author: CULPEPPER, Judge.

text:
    Terrell McGEE and Barbara Deshotel McGee, Plaintiffs & Appellees, v. V. T. PIERRET REALTY & CONSTRUCTION COMPANY, INC., Defendant & Appellant.
    No. 8493.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 1981.
    Offices of Charles N. Wooten by Dan Keefe, Lafayette, for defendant & appellant.
    Morgan J. Goudeau, III, Opelousas, for plaintiff & appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

The defendant-vendor appeals a judgment granting the plaintiffs-buyers’ demand for specific performance of a contract to buy and sell a home.

The substantial issue is whether plaintiffs were in default by failing to close the sale on the date set in the contract or an agreed extension thereof.

The parties entered into the written agreement on June 28, 1977. The purchasers deposited $1,000 on the price of $49,500. The sale was conditioned on the purchasers’ ability to secure a loan of $39,300 within 60 days. On August 5, 1977, a financing commitment was obtained for the loan. The contract also provided that the sale was to be closed not later than November 28, 1977, subject to time allotted for curative title work or completion of new construction.

The document in question was a form contract provided by defendant-builder and containing the standard language:

“In the event the purchaser fails to comply with this agreement within the time specified the seller shall have the right to declare the deposit ipso fact, foreited without formality beyond tender of title to purchaser, (emphasis ours) or the seller may make specific performance.
“In the event the seller does not comply with this agreement within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus and equal amount to be paid as penalty by the seller, or the purchaser may demand specific performance (emphasis ours).”

Construction of the home began immediately after the signing of the agreement. Purchasers were at this time residing in Anchorage, Alaska. They did not visit the home for inspection until December 11, 1977. During that visit they discovered that the builder had encountered problems in building the home according to the exact specifications of the blueprints selected by the parties. They found that he made substantial deviations therefrom in the course of construction without consulting them. After negotiations between the parties, the defendant-builder agreed to make certain changes and corrections in the house. The purchasers thereupon indicated their willingness to proceed with the transaction as soon as the construction was completed.

On about March 2, 1978, the defendant’s sales representative notified the loan officer who was handling the loan that construction was complete. The secretary for the attorney handling the act of sale testified that the final title work on the property was completed March 28, 1978. The necessary closing documents were then completed and mailed to the McGees in Alaska on April 4, 1978. They were received back, properly executed by the purchasers, in the attorney’s office on April 26, 1978. In the meantime, a letter dated April 24, 1978 was mailed to Mr. McGee by the attorneys for the defendant-builder, wherein it was stated that the defendant considered the purchasers to be in default on the agreement to buy and sell and that defendant was refunding their deposit.

The plaintiffs testified at trial that no one representing the defendant ever made any objection to the manner in which the transaction was being closed, that title to the property was never tendered to them, that subsequent to the time they received notice that construction was complete no one ever made a demand that they perform their obligation, and that they never received from the builder an act of sale to be executed by them. This testimony was un-contradicted.

In support of its contention that the trial court erred in finding plaintiffs were not in default, the defendant argues that since the sale had not been closed at the time of completion of construction, as provided by the agreement, and no extension of the closing date had been agreed to in writing, the offer to purchase (or sell) the property had expired and neither party had any right to enforce the contract.

The plaintiffs argue that the language of the contract is controlling, and that the seller was required to first put the purchasers in default according to the terms of the contract by tendering title to them. Thus, absent the tendering of title by the seller, the contract remained viable and either party could put the other in default in accordance with the Louisiana Civil Code and terms of the contract. We agree.

The general codal articles on default require that in commutative contracts, the party who wishes to put the other in default must, at the time and place expressed in or implied by the agreement, offer or perform that which he is bound to do under the agreement, otherwise the other party will not be legally in default. LSA-C.C. Articles 1911-1913.

The vendor relies on De Francesch v. Cella, 367 So.2d 78 (La.App. 4th Cir. 1979) in support of its contention that the contract expired once the date set for passing the act of sale went by without the closing of the sale, or a written agreement to extend the time. We find that case inappo-site to this suit as there is no indication therein of any specific contractual provisions regarding the effect of failure to close by the specified date.

Under Louisiana Civil Code Article 1901, a contract has the effect of law on the parties thereto. Thus, the contract language quoted above provides the law between the parties in the event either or both do not comply with the contract within the specified time. This same language was considered by the Louisiana Supreme Court in Everhardt v. Sighinolfi, 232 La. 996, 95 So.2d 632 (La.1957), wherein it was stated that such language “clearly negatives the idea of the purchasers being in automatic default for mere failure to perform”, since it requires that the vendor must tender title before the deposit is forfeited. Thus, absent a tender of title, the purchaser is not in legal default and remains free to place the vendor in default by bringing suit to demand specific performance.

Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App. 1st Cir. 1976) also involved a contract containing a clause identical to the one under consideration here and in Everhardt, supra. The sole question was whether or not the contract had expired according to its terms when title was not passed by the specified deadline, relieving all parties of any obligations thereunder. The failure to close the sale by the date specified in that case was due to delays in acquiring a loan. A later date was set for the closing at which the vendor was present, but the purchaser failed to sign, and was ultimately notified that he should either take title to the property or forfeit his deposit. The purchaser sued for return of the deposit on the grounds that the contract was no longer viable once the date specified in the contract had passed without execution of the act of sale. The First Circuit held that, time not being of the essence of the agreement, and title never having been tendered by defendants nor demand made by the plaintiff-purchaser, neither party was in default until the defendant-vendor demanded performance by the purchaser.

There is nothing in the instant case to indicate that the parties considered that time was of the essence. Indeed, defendant makes no such argument. Nor does the law provide that the passive breach of such a contract is equivalent to a default. Thus, since dissolution of the contract, as defendant is claiming here, requires a putting in default under Art. 1912, this case is governed by LSA-C.C. Art. 1911, Subparagraph (2). Luna v. Atchafalaya Realty, Inc., supra; Fortenberry v. Decay, 279 So.2d 725 (La.App. 1st Cir. 1973). That article provides as follows:

“Art. 1911. The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
* * * * * *
2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.”

The contract itself provides the act by which the seller must put the purchaser in default before he may claim forfeiture of the deposit as damages for breach of the contract. The requirement is tender of title to the purchaser. Under this contractual provision, tender is a prerequisite.

The contract thus remained viable after the expiration of the time for transferring title and either party could have put the other in default and demanded specific performance. Everhardt, supra; Luna, supra; Succession of Jones, 369 So.2d 1143 (La. App. 1st Cir. 1979).

Moreover, according to this agreement, the deadline for execution of the final act of sale was not a specified date. The defendant-vendor saw fit to protect himself against the possibility of inadvertently breaching the contract for failure to complete construction within a specified time, by adding the proviso that the date of closing would be subject to completion of construction. It was further subject to time for curative title work. Once construction was complete and the necessary title work done, the defendant could have, at any time, tendered title to the plaintiffs and thus placed them in default. This it failed to do. The letter of April 24, 1978, merely stated that the defendant considered the plaintiffs in default, and that the defendant did not stand ready to perform its obligation under the agreement. The plaintiffs showed that at all times after the settlement of the dispute over the changes they were ready, willing and able to pass the act of sale and take title to the property. Indeed they had already executed the necessary papers by the time the defendant attempted to return their deposit. All attempts thereafter to have the seller execute the act of sale were in vain.

The defendant was well aware that the McGees were residing in Alaska and failed to object to the handling of the transaction through the mails. However, even if these facts were not sufficient to render a reasonable delay excusable, the defendant never made a demand for specific performance, nor was there ever any effort to tender title to the plaintiffs. Thus, the purchasers were never in legal default under the contract. They therefore had the right to put defendant in default, which they did by filing this suit for specific performance.

Defendant also contends that because the McGees never tendered the purchase price to the seller, under Sliman v. McBee, 311 So.2d 248 (La.1975) and La.C.C. Article 2549, the vendor is entitled to choose between the remedies of enforcement or dissolution of the contract. They argue that V. P. Peirret merely chose dissolution and therefore returned the deposit. The answer to this contention is that Article 2549, which declares that one of the buyer’s obligations is to pay the price of the sale, applies to a perfected contract of sale, not to a buy and sell agreement.

The first paragraph of Civil Code Article 2462 provides that:

“Art. 2462. A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immova-bles, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.”

It does not, however, give rise to the same obligations as a perfected sale. The obligation hereunder, as to both parties, is to enter into a contract of sale at some future time. Furthermore, Sliman v. McBee, supra, involved a perfected credit sale as to which the purchaser failed to make timely payment to the seller. It is clearly inapplicable to the instant case. The prospective seller does not have the choice of enforcement or dissolution. Under the terms of the contract he has the choice of seeking specific performance or damages, but only in the event the purchasers are not willing to perform their obligation.

The defendant’s contention that the ap-pellees should be ordered to pay to it the difference between the original sales price and the current fair market value of. the property is untenable. The agreement remained viable after expiration of the time for transferring title. Since the vendor failed to put the vendees in default by tendering title to the property to them, pursuant to the terms of the contract, they had the right to put it in default, which they did by filing this suit. They are thus entitled to specific performance as prayed for. Fortenberry v. Decay, supra; Hammond Asphalt Company, Inc. v. Ponder, 303 So.2d 851 (La.App. 1st Cir. 1974); Luna, supra.

