author: LOTTINGER, Judge.

text:
    Cecil SULLIVAN v. GULF STATES UTILITIES COMPANY and Boh Brothers Construction Company.
    No. 13031.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.

      Paul H. Due, Baton Rouge, counsel for plaintiff-appellant, Cecil Sullivan.
    Robert L. Kleinpeter, Baton Rouge, counsel for defendant-appellee, Boh Bros. Const. Co. .
    W. Arthur Abercrombie, Jr., Baton Rouge, counsel for defendant-appellee, Gulf States Utilities Co.
    Before COVINGTON, LOTTINGER and COLE, JJi
   LOTTINGER, Judge.

This is an action ex delicto in which the plaintiff seeks damages against defendants, Gulf States Utilities Company (G.S.U.) and Boh Brothers Construction Company, for injuries he received in a one car accident. Plaintiff appeals from an adverse trial court judgment.

Plaintiff, a security officer for the Ethyl Corporation in Baton Rouge, finished his shift at 10:00 on the night of November 27, 1975. When he walked to his pickup truck in the Ethyl parking lot, he noticed that it appeared unusually dirty and he decided to take it to the plant’s car wash before driving home. The Ethyl parking lot, including the driving lane, had recently been the site of construction work by Boh Brothers under contract with the lot’s owner, G.S.U. Boh Brothers had constructed a number of concrete piers which were two feet above ground level and four and a half feet in diameter, and which were to be used by G.S.U. as foundations for high voltage utility poles.

Plaintiff proceeded through the driving lane of the parking lot towards the car wash at a speed of about 18-20 miles per hour. He passed one of the piers which had been constructed by Boh Brothers near the sodium gate of the Ethyl plant. After he passed the sodium gate plaintiff noticed headlights which were apparently on high beam directed towards him from the general area of the hydrocarbon gate, which was some 300 feet ahead of him in the parking lot. He testified that the oncoming lights were apparently on bright and that he was temporarily blinded or distracted by them. Some few seconds after he was allegedly blinded or distracted by the oncoming lights, his truck ran headon into one of the concrete piers which was located near the center of the driving lane. The testimony is not clear as to how long the plaintiff was blinded or distracted by the oncoming lights before he hit the pier. A fair inference can be drawn, however, that he had at least a few seconds to adjust to the oncoming lights before his pickup truck hit the pier.

At the time of the accident, the pier was not marked, painted or barricaded, and testimony of various Ethyl employees and expert witnesses indicated that the pier’s grayish color blended almost imperceptibly into the aging asphalt that covered the parking lot. The parking lot around the pier plaintiff hit was unlighted, although a fence 50 to 60 feet away was lit in places. The pier plaintiff passed before he hit the other pier was better lit because of lighting in the area of the sodium gate.

Testimony at the trial indicated that Ethyl leased the lot from G.S.U. and was under contract with G.S.U. to provide safety barricades and other safety measures in the parking lot, as well as to direct the parking of Ethyl employees. The testimony also showed that Boh Brothers, under instructions from G.S.U., contacted security personnel at Ethyl in advance of the construction of the piers. However, on the night of the accident, barricades which previously had been placed in front of the pier in question were not there, having been removed prior to the accident.

Plaintiff knew that a number of piers had been constructed in the Ethyl parking lot but said he did not see the one he hit until an instant before he struck it, although he knew it was somewhere in the path ahead. The plaintiff also testified that he was aware that protective barrels had been removed from around most of the structures. The accident resulted in serious injuries to plaintiff and some later complications.

The trial judge, in written reasons for judgment, found both defendants negligent in failing to place warning devices around the pier. He labeled the pier “a trap, a hidden defect, and a hazard right in the middle of a lane used by vehicles for access and egress.” However, he denied plaintiff recovery because he found plaintiff to be contributorily negligent in causing the accident. He reasoned that plaintiff, as an Ethyl employee engaged in security measures, knew of the construction work, knew that the piers had been constructed in and around the driving lane of the parking lot and should have been more alert and watchful while he was proceeding down the parking lane. The trial judge also said that the plaintiff should have anticipated the location of the pier and should have slowed down when he was blinded or distracted by the oncoming headlights. The judge’s decision was not based on the fact that Ethyl was the company in charge of placing safety devices around the piers because the trial court found that neither G.S.U. nor Boh Brothers provided Ethyl with the proper specifications for marking these particular piers. In his signed judgment the trial judge did not mention that the defendants were negligent but simply ruled in their favor and dismissed plaintiff’s suit. The judge’s finding of defendants’ negligence was made in his written reasons only.

