with the Aswells they were exposed to the frequent confrontations between their mother and Sidney.

The young girls also became a frequent target of their mother’s consuming hostility and as such they were the repeated subjects of verbal abuse and threats by their mother. Mrs. Aswell threatened her daughters with having their throats cut or return to a foster home. Mrs. Aswell admitted that she subjected her daughters to mental abuse by threatening them and by screaming at them. The department terminated the trial visit on January 30, 1981, two weeks earlier than planned, because of fears for the girls’ safety.

Following their removal from the Aswell home the department commenced these proceedings. An initial hearing was held on April 14,1981. At that time the trial judge ordered the department’s temporary custody of the girls continued and further ordered the Aswells to participate in marriage counseling, Parents Anonymous, parenting skills classes, treatment at the mental health center and meetings with the department staff working on this case.

Though the Aswells did at least sporadically attend most of these activities, they regarded them as wastes of time, resented their required attendance and profited very little from them. The Aswell home continued to be a strife ridden place where the spouses subjected each other to verbal and physical abuse. On one occasion because of her extreme anger with Sidney Mrs. Aswell cut all of her hair from her head and threatened to commit suicide. On another occasion she stated that if the custody of the children wasn’t returned to her she was going to blow Sidney’s head off.

On December 14, 1981, a second hearing was held. The trial judge by an order signed January 5, 1982, and approved as to form by appellants’ counsel, released appellants from required attendance of the various activities and continued temporary custody in the department. The order also set May 25, 1982, as the next hearing date for this matter.

The situation in the Aswell home remained unchanged in the early months of 1982. Ethel and Sidney continued to have frequent arguments. Ethel was arrested because of her behavior during one confrontation of this period.

During this period the Aswells were allowed visitation with the girls twice per month. The girls, particularly Christy, experienced behavioral problems following these visits. Apparently Mrs. Aswell instructed Christy to misbehave at the foster home and in school. Mrs. Aswell also told the girls she would kidnap them if they were not returned to her.

The department had Mrs. Aswell and the girls examined in preparation for the May hearing. Dr. Bobby Stephenson, a psychologist who had previously examined Ethel and Christy, examined all three. His report on Mrs. Aswell states:

“By history, Mrs. Aswell has not been able to provide adequately for her children (sic) psychological needs and the history and present test data suggest that the likelihood of a significant change in regard to her being able to provide nurturing is rather remote. There may be a decrease in emotionality as time passes which would appear to be an improvement in her functioning but this examiner feels that the long term prospect of Mrs. Aswetl (sic) being able to provide adequate nurture for young children is very limited. Such poor prognosis for change suggest (sic) that the children’s best interest would be served by freeing them for adoption as they would have to remain in foster care for an extended period of time.” Rec. p. 277.

Dr. Stephenson testified that his examination established that Mrs. Aswell was easy to anger, highly emotional, set to overreact to the point of exploding with slightest provocation. He stated these characteristics were common in her behavior. He stated that if a child did some act that was slightly frustrating to Mrs. Aswell she would likely react by engaging in a “great, long, screaming, yelling kind of thing.” Dr. Stephenson stated that both of the girls had been adversely emotionally affected by the abuse to which their mother had subjected them and the environment that exists in her home. He recommended that they not be required to return to live in these circumstances.

On May 25, 1982, appellants moved for a continuance. Their motion was denied and the hearing was held. Both the State and the appellants presented evidence. At the conclusion of the hearing the trial judge found the evidence “overwhelmingly in favor of the State.”

On May 26, appellants made a motion to reopen testimony which was denied by the trial judge. Appellants then made a motion for a new trial which was also denied. The Aswells then took this appeal.

Assignments # 1 and # 3

Through these assignments of error appellants attack the trial judge’s denial of their motions for a continuance and to reopen testimony.

Reopening the record to allow the presentation of additional evidence would have amounted to a post-hearing continuance. Cf. Sather v. White, 388 So.2d 402 (La.App. 1st Cir.1980) (holding the record open for additional testimony amounts to a continuance). Thus, the trial judge’s action with respect to both motions should be assessed according to the standards applicable to action on motions for continuances.

