author: COVINGTON, Judge.

text:
    Earl E. WALL v. Clinton Joseph LEGER, Jr. et al.
    No. 14022.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Walter Naquin, Jr., Thibodaux, for plaintiff-appellee Earl E. Wall.
    Charles J. LeBlanc, Thibodaux, for defendant-appellee Clinton Joseph Leger, Jr.
    Harold B. Carter and S. Frazer Rankin, New Orleans, for defendants-appellants Jeanne Gaudet Naquin, Gabriel Gaudet, Nell Gaudet Zeringue, Ernest John Gaudet, Norbert Gaudet, Robert Gaudet, Marie Gaudet Beaulieu, Richard Gaudet, Katherine Gaudet Picou, Michael Louis Gaudet and Myron Anthony Gaudet.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a concursus proceeding involving mineral rights affecting a certain tract of land, one-half arpent by forty arpents, situated in Lafourche Parish, Louisiana, on the right descending bank of Bayou Lafourche, a few miles below the City of Thibodaux, referred to as the “Leger tract.” The plaintiff, Earl E. Wall, as the assignee of the lessee of certain mineral leases, asserted that the Leger tract was partly in a voluntary unit known as “The Thibodaux No. 1” well ; that as a result of production, certain present and future royalty payments are due or will become due to the owner of certain mineral rights, but that the plaintiff in concursus was unable to ascertain the owner thereof because of contradictory claims thereto; and that, therefore, he desired to deposit the proceeds due on production from the well, allocable to the Leger tract (which property contributed 5.5861 acres to the voluntary unit, out of a total area of 160 acres, and is allocated 3.4913% of unit production), and to have all claimants thereto to make their claims. Claude Gaudet, Jeanne Gaudet Naquin, Gabriel Gaudet, Nell Gaudet Zeringue, Ernest John Gaudet, Norbert Gaudet, Robert Gaudet, Marie Gaudet Beaulieu, Richard Gaudet, Katherine Gaudet Picou, Michael Louis Gaudet and Myron Anthony Gaudet, the heirs of Leonise Thibodaux Gaudet (one of the ten children of Prosper and Mathilde Toups Thibodaux), referred to as the “Gau-det heirs,” asserted a claim to the deposited money and the mineral rights involved, based on a partition agreement of June 12, 1941, in which they received the Leger tract as their portion of the parent tract (with the mineral rights reserved to all heirs of Prosper Thibodaux and his widow), and their reservation of mineral rights in their sale of the Leger tract on July 19, 1968, to Clinton J. Leger, Jr. The adverse claimant was the vendee, Leger, who based his claim on the mineral rights having reverted to him as the owner of the Leger tract in December of 1974 because there was an outstanding mineral servitude on the Leger tract when the Gaudet heirs attempted to reserve the mineral rights in their sale to Leger, and which had prescribed on December 14, 1974.

The case was tried to the judge on a Stipulation of Facts and Addendum to Stipulation of Facts (which are attached to this opinion as an Appendix, but without the Exhibits referred to therein). The trial judge found that the certain mineral leases to E.H. Stickney, dated January 31 and March 18, 1939, did not prevent the Thibo-daux heirs from creating a mineral servitude, which he held that they did in their partition of June 12, 1941. The court also held that it was the intention of the parties to the partition that the land be divided into separate tracts, but that it was their intention to create a single mineral servitude on the parent tract in that “all of the heirs would participate in any of the production from any portions of this tract.” The court further found that this servitude on the parent tract was maintained by production through December 14, 1964; hence, the ten-year liberative prescription extinguished the mineral servitude on the parent tract, including the Leger tract, on December 14, 1974. The trial judge concluded that the deed from the Gaudet heirs to Leger did not create a new mineral servitude in favor of the Gaudets, but was a sale subject to an existing servitude on the parent tract; that when the servitude on the parent tract was extinguished because of liberative prescription of nonuse in 1974, the mineral rights to the Leger tract reverted to Leger, the then landowner. The lower court then rendered and signed a judgment recognizing Leger as the owner of the mineral rights in the Leger tract and entitled to the money deposited and to future royalty payments. The Gaudet heirs have appealed. We affirm.

On appeal the defendants, the Gaudet heirs, specify the following errors:

1. The trial court erred in concluding that the 1939 mineral lease (Stick-ney), coupled with production prior to the partition, did not preclude the creating of a mineral servitude in the 1941 partition.
2. The trial court erred in concluding that the partition created a single mineral servitude rather than seven separate mineral servitudes so that the Grubb & Hawkins-Thibodaux Heirs No. 1 well was an “off-premises” well.
3. The trial court erred in concluding that the Gaudet heirs did not own at least a one-eighth mineral interest.

It is the royalty payments allocated to the Leger tract and the mineral rights in said tract that are the subject of the present controversy, which came about because of the act of sale conveying the Leger tract from the Gaudet heirs to Leger, dated July 19,1968, which contained this provision following the description of the land:

“LESS AND EXCEPT:
“All of the oil, gas and minerals, in, on and/or under the above described property. It is understood, however, that the exercise of the mineral rights herein reserved shall be by directional drilling; that this mineral reservation does not include the right to use the surface of the property.”

The Leger tract had been acquired by the Gaudet heirs in the partition agreement between the widow and heirs of Prosper Thibodaux, dated June 12, 1941. In the partition agreement, the surface of the parent tract was divided into seven xk by 40 arpent tracts, the surface of six of the tracts being transferred to six of the children of Prosper Thibodaux and the surface of the seventh tract being transferred to the Gaudet heirs. The following language is contained in the partition agreement:

“It is clearly understood and agreed between the parties hereto that the ownership in the oil, gas and minerals, and oil, gas and mineral rights, are not in any way changed or effected (sic) by this partition, and the co-parceners hereto, hereby declare and acknowledge that the oil, gas and mineral and oil, gas and mineral rights in each and every tract of land hereinabove allocated to each of him, her or them, is owned by the parties hereinafter named, in the proportion set out after each name, to-wit:” (names and proportions are given in a footnote)

Further language from the Partition follows:

“And whereas the parties hereto, except Mathilde Toups Thibodaux, severally declare that they each acquired their interest in said property by inheritance from the late Prosper Thibodaux, as will be seen by Judgment of Possession signed August 23, 1940 by the Honorable Robert B. Butler, Judge of the 17th Judicial District Court in and for the Parish of La-fourche, Louisiana, in the matter entitled ‘Succession of Prosper Thibodaux No. 3777 Probate’.
“And whereas Mathilde Toups Thibodaux acquired 10/2oth interest, and the usufruct of the other 10/2oth interest in said property as widow in community from her late husband, Prosper Thibodaux, as set out in the Judgment hereinabove referred to; and acquired an additional 3/2oth undivided interest in and to the surface rights, on said property, by purchase from May Thibodaux Champagne, Cecile Thibodaux, Leonce Thibodaux and Clifton Thibo-daux, as will be seen by referring to acts of sale executed before D.D. Toups, Notary Public, under date of April 15, 1941, and April 29, 1941, and recorded in the conveyance records of the Parish of La-fourche, Louisiana.
“And whereas May Thibodaux Champagne, Cecile Thibodaux, Leonce Thibo-daux and Clifton Thibodaux acquired their interest in and to the oil, gas and minerals, and oil, gas and mineral rights, in, under, to and on said property by reserving said rights in the sales made by them to Mathilde Toups Thibodaux, in the disposition of their undivided interest in said property acquired by them by inheritance from the late Prosper Thibo-daux as set out in the Judgment of Possession hereinabove referred to.
“And whereas the parties hereto severally declare that they no longer wish to remain in indivisión of the surface rights of said property, and desire to amicably partition said property in kind between them.
“NOW THEREFORE, said appearers for themselves, etc. ...”

The following language relating to the Gaudet heirs and their acquisition is set out in the Partition:

“There shall be allotted and there is by these presents allotted and delivered, transferred, and sold by the other co-owners, to and unto Jeanne Gaudet, wife of Edward Naquin; Claude Gaudet; Roy Gaudet; Gabriel Gaudet; Nell Gaudet, wife of full age of Charles Zeringue; John Gaudet; and the minors, Norbert Gaudet, Robert Gaudet; Marian Gaudet, Richard Gaudet and Katherine Gaudet the following tract, to-wit:
“ ‘A certain tract of land situated in the Parish of Lafourche, State of Louisiana, about six miles below the Town of Thibo-daux, on the right descending bank of Bayou Lafourche, having a front on said bayou of one-half arpent, more or less, by a depth of forty arpents, bounded above-by property this day allotted to Julia Thibodaux Leger, below by property of Pierre Hernandez. Together with all the buildings and improvements thereon and thereto belonging.’
“The said above described property to remain the property of said Jeanne Gau-det Naquin, Claude Gaudet, Roy Gaudet, Gabriel Gaudet, Nell Gaudet Zeringue, John Gaudet, and the minors Norbert Gaudet, Robert Gaudet, Marian Gaudet, Richard Gaudet, and Katherine Gaudet and their heirs and assigns forever, with full possession thereof, subject however, to full recognition of the present ownership of the oil, gas and minerals and oil, gas and mineral rights in, under, to and on said property, specially reserved herein, and subject to the usufruct which Mrs. Mathilde Toups Thibodaux reserves on said property.”

After the partition agreement, Mathilde Toups Thibodaux died on September 10, 1943. Her husband, Prosper Thibodaux had died in 1907, but his succession was not opened until 1940. In that succession, the widow and their ten children were recognized as surviving spouse and heirs respectively, with the widow also having the usu-fruct over the community property, which included the parent tract.