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

AFFIRMED.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Theodore G. ANDRESSEN v. Honorable Steven PLOTKIN, Judge, Civil District Court for the Parish of Orleans.
    No. 12874.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 1981.
    John J. Gillon, Jr., New Orleans, for relator.
    Before SAMUEL, REDMANN and KLEES, JJ.
   SAMUEL, Judge.

On application of relator, a former court reporter for the Civil District Court for the Parish of Orleans, we granted certiorari to determine the validity, of judgments of contempt rendered against him for failure to timely file transcripts of court proceedings. These proceedings arise out of a rule by Judge Steven R. Plotkin and an en banc rule of the judges of the Civil District Court to determine the whereabouts of delinquent transcripts. Both rules were heard by Judge Plotkin.

The events leading to the judgments arose after repeated attempts by Judge Plotkin to secure from relator a complete transcript in a matter before his court. At a hearing on the rule for contempt in that matter on October 9, 1981 relator requested a continuance, claiming his notes had been misplaced. He was ordered to return the next week with the completed transcript.

The following week, prior to that hearing, Judge Plotkin received a telephone call from the Judicial Administrator’s office concerning seventeen missing transcripts owed by relator. The judges en banc then issued an ex proprio motu rule for contempt on October 16, 1981 to be heard by Judge Plotkin.

When relator appeared in Judge Plotkin’s court on October 16, he had only part of the transcript he had been ordered to produce in the Mayeaux case. He informed the court he did not know the status of the seventeen delinquent transcripts. The judge advised relator he would be held in contempt if he did not complete the requested transcript, make a full disclosure of the seventeen delinquent transcripts, and return to the court for safekeeping all of his notes on the seventeen files. He was sentenced to six months in Parish Prison, a $5,000 fine and revocation of relator’s court reporter’s license in the Mayeaux case, which sentence would be suspended, all on the condition that relator return the following week (October 28) with the completed transcript of all notes in his possession and proof of a diligent search for such notes as he lacked.

The matters were continued until October 23, 1981. At that time relator produced one-half of the requested transcript and completed transcripts of immaterial, terminated defaults, but failed to produce notes of the delinquent cases. The matters were continued for an additional week.

On October 30, 1981, relator was unable to produce the missing notes or to locate the other half of the missing transcript, and made only a partial return on other cases. Accordingly, the court imposed a seven day confinement in Parish Prison, a fine of $5,000, to be used to offset the costs of court and attorneys to replace lost transcripts, and six months in Parish Prison, which sentence would be suspended provided the record of Dr. and Mrs. Philip H. Rye v. Terminex Service Co., Inc. is transcribed while serving the sentence in Parish Prison, in failure of which the six months confinement would be imposed.

In this court relator contends the trial court erred in finding him guilty of contempt inasmuch as: (1) the documents requested were not in his possession or under his control; (2) relator had no benefit of counsel or prior notice of hearing; and (3) the matter should have been heard before a judge other than Judge Plotkin.

Relative to appellant’s first contention, it is apparent from the record that most of the numerous documents requested had been in relator’s possession and under his control but were either lost or misplaced by him. At first, he thought they were in a file cabinet but, when given time by the court to retrieve them, he was unable to locate them there. He then concluded they might be in the trunk of his girl friend’s car, but she was in Alabama, or he could have them at home. It is unclear from the record where “home” was. When questioned about his residence he at first refused to answer. When ordered to answer he named three addresses, that of his parents, an apartment he shares with another man, whom he identified only as “unemployed”, and he also disclosed the name and address of a girl friend where he also lives. From the testimony we conclude the notes and records could be in any of those three places, or in his or his girl friend’s automobile.

It was relator’s responsibility to know where the documents were located; they quite clearly had been in his possession and under his control, and he should have known where to locate them at all times. He was given several opportunities, over an extended period of time, to produce the documents and failed to do so. Accordingly, we reject the first contention.

We also find no merit in the second contention. Relator neither retained counsel or requested the opportunity to do so, nor did he object at any of the several hearings to the absence of counsel. Moreover, he had ample opportunity to employ counsel. Apparently he concluded there was no need to be represented by counsel, and indeed had relator complied with the judge’s order for the documents as he should have as a court reporter in the performance of his duties to the court, nothing further would have been necessary. Not only did relator not produce such material, he had no acceptable reason as to why he was unable to do so.

We regard the contempt as a direct one. It was committed in the immediate view and presence of the court and of which the trial judge had personal knowledge. C.C.P. Art. 222. Under those circumstances relator could be found guilty and punished by the court forthwith without any trial other than affording him an opportunity to be heard orally by way of defense or mitigation. C.C.P. Art. 223. This opportunity was afforded to relator.

Nor do we find merit in relator’s third contention. We are cited to the cases of Kidd v. Caldwell, La., 371 So.2d 247, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897, and In Re Merritt, La., 391 So.2d 440. These cases stand for the proposition that where the contemptuous conduct is of the sort likely to provoke a trial judge and embroil him in personal controversy with the defendant, the contempt trial preferably should be heard by another judge; and not only the possibility of actual bias on the part of the trial judge, but also the possibility of the appearance of bias should be taken into account.

Imprimis, we note there was no motion to recuse presented to the trial court in these matters as was done in the cited cases (all of which deal with criminal and not civil contempt). Consequently, the trial judge was not called upon to recuse himself. Nor does our review of the record reflect any bias or hostility toward relator on the part of the trial judge. On the contrary, the court exhibited exemplary patience in continuing the matter on several occasions to afford relator additional opportunities to produce the requested material.

Since we conclude the finding of contempt was correct and there was no need for the trial judge to recuse himself, we now address ourselves to the sentences imposed.

If the sentences imposed were legal ones, i.e., within the authority of the trial court, we would affirm. However, the only authority the trial court had with regard to penalty for contempt is contained in, and limited by, Code of Civil Procedure Articles 226 and 227, and Revised Statute 13:4611. These articles read:

“When a contempt of court consists of the omission to perform an act which is yet in the power of the person charged with contempt to perform, he may be imprisoned until he performs it, and in such a case this shall be specified in the court’s order.” LSA-C.C.P. Art. 226.
“A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law.
The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in R.S. 13:4611.” LSA-C.C.P. Art. 227.
In pertinent part R.S. 13:4611 provides: “Except as otherwise provided for by law:
(A) The supreme court, the courts of appeal, the district courts, family courts and city courts may punish a person adjudged guilty of contempt of court therein, as follows:
(3) For a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act; and
(4) For any other contempt of court, by a fine of not more than two hundred and fifty, dollars, or imprisonment for not more than thirty days, or both.” LSA— R.S. 13:4611.

We realize the $5,000 imposed was not intended as a fine per se, but was to reimburse the court for whatever expenses would be incurred to have the notes and transcripts completed. But the court’s power and authority to punish for contempt is limited in these matters to the extent permitted by the above quoted codal articles and statute.

By a supplemental pleading relator further contends that on November 12,1981 Judge Plotkin ordered the auditor of the judicial expense fund to withhold any checks received in relator’s name until he authorized their release. Relator contends such action was taken without hearing or notice and violated C.C.P. Arts. 3501 et seq. We are asked to order the release of the funds and to penalize the trial court for wrongful seizure, as provided by C.C.P. Art. 3501, by ordering payment of damages, including costs and reasonable attorney’s fees.

On the record before us, we do not find C.C.P. Art. 3501 applicable here. There is no showing as to what is represented by the checks in question. That money could be back pay (relator resigned in June, 1981), it could be money deposited for transcription costs, or several other things. In addition, there is no showing that the trial court has refused to authorize any payment.

For the reasons assigned, the judgments holding relator in contempt are affirmed, the sentences imposed in connection therewith are annulled and set aside, the request contained in relator’s supplemental pleading is denied, and the matters are remanded to the trial court for sentencing in accordance with law and with the views expressed herein.

AFFIRMED IN PART; ANNULLED AND SET ASIDE IN PART; AND REMANDED.

      . Sadie Stark Mayeaux v. Louisiana Health Service Indemnity Co., No. 79-6270(G) of the docket of the Civil District Court for the Parish of Orleans.


author: SCHOTT, Judge.

text:
    Victorian CLOFER v. PRATT FARNSWORTH, INC., and Liberty Mutual Insurance Company.
    No. 12725.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1981.
    Rehearing Denied Jan. 21, 1982.
    Claude D. Vasser, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellants.
    Frank S. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellee.

      Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

In this workers’ compensation case, plaintiff, Victorian Clofer, was awarded benefits for total disability resulting from two accidents he sustained while working for defendant, Pratt-Farnsworth, Inc., in June, 1977. The issue is whether the ultimately disabling condition of avascular necrosis of the left hip joint which was diagnosed in July, 1980, was caused by the accidents.