The basis for these motions was that appellants’ counsel was unaware that an evi-dentiary hearing was to be held and consequently, was not prepared. The trial judge was of the strong opinion that appellants’ counsel had full notice of the hearing and we note that appellants’ counsel had approved the form of the January 5 order which set May 25 as the hearing date.

As the motions were not based on any peremptory grounds under LSA-C.C.P. art. 1602 they are governed by LSA-C.C.P. art. 1601. Under that article the trial judge has wide discretion in acting on a motion for continuance and his ruling will not be disturbed on appeal absent a clear showing of his abuse of that discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974); Thurmon v. Thurmon, 377 So.2d 447 (La.App. 2d Cir.1979); Sather v. White, supra.

This matter had been before the trial court for over three years at the time appellants made their motions. During that extended period the trial judge and the department went to considerable lengths in an effort to improve the situation to a point where custody of the girls could be returned to Mrs. Aswell but no real progress toward that goal was made. The status quo was highly unsatisfactory and very harmful to the emotional well-being of the girls.

These factors created a pressing need that this matter be resolved. When that need is coupled with appellants’ counsel’s knowledge of the hearing nearly four months in advance we discern no abuse of discretion in the trial judge’s refusal to delay this matter further by granting either of appellants’ motions.

These assignments are without merit.

Assignment # 2

Through this assignment appellants contend that the trial judge erred in holding an evidentiary hearing, over their objection, which denied them a fair trial.

We begin by noting that it does not appear from the record that appellants objected to the hearing in any way other than their motion for a continuance. We also note that this assertion is, as are all others made by appellants, totally unsupported by any authority.

Appellants had ample notice and adequate time to prepare for the hearing. Any unfairness resulted solely from their failure to avail themselves of their opportunity to prepare. They now seek to avail themselves of their own neglect to reverse the judgment. This they cannot do.

This assignment of error is without merit.

Assignment # 4

Through their final assignment of error appellants contend that the judgment is contrary to law and evidence. They argue that the trial judge placed excessive weight on the testimony of Dr. Stephenson and failed to consider conditions in the foster homes.

Appellants argue that the trial judge placed excessive weight on the testimony of Dr. Stephenson in light of the amount of time he had spent with the persons involved. We disagree.

Dr. Stephenson is an experienced psychologist. He twice evaluated Mrs. Aswell and Christy and he evaluated Angela once. These evaluations required approximately two and one-half hours each. Thus, Dr. Stephenson has spent considerable time with those involved here. The evaluation of Mrs. Aswell’s personality by Dr. Stephenson is corroborated by admissions contained in Mrs. Aswell’s testimony of highly emotional and angry behavior. The testimony of Mr. Aswell relative to the daily angry confrontations that occurred between him and Mrs. Aswell until three months before the May 25 hearing and the admission by Mrs. Aswell that she was responsible for all of these arguments further corroborates Dr. Stephenson’s evaluation of Mrs. Aswell. The testimony of Mrs. Joy Camp elicited on cross examination by Mrs. Aswell’s attorney wherein she related numerous incidents concerning confrontations between Mr. and Mrs. Aswell, of which Mrs. Aswell had informed her and which occurrences, with one exception, Mrs. Aswell did not deny, further support Dr. Stephenson’s evaluation. For these reasons Dr. Stephenson’s testimony and opinions were entitled to the considerable weight they were accorded by the trial judge.

The appellants also argue that the trial judge did not consider the effect of the foster homes on the girls. Again we disagree.

The record shows that the foster homes in which the girls were placed were good environments in which they received affection and excellent treatment and to which they adapted well. The trial judge’s preliminary remarks and oral reasons for judgment show a thorough familiarity with all aspects of the record. Thus, we conclude that the trial judge was aware of and did consider the environment and effect of the foster homes in reaching his decision.