Prior to the opening of the succession of Prosper Thibodaux, his widow and heirs had executed mineral leases to which we allude in paragraph two, above. On July 11,1940, production was obtained from a well located on the parent tract which had been drilled under the Stickney leases. There was production sufficient to maintain the original mineral leases and the mineral servitude created by the partition during the period of July 11, 1940 through December 14, 1964 (after which time the well was plugged and abandoned).

The appellants first contend that they reserved a mineral servitude in their 1968 sale to Leger. It is their contention that at that time there was no servitude on that tract. As the appellants view it, they did not and could not have created an earlier mineral servitude (or other mineral interest) on the parent tract in the partition agreement since there were already outstanding mineral leases (Stickney) on the parent tract, and production had been obtained. It is their argument that the partition agreement did not create a mineral servitude, so they were free to create a mineral servitude by reserving mineral rights in the deed to Leger.

On this question the appellants argue that LSA-R.S. 31:24 is dispositive of the issue of whether a landowner is permitted to create a mineral servitude, having previously leased his mineral rights and production having been established under that lease. Article 24 of the Mineral Code does not address this situation.

Article 24 is a limitation on mineral servitudes, not on mineral leases. The language of article 24 is clear that only the landowner who owns the right to explore for and produce minerals when the servitude is created can create a mineral servitude. See Bourg v. Hebert, 224 La. 535, 70 So.2d 116 (1953). We hold that article 24 is applicable only to the mineral servitude, not the mineral lease. A mineral lessor does not transfer ownership of mineral rights when he enters into a lease; he grants to the mineral lessee the right to explore for and produce minerals; it is “operating rights and the right to share in production” that are transferred to the lessee, not ownership of mineral rights. Ownership of mineral rights remains with the mineral lessor; hence, article 24 would not prohibit the granting of a mineral lease even if it were applicable to mineral leases. Moreover, a mineral lease under which production is established is not thereby converted into a mineral servitude, so as to divest the lessor of title to mineral rights. The effect of production, if it is “in paying quantities”, is to maintain the lease and keep it from expiring; not to change the lease into a servitude. LSA-R.S. 31:124.

There is a functional similarity between the lease and the servitude in that the mineral lessee obtains a right to a share of production and to operating rights much the same as the owner of a mineral servitude. See Comment under LSA-R.S. 31:116. Both are “mineral rights”, and as such, are “real rights” and “incorporeal im-movables.” LSA-R.S. 31:16, 18. By way of functional comparison, the mineral lease, like the mineral servitude, grants rights to explore and produce minerals and to reduce them to possession. LSA-R.S. 31:15,16, 21, 114.

However, they are conceptually different; the distinction between a mineral servitude and a mineral lease is pronounced. McCo-11am, A Primer for the Practice of Mineral Law under the New Louisiana Mineral Code, 50 Tul.L.Rev. 732, 785 (1976). By definition, “a mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” LSA-R.S. 31:21. “A mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals.” LSA-R.S. 31:114.

The mineral servitude is subject to the prescription of nonuse for ten years. LSA-R.S. 31:27. The mineral lease, although not subject to the prescription of nonuse, can not be continued for longer than ten years without drilling, mining operations, or production. LSA-R.S. 31:115; Reagan v. Murphy, 235 La. 529, 105 So.2d 210 (1958). The grantor of a mineral servitude ceases to be the owner of the mineral rights; the lessor of a mineral lease continues to be the owner of the mineral rights. See McCoy v. United Gas Public Service Company, 57 F.Supp. 444 (E.D.La.1944). A mineral lease, unlike a mineral servitude, is not subject to the contiguity rule established with respect to servitudes in Lee v. Giauque, 154 La. 491, 97 So. 669 (1923), LSA-R.S. 31:114; Reagan v. Murphy, supra.

In general, a mineral servitude may be created only by a landowner who owns the right to explore for and produce minerals when the servitude is-created. LSA-R.S. 31:24; Bourg v. Hebert, supra; Long-Bell Petroleum Co. v. Tritico, 216 La. 426, 43 So.2d 782 (1949). A mineral lease may be granted by the landowner who owns mineral rights, the mineral servitude owner, and the holder of executive rights over the mineral rights which he does not own; in other words, any person having an “executive interest” in the mineral rights on the particular property may grant a mineral lease. LSA-R.S. 31:116.

A reversionary mineral interest can be leased. LSA-R.S. 31:144; Wahlder v. Roy O. Martin Lumber Co., Inc., 337 So.2d 669 (La.App. 3 Cir. 1976). On the other hand, the “expectancy of a landowner in the extinction of an outstanding mineral servitude cannot be conveyed or reserved directly or indirectly.” LSA-R.S. 31:76; Hicks v. Clark, 225 La. 133, 72 So.2d 322 (1954).

We find that a mineral servitude was created by the parties to the partition, including the Gaudet heirs. The outstanding mineral leases to E.H. Stickney were no obstacle or hindrance to the creation of the mineral servitude.

In considering the 1968 deed, the trial court held that “the deed from the Gaudet heirs to Clinton Leger, Jr. dated July 19, 1968 did not create a new servitude in favor of the Gaudets, but merely sold to Leger subject to an existing servitude affecting the entire parent tract.”

A mineral servitude may be created only by a landowner who owns the right to explore for and produce minerals when the servitude is created. LSA-R.S. 31:24; Bourg v. Hebert, supra. In order for one making a reservation of a mineral right to create a new servitude, he must be the owner of the right at the time the reservation is made. McMurrey v. Gray, 216 La. 904, 45 So.2d 73 (1949); Long-Bell Petroleum Co. v. Tritico, supra. A landowner who has a mineral servitude outstanding against his estate can not sell the land and reserve reversionary rights. Hicks v. Clark, supra; noted, 15 La.L.Rev. 231 (1954). The reservation by the grantor of a right to extend his reversionary rights beyond the prescriptive period of ten years is ineffective as against public policy. Ober v. McGinty, 66 So.2d 385 (La.App. 2 Cir. 1953).

We find that a landowner whose land is burdened with a mineral servitude can not create a new mineral servitude on the land by a reservation of mineral rights in an act of sale conveying the land. LSA-R.S. 31:24. Consequently, when the Gaudet heirs sold to Leger on July 19, 1968, the mineral rights on the Leger tract were covered by the mineral servitude created in the Act of Partition, and they could not be reserved by the Gaudet heirs in the Act of Sale.

Next, it is the appellants’ contention that the partition agreement of 1941 created seven separate servitudes, not a single servitude on the parent tract.

Pursuant to LSA-R.S. 31:66 the owners of several contiguous tracts of land may establish a single mineral servitude in favor of one or more of them or of a third party. Moreover, co-owners of land constituting a continuous whole may partition it and reserve a single mineral servitude in favor of one or more of them. LSA-R.S. 31:67; GMB Gas Corporation v. Cox, 340 So.2d 638 (La.App. 2 Cir. 1976); see also Mire v. Chevron Oil Company, 353 So.2d 462 (La.App. 3 Cir. 1977), writ denied, 355 So.2d 256 (La.1978).

In Whitehall Oil Company v. Heard, 197 So.2d 672 (La.App. 3 Cir. 1967), writ denied, 250 La. 924, 199 So.2d 923 (1967), which dealt with mineral reservations contained in a partition in kind of a tract of land into contiguous tracts, the Court held that determination of whether the parties intended to create a single servitude or multiple servi-tudes depended upon construction of the particular conveyances, using the principles of contractual construction. Thus, the issue is to be determined according to the intent of the parties as reflected by the particular conveyances.

In our opinion, the instrument itself, the Act of Partition, in the case at bar reflects an intent on the part of the parties to the partition to create a single servitude. First of all, there was the same reservation made in each allotment contained in a single instrument dealing with a continuous tract of land. This is strong evidence of an intent to create a single servitude. LSA-R.S. 31:63, 66, 67, 68. Further, the subsequent actions of the parties to the partition, particularly the Gaudet heirs, reveal that they themselves considered it to be, and dealt with it, as a single servitude. In several mineral leases the Gaudet heirs acknowledged that they owned only one-eighth of the minerals (eleven heirs with Vfe each) in the parent tract (including its component part at the time, the Leger tract): Oil, gas and mineral lease dated April 20, 1970 to David J. Robichaux; oil, gas and mineral lease dated July 10, 1973 to T.W. Kleinpeter; and another oil, gas and mineral lease dated July 10, 1973 to T.W. Kleinpeter.

What is more convincing, however, is the language used in the Act of Partition itself. The allotted surfaces are conveyed to particular heirs “subject however, to full recognition of the present ownership of the oil, gas and mineral rights in, under, to and in said property, specially reserved herein.” And further, after all of the allotments are made, the following language is used:

“It is clearly understood and agreed between the parties hereto that the ownership in the oil, gas and minerals, and oil, gas and mineral rights, are not in any way changed or effected (sic) by this partition, and the coparceners hereto, hereby declare and acknowledge that the oil, gas and mineral, and oil, gas and mineral rights in each and every tract of land hereinabove allocated to each of him, her or them, is owned by the parties hereinafter named, in the proportion set out after each name, to-wit:” (names and proportions omitted)

In view of our finding that the 1941 partition agreement created a single servitude, the Grubb & Hawkins-Thibodaux Heirs No. 1 well is an “on-premises” well so that the inclusion or exclusion from the 25-acre unit is of no consequence, and LSA-R.S. 31:37 is inapplicable to the case at bar. The unit well is on land burdened by the mineral servitude. Liberative prescription extinguished the servitude on December 14, 1974 (ten years after production ceased), not on August 26,1967 (ten years after the partial release from Stickney to the Thibo-daux heirs), as the appellants contend.