In brief, plaintiff specifies a number of errors which can be condensed into two for purposes of this appeal:

—The trial judge erred in finding plaintiff contributorily negligent; and

—The trial court erred in applying contributory negligence to a case in which liability of the defendants should be based on the strict liability provisions of La.C.C. art. 2317.

As a procedural matter, the plaintiff also contends that the defendants should be precluded from challenging the trial court’s written reasons finding them negligent because the defendants neither appealed nor answered plaintiff’s appeal. The defendants claim they were not required to answer the appeal because La.C. C.P. art. 2133 does not require an appellee to answer unless he wants a judgment modified, revised or reversed in part or unless he seeks damages against the appellant. Since the signed judgment did not hold the defendants negligent, they claim there is no adverse judgment from which they need to appeal. We agree. The trial court’s written reasons, while defining and elucidating the principles upon which he is deciding a case, form no part of the official judgment he signs and from which appeals are taken. La.C.C.P. art. 1917, 1918. Defendants did not need to appeal or answer the appeal in order to question the trial court’s written reasons and to argue their position on appeal.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

The trial court’s determination of negligence on the part of defendants was manifestly correct. The defendants owed a duty to persons using the parking lot to properly label, mark and/or barricade the concrete piers that had been constructed in the lot. These concrete piers were indeed traps for the unwary. They were difficult to see at night and they easily could have been painted, marked or barricaded.

Our biggest problem on this appeal is whether the trial court was correct in finding plaintiff to be contributorily negligent. After a thorough reading of this record and a diligent investigation of the points raised by counsel in their briefs, we have decided that the trial judge was correct in finding the plaintiff contributorily negligent in striking the pier.

We think this result should apply for a number of reasons. First, plaintiff had been a security guard with Ethyl for many years and was well aware of all the conditions that existed in the parking lot at the time of the accident. Plaintiff knew that the piers, including the one that he hit, had been constructed in the parking lot more than two months prior to the accident. Secondly, plaintiff, when proceeding towards the car wash and when confronted with the oncoming headlights, had sufficient time at the slow and reasonable speed at which he was proceeding to detect and avoid the pier which he knew was somewhere in the path ahead. Plaintiff simply failed to keep a proper lookout in light of all the circumstances surrounding this accident. Were he a casual visitor to the Ethyl plant the result might be different. But he was not, and the result is not.

The plaintiff urges that the case of Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979) should allow him to recover in this case. In Rue the plaintiff motorist inadvertently, perhaps negligently, drove off the highway onto the shoulder of the road where her car struck a deep rut. The court allowed her to recover, even though she was negligent in not staying on the main thoroughfare, because she did not know or suspect that the road shoulder was bad. We think the Rue case is distinguishable on its facts, in that the plaintiff in that case had no idea of the defect existing in the shoulder of the road. In the case at bar, however, the plaintiff was well aware there was a concrete abutment in the driving lane of the parking lot.

The plaintiff also urges that the doctrine of momentary forgetfulness as enunciated in the case of McClung v. Town of Winnfield, 46 So.2d 920 (La.App. 2nd Cir. 1950) should apply to this case. The McClung case is also distinguishable on its facts. The driver in McClung had just entered a bridge when he was blinded by the headlights of an oncoming vehicle. He had traveled the route frequently and knew that there was a deep hole on one side of the bridge. Faced with the oncoming headlights, the driver in that case veered slightly to the right to make sure his car and the oncoming car did not hit. In so doing his car ran into the deep rut in the bridge and he suffered injuries. The court allowed him to recover by holding, in effect, that his temporary forgetfulness was justified under the facts of that case. In the case at bar, plaintiff Sullivan did not have to veer to miss the oncoming vehicle. The record does not even show that the vehicle was traveling in his lane of traffic. The evidence infers that plaintiff had sufficient time from the moment he noticed the headlights until the time he hit the abutment to make an adjustment in his driving to miss the concrete pier.