A parent may be deprived of custody of his children only if he is mentally, morally or otherwise unfit or incapable of caring for them, or for some other reason it would be detrimental to the child’s health, safety and welfare to permit them to remain with the parent. In re State Ex Rel. Thaxton, 220 So.2d 184 (La.App. 1st Cir.1969).

The record clearly shows that Mrs. Aswell is incapable of meeting the emotional needs of her daughters. When in her care Christy and Angela are subjected to not only damaging neglect of their emotional needs but also to active emotional abuse. The state has made, as the trial judge put it, an “overwhelming” showing that Christy and Angela are “child(ren) in need of care” under LSA-C.J.P. art. 13 which provides:

“(14) ‘Child in need of care’ means a child:
... (b) Whose physical, mental or emotional condition is substantially threatened or impaired ... as a result of the parent’s neglect or imposition of cruel punishment; ...”

The trial judge properly placed the children in the custody of the department. LSA-C.J.P. art. 85 A(2).

Appellants’ fourth assignment of error is without merit.

The trial judge in his reasons for judgment stated, “Finally, the Court orders that the state immediately proceed with a petition for formal termination of parental rights of the mother, the natural mother, Mrs. Ethel Crain Aswell.” The judgment appealed awards full custody of the children to the department, terminating visitation privileges to Mrs. Aswell and the last paragraph provides:

“That a petition shall be filed for termination of all parental rights of Mrs. Ethel Lee Aswell, mother of these two children.”

This provision of the judgment may be subject to the interpretation that the trial judge has made a determination to permanently terminate appellant’s relationship with her daughters. The statutory requirements for terminating parental rights are contained in La.R.S. 13:1600-13:1604. These provisions set forth special procedural requirements, specific conditions which must be met along with detailed burden of proof requirements. These proceedings were not filed under these statutory provisions and the posture of the proceedings does not comply with all of their requirements and for these reasons we amend the judgment by eliminating the last paragraph relating to termination of parental rights.

AS AMENDED THE JUDGMENT IS AFFIRMED AT APPELLANT’S COSTS.

      . This is an action to have Christy and Angela adjudicated as children in need of care under the Code of Juvenile Procedure as authorized by R.S. 14:403 G(9).

      . Ethel’s extreme lack of self-control is illustrated by the fact that she berated the children and clashed with her husband even while department workers were in her home to observe, rather than being able to curb herself during these brief visits.

      . Included in the trial judge’s written reasons for denying appellants’ motion to reopen the testimony is the following statement:
      “2. Mover and counsel were advised of the date of this hearing in December, 1981. Mover was advised by her caseworker that evidence of an evaluation she submitted to would be used in Court. Additionally, on the date of Monday, May 24, 1982 the Court and counsel for mover met in Chambers and discussed a problem of witnesses that mover had requested counsel subpoena to the hearing.
      3. Mover and counsel for mover were fully aware of the nature and content of the hearing conducted on Tuesday, May 25, 1982 and had been so aware for several months preceding the hearing.”

      . Though the trial judge did not specifically make this finding it is implied by his judgment.

      . The concept of “neglect” also includes abuse. State in Interest of Black, 310 So.2d 174 (La.App. 4th Cir.1975); writ refused, 313 So.2d 829 (La.1975).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Tracy Scott PEARSON, Defendant-Appellant.
    No. 15088-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      James M. Johnson, Asst. Dist. Atty., Min-den, for plaintiff-appellee.
    Marshall Pearce, Minden, for defendant-appellant.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   PRICE, Judge.

Defendant obtained a writ of review in this matter seeking reversal of the trial court’s ruling revoking his probation. We affirm.

The defendant, a white male, 19 years of age, pled guilty on January 19, 1981, to the charge of simple burglary of a Radio Shack located in Minden, Louisiana. On May 11, 1981, defendant was sentenced to three years at hard labor. The execution of that sentence was suspended and defendant was placed on three years active probation subject to certain special conditions. On August 20, 1981, defendant received the court’s permission to live with his parents in Arkansas.