There is no merit in the appellants’ final argument that they at least own an undivided one-eighth interest. Whatever mineral interest the Gaudet heirs had in the parent tract, including the Leger track, prescribed for ten-year nonuse, on December 14, 1974.

For the foregoing reasons, the judgment appealed is affirmed. It is ordered, adjudged and decreed that Clinton J. Leger, Jr. as the owner of the following described property:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, about Six (6) miles below the Town of Thibodaux, on the right descending bank of Bayou Lafourche, having a front on said bayou of one-half arpent, more or less, by a depth of forty arpents, bounded above by property of Mrs. Julia Thibo-daux Leger, below by property of Pierre Hernandez, now or formerly, together with all the buildings and improvements thereon and all rights, ways, servitudes and privileges thereto belonging or in anywise appertaining.
“Being the same property acquired by vendors (and/or their ancestors) by virtue of a partition and exchange agreement dated June 12, 1941 and recorded under Entry No. 55294, C.O.B. 100, Page 256 of the conveyance records of Lafourche Parish, Louisiana.”

is the owner of the mineral rights in and thereunder.

The appellants are to pay all costs of this appeal.

AFFIRMED,

APPENDIX A-l

17TH JUDICIAL DISTRICT COURT LAFOURCHE PARISH

NO. 38765 STATE OF LOUISIANA

EARL E. WALL

versus

CLINTON JOSEPH LEGER, JR., ET AL

STIPULATION OF FACTS

NOW INTO COURT, through their undersigned counsel, come Clinton J. Leger, Jr., and Claude Gaudet, Jeanne Gaudet Na-quin, Gabriel Gaudet, Nell Gaudet Zeringue, Ernest John Gaudet, Norbert Gaudet, Robert Gaudet, Marie Gaudet Beaulieu, Richard Gaudet, Katherine Gaudet Picou, Michael Louis Gaudet, Myron Anthony Gaudet, and through their undersigned counsel respectfully submit this Stipulation of Facts:

I.

On January 31, and March 18, 1939, by leases recorded in COB 89, Folio 153, and COB 89, Folio 539, (copies of which are annexed hereto as Exhibits “A” and “B”), the heirs of Prosper Thibodaux leased a certain 3*/2 arpent by 40 arpent tract, which tract was bounded above by Moise J. Thibo-daux and below by Pierre Hernandez, to E. H. Stickney. This 3'/2 arpent by 40 arpent tract shall be referred to hereinafter as the “parent tract”.

II.

The xh arpent by 40 arpent tract which is the subject of this proceeding, also called the “Leger” Tract, is the southernmost xk arpent of the “parent tract”.

III.

Prosper Thibodaux was married but once and then to Mathilde Toups Thibodaux and he died on November 5,1907. A Judgment of Possession was rendered in “Succession of Prosper Thibodaux, Probate No. 3777, Parish of Lafourche, 17th Judicial District Court, State of Louisiana”, on August 23, 1940, a copy of which Judgment of Possession is recorded in COB 98, Folio 466, Entry No. 53245 and is annexed hereto as Exhibit “C”. In the Judgment of Possession, Math-ilde Toups Thibodaux was recognized as the surviving widow and as the owner of one-half ('A) of the community property and as the usufructuary of the remaining one-half (Vfc). The community property included the “parent tract” involved in this proceeding. The succession proceedings indicate that ten (10) children were born of the marriage between Prosper Thibodaux and Mathilde Toups, eight (8) of whom were living at the time of the succession and two (2) of whom had died between the death of the decedent and the opening of his succession, namely, (1) Leonise Thibodaux, wife of Gaston Gau-det, and (2) Moise Thibodaux. Leonise Thi-bodaux left her one-twentieth (l/2o) interest in the community property “parent tract” to her eleven (11) children and their descendants, herein referred to as “the Gau-det heirs”. Moise Thibodaux, the other deceased son of Prosper Thibodaux, was married but once and then to Leonise Breaux, and only two (2) children were born of that marriage, Leonee Thibodaux and Clifton Thibodaux. The latter two inherited the one-twentieth (V20) interest in the community property “parent tract” formerly belonging to their father, Moise Thibodaux.

IV.

After the Judgment of Possession was rendered on August 23, 1940, the widow and heirs of Prosper Thibodaux entered into a series of transactions. On April 15, 1941, May Thibodaux Champagne, one of the ten (10) children, and Leonce Thibodaux and Clifton Thibodaux, heirs of another child, sold their undivided interests in the three and one-half (3V2) arpent by forty (40) arpent tract, the “parent tract”, to the widow of Prosper Thibodaux, Mathilde Toups Thibodaux. The Act of Sale is recorded in COB 100, Folio 254, Entry No. 55292 of the Conveyance Records of Lafourche Parish, Louisiana and is annexed hereto as Exhibit “D”. On April 29, 1941, Cecile Thibodaux, Interdict, sold to Mathilde Toups Thibo-daux, her one-twentieth (V20) interest in the “parent tract”, by sale recorded in COB 100, Folio 255, Entry No. 55293, a copy of which is annexed hereto as Exhibit “E”.

V.

On June 12,1941, an Act of Partition was executed by the widow and heirs of Prosper Thibodaux by Act recorded in COB 100, Folio 255, Entry No. 55294, a copy of which act is annexed hereto as Exhibit “F”.

VI.

After the aforesaid Partition Agreement was executed, Mathilde Toups Thibodaux, widow of Prosper Thibodaux, died on September 10, 1943. She was survived by the same heirs listed in the Succession of her late husband. No succession proceedings has been opened on Mrs. Mathilde Toups Thibodaux to date.

VII.

Cecile Thibodaux, another child of Prosper Thibodaux, died on July 2, 1944, without ever having been married and without having any children. Her succession was opened as Probate No. 4109, 17th Judicial District Court, and was recorded under Entry No. 64672 and a Supplemental Judgment of Possession recorded under Entry No. 64735, and together are annexed hereto as Exhibit “G”. May Thibodaux Champagne, also a child of Mathilde and Prosper Thibodaux, who had been married but once and then to Adam Champagne, died on June 22, 1955. Her succession was opened under Probate No. 3340 of the 17th Judicial District Court, Terrebonne Parish, Louisiana. She had no children, and thus, her interest in the Prosper Thibodaux estate was willed to the remaining heirs of Prosper and Mathilde Thibodaux as can be seen by the Judgment of Possession rendered in Succession of May Thibodaux Champagne, Probate No. 3340, 17th Judicial District Court, Parish of Terrebonne, rendered on June 15, 1956, recorded in COB 209, Folio 164, Entry No. 140722, Lafourche Parish, Louisiana, annexed hereto as Exhibit “H”.

VIII.

On July 11,1940, production was obtained from a well (hereinafter referred to as “the well”), which had been drilled pursuant to the E. H. Stickney mineral leases referred hereinabove as Paragraph No. 1. The well location is described under Permit No. 23462 of the Department of Conservation as follows: “The southwest section corner go northeast on Section line 360 feet then a distance of 349.15 feet paralleling southwest line and section 17”.

IX.

After initial production was obtained on July 11, 1940, there were recompletions in 1941, 1955, 1956 and 1961. On December 15, 1964, the well was plugged and abandoned as can be seen by Memo dated December 17, 1964 from A. F. Hancock, Jr. to Mrs. Judy Hancock Grubb, a copy of which Memo is annexed hereto as Exhibit “I” and also as can be seen by a copy of a letter from H. L. Hawkins, Jr., et al to Judy Grubb, dated December 22, 1964, a copy of which letter is annexed hereto as Exhibit “J”. (Thus, there was production in paying quantities sufficient to maintain the original Stickney Lease and a servitude and/or servitudes, continuously during the period of July 11, 1940 through December 14, 1964.)

X.

After initial production was obtained from the well, it produced on a lease basis until January 6, 1944, when a voluntary unit was established on the entire “parent tract”, pursuant to a Unit Agreement recorded at COB 110, Folio 304, Entry No. 63568, a copy of which is annexed hereto as Exhibit “K”.

XI.

In 1957, the Voluntary Unit which had included the entire parent tract was reduced in size to cover only twenty-five (25) acres of the parent tract. Although it is not certain, without benefit of survey, it is believed that the twenty-five (25) acre unit as reduced included a portion of the one-half (V2) arpent (Leger) tract which is the subject of these proceedings as well as other portions of the “parent tract”.

XII.

On September 27, 1957, a mineral lease was executed by the various heirs of Prosper Thibodaux, including defendants, Gau-det Heirs, in favor of Edward M. Carter and Allan R. Stern. Said lease was recorded at COB 227, Folio 482, Entry No. 153841 and affected a five and one-half (5V2) ar-pent by forty (40) arpent tract which included the “parent tract” less and except the twenty-five (25) acre Grubb and Hawkins unit. A copy of said lease is annexed hereto as Exhibit “L”.

XIII.

On August 17, 1959, a mineral lease was executed by defendants, Gaudet Heirs, and other heirs of Prosper Thibodaux covering the three and one-half (3V2) arpent by forty (40) arpent “parent tract” less and except the twenty-five (25) acre Grubb and Hawkins unit. This lease was recorded in COB 257, Folio 158, Entry No. 175068, a copy of which is annexed hereto as Exhibit “M”.