Plaintiff had been employed as a truck driver by defendant for two years prior to June, 1977. At the time of his first accident on June 7 he was unloading I-beams when he (according to his description) felt a snap in his left hip “like it was hot.” He continued to work that day despite pain and returned to work the next morning. He was unable to finish that day and went to Dr. Axelrod, the company physician, for treatment. His condition was diagnosed as a lumbosacral strain for which home heat treatments and medication were prescribed. He was discharged on June 17 and returned to work on June 20. On June 22 he was loading a heavy table saw onto a truck when it slipped and fell on him. He fell on his back side and was pinned under the saw. He was taken to the East Jefferson Hospital with primary complaints of injury to his right arm and was diagnosed to have abrasions and a compression injury to the right forearm and wrist. On July 1 he was again seen by Dr. Axelrod who diagnosed a contusion abrasion of the right forearm and lum-bosacral strain. He prescribed hot packs, ultra sound and medication and referred plaintiff to Dr. Stokes, an orthopedic surgeon.

Dr. Stokes testified as follows: He first saw plaintiff on July 20, 1977. Plaintiff complained of increased pain in the lower back radiating into the scrotal region. No specific point tenderness or muscle spasm was noted. He reviewed X-rays of the cervical spine taken by Dr. Axelrod on July 11 and interpreted them as negative. He concluded that there was no serious disorder of the lower back, and that he was able to work in an unrestricted manner. However, he made some positive findings associated with the injury to plaintiff’s right arm and for this reason he told plaintiff to return to him in four to six weeks. He again saw plaintiff on August 22 and found the forearm much improved. Plaintiff was complaining of intermittent pain and swelling in his left ankle, but Dr. Stokes made no positive findings and concluded that plaintiff could be working in an unrestricted manner.

Dr. Stokes saw plaintiff again on March 28,1978, at the request of defendants’ claim adjuster and was given reports from Dr. Adatto, an orthopedic surgeon, and Dr. Dy-sart, a physician who had done some elec-tromyograms and nerve conduction studies. According to Dr. Dysart his impression was that plaintiff had radiculopathy at C4, 5, 6, L4, 5, and SI bilaterally, a bilateral carpal tunnel syndrome and a right ulnar nerve neuropathy. Dr. Adatto planned to schedule plaintiff for an in-hospital myelogram.

Dr. Stokes further testified: Plaintiff had multiple complaints of headache, swelling of his right arm, low back pain, bilateral groin pain, pain in his left calf and ankle, swelling of his left leg, and stiffness of both feet. He had been experiencing pain in his groin and occasional low back discomfort with coughing. After an examination Dr. Stokes concluded that there were no clinical findings consistent with nerve root compression or irritation of the cervical or lumbar spines, and he did not believe that mye-lography or surgery was in order. However, because of Dr. Dysart’s positive elec-tromyogram he suggested an opinion from another electromyographer which was obtained in April and confirmed Dr. Stokes’ opinion.

Plaintiff testified as follows: After his first visit to Dr. Stokes he went to Charity Hospital where physical therapy and medication for pain were prescribed. He continued to have pain on his left side and went to Dr. Marrero. He hospitalized plaintiff for fifteen days for tests, treated him for a year, and referred him to Drs. Richardson and Nadell, neurologists. After being hospitalized by them for tests they prescribed an electric apparatus to relieve pain in his lower back.

In their report, Drs. Richardson and Na-dell stated that they saw plaintiff on May 8, 1979, with the chief complaint of lower back pain. Upon examination they concluded that he had musculoskeletal pain, depression, and hysterical personality traits and arranged for him to be treated in the pain rehabilitation unit at Hotel Dieu Hospital. They saw him on August 6, 1979, for a followup examination after his stay in the hospital and plaintiff stated that his pain was as severe as ever. At that time he was walking with a cane, using a lumbosacral corset, and was on a TENS stimulator. They concluded that plaintiff had minimal findings objectively but marked pain behavior with maximal complaints. They felt that he could return to gainful employment but was “obviously extremely poorly motivated.”

Plaintiff was seen by Dr. John Edmunds on February 14, 1980, who testified as follows: Plaintiff was using a cane, back brace, walked slowly and deliberately with marked limitation of spine motion, and was unable to bend forward to touch his knees. He had muscle spasm in his back with complaints of pain and radiation upon coughing. He thought plaintiff had a ruptured disc in the lower lumbar spine with nerve root compression. He reviewed the previous studies made on plaintiff and admitted him to the Tulane Medical Clinic for further evaluation on July 2,1980. After extensive tests, including X-rays, he found that plaintiff had avascular necrosis of the left hip which is death of the bone in the ball portion of the ball and socket hip joint. He explained that when the possibility of a ruptured disc was ruled out following numerous tests he began to look elsewhere and reexamined plaintiff in detail. He testified:

“. . . When I did it, it then became evident to me that the problems that he was having were arising in the left hip and that his complaints, a lot of his complaints were referred pain, complaints that were arising in the hip...”

Dr. Edmunds further testified that when he realized he had to look elsewhere than the spine for the origin of plaintiff’s problems and further X-ray studies revealed the necrosis in the hip joint he injected an anesthetic agent into the joint and plaintiff had a complete resolution of pain in his back, hip and leg. Dr. Edmunds stated:

“He then was able to get up off of the table, was able to walk without a cane, was able to squat without pain, and was able to run up and down the hall without pain with a smile on his face which was something he was unable to do before. Of course this is with an anesthetic agent in the hip joint.”

Thus, plaintiff’s problem was dramatically demonstrated and Dr. Edmunds scheduled him for hip joint surgery in September which consisted of the removal of the dead bone and the placement of a metallic device to replace the hip joint.-

Dr. Edmunds testified that trauma is one of the precipitating causes of avascular necrosis if a fracture occurs in the hip joint area. He explained that X-ray studies do not necessarily disclose an undisplaced fracture because such “is very subtle and can be missed on initial X-rays.” Asked to explain why plaintiff never complained specifically about hip pain, Dr. Edmunds replied that the general complaints plaintiff had of pain in the groin and low back were the equivalent of hip pain. Dr. Edmunds concluded that while there are various causes for avascular necrosis, considering plaintiff’s history, he suffered an undisplaced fracture in one of the accidents of June, 1977, which produced the condition which was finally diagnosed and treated in September, 1980.

Defendants rely primarily on the testimony of Dr. Stokes and a report from Dr. Brown to refute the opinion of Dr. Ed-munds.

Dr. Stokes testified that a compression injury can bring about avascular necrosis but he explained that this condition “sort of sneaks up on you. You have very minimal symptoms at first becoming progressively worse” However, he stated that the condition would normally manifest itself in seven or eight months following the trauma, and that plaintiff’s history was not consistent with the condition being caused by the June, 1977, accidents.

Dr. Brown, who examined plaintiff at defendants’ request in August, 1978, and reported no objective evidence of injury to the spine, gave the following report of his X-ray studies of plaintiff’s hip:

“There is irregularity of the left femoral head with two areas of increased density and osteophyte on the femoral head. This joint space is slightly narrowed and there is an osteophyte projecting from the superior margin of the acetablum. These changes are consistent with osteoarthritis of the hip.”

Defendants argue that this evidence supports the conclusions that 1) plaintiff’s avascular necrosis could not have developed from a fracture which occurred over three years previously, and 2) his condition was caused by degenerative arthritis.

In Adams v. New Orleans Public Service, Inc. (La.1981) (No. 81-C-0784 Sup. Ct. September 28, 1981), the court restated the rule that where there is proof of an accident and the following disability without any intervening cause, it is presumed that the accident caused the disability. Applying this rule to the instant case, the burden shifted to defendants to prove that plaintiff’s disability was caused by something other than the accident. From the detailed review of the testimony provided in this opinion it should be clear that .the defendants did not carry their burden of proof.

The evidence is clear that plaintiff continued to suffer with some serious difficulty for several years following the accidents. All the doctors who examined him until he was finally seen by Dr. Edmunds were preoccupied with the notion that his problem was in the low back but none found out what was wrong because they were all looking at his spine. The closest anyone came was Dr. Brown, but his report, standing alone, does not rule out the possibility that plaintiff had sustained an undisplaced fracture at the time of the injury. While the testimony of Dr. Edmunds was qualified to some extent he clearly attributed plaintiff’s problem to the accidents, and while Dr. Stokes did not share their opinion a close reading of his testimony does not provide a clear refutation of Dr. Edmunds’ opinion.

Like the trial judge, we conclude that defendants did not rebut the presumption that plaintiff’s disability was caused by the accident and the judgment is affirmed.

AFFIRMED.


author:
DOUCET, Judge.
      GUIDRY, Judge,

text:
    Elaine Neal WRIGHT, Plaintiff-Appellant, v. Edris Ron WRIGHT, Defendant-Appellee.
    No. 8521.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Michael W. Shannon, Alexandria, for plaintiff-appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This is a domestic matter wherein plaintiff, Elaine Neal Wright, appeals from a judgment awarding custody of the only child born of the parties’ marriage to the father, Edris Ron Wright, defendant-appel-lee. Plaintiff further appeals from a judgment granting legal separation based upon mutual fault.