STRICT LIABILITY

Plaintiff argues strenuously in brief that the liability of the defendants is predicated not solely upon the general delictual rule of negligence under Article 2315 but also upon the strict liability provisions of La.C.C. art. 2317 as enunciated in Loescher v. Parr, 324 So.2d 441 (La.1975). The trial judge did not discuss the strict liability argument, apparently finding that the case should be decided solely on the traditional grounds of negligence. The strict liability argument is that the concrete pier was a “thing” owned by G.S.U. and under the garde of Boh Brothers at the time of the accident. The “thing” was defective, i. e., created an unreasonable risk of injury to others, because it was not marked or lighted so as to warn others of its presence. See Loescher, supra, which defines a defective thing. The defective thing caused injury to another for which the defendants are allegedly strictly liable even though they possibly are not negligent.

Under the Supreme Court’s definition of defect in Loescher, the concrete pier in this case was a defective thing, made so, interestingly, because of the negligence of the defendants in not marking, painting or barricading it. However, because we agree with the trial judge that the defendants were negligent and that the plaintiff was contributorily negligent in causing the accident, the only difference an additional finding of strict liability under Article 2317 could possibly make concerns the question of whether the conduct necessary to find contributory negligence is the same conduct necessary to find victim fault so as to bar recovery in a strict liability case.

The Supreme Court in Loescher v. Parr listed three ways a defendant could escape liability in a strict liability case: by showing that the accident was caused by the fault of the victim or the fault of a third person or by showing that the accident was caused by an irresistible natural force. The court gave little attention to the defenses beyond a mere mention of them, but it did say that for victim fault or third party fault to absolve a defendant, such fault must be a “substantial factor” in bringing about the harm producing incident. 324 So.2d at 449.

Exactly what constitutes victim fault sufficient to relieve a defendant of liability under Article 2317 has received various treatment in the jurisprudence. Additionally, no view has emerged as to whether victim fault and third party fault can be gauged by the same yardstick.

In Marquez v. City Stores Company, 371 So.2d 810 (La.1979), the Supreme Court, in holding a department store strictly liable for personal injuries caused by its defective escalator, gave little discussion to the strict liability defenses, other than to state tersely that “there was no finding of contributory negligence” on plaintiff’s part. 371 So.2d at 813. The Marquez case, then, is of little help in trying to explain the extent of the strict liability defenses.

We are aware of at least one decision in this circuit which seems to equate victim fault with contributory negligence. In Korver v. City of Baton Rouge, 348 So.2d 708 (La.App. 1st Cir. 1977), the court in a negligence action relieved the defendant of liability in a sidewalk-tripping case by finding the plaintiff contributorily negligent. The court also refused to grant recovery under Article 2317’s strict liability provision because it felt that the conduct of the plaintiff which defeated the negligence action was sufficient “victim fault” to defeat the strict liability action.

In the related area of the strict liability for the acts of one’s children, the Third Circuit in a pair of recent cases seems to equate victim fault with contributory negligence, though refusing to so label it. Hebert v. United Services Automobile Association, 355 So.2d 575 (La.App. 3rd Cir. 1978); and Parker v. Hanks, 345 So.2d 194 (La. App. 3rd Cir. 1977), writ refused, 346 So.2d 224 (La.1970). The court in Hebert, quoting from Parker, noted that the theoretical underpinnings of the strict liability defenses have not been worked out. “Whether fault of the victim in cases of this kind is the same as contributory negligence in fault based on negligence cases, remains to be fully developed.” 355 So.2d at 577; 345 So.2d at 199. The court also noted in Parker that a “reasonable and common-sense construction” should be given to the defenses for strict liability. 345 So.2d at 199.

* Another decision in this circuit interpreting Article 2317 held that a victim will be prevented from recovering if her conduct is a cause in fact of the harm producing incident. American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1978), writ denied, 356 So.2d 430, 434, 435 (La.1978). In so holding, the court was interpreting that portion of the Loescher case which briefly discussed defenses to a strict liability action under Article 2317. This court in Montgomery equated the “substantial factor” language of Loescher with “cause in fact” and prevented the victim from recovering by finding her conduct was the cause in fact of the accident. The court also said that for victim fault to absolve the defendant of liability, such fault need not be the sole cause of the accident.

A recent case out of the Third Circuit relied on Montgomery for the proposition that for third party fault to absolve the defendant of liability, it must be “substantially the cause” of the accident. Kasperski v. Patterson Services, Inc., 371 So.2d 1254 (La.App. 3rd Cir. 1979), writ denied, 373 So.2d 530 (La.1979), “Proof of less than substantial causation would not invoke the application of this defense,” the court said. 371 So.2d at 1257. The court held the defendants liable in a wrongful death action under Article 2317 because the defendants could not show that a third party was substantially at fault in creating the defect which caused the accident.