On May 14,1982, a petition for cause was filed by defendant’s probation officer alleging defendant to be in violation of the conditions of his probation due to his recent felony burglary and theft conviction, also obtained pursuant to a guilty plea, in Arkansas. On August 2, 1982, the district court for Webster Parish ordered defendant’s probation revoked and required him to serve the sentence originally imposed. Defendant obtained a writ of review from that ruling and is presently before this court asserting two assignments of error.

ASSIGNMENT NO. 1

On June 11,1982, over defendant’s objection of improper certification, the trial court allowed the state to file into evidence an original copy of the transcript of the Arkansas proceeding in which defendant received his second conviction. That document is certified by the official court reporter of that Arkansas court in the usual and customary manner as follows:

“CERTIFICATE
I, Elizabeth Atha McAlister, official court reporter for the Ninth Judicial Circuit West of Arkansas, do hereby certify that the above and foregoing pages constitute a full, true, and correct transcription of the proceedings had and done in the cause as styled and set forth on the first page.
I further certify that such testimony was taken by me on the 11th day of January, 1982, and reduced to typewritten form by me.
WITNESS my hand this the 4th day of June, 1982.
s/ Elizabeth Atha McAlister
Elizabeth Atha McAlister
Court Reporter”

That certificate, which appears on the last page of the transcript, is the only authentication the document in question received before being sent to Louisiana. On August 2, 1982, the trial court ruled the transcript was admissible and consequently revoked defendant’s probation. Defendant assigns the admission of that document as reversible error. For the following reasons, we find this assignment to be without merit.

The essence of defendant’s contention, as expressed in his brief, is this: “There is no certificate of the Clerk of Court, the Judge, or of anyone else verifying the fact that Elizabeth Atha McAlister is in fact the Court Reporter or verifying the fact that these matters are under the general powers vested in her.”

Were this case an ordinary criminal prosecution, the defendant would be correct in contending that additional authentication would be required to render this original document admissible. State v. Day, 410 So.2d 741 (La.1982) and authorities cited therein. However, in probation revocation hearings “... formal procedures and rules of evidence are not employed.” State v. Davis, 375 So.2d 69 (La.1979) at p. 72. See also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). As the court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), stated:

“We emphasize there is no thought to equate this second stage of ... revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” 92 S.Ct. at 2604.
“Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.” Gagnon, 93 S.Ct. at 1759-60.

Therefore, while due process does apply to revocation hearings, its requirements in those proceedings are less stringent. Gagnon; Morrissey, supra. These relaxed standards of due process are justified by the following realization:

“Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special ... restrictions.” Morrissey, 92 S.Ct. at 2600.

In deciding whether or not a formal, evidentiary rule normally applicable in a criminal prosecution should be relaxed in a probation revocation hearing, one should determine if the policy behind the rule would be sufficiently served by its application to such a hearing so as to outweigh any resulting impediment to the probation process. State v. Davis, supra. In this instance we feel that strict adherence to the formal rules governing authentication of documents would serve no useful purpose. In reaching this decision, we are not unmindful that even the deprivation of conditional liberty must be based upon a sufficiently certain factual basis. In Gagnon this idea was expressed in these words:

“Both the probationer or parolee and the State have interests in the accurate finding of fact and the informed use of discretion — the probationer or parolee to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.” 93 S.Ct. at 1761.

The requirement of authentication is designed to guard against fraud, collusion or fabrication of evidence. McCormick On Evidence, second edition, § 218 (1972). In the case at bar, the transcript has been certified by the official court reporter as a “... full, true, and correct transcription of the proceedings ...” in Arkansas. It is also apparent from that certification that the reporter was present at and had personal knowledge of those proceedings upon which to found her certification. The defendant makes no allegation of innocence, invalidity or mistaken identity with respect to' the second conviction and advances no claim of fraud, collusion or fabrication on the part of the state. His only claim is that there should be additional certification to render this document admissible. Under these circumstances, in which the underlying facts set forth in the transcript are not contested, requiring additional authentication would do nothing to further establish the genuineness or veracity of the document and would only serve to unnecessarily hamper the workings of the probation process. As the court in Gagnon pointed out, in probation revocation hearings, “... due process is not so rigid as to require that the significant interests in informality, flexibility and economy must always be sacrificed.” 93 S.Ct. at 1763. Therefore, we hold the transcript was properly admitted.