The record discloses that the parties were married in December of 1975, and that their marriage was a very stormy one with numerous separations. On September 11, 1980, the plaintiff filed suit for separation and injunctive relief, and was thereafter granted temporary custody of the minor child, Gwendolyn Eilene Wright. Subsequently, the parties reconciled and that suit was abandoned. On November 15, 1980, while the parties were living together as husband and wife, the defendant allegedly attacked the plaintiff and departed from the matrimonial domicile with the child. This suit for separation was filed by appellant on December 18, 1980 wherein she alleged that the husband’s physical cruelty on November 15, 1980 rendered their living together impossible, and requested a rule to show cause be issued to determine whom should be awarded custody. The defendant filed an answer and reconventional demand, claiming that the defendant in reconvention left the matrimonial domicile on numerous occasions without lawful cause, and as a result thereof, he was entitled to a legal separation.

The custody rule was heard on January 15, 1981, at which time the child was almost three years old, and the trial court awarded custody of the minor child to the father-defendant. Trial on the merits was held on March 31, 1981 and the court rendered a judgment of separation based upon mutual fault. During this latter proceeding the trial judge found that there had not been an effective reconciliation prior to November 15, 1980. However, the trial judge thereafter contacted counsel for both parties to inform them that he had erred, and the minutes of court would be corrected to show that a reconciliation had in fact occurred. The plaintiff’s subsequent application for a new trial was denied.

Plaintiff has timely perfected the present appeal wherein she assigns as error that: 1) The trial court erred in failing to consider the natural bond which normally exists between a mother and child of tender years; 2) The trial court erred in awarding custody to the defendant based upon his prior custody and in requiring the plaintiff to prove that the prior custody was detrimental to the child’s well-being; and 3) The trial court erred in finding that the plaintiff was at fault, when such fault, if it in fact existed, occurred prior to the reconciliation between the parties and therefore was considered forgiven.

Appellant’s first assignment is without merit. The maternal preference rule has been legislatively overruled. La.C.C. Art. 157, as amended, effective September 7, 1979. See also Bordelon v. Bordelon, 381 So.2d 871 (La.App. 3rd Cir. 1980); affirmed, Louisiana Supreme Court, 390 So.2d 1325 (La.1980).

Concerning appellant’s second assignment of error, the facts are, as indicated hereinabove, that the plaintiff mother was originally granted temporary custody of the minor child by the court. The husband and wife reconciled, and subsequently, during an altercation commenced by the husband, he departed the matrimonial domicile and took the child with him. Subsequently plaintiff sued her husband for a legal separation based on cruel treatment, to which suit defendant-husband reconvened seeking a separation on the grounds of abandonment. At the custody rule in connection with this suit the trial judge granted custody to the defendant-father with the following comments:

“. . . After carefully considering the testimony of all of the witnesses in this case it seems apparent to the court that the child has been well cared for while in the custody of the defendant. There’s been no evidence of any mistreatment or abuse of the child. We’re dealing here with a child two years and ten months old. A child of that age is of very tender sensibilities and I am reluctant to change custody unless there are extenuating and mitigating circumstances which require this. I’m going to award custody of this child to the husband at this time since he has had it for approximately — I think since November 15th, is that the correct date? — two months.”

In so doing the trial judge obviously was attempting to apply the so called double burden rule which admittedly has been overruled statutorily and jurisprudentially. C.C. Art. 157, and Bordelon v. Bordelon, supra. Actually there had not been a considered decree insofar as custody of the child was concerned. The father had no decree at all, in fact, in this instance he absconded with the child when he left the matrimonial domicile. We feel that the trial judge erred in awarding custody to the father and particularly for the reasons advanced by him. Louisiana Law requires that custody be granted in accordance with “the best interest of the child”. La.C.C. Art. 157.

Our overview of the record indicates a rather substantial tendency of violence by the father. He admitted hitting his wife on numerous occasions, and administering a spanking involving excessive force to the child’s half-brother. There was additional evidence that he had previously shot a man during a dispute, attempted suicide (although he denies it saying that he shot himself accidently), and attacked his wife with a fork. While we recognize that custody decrees are not tools for regulation of human behavior, the award of custody to a parent with a violent disposition, such as we find in this case, does not seem to be in the best interest of the child. Furthermore, there was undisputed testimony that the father had been seen with the child at a tavern. He lives alone in a mobile home, and although his mother, who lives some miles away, and his grandmother, who also lives some miles away, babysit at times, the conditions for proper upbringing and rearing leaves much to be desired. By comparison, the appellant wife lives with her parents with adequate living conditions available and the help of her parents in taking care of the child. There has been absolutely no evidence of mistreatment or neglect of the child on the part of the mother, and all witnesses testified that she had been a good mother. Under these circumstances, we find that the trial judge was clearly wrong in awarding custody to the father. The best interest of the child dictates that she should be under her mother’s care.

We also reverse as to the trial judge’s finding of mutual fault. As stated earlier, the defendant’s reconventional demand was based upon the wife’s abandonment prior to the parties’ reconciliation. However, the jurisprudence is clear that reconciliation is tantamount to forgiveness of past misconduct. Courville v. Courville, 181 So.2d 277 (La.App. 3rd Cir. 1965); Brown v. Brown, 260 So.2d 66 (La.App. 4th Cir. 1972), writ refused, 261 La. 1067, 262 So.2d 45. The record is totally devoid of any evidence of fault attributable to the wife occurring after the parties’ reconciliation.

In view of our conclusion herein, we find that the record is not as complete as we would like it to be in order to determine the questions of child support, for which the appellee may be responsible, and visitation rights, to which he may be entitled. Hence we will remand the case to the district court for further consideration of these matters.

For the above and foregoing reasons the judgment of separation dated April 2, 1981, is affirmed insofar as it enjoins the appellee from harassing, threatening, or injuring the appellant, and from disposing, mortgaging, leasing, or otherwise alienating the community property between them, and insofar as it awards alimony pendente lite to appellant. It is reversed insofar as it grants a separation to the parties on the grounds of mutual fault, and it is now Ordered, Adjudged, and Decreed that there be judgment herein in favor of Elaine Wright and against Edris Ron Wright, declaring a legal separation between them.

The judgment is further reversed insofar as it granted the permanent care, custody, and control of the minor child to appellee, Edris Ron Wright, and it is now hereby Ordered, Adjudged, and Decreed that the permanent care, custody and control of the minor child, Gwendolyn Eileen Wright, be and the same is hereby awarded to Elaine Wright.

It is further Ordered, Adjudged, and Decreed that this matter be remanded to the district court for the purpose of determining the amount of child support for which appellee Edris Ron Wright may be responsible, and for a determination of any visitation rights to which he may be entitled.

All costs, at trial and on appeal, are assessed against appellee, Edris Ron Wright. Costs on remand to be determined by the district court at that time.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GUIDRY, J., concurs and assigns written reasons.

DOMENGEAUX, J., concurs for reasons assigned by GUIDRY, J.

GUIDRY, Judge,

concurring.

I fully agree with the result reached by the majority in this case. However, I do not agree that appellant’s first assignment of error is totally without merit because the maternal preference rule has been legislatively overruled. In my view, although the maternal preference rule has been legislatively overruled, this legislative amendment did not abolish the real life fact, based on human experience, that it is usually in the best interest of young children to be cared for by their mother unless it is shown that the mother is unfit morally or otherwise. We recognized that this concept remained a factor to be considered in custody cases between competing parents of children of tender years in Bordelon v. Bordelon, 381 So.2d 871 (La.App. 3rd Cir. 1980); affirmed, Louisiana Supreme Court, 390 So.2d 1325 (La.1980), in which case we quoted approvingly from Thornton v. Thornton, 377 So.2d 417 (La.App. 2d Cir. 1979). The trial court obviously did not consider this non-material concept in rendering the judgment which we reverse on appeal and I agree with appellant that such was error.

With these comments I respectfully concur.

      . The propriety of the trial judge’s ex parte amendment of a matter of substance is not before this court on appeal.


author: DOMENGEAUX, Judge.

text:
    Richard J. KELLER, et al., Plaintiffs-Appellants, v. FIREMEN’S PENSION & RELIEF FUND FOR the CITY OF LAKE CHARLES, Defendant-Appellee.
    No. 8525.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Avant, Wall, Thomas, Riche & Falcon, Daniel L. Avant, Baton Rouge, for plaintiffs-appellants.
    Peter A. Ciambotti and E. R. Robinson, III, Lake Charles, for defendant-appellee.

      Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

This case was consolidated for trial with that of Kenneth Brown v. Firemen’s Pension & Relief Fund for the City of Lake Charles, No. 8526, on the docket of this Court. The cases have remained consolidated on appeal and, as the law and relevant facts are common to both, our opinion herein is equally applicable to each. Nevertheless, we render a separate judgment for the case of Brown v. Firemen’s Pension & Relief Fund for the City of Lake Charles, La.App. to be found at 407 So.2d 1305.

All of the plaintiffs were formerly firemen of the City of Lake Charles, Louisiana. They filed this lawsuit seeking return of monies paid by them into the Firemen’s Pension and Relief Fund for the City of Lake Charles (hereinafter referred to as Fund). They contend that they were not “eligible to participate in the benefits of the fund”, as said phrase is used in Act 236 of the 1970 Regular Session of the Louisiana Legislature, therefore, they are entitled to a refund of all monies paid by them therein.

The trial judge held that the only requirement to be “eligible to participate in the benefits of the fund” was to have a minimum of three years service. Therefore, since all the plaintiffs served over three years they were eligible to participate in the benefits of the Fund, and were not entitled to a refund. From this adverse judgment the plaintiffs have appealed.