Another Third Circuit case, Panek v. Gulf Insurance Co., 341 So.2d 46 (La.App. 3rd Cir. 1976), held that an owner-guardian of a defective thing will escape liability if he can show by “substantial evidence” that the defective thing which caused harm was rendered defective by a third person. 341 So.2d at 53. In that case, the defendant met the burden and the third party was held liable.

The plaintiff in the case at bar urges strongly that for third party fault or for victim fault to absolve a defendant of liability in a strict liability case, such fault must be the sole cause of the accident. For that proposition, the plaintiff cites the case of Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978). The Olsen case does not stand for the proposition advocated by plaintiff.

As noted earlier, the relationship between victim fault and third party fault, if it exists at all, has not been given ample discussion in the jurisprudence. Olsen dealt solely with the fault of the third person necessary to exonerate a defendant of liability under the strict liability provision of Article 2322, dealing with the ruination of a building. We do not think third party fault can be analogized to victim fault for purposes of strict liability. The Supreme Court in Olsen made no indication that it was speaking of victim fault when it held that third party fault must be the sole cause of an accident in order to relieve an owner of liability for the ruin of his building. If anything, victim fault is more closely analogous to contributory negligence than it is to third party fault under the strict liability articles, especially as third party fault has been understood in the wake of Olsen.

It would be ironic in this case for the defendant to be able to escape liability in a negligence action because of the plaintiff’s contributory negligence, yet be held liable under a strict liability theory when the plaintiff has been equally at fault in bringing about the harm. We think the policy reasons underlying Loescher v. Parr point away from such an ironic result. Loescher was based on the proposition that, out of two innocent parties, the owner or guardian of a thing should pay for any damage caused by that thing. We do not have two innocent parties in this case, as the word innocent is understood in strict liability law. For purposes of this case, we think the measure of conduct necessary to achieve the appellation “contributory negligence” is the same measure necessary to amount to “victim fault” under Article 2317.

After careful consideration, we think the trial judge correctly found plaintiff contrib-utorily negligent. Additionally we do not think the plaintiff can recover under Article 2317 because his fault was of such a nature as to constitute “victim fault” under that article sufficient to absolve the defendants of liability.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. Plaintiff-appellant will pay all costs of this appeal.

AFFIRMED.

      . Art. 2317 provides:
      “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . A recent student comment in the Louisiana Law Review discusses the similarities between negligence concepts and the newer concept of strict liability in Louisiana law. Poole, “Does Louisiana Really Have Strict Liability Under Civil Code Articles 2317, 2318, and 2321?” 40 La.L.Rev. 207 (1979).

      . A thorough discussion of the victim fault defense as it has developed after Loescher is found in Lastilla, “Fault of the Victim: The Limits of Liability Under Civil Code Articles 2317, 2318, and 2321,” 38 La.L.Rev. 995 (1978). See also Verlander, “Article 2317 Liability: An Analysis of Louisiana Jurisprudence Since Loescher v. Parr," 25 Loy.L.Rev. 263, 270 (1979).


source: Caselaw Access Project

author: COLE, Judge. LOTTINGER, Judge,

license: Public Domain

text:
    Benny RICARD v. STATE of Louisiana et al.
    No. 12951.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Benny Ricard.
    Emile C. Rolfs, III, Howard P. Elliot, Jr., Baton Rouge, for defendants-appellees State of Louisiana, through the Department of Public Safety, Division of State Police, and Steve Jones.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a suit by Benny Ricard under 42 U.S.C. § 1983 (Civil Rights Act) against the State of Louisiana; Steve Jones, a state trooper; and, the Department of Public Safety. Plaintiff allegedly was pistol-whipped by a state trooper and sustained injuries. From a partial summary judgment dismissing his claim for punitive or exemplary damages only, plaintiff has appealed.

The issue before the court is whether an award of punitive or exemplary damages may be made in a suit brought in Louisiana under 42 U.S.C. § 1983.

Plaintiff argues that when a federal cause of action is brought in state court, federal substantive and state procedural law apply, citing Presley v. Upper Mississippi Towing Corp., 141 So.2d 411 (La.App. 1st Cir. 1961), and on remand and reappeal, 153 So.2d 416 (La.App. 1st Cir. 1963). The point is made that “federal common law” substantively allows punitive damages in civil rights actions.