XIV.

One of the Gaudet Heirs, Roy L. Gaudet, died on December 14, 1959. His succession was opened in the matter entitled “Succession of Roy Louis Gaudet, Civil District Court, Parish of Orleans, State of Louisiana, Docket No. 376-935, Division A, Docket 1”. A copy of the Judgment of Possession was recorded under Entry No. 179097 of the records of Lafourche Parish, Louisiana and a copy of which Judgment is annexed hereto as Exhibit “N”.

XV.

On March 25,1965, the defendant, Gaudet Heirs, and other heirs of Prosper Thibodaux executed a mineral lease in favor of David J. Robichaux, which lease is recorded at COB 342, Folio 185, Entry No. 250489. This lease affected the entire parent tract, and there was no exclusion of the twenty-five (25) acre Grubb and Hawkins unit, a copy of which lease is annexed hereto as Exhibit “O”.

XVI.

On July 19,1968, by Act recorded in COB 387, Folio 418, Entry No. 249937 of the Conveyance Records of Lafourche Parish, (a copy of which is annexed hereto as Exhibit “P”), the other named appearers hereto sold to Clinton J. Leger, Jr., the one-half (V2) arpent tract (Leger Tract) which is the subject to this proceeding.

XVII.

On April 20, 1970, another mineral lease was executed by the Heirs of Prosper Thi-bodaux, including the defendant, Gaudet Heirs, which lease was recorded at COB 427, Folio 427, Entry No. 322369 and which lease included the entire parent tract. A copy of said lease is annexed hereto as Exhibit “Q”.

XVIII.

On July 10, 1973, the defendant, Gaudet Heirs, as well as other heirs of Prosper Thibodaux, executed a mineral lease recorded at COB 496, Folio 859, Entry No. 373436, which lease was in favor of T. W. Kleinpeter. Said lease affected the entire parent tract, and a copy of same is annexed hereto as Exhibit “R”. On July 10, 1973, Ernest John Gaudet, Marie Gaudet, Beaulieu Gau-det, Michael L. Gaudet and Myron Anthony Gaudet, executed a mineral lease recorded at COB 498, Folio 67, Entry No. 374408, in favor of T. W. Kleinpeter, which lease affected the parent tract. A copy of said lease is annexed hereto as Exhibit “S”.

XIX.

On March 23, 1977, defendant, Clinton Joseph Leger, Jr., executed a mineral lease in favor of Dave J. Robichaux, which lease was recorded in COB 590, Folio 385, Entry No. 442853, (a copy of which is annexed hereto as Exhibit “T”). Earl E. Wall received that lease by assignment from Dave J. Robichaux by Act recorded at COB 591, Folio 602, Entry No. 443803. A copy of said assignment is annexed hereto as Exhibit “U”.

XX.

A Unitization Agreement was recorded by Earl E. Wall on December 16, 1977, at COB 631, Folio 684, Entry No. 461291, which Unitization Agreement affects the one-half Qh) arpent tract (Leger Tract) which is the subject of these proceedings, as well as other properties. A copy of said Unitization Agreement is annexed hereto as Exhibit “V”.

THUS ENTERED INTO AND SIGNED at Thibodaux, Louisiana, this 15th day of April, 1980, by Charles J. LeBlanc, Attorney for Clinton J. Leger, Jr. and S. Frazer Rankin, Attorney for the above listed Gaudet Heirs.

/s/ Charles J. LeBlanc

CHARLES J. LE BLANC

/s/ Frazer Rankin

. FRAZER RANKIN

APPENDIX A-2

17th JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

PARISH OF LAFOURCHE

NO. 38765

EARL E. WALL

versus

CLINTON JOSEPH LEGER, JR., ET AL

FILED: _ _ DEPUTY CLERK

ADDENDUM TO STIPULATION OF FACTS

NOW INTO COURT, through their, undersigned counsel, come Clinton J. Leger, Jr., and Claude Gaudet, Jeanne Gaudet Nacquin, Gabriel Gaudet, Nell Gaudet Ze-ringue, Ernest John Gaudet, Norbert. Gau-det, Robert Guadet, Marie Gaudet Beaulieu, Richard Gaudet, Katherine Gaudet Picou, Michael Louis Gaudet, Myron Anthony Gau-det and through their undersigned counsel respectfully submit this Addendum to the Stipulation of Facts previously filed herein:

VIII. (A)

The well which was drilled pursuant to the E. H. Stickney mineral leases referred to in Paragraph No. I of the Stipulation of Facts was not located upon the one half arpent by forty arpent tract the mineral ownership of which is the subject of the present proceeding and the surface of which presently belongs to Clinton J. Leger, Jr.

XI. (A)

By instruments dated June 10 and 16, 1957 and recorded in COB 222 at Folio 464 and 472, Entry Nos. 150743 and 150756 respectively (see Exhibits “W” and “X” attached) on June 20, 1957, the owners of the Prosper Thibodaux Heirs mineral leases which had been executed on January 31, 1939 (see Exhibits “A” and “B” annexed to the Stipulation of Facts) executed partial reassignments to E. H. Stickney which instruments conveyed, among other interests, all of the assignor’s right, title and interest in the Prosper Thibodaux Heirs mineral leases less and except a 25 acre tract of land surrounding the then existing Grubb and Hawkins-Thibodaux Heirs No. 1 Well. That 25 acre tract is more fully designated on a plat of survey by Carl E. Heck, survey- or, a copy of which is attached to the Reassignment bearing Entry No. 150756 a copy of which is attached hereto as Exhibit “X”.

XI. (B)

On August 26, 1957, Mr. Stickney executed a partial release of the 1939 Thibo-daux Heirs leases, among others, which partial release was recorded on August 27,1957 in COB 226 Folio 107 under Entry No. 152749 of the conveyance records of La-fourche Parish (see Exhibit “Y” attached). This instrument released all property not included within the 25 acre tract of land surrounding the Grubb and Hawkins-Thibo-daux Heirs Unit No. 1 Well.

THUS ENTERED INTO AND SIGNED at Thibodaux, Louisiana this 9th day of June, 1980, by Charles J. LeBlane, Attorney for Clinton J. Leger, Jr. and S. Frazer Rankin, Attorney for the above listed Gaudet Heirs.

/s/ Charles J. LeBlane

CHARLES J. LE BLANC

/s/ S. Frazer Rankin

S. FRAZER RANKIN

      . The Thibodaux No. 1 well (also known as the Dew Oil & Gas Co., Inc., Joseph Thibodaux, et al. No. 1 well) was drilled on the Prosper Thibo-daux tract of land, measuring three and one-half by forty arpents, referred to as the “parent tract.” The well, while on the parent tract, is not located on the Leger tract. The well was drilled and production obtained from it in 1977.

      . Leger, in his answer to the concursus petition, alleged that “the actual acreage contained is 5.887 acres out of the total unit of 160 acres and that said tract is allocated 3.429% of unit production.”

      . Mathilde Toups Thibodaux 10/20
      Angelique Thibodaux Breaux 1/20
      Louise Thibodaux Donnaud 1/20
      Julia Thibodaux Leger 1/20
      Marie Thibodaux Marcello 1/20
      Archangel Thibodaux Marcello 1/20
      Joseph Thibodaux 1/20
      Cecile Thibodaux 1/20
      May Thibodaux Champagne 1/20 "
      Clifton Thibodaux " 1/40
      Leonce Thibodaux 1/40
      Jeanne Gaudet Naquin 1/220
      Claude Gaudet 1/220
      Roy Gaudet 1/220
      Gabriel Gaudet 1/220
      Nell Gaudet Zeringue 1/220
      John Gaudet 1/220
      Norbert Gaudet 1/220
      Robert Gaudet 1/220
      Marian Gaudet 1/220
      Richard Gaudet 1/220
      Katherine Gaudet 1/220

      . No succession proceedings were opened for Mathilde Toups Thibodaux; however, it appears that her heirs are basically the same as those of her husband, Prosper Thibodaux (except for heirs of their deceased children taking the place of their “Thibodaux” parents).

      . The mother of the Gaudet heirs, Leonise Thi-bodaux, wife of Gaston Gaudet, had died between the time of Prosper’s death and opening of his succession, so her interest went to her eleven children (or their descendants). Another child, Moise Thibodaux, had also died in the meantime, but his children later sold to the widow. About the same time two other Thibo-daux children sold their interest to the widow.

      .This 1940 well was known as the “Grubb & Hawkins-Tbibodaux Heirs No. 1,” and was located on the parent tract, but not on the Leger tract. Although other mineral leases were granted, no other production was obtained until the 1977 production from Dew Oil & Gas Co., Inc., Joseph Thibodaux et al. No. 1 well.

      . The mineral lessee never owns thg minerals underlying the leased property as such because there can be no “mineral estate” distinct from the surface estate, but he does have a right to assert title to a specified portion of the production. Comment under LSA-R.S. 31:16.


source: Caselaw Access Project

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

license: Public Domain

text:
    Michael LINTON, Plaintiff-Appellant, v. BOSSIER CITY MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 14546.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    On Rehearing July 16, 1981.

      Fayard & Snell by A. R. Snell, Bossier City, for plaintiff-appellant.
    Harvey P. Delaune, City Atty., Bossier City, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff’s dismissal as a Bossier City police officer was purportedly sustained by the Municipal Fire and Police Civil Service Board (“Board”). Judicial review was sought of the Board’s action and the district court affirmed, from which judgment plaintiff appealed.