ASSIGNMENT NO. 2

Defendant contends the trial court erred in considering his failure to testify to refute the existence of the Arkansas conviction in making its decision to revoke his probation. Assuming the trial court drew such an inference, which is by no means clear from the record, no reversible error resulted since we have found that the transcript, which sets forth adequate grounds for the revocation of defendant’s probation, was properly admitted. Therefore, no further discussion of this assignment is warranted.

DECREE

For the foregoing reasons, the order of the trial court revoking defendant’s probation is AFFIRMED.


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

text:
    Jimmie ARNOLD, Plaintiff-Appellant, v. Walter McCONNELL et al., Defendants-Appellees.
    No. 15089-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Alex S. Lyons, Shreveport, for defendant-appellee, Walter McConnell.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellee, St. Paul Fire & Marine Ins. Co.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The principal issue posed by this appeal is whether a minor was an employee of his stepfather, within the meaning of our Worker’s Compensation Act, at the time of his accidental death.

Arnold sued to recover worker’s compensation benefits for the death of his minor son, Calvin, alleging that the youngster was killed while in the employment of his stepfather, McConnell. The latter’s worker’s compensation insurer, St. Paul Fire and Marine Insurance Company (“St. Paul”) was also made a defendant. When St. Paul denied coverage under its policy, McConnell made it a third party defendant also, asserting the existence of coverage.

After a trial on the merits, without going into the question of insurance coverage the trial judge concluded that plaintiff’s deceased son was not an employee of McConnell under the Worker’s Compensation Act and rejected plaintiff’s demands. Consequently, the third party demand was also dismissed.

Plaintiff contends on appeal that the trial judge erred in his ruling on the employment question. McConnell answered the appeal, with the contention that, if we hold him liable to plaintiff for worker’s compensation death benefits, St. Paul’s insurance policy covers that liability.

For the reasons hereinafter set forth, we affirm.

It was established at the trial on the merits that on July 25,1981 McConnell was transporting his 16 year old stepson, Calvin, and four others in a truck to a third party’s farm to pick up some previously baled hay. Calvin was killed en route when the truck collided with a train at a railroad crossing.

The facts in this case are essentially undisputed. McConnell testified that Calvin lived in a dwelling occupied by McConnell and the minor’s mother (to whom McConnell was married in 1978) for about eleven years prior to his accidental death. During this period of time McConnell provided for all of Calvin’s support. Along with three other children living in the home, Calvin received a regular cash allowance, varying from $10 to $20 per week, depending upon his needs.

McConnell’s usual work was that of a building contractor, but in the summer of 1981 he also cut and baled hay. When not in school Calvin assisted his stepfather in his business endeavor,, but never received any remuneration over and above his regular weekly allowance. This allowance was not reported by McConnell as a business expense nor was any deduction ever made for income or social security taxes.

McConnell stated that he did not require Calvin to go with him on the date of the fatal accident to pick up the hay, nor was it anticipated that Calvin would receive any pay for his work on that project. The regular allowance would continue whether Calvin assisted in picking up the hay or not, according to McConnell.

La.R.S. 23:1231 provides that in certain circumstances the parent of a deceased employee is entitled to stipulated benefits.

A person may become an employee within the meaning of our Worker’s Compensation Act if he is performing a service for another with the latter’s consent and subject to his control or direction. No formal contract between the two is necessary and there need be no specific agreement as to how much is to be done or how long the arrangement shall continue. It is not required that the amount or terms of payment be settled, so long as the circumstances fairly indicate that the services were not intended as a gratuity and both parties understood that payment was to be made therefor. Malone & Johnson, Worker’s Compensation, 2d Ed., § 52, p. 71.