Defendants concede that “when a cause of action that is alleged to have arisen under federal law is brought in the state court, federal law must apply pursuant to the Supremacy Clause of the United States Constitution.” They argue, however, that 42 U.S.C. § 1983 is silent as to whether punitive damages are recoverable, and thus we must look to 42 U.S.C. § 1988 , which in essence provides that where the laws of the United States do not provide “suitable remedies,” laws of the state in which the court having jurisdiction is located must be applied.

In support thereof they cite Baggett v. Richardson, 473 F.2d 863 (5th Cir. 1973), as authority that a federal court will not award punitive damages if such damages are not allowed under state law. While we agree that this case stands for that holding, we find it inapposite because it was a maritime tort case applying Louisiana tort law, under which there are no punitive damages.

As an apparent indication that punitive damages are not allowed in § 1983 actions, defendants cite Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) which in part states:

“To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages.” (98 S.Ct. 1048-49).

The footnote to that statement, however, in part states;

“This is not to say that exemplary of punitive damages might not be awarded in a proper case under § 1983 with the specific purpose of deterring or punishing violations of constitutional rights. See, e. g., Silver v. Cormier, 529 F.2d 161, 163-164 (CA10 1976); Stengel v. Belcher, 522 F.2d 438, 444 n. 4 (CA6 1975), cert. dismissed, 429 U.S. 118, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); Spence v. Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Mansell v. Saunders, 372 F.2d 573, 576 (CA5 1967); Basista v. Weir, 340 F.2d 74, 84-88 (CA3 1965). Although we imply no approval or disapproval of any of these cases, we note that there is no basis for such an award in this case. The District Court specifically found that petitioners did not act with malicious intention to deprive respondents of their rights or to do them other injury, see n. 6, supra and the Court of Appeals approved only the award of ‘non-punitive’ damages, 545 F.2d, at 31.”

An examination of the cases cited in the above quoted footnote reveals that all were decided by federal courts in traditional common law states (Colorado, Ohio, Illinois, Massachusetts, Florida and Pennsylvania) applying in most instances the common law majority rule that punitive damages may be awarded where actual damages have been suffered. Admittedly, in Basista, supra, the progenitor of the other cases cited, the federal court sitting in Pennsylvania awarded only punitive damages contrary to the majority rule which that state follows. However, the case does not stand for the proposition that there existed some mystical “federal common law” which supremely negated Pennsylvania law. The actual holding of the case in this regard is found at page 85 of the opinion:

“In this court Scalese’s counsel raises the issue, seeking to apply the law of Pennsylvania, that there can be no exemplary or punitive damage where actual damage is not shown, (citation omitted.) But Scalese’s counsel made no objection to the court’s submission to the jury of the issue of exemplary damages, and, therefore, must be deemed to have waived any objection to this portion of the court’s instructions. See Rule 51, Fed.R.Civ.Proc.”

After deciding the issue thusly, and noting that § 1988 had apparently not previously been construed by any court with respect to the issue of punitive damages, the Basista court then engaged in a discussion of the history of the Civil Rights Act and, by dictum, espoused the view that Congress intended the Act to be applied uniformly throughout the United States. The court reasoned that “federal common law” must apply to effect that uniformity and “federal common law” allows punitive damage awards. Interestingly, all of the subsequent cases cited Basista as authority for the proposition that “federal common law” decrees the award of punitive damages in Civil Rights cases. In chronological order, Mansell cited Basista; Caperci cited Man-sell and Basista; Spence cited Mansell and Basista; Stengel cited Basista ; and, Silver cited Spence and Basista. It is little wonder that the United States Supreme Court chose to neither approve nor disapprove of these cases. Perhaps, aside from a recognition that the cases subsequent to Basista represent no more than jurisprudential fission, the court remembered the words of Mr. Justice Brandeis in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 at p. 822, 82 L.Ed. 1188 (1938):

“Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law." (Emphasis added.)