According to the record, on November 11, 1977 plaintiff was given written notice by the Bossier City Mayor of his termination for cause as a police officer, with a detailed statement of the reasons for the action. Timely appeal was made to the Board, which heard evidence relating to the eight allegations upon which the City based its discharge of plaintiff.

At the time of the hearing the Board was composed of only four members rather than the statutorily prescribed five. All four members were present at the hearing. At its conclusion, two members voted to reinstate the discharged officer and two members voted to sustain the action of the appointing authority in terminating the plaintiff. The Board and the District Court construed this tie vote as, in effect, sustaining the appointing authority on the assumption that the plaintiff had the onus of having the Board, by a majority vote, overturn that action. We disagree.

La.R.S. 33:2501 provides in part:

“Any employee under classified service and any appointing authority may appeal from any decision of the board ... This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.” (Emphasis added)

La.R.S. 33:2476(M) provides in part:

“Four members of the board shall constitute a quorum, and the concurring votes of any three members comprising the quorum of the board shall be sufficient for the decision of all matters to be decided or transacted by it.” (Emphasis added)

In this case, there was no vote of three Board members to take any action, either to sustain the appointing authority or to reinstate the terminated officer. Consequently, there was no decision of the Board from which an appeal could be taken under La. R.S. 33:2501 to the District Court, which should have dismissed the appeal.

For these reasons, pursuant to the authority vested in us by La.C.C.P. Art. 2162, we dismiss the appeal, at appellant’s cost.

ON REHEARING

PER CURIAM.

A rehearing without argument was granted in this matter to clarify our holding that the Bossier City Fire and Civil Service Board (“Board”) had not rendered a decision from which an appeal could be taken.

In order to make explicit the import of our original opinion, we set aside our judgment dismissing the appeal and, for the reasons expressed in the original opinion, reverse the ruling of the Board which construed its tie vote as an affirmance of the action of the appointing authority in terminating appellant’s employment, reverse the district court’s affirmance of the Board’s ruling, and remand the case to the Board for its reconsideration of the record previously made before it, together with additional admissible evidence that may be offered, after which the Board shall render a decision appealable under the provisions of La.R.S. 33:2501.

REVERSED AND REMANDED, at the cost of appellee Board.


author: COLE, Judge.

text:
    Robert Dale WASSON v. Varel Lee WASSON.
    No. 14208.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    James Durbin, Denham Springs, for plaintiff-appellee Robert Dale Wasson.
    Kenneth Riche, Baton Rouge, for defendant-appellant Varel Lee Wasson.

      Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issues presented are whether child support, incidental to an action for divorce, was considered in a court of proper venue, and if venue was proper, whether error was committed in setting the amount thereof.

Yarel Lee Wasson filed suit in The Family Court for the Parish of East Baton Rouge for a separation from bed and board from her husband, Robert Dale Wasson, and for child support for the two children of the marriage. A judgment of separation was granted in her favor on May 16,1979, along with child support in the sum of $800 per month. This judgment was modified on December 17,1979 to provide for child support of $600 per month and alimony pen-dente lite of $400 per month. Mr. Wasson was further ordered to pay all essential medical, dental, and pharmaceutical expenses not covered by insurance, with the exception of psychiatric expenses incurred.

On January 3, 1980 Mr. Wasson filed the instant divorce action in the 21st Judicial District Court, to which Mrs. Wasson urged a “declinatory exception of lack of jurisdiction.” The trial court overruled the exception, and Mrs. Wasson applied for supervisory writs to this court. Initially, we issued an alternative writ, ordering the district court to dismiss the petition as to custody, visitation rights and child support. However, after reviewing the record we determined the writ had been improvidently issued and, for written reasons assigned, recalled the writ and remanded the case to the trial court for further proceedings. Wasson v. Wasson, No. 13,586 (La.App. 1st Cir., June 9, 1980), attached hereto as an appendix. Judgment was rendered in the trial court in this matter on August 26, 1980, granting the prayer for divorce and setting the amounts of permanent alimony and child support at $200 and $400 per month, respectively. It is from this judgment that Mrs. Wasson appeals.

Mrs. Wasson first contends the trial court erred in considering the issue of child support in the divorce action filed in the 21st Judicial District Court, since the East Baton Rouge Parish Family Court had previously ruled on the issue. This contention is the same as that urged by her declinatory exception and, as noted above, was addressed by us in recalling the alternative writ.

The question of venue relating to incidental demands in family litigation is, as expressed by the author in Hopkins v. Hopkins, 300 So.2d 661 (La.App. 3d Cir. 1974), “a most troublesome area for our trial courts.” A review of relevant jurisprudence leaves little doubt that it is also a most troublesome area for our appellate courts. We recognize the hardship which exists where the custodial parent is forced to journey to another parish to again litigate the issues of child support, custody and visitation. And, as pointed out by counsel for appellant, it is inequitable to allow a disgruntled husband, bound by what he feels is a high child support award, to move across the state to what he considers a friendly forum and compel the wife to undergo legal expenses and time consumption in relitigating the issue. However, we find the state of the law to be, within the factual context of the instant case, that such situations are sanctioned. This problem addresses itself to the legislature for resolution.

After the legal separation, Mr. Was-son established a domicile in Livingston Parish. Therefore, under La. Code Civ.P. art. 3941, he had the right to seek a final divorce in that venue. A judgment decreeing a divorce between the spouses, with its attending finality and conclusiveness, generally abates all judgments of separation from bed and board, including all attendant incidents. Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956). It follows, therefore, that if those matters incident to a dissolution of the marriage, such as child support, had not been litigated in Livingston Parish, Mrs. Wasson would have found herself without the incidental benefits afforded in the judgment of separation rendered by the East Baton Rouge Parish forum.

Mrs. Wasson relies upon Hopkins v. Hopkins, supra, to validate her contention the trial court erred in considering the issue of child support in the divorce action in Livingston Parish. Hopkins held:

“We have no hesitancy in reaffirming the following rule: once the venue of the trial court has attached, it continues exclusively for the purpose of modifying the alimony or child support judgment.” [Citations omitted.]

At first blush the quoted language puts to rest our concern over venue. A deductive analysis, however, leaves us with no precedent for the facts of this case. In Hopkins, there was no subsequent divorce action which would terminate the separation decree and its incidents. Following a judgment by the First Judicial District Court, Caddo Parish, decreeing a separation, child support, and visitation privileges, the wife sought from the Ninth Judicial District Court, Rapides Parish, an increase in the amount of child support and also an amendment to the visitation provisions. Reversing the trial court, the Third Circuit sustained the objection to venue filed in Rap-ides Parish. This was proper as the venue of the initial separation litigation extended to any action seeking modification of its incidental awards. Here the subsequent divorce litigation tolled the death of the separation decree and its incidental components. The resulting necessity for new decrees are, under Thornton, supra, understandable.

We deny Hopkins as authority for Mrs. Wasson’s contention and reaffirm our position on the prior writ application. The geographical domain of the 21st Judicial District Court is proper venue for consideration of child support. To hold otherwise would, at the very least, disrupt the continuity of child support payments and relegate the custodial parent to another action following finality of the divorce decree. (We preter-mit a discussion of the possible forums in which such a subsequent action might be brought.) Granting of the divorce herein, while technically appealed, is not actually contested and is properly affirmed on the evidence adduced.

Mrs. Wasson also contends the trial judge erred in reducing the award for child support. We believe there was error in this respect.

When the court awards less alimony after divorce than was awarded penden-te lite, it is not “adjusting” a prior alimony award but is, instead, making a new award based on completely different considerations. Under Civil Code article 160, permanent alimony is in the nature of a pension. Alimony pendente lite, however, in article 148, is based on the husband’s obligation to support his wife during marriage. Vanier v. Vanier, 344 So.2d 1077 (La.App. 3d Cir. 1977). Child support is a different matter, however. The husband’s obligation to support the children of the marriage is the same before divorce as it is after divorce. Thus, the husband must show a change in circumstances to justify a reduction in child support payments. Dugas v. Dugas, 374 So.2d 1278 (La.App. 3d Cir. 1979); Vanier v. Vanier, supra.

Mr. Wasson did not introduce any evidence which indicated the sort of change which would justify a reduction in child support. On the contrary, there is evidence in the record his gross income increased, $7,000 per year since he and his wife separated. The trial court awarded Mrs. Was-son the monthly sum of $400 for child support. (The sums being paid by the husband for medically related expenses of the children were eliminated.) This award, we find is a significant reduction in child support for which no change in circumstances was shown in the record. Constantine v. Constantine, 372 So.2d 229 (La.App. 1st Cir. 1979).

For the reasons assigned, the judgment of the trial court is amended only insofar as it deals with child support, increasing the amount of the child support award to $600 per month and further ordering Mr. Wasson to pay all essential medical, dental, and pharmaceutical bills (not covered by insurance) for his children, with the exception of psychiatric expenses incurred. In all other respects the judgment is affirmed. All costs are to be paid by appellee.

AMENDED AND, AS AMENDED, AFFIRMED.

APPENDIX

ON WRIT OF CERTIORARI TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON, HONORABLE SAMUEL T. ROWE, JUDGE

PER CURIAM.

Judgment was rendered in the Family Court for East Baton Rouge Parish on May 16, 1979, granting unto Mrs. Varel Lee Wasson a separation from bed and board from Robert Dale Wasson. The judgment further fixed custody and child support.