A person rendering services for another in any trades, businesses or occupations covered by the Worker’s Compensation Act is presumed to be an employee within the meaning of that statute. La.R.S. 23:1044.

Since Calvin was rendering a service for his stepfather at the time of his death, it is presumed as a matter of law that the minor was employed by McConnell when accidentally killed. The question is: did McConnell discharge his burden of rebutting that presumption?

In Caldwell v. Caldwell, 55 So.2d 258 (La.App. 2d Cir.1951), defendant was sued by his minor son for worker’s compensation benefits for an injury arising out of his alleged employment at the defendant father’s plant. The son was shown to have received considerable spending money from his father. We held that because “a father intermittently and irregularly advances cash to his minor son for services rendered by him, this does not create contractual employment, nor a legal status equivalent thereto.”

On the other hand, in St. Paul Fire & Marine Insurance Company v. Richard, 208 So.2d 35 (La.App. 3rd Cir.1968), a father and his adult son worked out an arrangement under which they exchanged labor on each other’s projects. The father raised cattle and leased part of his land to his son for rice production. Each worked from time to time in the other’s business. For every day’s work furnished by the father to the son, the latter would furnish the father a day of labor. The father was injured while working on the son’s rice crop. Finding that the father was an employee of the son for worker’s compensation purposes, the court commented:

“... [tjhere is no general test which can be applied in all cases to determine whether an employee-employer relationship exists. However, there must be a contract of employment, either express or implied, whereby the services are furnished with the understanding that payment will be made therefor. Here there was such a contract.” (Emphasis added)

In this case, there is no question but that for most of Calvin’s life McConnell had assumed the role of his father, particularly in the area of providing support. This relationship is not in itself determinative of the employment issue, but it is certainly a significant factor to consider. There is no evidence in the record to support appellant’s argument that Arnold agreed to work for his stepfather in exchange for a weekly cash allowance. Consequently, this case is readily distinguishable from Richard in which the father and his adult son entered into a contract of employment involving a mutual exchange of labor. The unrefuted fact is that Calvin was not to be paid anything in addition to his regular allowance for helping his stepfather pick up the hay.

After reviewing the record and the un-controverted facts contained therein, we conclude that the trial judge correctly held as a matter of law that plaintiff’s minor son was not an employee of the defendant McConnell at the time of his fatal accident. Judgment rejecting plaintiff’s demand was, therefore, appropriate.

This holding pretermits the necessity of considering the question of insurance coverage posited by McConnell’s answer to the appeal.

For these reasons, we affirm the judgment of the district court at appellant’s cost.


text:
    In re BAS APPLYING FOR ADOPTION,
    No. 15090-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Sam N. Gregorio by James G. Cowles, Jr., Shreveport, for appellant.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

Applicant petitioned to adopt the son of his wife by a prior marriage. Applicant’s petition was opposed by the child’s natural father, who appeals a judgment granting the adoption. We affirm.

This appeal presents two issues: 1) is the custodial parent’s frustration of the noncustodial parent’s visitation rights just cause for the latter’s failure to pay child support under LSA-R.S. 9:422.1; and 2) is applicant’s adoption of the child in the latter’s best interest.

The Facts

The child was born on December 9, 1973, of the marriage between appellant and applicant’s wife. The parents of the child were divorced in Bexar County, Texas, on August 1, 1977. The judgment awarded custody of the child to his mother and ordered appellant to pay child support, of $125.00 per month.

On August 20, 1977, the child’s mother married the applicant. Since then she and the child have resided with the applicant in Shreveport.

Appellant has not spoken to or visited his son since 1977, nor has he given the child a Christmas or birthday gift since the divorce. By his own admission appellant made only one child support payment in 1979 and none in 1980 or 1981 before the petition was filed, though he was almost continuously employed throughout that period.

Appellant testified that he stopped making child support payments because of his former wife’s repeated failure to honor his visitation rights. He further testified that he would resume making support payments if he was allowed to see his child.

Applicant and his wife testified that appellant made only sporadic attempts to see the child. They denied interfering with appellant’s attempts to see or contact the child.