We acknowledge that the above noted federal cases are persuasive. The same result has been reached under 42 U.S.C. § 1981, another provision of the Civil Rights Act. See Claiborne v. Illinois Central Railroad, 583 F.2d 143 (5th Cir. 1978). However, we agree with the United States Supreme Court’s pronouncement in Carey, supra, that with respect to actions under § 1983, there is no evidence that Congress meant to establish a deterrent more formidable than that inherent in the award of compensatory damages. We have found no provisions of law enacted by Congress mandating punitive damages in Civil Rights cases. Nor does the United States constitution require the imposition of punitive damages. In such instance, § 1988 requires “the common law, as modified and changed by the constitution and’ statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held . shall . . . govern the said courts in the trial and disposition of the cause . . .” A careful reading of § 1988 leads to the unmistakable conclusion that there is no impediment to the application of Louisiana law in this instance. In fact, it is required.

It is academic that Louisiana has never embraced the common law. By contrast our people, upon acquiring statehood, retained the civil law heritage. However, within the context of 42 U.S.C. § 1988 it can be said that we have indeed modified and changed the common law as regards the award of exemplary or punitive damages. Art. 2315 of the Civil Code of Louisiana in part provides:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (Emphasis added.)

This provision is the cornerstone of our tort law and may readily be traced to the Code Napoleon, promulgated in 1804. It is found in the Civil Code of 1808, the basic law of the Louisiana territory, and has remained intact throughout our history. As so often explained, it contemplates simple reparation, a just and adequate compensation for injuries. It suggests no idea of revenge or punishment. As explained in Post v. Rodrigue, 205 So.2d 67, at p. 70 (La.App. 4th Cir. 1968):

“The settled law of Louisiana is that vindictive, punitive or exemplary damages are not allowed in civil cases unless specifically provided for; in the absence of such a specific provision only compensatory damages may be recovered.” (Citations omitted.)

We conclude that exemplary or punitive damages are not available in a § 1983 action brought in this state. In this regard, Louisiana law is applicable pursuant to the provisions of § 1988.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are to be paid by plaintiff.

AFFIRMED.

LOTTINGER, J., dissents and assigns written reasons.

LOTTINGER, Judge,

dissenting.

I respectfully dissent.

The majority cites six federal appellate court cases which held that punitive damages are awardable in a § 1983 action, but then disregards them in deference to a recent United States Supreme Court opinion which arguably' would allow punitive damages under the facts alleged in the case at bar.

In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the case upon which the majority bases its holding, the Supreme Court did make the general statement that there is no evidence that.Congress meant to establish a deterrent more formidable than compensatory damages in § 1983 actions. However, the footnote to that general statement is all important. Indeed, the majority cites the footnote in its opinion. The footnote limits the general statement made in the text of the opinion to the facts of that case. The court suggests that punitive damages might be recoverable in the “proper case” under § 1983 if the purpose of awarding punitive damages is to deter or punish violations of constitutional rights, particularly when the court finds a “malicious intention to deprive respondents of their rights or to do them other injury.” 98 S.Ct. 1048-1049.

The petitioner in this case alleges that he was pistol-whipped by a state trooper and that he sustained injuries because of the pistol-whipping. If the plaintiff proves these allegations at trial, then I think that there has been a malicious intention to deprive him of his constitutional rights or to do him other injury.

Perhaps more important than its disregard of the six federal appellate cases cited in its opinion is the majority’s disregard of the underlying rationale of Basista v. Weir, 340 F.2d 74 (CA3 1965). Basista stands for, and has been cited as standing for, the proposition that the Federal Civil Rights Act should be applied uniformly throughout the United States. The majority makes only short mention of the uniformity argument and does nothing to dispute it. Six federal circuit courts, including the Fifth Circuit Court of Appeals, have held that punitive damages are awardable in the proper case under a § 1983 action. These federal cases represent an interpretation of a congressional statute and are therefore binding upon us.

The Basista argument that the Civil Rights Act should be applied uniformly throughout the United States is a substantial argument that should not be rejected without careful consideration. Confusion would be the rule if the act were given a different interpretation depending upon the tort law of the state in which an action was brought. Congress surely did not intend this when it enacted § 1983, and the federal courts which have interpreted § 1983 have attempted to give it some uniformity.

There is no need in this case to rely upon § 1988 of Title 42 because federal courts have interpreted § 1983 to allow punitive damages. As noted earlier, we are bound by this interpretation and we should at least allow the issue to go to trial in this case.

Therefore, I respectfully dissent from the majority opinion in this case.