This suit was filed on January 3, 1980 in the 21st Judicial District Court for Livingston Parish by Mr. Wasson, seeking a divorce on the grounds of living separate and apart for one year subsequent to October 30, 1978. The suit also prays that Mrs. Wasson be granted custody of the children, but no mention is made of child support.

To the petition, Mrs. Wasson filed a decli-natory exception of lack of jurisdiction, alleging the judgment of the Family Court to be dispositive of the issues of custody, alimony pendente lite and child support, and praying that the 21st Judicial District Court decline jurisdiction over those matters.

After a hearing, the exception was overruled, and Mrs. Wasson applied to this court for a writ of certiorari. This court issued an alternative writ, ordering the district judge to dismiss the petition as to custody, visitation rights and child support, or to show cause why the writ should not be made peremptory. Both the trial judge and Mr. Wasson elected to respond to the writ.

We now find the writ to have been improvidently issued. The Livingston Parish Court is certainly one of proper venue, since Mr. Wasson is domiciled there and separation and divorce actions may be brought in the parish of the domicile of either spouse. Article 3941, Code of Civil Procedure. There is also jurisdiction over Mrs. Wasson personally, since personal service was made on her, and over the status of the parties, since both are Louisiana domiciliaries and the grounds alleged for the divorce occurred in this state. Articles 6 and 10, Code of Civil Procedure; Smith v. Smith, 179 So.2d 433 (La.App. 3rd Cir. 1965).

The Family Court judgment fixed custody and child support pendente lite. The Livingston Parish suit seeks to adjudicate these matters as a consequence of a final divorce. A judgment of divorce has the effect of terminating all prior orders relative to matters incident to the proceeding, such as custody and child support. It is therefore proper that these matters be considered by that court, so that proper provision can be made relative thereto. Smith v. Smith, supra.

The alternative writ heretofore issued is therefore recalled, and the case remanded to the trial court for further proceedings in accordance with law. Mrs. Wasson shall pay all costs of this writ application and all other costs shall await final determination hereof on its merits.

WRIT RECALLED.

      . The exception properly raises the objection of improper venue. La.Code Civ.P. art. 925.

      . A special rule for the venue of the incidents of separation or divorce is needed. See, Sims v. Sims, 388 So.2d 428, 431 (La.App.2d Cir. 1980).

      . We adhere to Thornton, as have many intermediate appellate decisions, but disagree with its application to rights affecting children of the marriage. A better result obtains if the separation decree remains viable as to those rights. See, concurring opinion in Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir. 1977).

      . It has been held the parent with custody bears no burden to show a change of circumstances when seeking an increased award for child support in a divorce action, following an earlier award incidental to separation litigation. Vanier v. Vanier, supra; Morrison v. Morrison, 316 So.2d 453 (La.App. 3d Cir. 1975), writ denied, 322 So.2d 772; Manuel v. Broderson, 298 So.2d 333 (La.App. 3d Cir. 1974). Arguably, the same rule should apply when the non-custodial parent seeks a reduction in the child support previously awarded. We believe, however, societal interests favor maintaining this jurisprudential distinction.


text:
    PARISH OF EAST BATON ROUGE v. Suzanne Phillips ROBINSON.
    No. 14545.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, for plaintiff-appellant, Parish of East Baton Rouge.
    Joseph W. Cole, Jr., Port Allen, for defendant-appellee, Suzanne Phillips Robinson.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This court ex proprio motu has examined the record in this case and has determined the appeal is untimely. The record reveals the following chronology:

1. Judgment signed and rendered and notices mailed December 11, 1980
2. Last day to apply for new trial (no application was made) December 22, 1980
3. Last day to perfect a devolutive appeal; La.Code Civ.P. art. 2087 February 20, 1981
4. Motion for appeal filed February 27, 1981
5. Order of appeal signed March 4,1981

Accordingly, the order of appeal signed on March 4, 1981 was not timely filed. La. Code Civ.P. art. 2087. This court therefore lacks jurisdiction to hear the appeal.

For the above reasons, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.

      . The order itself is dated February 4, 1981. But the notice of appeal and the minute entry each state the order was granted on March 4, 1981. Since the motion for appeal was not filed until February 27 it is obvious that the ' order could not have been signed on February 4. We conclude a clerical error caused the order to be dated February 4 instead of March 4.

      . For clarification of timeliness of appeal, see Traigie v. Gulf Coast Aluminum Corporation, et al., 399 So.2d 183 (La.1981).


author: SAMUEL, Judge.

text:
    ROLLINS, INC. d/b/a Rollins Protective Service Company v. Delphine Brignac FARRIS.
    No. 11514.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Newman & Drolla, Robert T. Wakefield, New Orleans, for plaintiff-appellee.
    William Noland, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff, Rollins, Inc., d/b/a Rollins Protective Service Company, proceeded by summary process pursuant to R.S. 9:3263 and R.S. 9:3262 to cause defendant, Del-phine Brignac Farris, to surrender various items of movable property which it had leased to her. Defendant filed various exceptions including the declinatory exceptions of insufficiency of citation and service of process.

The trial court allowed defendant’s attorney to introduce the testimony of the deputy whose name appeared on the return and then overruled the various exceptions, including the exceptions of insufficiency of citation and service, and rendered judgment ordering defendant to return the leased merchandise. Defendant has appealed from that judgment.

The only evidence introduced by either side regarding service was the testimony of the deputy constable mentioned above. His return, made over his signature, shows he made personal service on defendant on February 27, 1980. However, when testifying under oath, he stated unequivocally he did not make the service. He explained he and another deputy constable worked the area in which defendant lived, and the return had been given to him by the other deputy to bring into the office of the constable of the First City Court for the City of New Orleans. He stated he signed the return himself even though he had not made the service because he thought the other deputy had made the service, and the other deputy had some illness and personal problems which prevented him from bringing the documents to the office himself.

Relying on Article 1292 of the Louisiana Code of Civil Procedure, which provides:

“The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the .service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.” LSA-C.C.P. Art. 1292.

plaintiff attempts to find solace in the last sentence of the article which allows the court to amend proof of service in the absence of material prejudice to the party allegedly served. Plaintiff argues, in effect, that the court has the right to amend the return to show the name of the deputy who made the service.

The record shows, however, the court neither made nor attempted to make such an amendment. It simply overruled defendant’s exception without explanation. More important, proof of service could not be amended. There is no evidence in the record showing the defendant actually was served. The deputy who allegedly made the service did not appear at the hearing and the deputy who signed the return did not know whether the service had been made.

The record being devoid of any evidence that defendant was served, neither the trial court nor this court may allow proof of service to be amended. Citation and service of process are the cornerstone of legal proceedings, without which the court does not have jurisdiction over the person of a defendant. It is only when service has in fact made that administrative errors in making the return may be amended, and then only in the absence of material prejudice, as stated in the above quoted Article 1292.

Pertuit v. LeBlanc, relied on by plaintiff, does not support its position. In that case defendant clearly had been served and the only error was that the return was dated prior to the date suit had been filed. Amendment of the return under those circumstances is allowed because it merely cures an administrative error which does not cause material prejudice.

Accordingly, as the grounds for the objection pleaded in this declinatory exception of insufficiency of service of process “may be removed by .... other action of plaintiff”, we annul, set aside and remand.

For the reasons assigned, the judgment appealed from is annulled and set aside, and the matter is remanded to the trial court for further proceedings consistent with the views herein expressed. Costs of this appeal are to be paid by plaintiff; all other costs are to await a final determination.

ANNULLED, SET ASIDE AND REMANDED.

      . LSA-C.C.P. Art. 6.

      . La.App., 216 So.2d 863.

      . See also Howard Ave. Realty Corp. v. McIntosh, La.App., 352 So.2d 348.

      .LSA-C.C.P. Art. 932 provides, in pertinent part: “When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.”


text:
    Doretha P. KELLER v. SCHWEGMANN BROTHERS, INC.
    No. 11531.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 17, 1981.

      John S. Keller, New Orleans, for plaintiff-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Schweg-mann Brothers, Inc. to recover $4,000 for injuries and medical expenses sustained on July 2, 1977 when plaintiff slipped and fell in one of the defendant’s super markets. Defendant answered, denying liability, alleging its clean-up procedures were safe and reasonable under the existing circumstances, and affirmatively averring plaintiff’s own negligence or contributory negligence was the actual cause of her injury.

After trial on the merits, judgment was rendered in favor of plaintiff in the amount of $2,058, representing $1,800 for pain and suffering and $258 for medical expenses. Defendant has appealed from that judgment.

On appeal, defendant does not dispute the amount of the trial judge’s award to plaintiff. Its only specification of error is that the trial judge abused his discretion in holding for plaintiff because the record does not contain sufficient evidence upon which to base a finding of liability.

The record shows plaintiff shopped at defendant’s store on July 2, 1977. While preparing to leave, she noticed a bottle of disinfectant was damp, and she proceeded to return it to its shelf in order to exchange it for an undamaged bottle. She left her shopping basket at the checkout counter, and while returning to the shelf she slipped and fell on her knee and elbow. Two customers assisted her to her feet, and she reported the fall to an employee named Robert Majors. She and Majors returned to the spot of the fall, at which time the area had been substantially mopped. However, Majors passed his finger over the spot, and a black substance appeared on his finger. He made no comment with regard to the identity of the substance.