Applicant has supported the child since 1979. He testified that he loves the child and that they participate in father and son type activities together. Applicant further testified that he desired to take on the full obligation of being the child’s father.

The trial judge found appellant without just cause for his failure to pay child support and furthei found the adoption to be in the child’s best interests. The judgment complained of was rendered and the natural father appealed.

Issue # 1

Under LSA-R.S. 9:422.1(1) a stepparent may adopt without consent of the non-custodial parent where: 1) his spouse has been granted custody by a court of competent jurisdiction; and 2) the non-custodial parent has failed to comply with a court order of support for a period of one year. The jurisprudence has added the additional requirement that the failure to support have been without just cause. Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977).

The child’s mother was awarded custody of the child by a court of competent jurisdiction and appellant made none of the court ordered child support payments for well over one year prior to the filing of the petition. Thus, it was appellant’s burden to prove some just cause for his failure to pay child support. Berry v. Berryhill, 330 So.2d 405 (La.App. 3d Cir.1976).

The asserted basis for appellant’s failure to pay child support was his former wife’s obstruction of his visitation rights.

The evidence concerning the alleged obstruction of visitation is in complete conflict. The trial judge’s excellent written reasons show that he accepted the version of applicant and his wife, and found no obstruction of visitation. That finding was based on a reasonable evaluation of credibility by the trial judge and, therefore, may not be disturbed here. Pierre v. Landry, 341 So.2d 891 (La.1977).

Further, even had appellant proved an obstruction of visitation it would have been of no avail. Denial of visitation is not just cause for the failure to pay child support. In re Jones, 337 So.2d 283 (La.App. 2d Cir.1976), writ refused, 340 So.2d 314 (La.1976); Matter of Adoption of McArthur, 333 So.2d 372 (La.App. 4th Cir.1976), writ refused, 337 So.2d 219 (La.1976); Edwards v. Deming, 350 So.2d 920 (La.App. 4th Cir.1977).

The trial judge correctly concluded that appellant’s failure to pay child support was without just cause.

Issue #2

Even in cases where parental consent is not required the adoption should be allowed only when it is in the best interests of the child. Adoption of Latiolais, 384 So.2d 377 (La.1980).

Whether an adoption is in the best interests of the child must be decided on the facts of each case and the trial judge is vested with great discretion in making that determination. In re Hinton, 390 So.2d 972 (La.App. 2d Cir.1980).

Appellant contends that there was no showing that the adoption was in the best interests of the child. The trial judge found to the contrary.

The record shows that applicant loves the child and has provided all support for this child since 1979. The child and applicant participate in activities together. The child has been in the home with applicant since 1977 and appellant has not seen the child since 1977.

Applicant testified that he desired to assume the full responsibility of being the child’s father. A responsibility which appellant has carefully shirked for nearly two years.

Appellant’s counsel argues that an af-firmance “would be tantamount to a ‘pronouncement of death’ between father and child.” Perhaps so, but it would be no more than the recognition of the death which occurred long ago of a relationship.

We are in accord with the trial judge’s finding that the adoption would be in the child’s best interests.

Appellant’s assignments of error are without merit. The judgment is affirmed at appellant’s costs.

      . Appellant makes 3 assignments of error. He contends the trial judge erred in:
      1)finding that he did not have just cause for his failure to support his child;
      2) applying R.S. 9:422.1 and granting the adoption without his consent; and
      3) finding the adoption was in the best interest of the child.

      .The child was brought to Louisiana in contravention of the Texas judgment which ordered his mother not to take him out of the state without the prior written consent of the court. Following the child’s removal from the state, his father applied to the Texas court for a new trial and his motion was denied. It does not appear that the natural father has made any other attempt to avail himself of a judicial remedy for the mother’s violation of the judgment.

      . The payment made in 1979 may not have been received until January, 1980.

      . Just as the violation of a judgment by denial of visitation does not provide just cause for a failure to pay child support, neither would the violation of the judgment by removing the child from the state provide just cause for the failure to pay child support.