The key issue presented on appeal is whether or not the trial court erred in interpreting the aforesaid Act by requiring only three years of service with the Department to become eligible to participate in the benefits of the fund.

Act 186 of 1944 as amended by Act 236 of 1970, provides in Section 9(3) that:

“Four percent of the gross salary of all employees of the Fire Department shall be deducted monthly from their respective salaries and paid into said fund, provided that any person who ceases to be an employee of the Fire Department and who is not eligible to participate in the benefits of the fund shall be entitled to be paid all monies which said employee has paid in to the fund.”

The same legislation provides in Section 13(A)(2) that:

“Members who shall not have completed six full months of service in said Fire Department on September 1, 1968, and members who are hired subsequent to September, 1968, shall be eligible for participation herein only after having completed three full years of service in said Fire Department.”

The facts are essentially undisputed. The plaintiffs were employed for various periods of time by the Lake Charles Fire Department, but in each instance for more than three years. Dates of employment range from 1968 to 1974, and dates of separation from employment range from 1978 to 1980. During their employment, each plaintiff paid into the Fund four percent of their gross salary as required under the Act. All plaintiffs, however, terminated their employment prior to reaping any of the cash benefits afforded under the Pension Plan.

Plaintiffs contend that to become truly eligible to participate in the Fund one must serve twenty years on the Fire Department and not three years as stated in Section 13(A)(2) above. Their contention is premised on the fact that one must serve twenty years on the Fire Department in order to become eligible for “retirement benefits”. The appellants failed to recognize, however, that “eligibility”, as used in the Act, also refers to one’s eligibility to receive other benefits provided under the pension program.

Section 13(B) provides for disability benefits for firefighters injured both on and off the job who have served for the minimum period required for eligibility. Likewise, Section 13(C) provides widow benefits for the widows and children of firemen who meet the minimum eligibility requirements. It appears obvious to us that the phrase “eligible to participate in the benefits of the fund” is not restricted to retirement benefits as plaintiffs contend. One becomes eligible to participate in the benefits mentioned above upon completion of three years of service in the Department. Therefore, under the express provisions of Act 186 of 1944, Section 9(3) as amended by act 236 of 1970, supra, the plaintiffs are not entitled to a refund of monies contributed to the Fund.

Recently in Stevens v. Board of Trustees of the Police Pension Fund of the City of Shreveport, 370 So.2d 528 (La.1979), the Louisiana Supreme Court upheld the right to retain contributions to a pension fund similar to the one before us. In Stevens, supra, the Court held that where a pension fund imposes specific limitations upon the use of the monies in the fund, absent particular language in the statute providing for refund of contributions, there can be no such use of the monies.

Section 11 of the Act before us provides:

“That no portion of the said Firemen’s Pension and Relief Fund shall, before or after the order for distribution is issued by the said Board of Directors to the person or persons entitled thereto under the provision of this Act, be held, seized, or levied upon, by virtue of any attachment, garnishment, execution, or order or decree, or any other process whatsoever, issued out of, or by any court, for the payment or satisfaction, in whole or in part, of any debt, damage, claim, judgment, or decree against any beneficiary of such fund; but shall be exempt therefrom. That the said Fund shali be kept, heid and distributed for no purpose other than those provided for in this Act.” (Emphasis added).

Section 11 and Section 13 read together specifically limit the manner in which monies may be disbursed from the Fund.

Appellants contend that Stevens, supra, is inapplicable because the pension fund here contains specific language providing for a refund. Although the pension fund before us does contain particular language providing for a refund, the Act specifically restricts refunds to those who have nbt become eligible for benefits under the program. Accordingly, we see no reason why the rationale of Stevens should not be applicable here.

Additionally, plaintiffs contend that the trial court erred in admitting the testimony of a former state representative who authored the bill which later became the Act in question, a former lobbyist for the Firemen’s Union, and an expert in actuarial science, whose testimony was offered solely to attempt to establish the legislative intent of the Act before us. We find it unnecessary to rule on this allegation of error. Under our interpretation of this Act, we would come to the same conclusion as to the meaning of the phrase, “eligible to participate in the benefits of the fund”, absent this testimony. Thus, if the trial court did err in admitting this testimony, the error was harmless.

For the above and foregoing reasons the judgment of the district court is affirmed. Plaintiffs are to pay all costs in both courts insofar as they are assessable to them under law.

AFFIRMED.

      . Prior to the 1968 amendment one became eligible to participate in the Fund upon employment with the Department. In 1968 the previous legislation was amended to change the eligibility requirements to those found herein. It appears that the enactors desired to change the eligibility requirements, and chose September 1, 1968 (the effective date of the 1968 Act) as the cutoff date establishing eligibility. This provision merely adopts the language found in the 1968 Act.

      . Section 13(B)(1) provides for disability benefits for non work related accidents, i.e., where workmen’s compensation is inapplicable. Section 13(B)(2) provides disability benefits for work related accidents when workmen’s compensation benefits have been discontinued.

      . Section 13(C) provides for benefits to a deceased fireman’s widow and children. This provision allows the widow and children to receive those benefits the deceased would have been entitled to had he lived.


text:
    Kenneth BROWN, Plaintiff-Appellant, v. FIREMEN’S PENSION & RELIEF FUND FOR the CITY OF LAKE CHARLES, Defendant-Appellee.
    No. 8526.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Avant, Wall, Thomas, Riche & Falcon, Daniel L. Avant, Baton Rouge, for plaintiffs-appellants.
    Peter A. Ciambotti and E. R. Robinson, III, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

For the reasons assigned in the case of Richard J. Keller, et al v. Firemen’s Pension & Relief Fund for the City of Lake Charles, La.App., 407 So.2d 1302, the judgment of the district court is affirmed. Plaintiff is to pay all costs in both courts insofar as they are assessable to him under the law.

AFFIRMED.


text:
    Melvin GOODLOW, Plaintiff & Appellee, v. CITY OF ALEXANDRIA, Defendant & Appellant.
    No. 8534.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, III, Alexandria, for defendant-appellant.

      James H. Galloway, Jr., Alexandria, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries and property damage sustained when the automobile he was driving struck an open sewer manhole or its cover in a street maintained by the defendant city. The trial judge held the city strictly liable and awarded to plaintiff the sum of $2,668.04. The city appeals. We reverse.

The substantial issue is whether there was a defect in the manhole or its cover which justified the trial judge in applying strict liability.

On or about April 6, 1979, between the hours of midnight and 1:00 A.M., plaintiff was alone in his automobile, traveling north on Lower Third street near its intersection with Daspit Street in the City of Alexandria. The vehicle struck something in the road, plaintiff lost control, and the car ran off the road and struck a utility pole.

Mr. Goodlow was unable to testify as to what he hit, but it was established that there was an open sewer manhole in the right-hand northbound lane of the street, the cover for which was found lying upside down some three to four feet away from the manhole, in the left-hand northbound lane. These were the only things in the street which Mr. Goodlow’s vehicle could have struck that would have caused loss of control of the automobile. There is no evidence showing how, when or why the cover came off of the manhole.

The trial judge applied the doctrine of strict liability under LSA-C.C. Article 2317 and Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). In Jones, the plaintiff stepped on the cover of a catch-basin, which gave way causing her to fall four or five feet into the basin. The Court of Appeal refused to apply strict liability, citing a line of jurisprudence that actual or constructive notice of the defect to a public body is a prerequisite to tort liability. The Supreme Court reversed, holding that where strict liability is applicable notice of the defect is not necessary, even to governmental agencies. The Supreme Court stated:

“Proof of notice of the defect is indeed required when a plaintiff contends that a public body was negligent, either by virtue of specific conduct of its employees which created the dangerous situation (which is itself construed as notice), or by virtue of its failure to correct a dangerous condition caused by others. But, as we have demonstrated, negligence is only one of the footings on which the codal structure of tort liability rests. Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.”

In the present case, the trial judge recognized the essential issue is whether the plaintiff proved the manhole or its cover were defective. In holding the open manhole was defective, the trial judge first quotes from Marquez v. City Stores Company, 371 So.2d 810 (La.1979), where a three-year-old caught his tennis shoe in an escalator in defendant’s store. The court found the escalator defective, stating:

“The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective ... If this escalator were safe for small children with small feet, then James’ shoe could not have been caught in this opening.”

The trial judge next cites Stablier v. City of Baton Rouge, 393 So.2d 148 (La.App. 1st Cir. 1981), in which the plaintiff was riding a lawnmower in her yard when the ground beneath collapsed into a hidden chasm underneath caused by a leak in the city’s underground storm drain. The Court of Appeal criticizes the reasoning by the Supreme Court in Marquez as equating an unusual occurrence with the presence of a defect. Nevertheless, the Court of Appeal found that even without the analysis in Marquez, there was a defect in the storm drain which caused plaintiff’s injuries.

In his written reasons, the trial judge correctly states it is obvious that an open manhole in a street creates an unreasonable risk of injury. He reasons, under Marquez and Stablier, that since the manhole was open it was a defective thing in the custody of the city, and the city is strictly liable. We do not agree with this analysis.