In answers to interrogatories, defendant stated seven individuals were responsible for cleaning and maintaining the store. On the date of plaintiff’s fall, Henry Sussman was a porter primarily responsible for these duties. Sussman’s supervisor, Mario Rivera, also was identified in the interrogatories, but he was not called upon to testify by defendant with regard to defendant’s procedures, and Majors, the individual who actually visited the scene of the accident with plaintiff and discovered the unidentified substance, likewise did not appear. The failure of these witnesses to appear and testify was not explained by defendant, and their absence creates a presumption their testimony would be adverse to defendant.

The only evidence produced by defendant was the deposition of Henry Sussman, taken for perpetuation purposes. In his deposition this witness was somewhat hostile, although he attempted to establish adequate cleanup procedures. He identified a cleanup log completed by him and stated it was accurately kept. He also testified he was called to the site of plaintiffs fall as he was about to leave for lunch, and he, his supervisor, a security guard, and plaintiff talked there for approximately four minutes after the accident. Nevertheless, the log reveals Sussman was performing other duties in other areas of the store at the time of plaintiff’s fall. Upon being pressed Sussman admitted his supervisor, Mario Rivera, told him he could make the entries in the log as he did, even though they were not accurate.

Finally, plaintiff testified she entered defendant’s store at approximately 10:30 a. m., and from that time until the time of her fall she did not observe anyone sweeping or mopping anywhere in the store.

It is settled that a store owner has the duty to protect his customers from foreign substances on the floor by taking reasonable protective measures, including periodic inspections, to keep aisles and floors free of substances or objects which may cause customers to fall. Our reading of the record in its entirety satisfies us that the defendant did not offer sufficient evidence to establish it complied with this duty, and it failed to carry the burden of proof required of it to show adequate and reasonable inspection. Consequently, defendant failed to exculpate itself from negligence.

In this case it was incumbent upon plaintiff to prove there was a foreign object or substance on the floor which caused her fall. However, the particular facts, i. e., when plaintiff returned to the scene with the defendant employee, Majors, shortly after being assisted by other customers, the floor already had been mopped, plaintiff’s uncontradicted testimony that Majors found a foreign substance on the floor even after the floor had been mopped, and defendant's failure to offer the testimony of Majors and possibly other employees who could have cast light on the facts, are sufficient to support the trial judge’s conclusion regarding liability.

For the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.

      . Defendant’s proper name is Schwegmann Bros. Giant Supermarkets, Inc.

      . See, for example, Horton v. Seligman and Latz, Inc., La.App., 260 So.2d 731.

      . See Gonzales v. Winn-Dixie Louisiana, Inc., La., 326 So.2d 486.

      .See Crockem v. Schwegmann Bros. Giant Supermarkets, La.App., 355 So.2d 1077.


text:
    Judith Brining SATTERLEE v. Gerard Sheldon SATTERLEE, Jr.
    No. 11598.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 17, 1981.

      Babovich, McDowell & Bukaty, Edward F. Bukaty, III, New Orleans, for appellant.
    William H. Egan, Chalmette, for appellee.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment maintaining a writ of habeas corpus and dismissing a rule for change of custody and child support.

In chronological order the facts are as follows:

On April 5, 1976 Judith Brining Satterlee brought suit against her husband for separation from bed and board, custody of two minor children and child support. Following hearing on the rule for custody and support, plaintiff was granted custody and child support in the amount of $75 per week. On June 30, 1976, plaintiff filed a rule for alimony and an increase in child support payments. Thereafter, the husband filed a supplemental and amended answer and reconventional demand for a divorce on the ground of adultery.

Several additional rules of like nature were filed by both parties and, following a hearing thereon, a consent judgment was rendered on January 4, 1977 increasing the payments to $100 per week, awarding $600 for the sums past due, and dismissing the rules for contempt.

On January 14, 1977 suit on the main demand was tried and judgment was rendered in favor of the husband (plaintiff in reconvention) awarding him a divorce and granting the wife permanent custody of the children and $100 per week for their support.

The children remained in the mother’s custody until 1979 when she moved out of her apartment leaving a note explaining her actions to the children. She had decided to return to college and thought they would be better off with their father.

The father then took charge of the children and filed rules for change of custody and decrease in child support. These rules were personally served on the wife’s attorney of record and after several continuances, on May 25, 1979 custody of the children was granted to the husband and the previous orders in regard to support payments were set aside.

On July 18, 1979 the mother visited the children and requested permission to speak with them and take them for a ride. She did not return the children. Therefore, on August 13,1979 the husband filed a writ of habeas corpus. The wife answered the writ and alternatively requested a change of custody and child support.

The judge heard the writ and the rule simultaneously. He rendered judgment maintaining the writ and the judgment of May 25 (wherein custody was granted to the husband) and denied the wife’s rule to change custody.

In written reasons in support of his judgment the trial judge found the wife had engaged in three separate illicit relationships with three different men, one prior to the marriage and two subsequent thereto, and that she had abandoned the children to their father, leaving them alone in an empty house.

The wife has appealed from this judgment. In this court she contends: (1) The judgment changing custody is void for lack of jurisdiction; (2) alternatively, the custody rule was heard less than 24 hours after service on appellant’s attorney, and the ha-beas corpus was heard less than 2 days after service of the writ (C.C.P. Art. 3781); and (3) the evidence is contrary to the judgment.

Appellant’s first contention is based upon the fact that she did not receive personal service on the rule to change custody and that although personal service was made on an attorney who had represented her on a previous rule, he had been engaged only for that rule, and was not authorized to represent her in any other matter.

We reject this contention. Our examination of the record indicates her attorney, Stephen R. Perez, represented her at the consent judgment on August 9, 1976, filed for her a rule for contempt for arrear-age and to increase child support on October 6, 1976, represented her at the consent judgment rendered January 4, 1977, and appeared for her on January 17, 1977 when judgment was rendered granting her husband a divorce. He continued to represent her in the partition proceedings. It is thus clear Mr. Perez was plaintiff’s counsel of record and he was personally served. Service on her attorney is sufficient. See Imperial v. Hardy, La., 302 So.2d 5.

Relative to appellant’s second contention, LSA-C.C.P. Art. 3782 provides that a writ of habeas corpus shall be assigned for hearing not less than two days or more than ten days after service of the writ. Appellant was personally served and appeared on the day the matter was set, without counsel. The matter was continued until it was tried fourteen days later. Therefore, there is no merit to appellant’s second contention.

Nor do we agree with appellant’s third contention. The record amply supports the fact that appellant, by her own admission, was living with a man prior to the divorce granted to her husband on the ground of adultery. She did not appeal from that judgment. She also admitted she had been beaten by another man with whom she was living after the divorce.

On the other hand, the husband has remarried, has a good home and the minors are being raised in a stable environment. The husband’s present wife, a teacher, testified she is willing to have the girls and care for them along with her own child.

We find no error in the judgment appealed from.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The husband answered denying plaintiff’s allegations of lack of affection and reconvened on the grounds of abandonment.

      . Plaintiff was working at the time and did not request alimony.

      .Another rule to increase by the wife, and contempt on visitation rights by the husband, and contempt filed by the wife against her husband for being $600 in arrears for child support payments.

      . The husband did not request custody.


text:
    AMERICAN BANK v. RED DIAMOND SUPPLY CO., INC., et al.
    No. 11642.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 17, 1981.
    Shushan, Meyer, Jackson, McPherson & Herzog, Rader Jackson, New Orleans, for plaintiff-appellee.
    Randell 0. Lewis, Boutte, for defendants-appellants.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   SAMUEL, Judge.

On April 4, 1978 plaintiff filed this suit against defendants, Red Diamond Supply Company, Inc. and John R. Pertuit, to recover $94,064, together with interest and attorney’s fees, as the holder and owner of a promissory note in the amount sued upon. The note, dated February 11, 1977, was executed by both defendants. Plaintiff also prayed for recognition of: (1) a promissory note in the amount of $33,000 dated October 11, 1971, paraphed for identification with a collateral mortgage of the same date, both executed by defendant, John R. Pertuit, and pledged by him to plaintiff; (2) a promissory note in the amount of $50,000 dated September 1,1976, paraphed for identification with a collateral mortgage of the same date, both executed by defendant, John R. Pertuit, and pledged by him to plaintiff; and (3) a promissory note in the amount of $62,000 dated October 11, 1971, paraphed for identification with a collateral mortgage of the same date, both executed by the other defendant, Red Diamond Supply Co., Inc., and pledged by it to plaintiff.

Defendants answered, generally denying the allegations of the petition, but setting forth no special or affirmative defenses.

Plaintiff’s evidence was heard on October 10, 1979, and when the case again was called on November 12, 1979 no one except defendants’ attorney appeared in their behalf. The trial court rendered judgment at that time on the pleadings, exhibits, and evidence before him in favor of plaintiff for $94,064, together with interest, attorney's fees, and costs. The judgment also recognizes the three pledged notes and collateral mortgages.

Thereafter, defendants filed a motion for a new trial and, following a full evidentiary hearing, at which testimony of the individual defendant, Pertuit, and of a plaintiff bank employee was heard and various exhibits were offered and received in evidence, a new trial was denied. Defendants have appealed.

Pending argument in this court, Audrey Pertuit, wife of the defendant John R. Per-tuit, attempted to intervene in this appeal and supplement the record by introducing an act of sale pertaining to immovable property subject to the collateral mortgages by Pertuit which she claims are community in nature. This court dismissed her motion because, under the then existing law she could not have intervened in the trial court, the time for taking an appeal from the judgment had passed when the motion was filed, and she no longer had a right to appeal.