We note that in all of the cases which have applied strict liability, the court found an inherent defect in the thing which caused the injury. In the landmark case of Loescher v. Parr, 324 So.2d 441 (La.1975), defendant’s magnolia tree, which fell on plaintiff’s car, was 90% rotted out on the inside, although apparently sound on the outside. In The American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1977), plaintiff was injured as a result of a defective traffic light. In Durbin v. City of Baton Rouge, 366 So.2d 1020 (La.App. 1st Cir. 1978), a rotted tree limb fell on plaintiff’s car. Joffrion v. Allstate Insurance Company, 374 So.2d 694 (La.App. 1st Cir. 1979) also involved a traffic light which malfunctioned. In Jones v. City of Baton Rouge, supra, the court found the cover of the catch-basin was defective, causing it to give way. In Marquez v. City Stores Company, supra, the escalator was found defective. Stablier v. City of Baton Rouge, supra, involved a defective storm drain.

In the present case, the city argues convincingly that all of the cases which have applied strict liability are distinguished in that here there is no proof that the manhole or its cover were imperfect in any way. The only evidence of imperfection is the testimony of a witness for plaintiff who testified he lived in a house across the street from the manhole, and that the cover vibrated when heavy trucks ran over it. However, the city introduced testimony that there was no crack or other imperfection in either the manhole or its cover. Witnesses for the city testified there had never before been any problem with the cover being off of this manhole. Moreover, the evidence shows that after this accident the cover was replaced, and it fit snuggly over the manhole where it has remained safely since. This manhole cover weighs 125 pounds. It was heavy and difficult to remove. When it was necessary to remove the cover for maintenance of the sewer system, city employees used a sharp pointed pick to pry it off. However, city witnesses testified no work had recently been performed on the manhole or in the vicinity.

Of course, the cover was off of the manhole when plaintiff’s vehicle struck it. But there is no evidence to show how or when it came off. We could speculate that it was removed deliberately by vandals or thieves. The police officer who investigated this accident testified that this area was on his “beat”, and he had never known of this cover being off, but he had heard of other manholes being found open and the covers missing. He stated he knew that people had removed and stolen manhole covers. The street repair superintendent also testified manhole covers had been removed and stolen in the past. The water department superintendent testified it was possible that a heavy vehicle could strike the manhole cover at precisely the wrong angle and kick it out. But there is no evidence that this had ever occurred.

As stated above, the trial judge held that since the cover was off of the manhole, it was defective, and strict liability applies. We find no case which goes this far. In its brief, the city argues with logic that the fact that a thing in the custody of the defendant creates a hazard does not necessarily mean it was defective. For instance, in Loescher v. Parr, supra, proof that the magnolia tree fell on plaintiff’s car would not have been sufficient to prove a defect. The defect proved was that the tree was rotten. If the tree had been perfectly sound and someone or something had cut or knocked it down on Mr. Loescher’s car, Mr. Parr would not have been strictly liable.

In Loescher, supra, the court defines a defective thing as one which creates an unreasonable risk of harm to others. The rationale of holding the owner-custodian of a defective thing strictly liable is explained as follows:

“The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.
[7] This jurisprudence recognizes that the injured person must prove the vice (i.e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.”

In determining the reasonableness or unreasonableness of the risk, our Supreme Court has held we should consider the probability and magnitude of the risk balanced against the utility of the thing alleged to be defective. In Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980), a 12-year-old boy sustained injuries when his shoe caught in the space between the moving tread of an escalator and the side wall. The issue was whether the escalator was defective. Ultimately, the court held the design of the escalator was defective. However, in discussing the issue, the court stated:

“Although “unreasonableness” is a traditional standard for the determination of negligence, it is also fundamental to a finding of strict liability under LSA-C.C. art. 2317. In both negligence and strict liability cases, the probability and magnitude of the risk are to be balanced against the utility of the thing. The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence.”

In Hunt, the court compared strict liability to products liability, stating:

“Again, a balancing test is mandated: If the likelihood and gravity of harm outweigh the benefits and utility of the manufactured product, the product is unreasonably dangerous. If the product is unreasonably dangerous to normal use, the manufacturer is ultimately responsible to one injured in the course of that use.”

In the very recent case of Broussard v. Pennsylvania Millers Mutual Insurance Company, 406 So.2d 574 (La.1981), a five gallon aquarium and its stand fell on plaintiff’s child as he was either climbing on it or pulling it. The court held strict liability did not apply because there was no proof of defects in design or other vices in the aquarium or its stand, no proof of previous falls, and, thus, no showing of an unreasonable risk of injury. The court expressly stated that the fact of an accident does not establish a presumption of defect. The Jones, Hunt and Marquez cases are distinguished. This case, decided by our Supreme Court on November 16, 1981, supports our conclusion.

Applying these principles to the facts of the present case, we conclude the trial judge was clearly wrong in holding the manhole or its cover were defective. The sewer system of the city is an absolute necessity, as are the manholes which provide access to the sewers for purposes of maintenance. Since there was no crack, design error, or other imperfection in the manhole or its cover, the only risk suggested is that vandals or thieves might possibly remove the cover, or that a heavy vehicle might possibly strike the cover in precisely the wrong way and kick it off. The question is whether the risk of harm created by these remote possibilities is unreasonable, when balanced against the utility of the manhole and its cover. Under all of the circumstances of this case, we conclude the risk was not unreasonable.

Since the plaintiff failed in his burden of proof that the manhole or its cover were defective, we find the trial court erred in applying the doctrine of strict liability.

The evidence does not show, and plaintiff does not even argue on appeal, that the city is liable because of its negligence under LSA-C.C. Article 2315.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of the defendant and against the plaintiff, dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.


text:
    Donald John GARRETT, Plaintiff-Appellant, v. Proverb Shirley WALKER, Defendant-Appellee. LOUISIANA SAVINGS ASSOCIATION, Plaintiff-Appellee, v. Proverb Shirley WALKER, Appellee, and Donald John Garrett, Appellant.
    No. 8537.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Scofield, Bergstedt & Gerard, Richard E. Gerard, Jr., Lake Charles, for plaintiff-appellant.
    Anderson, Leithead, Scott & Boudreau, Randall E. Roach, Lake Charles, for inter-venor-appellee.
    Reuvan Rougeau, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is an appeal from Civil Suit No. 78-5044 entitled “Donald John Garrett v. Proverb Shirley Garrett” (Suit 1), which was consolidated for trial with Civil Suit No. 79-1070 entitled “Louisiana Savings Association v. Proverb Shirley Walker and Donald John Garrett” (Suit 2). After consolidation both suits proceeded as suit No. 78-5044, and one judgment was rendered therein. It is this single judgment which comes before us on appeal, therefore, only one judgment will be rendered herein.

Appellant, plaintiff in the first suit, Donald Garrett (hereinafter referred to as Garrett), brought suit against appellee, Proverb Shirley Walker, also known as Proverb Shirley Garrett (hereinafter referred to as Mrs. Walker), seeking to be declared owner of an undivided one-half (Vi) interest in a certain piece of property located in Calca-sieu Parish, Louisiana. Garrett contends that the property located in Calcasieu Parish is community. Mrs. Walker, however, contends that the property in question was purchased with her separate funds, and does not form part of the community then existing between she and Garrett.

Appellee, plaintiff in Suit 2, Louisiana Savings Association (L.S.A.) holds a mortgage on the property in question. When payments on the mortgage note became past due, L.S.A. brought suit against Garrett and Mrs. Walker, in solido, to recover payment of the note herein. Garrett, in response to L.S.A.’s suit contends that L.S. A.’s mortgage was obtained without his knowledge, consent, or ratification, and therefore his one-half (Vi) interest in the property cannot be subject to the mortgage.

This case was originally tried on October 5, 1979, and resulted in a judgment against Garrett holding that the property was the separate property of Mrs. Walker, and recognizing the mortgage which she granted in favor of L.S.A. on the entire property. On the motion of Garrett, a new trial was held on November 25,1980, limited solely to the taking of evidence relative to the source of the downpayment on the house. After this hearing, the court affirmed its earlier decision in favor of Mrs. Walker and L.S.A. From these judgments Garrett has appealed.

Garrett suggests that the trial court erred in:

(1) holding that the property in question is the separate and paraphernal property of the defendant, appellee, Mrs. Walker; and

(2) recognizing the mortgage granted in favor of appellee, L.S.A., on that portion of the property which he claims one-half (Vi) ownership.

Garrett and Mrs. Walker were married on March 8, 1975, in Las Vegas, Nevada, and immediately established a marital domicile in the State of California, where they both resided prior to their marriage. On March 16, 1978, they received an interlocutory judgment of divorce and one and one-half years later on September 13, 1979, a judgment of final divorce was rendered by the courts of California.

Mrs. Walker has a child by a previous marriage to Timothy Walker, Jr., named Timothy Walker, Jr., II (Timothy), who resides in Lake Charles, Louisiana. On December 28, 1976, Mrs. Walker made an application with L.S.A. in Lake Charles for a real estate loan, the proceeds of which were used to purchase the property in question. The crux of the controversy before us surrounds the nature of the funds used to make the $5,000.00 downpayment on the property. Garrett alleges that the property was purchased without his knowledge or consent with community funds while he and Mrs. Walker were still married to one another. Mrs. Walker on the other hand claims that the downpayment funds represent funds belonging to her son Timothy, which she has been collecting from him and saving in a joint California savings account since 1974.

Two separate hearings were held where evidence establishing the source of the downpayment was heard. After the first hearing, as well as after the rehearing, the trial court held that the funds used to secure the downpayment on the property were in fact the separate and paraphernal property of Mrs. Walker.

The law of Louisiana is clear that property acquired by a wife during the existence of the community of acquets and gains is presumed to belong to the community of acquets and gains. A wife may, however, establish the paraphernality of the property acquired in her own name during the existence of the community by proving:

(1) the funds used came from her separate and paraphernal estate;
(2) her individual administration of the property; and
(3) that the money was invested by her.

Additionally, where the purchase is made on credit, the wife has the further burden of establishing (4) that she not only made the downpayment out of her separate and paraphernal funds, but that she has sufficient separate revenues and funds to make the purchase with reasonable certainty of being able to meet the deferred payments. See Monk v. Monk, 243 La. 429, 144 So.2d 384 (La.1962) and the cases cited therein.

Testimony relative to the source of the $5,000.00 downpayment came from three witnesses who testified at trial, Garrett, Mrs. Walker, and Timothy. Timothy and Mrs. Walker both testified that the funds represented Timothy’s life savings. They allege that in 1974 Mrs. Walker opened a joint savings account in California in her name and that of her son, Timothy. Both Timothy and Mrs. Walker testified that Timothy would have his mother deposit money he earned from several jobs over the years into this joint account.

Garrett testified that he knew nothing of this joint account. His position rests solely on the proposition that property purchased during the existence of the community is presumed to be community property. He contends, that under the test of Monk, supra, his former wife has failed to adequately rebut this presumption.

After a close review of the record before us, we find that the trial court erred in finding that Mrs. Walker satisfied the guidelines set out in Monk. In order to rebut the presumption of community, Monk requires that the wife prove, among other things, that the funds used came from her separate and paraphernal estate, and that where a purchase is made on credit, the purchasing wife has the further burden of establishing that she not only made the downpayment out of her separate and para-phernal funds, but that she has sufficient separate revenues and funds to make the purchase with reasonable certainty of being able to meet the deferred payments.

The testimony of Timothy and Mrs. Walker does not establish that the funds used for the downpayment on the property in question belong to the separate estate of Mrs. Walker. On the contrary, both Timothy and Mrs. Walker testified at length that the funds used actually represented Timothy’s life savings, and the trial judge so found. There was no evidence produced at trial tending to show that the funds were the separate funds of Mrs. Walker.

Assuming as we will that the funds used for the downpayment actually belonged to Timothy, Mrs. Walker has failed to carry her burden of proof established under Monk. In order to rebut the presumption of community, Mrs. Walker must prove that the source of the downpayment came from her separate and paraphernal funds. Funds belonging to her son Timothy do not form part of her separate estate.

Additionally Mrs. Walker failed to show that she had sufficient separate revenues and funds to meet the deferred payments under the loan. The record clearly shows that Timothy intended to make all of the payments on the mortgage note, and, in fact, did so up until the time he was injured and unable to work. Presuming arguendo that the downpayment represented the paraphernal funds of Mrs. Walker, the deferred payments made by Timothy do not represent revenues of her separate estate, and in any event, absent an authentic declaration of Mrs. Walker’s intention to the contrary, constitute community assets. Accordingly, we find that the record does not support a finding that the property purchased by Mrs. Walker belongs to her separate estate, and therefore we reverse that portion of the trial court’s judgment which recognizes the property to be separate rather than community.

We now turn our attention to the issue of the mortgage in favor of L.S.A. Garrett contends that L.S.A.’s mortgage was given on community property without his knowledge, consent, or ratification, and it is therefore invalid insofar as it relates to his one-half interest in the property. We disagree.

The trial judge in his reasons for judgment made the following observations concerning the issue of ratification. Rather than paraphrase we quote herewith:

“Counsel for Garrett correctly contends that upon a showing that a debt was contracted solely by the wife, the husband and the community are not liable for the debt unless the evidence establishes that the husband clearly and unequivocally ratified the indebtedness. He appropriately cites Rahier v. Rester, [La.App.] 11 So.2d 87, Watson v. Veuleman, [La.App.] 260 So.2d 123, Royal Furniture Company of Baton Rouge v. Benton, 260 La. 527, 256 So.2d 614, and Failla v. Grandeury, [La.App.] 295 So.2d 24, in support of this legal principle.
Here, the debt was contracted solely by the wife without the husband’s knowledge. He, of course, did nothing to ratify the indebtedness, (or the purchase) prior to his finding out about it. Thereafter, he did nothing, with the exception of the filing of this suit, that could be construed as an act of ratification. However, when he filed this suit alleging the property to be community property and claiming an undivided one-half interest therein, this had the effect of ratification of the purchase with the attending indebtedness for a portion of the purchase price. He cannot be heard to claim the ownership and at the same time reject responsibility for the indebtedness for the purchase price.
In each of the above cited cases of Rahier, Watson, and Failla, the court found that no ratification had occurred, and absolved the husband from liability. But in none of these cases was the husband or the community recognized as the owner of the item purchased by the wife. No case has been cited to the court in which the husband has been permitted to repudiate the indebtedness for the purchase price and at the same time claim ownership of the item purchased by the wife.
There is an inherent inconsistency in the claim of the husband that the property purchased belongs to the community, but that the indebtedness for the purchase price is the separate debt of the wife.”

In Skye Realty Company v. Diversified Insurance Agency, Inc., 221 So.2d 871 (La.App. 3rd Cir. 1969), this Court discussed the legal concept of ratification, and we quote:

“Ratification, as applied to the law of agency, is the adoption or affirmance by a principal of the acts of his agent, either expressly, as by a written act, or impliedly, as by acceptance of the benefits of the contract. 3 Am.Jur.2d 548-561, Agency, Sections 160-175.
These general principles have been recognized in many Louisiana cases. For instance, Gueydan v. T. P. Banch Company, 156 La. 397, 100 So. 541 (1924) contains this language:
‘It is a familiar principle in law that it is not always necessary to show the authority of an officer of a corporation by a resolution of its board of directors. A corporation may not, any more than an individual, reap the benefits flowing from the acts of its officers and repudiate the obligations arising from the same acts. Berlin v. Cusachs, Ltd., 114 La. 744, 38 South. 539; Gair v. Columbia Rice Co., 124 La. [193] 194, 50 South. 8; Boudreaux v. Feibleman, 105 La. [401] 404, 29 South. 881.’ ” (Emphasis added).

Although Garrett had no knowledge of the transaction which led to the purchase of this property, he nonetheless seeks to claim the benefits of this purchase by claiming an undivided one-half interest in the property, and at the same time deny the indebtedness for the purchase price. Such a result would undermine the whole concept of ratification by allowing one to reap the benefits acquired by his agents without being responsible for their accompanying obligations. Accordingly, we find that Garrett has ratified the mortgage on the entire property given by his former wife in favor of L.S.A.

For the above and foregoing reasons the judgment appealed from is reversed in part, affirmed in part, and recast as follows:

It is Ordered, Adjudged, and Decreed that there be judgment in favor of Donald John Garrett, and against Proverb Shirley Walker, recognizing that the following described immovable property situated in Cal-casieu Parish, Louisiana, to be the community property of Donald John Garrett and Proverb Shirley Walker:

“Lot 6 of Block 6 of Highschool Park, a subdivision as per plat recorded in Plat Book 3, page 148, records of Calcasieu Parish, Louisiana, together with all improvements thereon situated.”

It is further Ordered, Adjudged, and Decreed that the mortgage granted in favor of the intervenor, Louisiana Savings Association, on the above described immovable property be recognized and maintained and that, accordingly, the said property be sold, according to law, at public auction, with appraisement, for cash, to the highest bidder, and that out of the proceeds of said sale, intervenor be paid by perference and priority over all other persons whomsoever, the amount of its claim, together with interest, attorney fees, and costs, and that the amount realized for said sale be credited pro tonto upon the amount of judgment herein, and if not sufficient to pay and discharge the same, the unpaid balance of said judgment be enforceable in accordance with the law.

Costs at trial and on appeal are to be taxed one-third (%) to Donald John Garrett, one-third (V3) to Proverb Shirley Walker, and one-third (Vs) to Louisiana Savings Association.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . Timothy was not made party to either of these suits, nor has he chosen to intervene herein.

      . The trial judge found that the downpayment represented Timothy’s savings even in light of significant inconsistencies in the testimony of Timothy and his mother. For example, Mrs. Walker testified that Timothy would send her all of his earnings, which amounted to $342.00, per month, in the two years Timothy spent in the service. Timothy, on the other hand, testified that he was in the service only eight months during which time he cleared approximately $273.00 per month. Additionally, under the facts presented it seems very unlikely that Timothy would have been able to accumulate the $5,000.00 he alleged in such a short period of time.