Defendants argue Article 2334 of the Louisiana Civil Code, as amended by Act 679 of 1976, prohibits a husband from pledging collateral mortgage notes which incumber immovable property in the names of both husband and wife, which were executed by the husband alone prior to January 1, 1977 to secure hand notes issued by the husband alone after January 1, 1977.

Article 1005 of the Louisiana Code of Civil Procedure requires a defendant to set forth any matter constituting an affirmative defense in his answer. Defendant Per-tuit filed a general denial with no affirmative defense, and the record contains no evidence to indicate the property secured by the collateral mortgage pledged by Pertuit was in both his name and the name of his wife.

However, even assuming the record does reflect the property subject to the two mortgages by Pertuit stood both in his name and in that of his wife, it nevertheless appears the hand note executed by him individually and as president of the other defendant on February 11, 1977 does not violate Civil Code Article 2334, effective January 1,1977, which provides in pertinent part as follows:

“Where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife’s written authority or consent.” LSA-C.C. Art. 2334.

Defendants attempt to buttress their argument with the case of Odom v. Cherokee Homes, Inc., which sets forth the theory that a collateral mortgage ranks from the date of issuance of the hand note which it secures and not from the date on which the collateral mortgage was recorded. They argue from this theory that the two collateral mortgages encumbering the property allegedly in the names of both Pertuit and his wife have their effect against third persons from February 11,1977 when the hand note which they secure was executed by Mr. Pertuit. If the mortgages rank from February 11, 1977, theoretically they would be in violation of that portion of Civil Code Article 2334, quoted above.

However, we can find no case which recognizes the principles set forth in Odom v. Cherokee Homes, Inc. On the contrary, in First Guaranty Bank v. Alford, on the authority of Civil Code Article 3158 the Supreme Court said that a collateral mortgage note may be pledged to secure future obligations that full payment of such a given obligation does not extinguish such a note or the collateral mortgage which secures it, and the collateral mortgage ranks from the date of its initial pledge.

The language of Article 3158 and other cases establish that once a note secured by collateral mortgage has been pledged for a debt, the payment of that debt does not extinguish the collateral mortgage. On the contrary, the collateral mortgage remains in full force and effect as of the date of its original pledge to the creditor and can be used to secure new obligations incurred thereafter.

Applying these principles to the present case, even if the record indicated the property secured by the collateral mortgages affected immovable property standing in the name of both husband and wife, the execution of the hand note by the husband alone subsequent to the effective date of the amendment to Article 2334 does not violate that article as amended. The collateral mortgages were executed at a time when it was acceptable for a husband alone to mortgage or otherwise alienate community property, and the fact that the husband executed a hand note subsequent to the effective date of the amendment to Article 2334, by which amendment the wife’s signature is required to mortgage such property, does not affect the previously recorded and pledged collateral mortgages.

Defendants also argue the trial court committed error by finding that extensive interrogatories propounded by defendants were sufficiently answered by the plaintiff. They filed a motion to test the sufficiency of the answers to those interrogatories, and the trial court denied defendants’ rule because he was satisfied with the answers. We agree with that conclusion. In addition, we note defendants made no attempt to obtain discovery by other means in the ten months between the judgment on the rule to test plaintiff’s answers and the trial on the merits.

In addition, it has been held that the trial court’s ruling on discovery matters should not be disturbed on appeal unless it is found to be an abuse of discretion and also that the abuse prejudiced the outcome of the case. Here, defendants have made no adequate showing of an abuse of the trial judge’s discretion and have made no showing that any such alleged abuse prejudiced the outcome of the case. Moreover, it is difficult for them to claim abuse or prejudice when they did not use the ten months between the trial of the rule to test answers and the trial on the merits to seek the information they allegedly needed.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . La.App., 165 So.2d 855.

      . La., 366 So.2d 1299.

      . See also Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628; Cameron Brown South, Inc. v. East Glen Oaks, Inc., La.App., 341 So.2d 450; and Courshon v. Mauroner-Craddock, La.App., 219 So.2d 258.

        .Vallery v. Olin Corp., La.App., 337 So.2d 631.


author: GARRISON, Judge.

text:
    Warren John MEYER v. Sandra Legendre MEYER.
    No. 11672.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    R. Lee Eddy, III, New Orleans, for plaintiff-appellee.
    Reed & Reed, Floyd J. Reed, J. D., New Orleans, for defendant-appellant.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting a judgment of divorce in favor of the plaintiff husband, granting permanent custody of the two minor children to the defendant-wife, awarding child support in the amount of $500.00 per month and denying alimony.

Prior to the rendition of the divorce judgment, the trial court granted child support in the amount of $400.00 per month, alimony pendente lite in the amount of $200.00 per month and ordered the father to pay the house note of $147.36. The divorce judgment reduced the total amount from $747.36 to $500.00 per month. From that judgment, which we affirm, the custodial parent appeals.

On appeal the custodial parent argues that the trial court erred in decreasing the pre-divorce total amount from $747.36 per month to a post-divorce amount of $500.00, when the non-custodial parent’s income had increased from $2,260.00 per month ($1,450.00 per month net) to $2,437.00 per month ($1,556.00 per month net).

Alimony pendente lite is granted without consideration of legal fault. Alimony after divorce, however, is granted on a different legal basis. Civil Code Article 160 provides as follows:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.” (emphasis added).

As Mrs. Meyers is no longer entitled to alimony, the trial judge was correct in reducing the total amount by the $200.00 granted as alimony pendente lite.

Turning to the issue of the house note, the house note payment contains elements of the non-custodial parent’s duty to support and that support includes shelter. The non-custodial parent’s payment of the house note prior to the judgment of divorce included not only a percentage of shelter costs for his children, but also shelter costs in the nature of alimony pendente lite for his wife and his part of the community debt attributable to a major community asset, the house. Thus the trial judge acted properly in reducing the total amount by the amount of the house note. The increase in child support obviously includes a portion covering the shelter costs of the children.

The custodial parent argues that the trial judge failed to consider the non-custodial parent’s increased income relative to the issue of the child support. We find this a fallacious argument. The trial judge did consider the increase in income in raising the amount of child support from $400.00 per month to $500.00 per month.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . The judgment of separation was rendered on the basis of mutual fault. As both parties were found “at fault”, neither party is entitled to alimony after divorce. The judgment of separation was rendered on March 2, 1979.


text:
    Carrie Cousain RIVERS v. Thomas RIVERS.
    No. 11825.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.

      Michael K. Heltz, Gramercy, for plaintiff-appellant.
    Charles G. Merritt, New Orleans, for defendant-appellee.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

Plaintiff, Carrie Cousain Rivers, filed a motion and rule to have child support and alimony made executory, for contempt, and for attorney’s fees. The motion alleges the defendant husband, Thomas Rivers, was behind in child support and alimony payments in the amount of $930 at the time the motion was filed. This motion was based on a judgment of June 18, 1979 which ordered the husband to pay $75 every two weeks for child support and alimony in a like amount.

After an evidentiary hearing, there was judgment awarding plaintiff court costs and $150 attorney’s fees. However, the judgment denies plaintiff’s rule to make past-due alimony and child support executo-ry and refuses to hold the defendant in contempt.

Plaintiff has appealed, asserting the trial judge has no discretion to deny a motion to make past-due alimony and child support executory when the proof supports the fact that the payments are in arrears.

At the trial of plaintiff’s motion, she testified that from December 25, 1979 to the date of the hearing on May 5, 1980 her husband paid only $240. The total amount due during that period was $1,425, thereby showing that as of May 5, 1980 defendant was in arrears for child support and alimony in the amount of $1,185.

Defendant testified he recalled the trial judge ordered him to pay the amount stated in the judgment. He stated he was employed on the date of the hearing, but that his employment began only one week earlier. His former employment had terminate ed two months prior to the hearing, and during the period between jobs he had received unemployment compensation of $149 each week.

The trial court refused to make judgment executory, stating: “I am giving him the benefit of the doubt when he was not fully employed The court also stated that if Mr. Rivers had gone to court and presented his position, his payments would have been reduced.

Louisiana Code of Civil Procedure Article 3945 provides:

“When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony.” (Emphasis ours).

The provisions of Article 3945 do not give any discretion to the trial court when it is proved that payments are in arrears. The courts are not empowered by equity or otherwise to nullify or reduce accumulated alimony until a previous judgment awarding alimony has been amended or reduced by subsequent judgment or ter-initiated by operation of law. Thus, the trial court should have rendered judgment for the amount of past-due alimony, as well as court costs and attorney’s fees pursuant to R.S. 9:305.

For the reasons assigned, that part of the judgment appealed from which denied the rule for executory judgment for past due child support and alimony is reversed and judgment is now rendered in favor of plaintiff, Carrie Cousain Rivers, and against the defendant, Thomas Rivers, in the amount of $1,185, together with legal interest thereon from date of judicial demand until paid. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be paid by the defendant.

REVERSED IN PART; AFFIRMED IN PART.

      . Whitt v. Vauthier, La.App., 316 So.2d 202; Theriot v. Melancon, La.App., 311 So.2d 578; Rodriguez v. Rodriguez, La.App., 245 So.2d 765; Bell v. Bell, La.App., 225 So.2d 753.

      . Graval v. Graval, La.App., 355 So.2d 1057; Theriot v. Melancon, supra, note 1; Elchinger v. Elchinger, La.App., 181 So.2d 297.