      . LSA C.C. Art. 2386 (subsequently repealed and replaced by LSA C.C. Art. 2339 in 1981).


author: GUIDRY, Judge.

text:
    Janie Kay Bonds HORD, Plaintiff-Appellee, v. Thomas Edward HORD, Defendant-Appellant.
    No. 8539.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    Patrick L. Durusau, J. P. Mauffray, Jr., Jena, for defendant-appellant.
    Trimble & Associates, Elizabeth E. Foote, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This is a child custody action instituted by plaintiff, Janie Kay Bonds Hord, against the defendant, Thomas E. Hord. Plaintiff seeks permanent custody of the parties’ minor child, Thomas E. Hord, Jr.

The issues on appeal are whether or not the trial court erred in concluding that it is in the best interest of the minor child to award custody to plaintiff; and, whether or not the trial court’s award of $300.00 per month in child support is excessive.

The record discloses that the parties were married on December 23, 1972. Of this marriage, one child was born, Thomas E. Hord, Jr., age six at the time of trial. The parties separated on May 7, 1980. Thereafter, plaintiff filed a petition for separation “a mensa et thoro” and sought custody pendente lite of the parties’ minor child. After a rather protracted and contested hearing, temporary custody of the minor child was awarded to the defendant. In his oral reasons for judgment, the trial judge noted that he believed it was in the best interest of the parties’ child to award tern-porary custody to the defendant. In so concluding, the trial judge observed that the testimony at the hearing established that Mrs. Hord had permitted the child to accompany her to inappropriate places and events, and additionally, permitted the child to keep hours “. .. that are unusual even for an adult.” The trial judge also determined that the defendant was more likely to provide needed discipline.

On April 8, 1981, the matter came for trial on the issues of divorce and permanent child custody. The trial judge concluded that both parties had given the other legal cause for divorce and thus, the court granted the divorce as prayed for by the parties. Permanent custody of Thomas Hord, Jr. was awarded to plaintiff. Additionally, defendant was ordered to pay child support in the amount of $300.00 monthly. Defendant has appealed from the aforesaid judgment.

The record reflects that since the initial hearing for temporary custody plaintiff began living openly with Roger Deville in Pineville, Louisiana. Plaintiff testified that she plans to marry Mr. Deville as soon as her divorce from the defendant is final. The record also reveals that since the initial hearing, the defendant began co-habitating openly with Debbie Brown in Harvey, Louisiana. At trial, neither defendant nor Ms. Brown expressed any regret or misgivings regarding their present living arrangement and neither testified that they have any intention of marrying at the present time. Mr. Hord is employed in the oil and gas industry which requires that he spend time off-shore on a schedule of seven days on and seven days off. Defendant’s work schedule has required that he obtain assistance in caring for the parties’ minor child. Defendant testified that Ms. Brown and his employer’s wife, Kathy Edwards, assist him in his child-care responsibilities and that the child stays with either of the two when he is off-shore.

The trial judge, in his oral reasons for judgment, noted that the plaintiff, although appearing somewhat emotionally unstable and irresponsible at the temporary custody proceeding, appeared during the instant custody proceeding as having established a stable relationship devoid of the circumstances that led to the resolution of the prior custody hearing against her. Thus, after hearing all of the testimony and reviewing the evidence adduced at the hearing, the trial judge concluded that custody of Thomas, Jr. should be awarded to the plaintiff. The trial judge was significantly influenced in his decision by the extended and frequent absences of the defendant from his residence and in this regard, the trial court stated:

“It’s my opinion that a six year old male child, who in August or September, will start first grade, needs to be in close association with a parent as much as possible. The circumstances of this case are such that with either parent he will be in close association with a non-parent. If placed with his father, he will be in close association with a non-parent. If placed with his mother, he will be in closest association with his mother. Considering the child’s age, and that he will soon enter school and that he is entering a phase of his life when parential (sic) contact is quite important to his orderly development, I am going to change custody and grant it to his mother.”

On appeal, defendant contends that the trial judge, in awarding custody to plaintiff, confected a so-called “close association” rule which defendant argues bears a remarkable resemblance to the legislatively overruled maternal preference rule. In this regard, defendant alleges that the trial judge applied a “mechanical talisman” in reaching his decision and based the same upon an unspoken and certainly false assumption that if a certain level of parental contact is necessary for the healthy psychological development of the child, and more is better, then 24 hours per day of parent-child contact is just right. Defendant further argues that the decision of the trial court effectively forecloses all employed fathers from gaining custody of their children unless the mother is completely unfit. After reviewing the record and the trial court’s oral reasons for judgment, we con-elude that defendant’s interpretation of the court’s reasons for judgment is inaccurate and somewhat distorted. In the first instance, we observe that no hard and fast mechanical rule, termed by defendant as the “close association rule”, was applied by the trial court in reaching its decision. Rather, the trial judge merely considered the need of the youngster for parental contact as a factor to be considered in deciding the issue of custody. We observe that the trial court was significantly impressed with the fact that the defendant worked offshore and is frequently absent from the home for seven day periods during which the child is left in the care of non-parents, specifically, either defendant’s live-in girlfriend or his employer’s wife. Admittedly, the trial judge concluded that such factor was of great importance, however, the trial judge, in his oral reasons for judgment, delineates several other factors which also influenced his ultimate decision. Obviously, the trial court was influenced by the fact that the plaintiff plans to marry her boyfriend as soon as her divorce from the defendant is final. Mrs. Hord stated that she felt that living with Deville without the benefit of marriage was wrong and that if awarded custody of Thomas, Jr. she and the child would live with plaintiff’s grandmother until such time as she is legally able to marry Deville. In contrast to Mrs. Hord’s plans, the defendant expressed no present intention to marry his live-in girlfriend and indicated that she and Mrs. Edwards would continue to care for the parties’ child in his absence. Presumably, the trial court was impressed with the stable and morally fit environment which will be provided by plaintiff as compared to an environment wherein defendant co-habitates with a woman, without benefit of marriage, and where he is often absent for extended periods of time. Our courts have a duty to promote and protect the moral welfare of the child in child custody proceedings. See Parks v. Parks, 331 So.2d 505 (La.App. 2d Cir. 1976).

Learned counsel for defendant argues that the court’s decision, if affirmed, would effectively foreclose the award of custody to working fathers. Counsel’s argument is without merit. In the first instance, and as previously noted herein, plaintiff’s employment was merely one factor considered by the trial court in reaching its decision. Secondly, in the instant case, the defendant is required by his employment to be absent from his home for extended periods of time. Such a work schedule is not analogous to the working father whose hours are regularly 8 to 5 or thereabouts. Rather, defendant’s job requires that he be absent for days at a time which results in the child being cared for primarily by third persons (non-parents). It is the extended absence of defendant from the home, not the fact that defendant is employed, which is relevant to determining what is in the best interest of the parties’ child.

Finally, defendant avers that the trial court failed to consider the “stability of environment” consideration enunciated by the Louisiana Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). We disagree. The Bordelon court noted that stability of environment is relevant to a determination of the best interest of the child and that courts should consider the prior history of the child’s custody when asked to change custody. However, the Court in Bordelon, supra, also stated that stability of environment was but a single consideration to be weighed with all other factors relevant to a determination of the best interests of the child. Thus, although stability of environment in the sense of continued custody in one party is a factor to be considered, we conclude that such factor is not determinative in regard to the issue of what constitutes the best interest of the child. It is well-settled that custody judgments unlike other ordinary judgments, are never final in the sense that they are always subject to review and modification by the courts, particularly when circumstances change. See State of Louisiana in the Interest of Toler, 263 So.2d 888 (La.1972). As evidenced by the trial judge’s oral reasons for judgment, he concluded that the best interest of the child would be served by changing custody to the plaintiff rather than maintaining custody with the defendant.

The standard of appellate review applicable in child custody actions was recently reiterated in Bordelon, supra, where our Supreme Court stated:

"... in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination-only when there is a clear abuse of discretion. Fulco. supra; Cleeton v. Cleeton. 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

After reviewing the instant record, we discern no abuse of discretion by the trial court and conclude that its decision is supported by the recent decision of our Supreme Court in Stephenson v. Stephenson, 404 So.2d 963 (La.1981).

We do not consider serious defendant’s final argument in which he contends that the trial court’s award of child support in the sum of $300.00 is excessive. Defendant alleges that the child support award is at variance with evidence received at trial. Specifically, appellant points out that plaintiff’s affidavit of income and expenses shows that monthly expenses incurred on behalf of the child total the sum of $287.50. Simply put, defendant contends that the trial court committed reversible error in awarding to plaintiff a sum which is $12.50 in excess of plaintiff’s estimated childcare expenses. Our courts have recognized that it is rarely possible to determine an award of child support precisely since it is difficult to calculate how much of joint expenses of a mother are spent on behalf of the child. Fall v. Fontenot, 307 So.2d 779 (La.App. 3rd Cir. 1975). In addition, the trial court is granted much discretion in fixing the amount of child support and its award will not be disturbed unless there is a clear abuse of discretion. Youngblood v. Youngblood, 329 So.2d 896 (La.App. 2d Cir. 1976); Janise v. Janise, 328 So.2d 711 (La.App. 3rd Cir. 1976), writ denied, 333 So.2d 233 (La.1976). In the instant case, we conclude that there has been no clear abuse of discretion by the trial court in its award of child support.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant, Thomas E. Hord, Sr.

AFFIRMED.