      . 42 U.S.C. § 1983 reads:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . 42 U.S.C. § 1988 provides:
      “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall b.e exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”


author: HALL, Judge.

text:
    State of Louisiana Through the Health and Social Rehabilitation Services Administration, Plaintiff Appellee, In the INTEREST of the minor child Linda HOWARD.
    No. 14056.
    Court of Appeal of Louisiana, Second, Circuit.
    Feb. 25, 1980.

      North Louisiana Legal Assistance Corp. by Elizabeth B. Matthews, Monroe, for defendants-appellants, Lois and Shirley Howard.
    J. Carl Parkerson, Dist. Atty., by Walter Lee Perkins, Jr., Asst. Dist. Atty., Monroe, for plaintiff-appellee, State of Louisiana through the Health and Social Rehabilitation Services Administration.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

The. parents of a 14-year-old daughter appeal from an order of the district court, sitting as a juvenile court, granting custody of the daughter to the Louisiana Health and Human Resources Administration, Division of Evaluation and Services, with physical custody being given to the Youth House of Ouachita, Incorporated. The order was rendered in an abuse or neglect proceeding initiated by the state pursuant to LSA-R.S. 14:403.

At the hearing, the parents advised the court that they had not been able to employ an attorney and could not afford to do so, and requested the court to appoint an attorney to represent them in the proceedings. The court ruled that there was no authority or procedure for a court-appointed attorney in this kind of proceeding, a civil matter, and refused the request.

The issue presented on appeal is whether the due process clause of the federal or state constitution requires appointment of counsel to represent indigent parents in an abuse or neglect proceeding brought under LSA-R.S. 14:403. We hold that due process mandates appointment of counsel to represent indigent parents in such a proceeding when the state seeks to remove the child from the custody of the parents for an indefinite or prolonged period of time, unless the right to counsel is knowingly and intelligently waived.

The Statutory Law

LSA-R.S. 14:403 appears in the Revised Statutes under Title 14, Criminal Law, Chapter 2, Miscellaneous Crimes and Offenses. The purpose of the statute is stated as follows:

“The purpose of this section is to protect children whose physical or mental health and welfare are adversely affected by abuse and/or neglect and may be further threatened by the conduct of those responsible for their care and protection by providing for the mandatory reporting of suspected cases by any person having reasonable cause to believe that such case exists. It is intended that as a result of such reports the protective services of the state shall be brought to bear on the situation in an effort to prevent further abuses, and to safeguard and enhance the welfare of these children. This section shall be administered and interpreted to provide the greatest possible protection as promptly as possible for such children.”

Prior to amendment of subsection G of the statute by Act 664 of 1979, the amendment having gone into effect subsequent to the hearing, judgment, and appeal in this case, LSA-R.S. 14:403 established a procedure for prompt handling of child abuse and/or neglect situations outside of or in addition to proceedings provided for in the Code of Juvenile Procedure. State in Interest of Mason, 356 So.2d 530 (La.App. 1st Cir. 1977). The statute provided for investigation by the parish child welfare unit or other appropriate agency and for an instanter order of removal and placement of a child upon affidavit and good cause shown. A hearing not more than 45 days after issuance of the instanter order or after filing of a petition by the district attorney was required. It was provided that the district attorney shall represent the interest of the state, which interest shall be the protection of the child and that the court may also appoint an attorney to represent the sole interest of the child. The court had jurisdiction to issue any order it deemed necessary for the protection and welfare of the child.

Subsection I of the statute provides any person knowingly or willingly violating the provisions of the statute shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500 or imprisoned for not more than six months or both.

The 1979 amendment made several changes in the procedure. An order to take the child into custody may issue on the written verified eomplaint of the agency. In exceptional circumstances, the facts constituting reasonable grounds to believe the child is abused, neglected, or in need of care and that immediate removal of the child is necessary for his protection may be relayed to the court orally or telephonieally and the court may issue its order orally. In this latter case, the written verified complaint must be filed within 24 hours after the child is taken into custody.

A hearing in accordance with the Code of Juvenile Procedure is required within 72 hours of the child’s being taken into custody. If the child is continued in custody, the district attorney may file a petition in accordance with the Code of Juvenile Procedure to have the child adjudicated in need of care as defined in the Code. The district attorney shall represent the interest of the state, which interest shall be the protection of the child. If the child is continued in custody, a petition shall be filed within 30 days of the hearing to determine continued custody, and, if the petition is not filed, the child shall be released unless good cause is shown to continue the child in custody. The court may set the matter for an adjudication hearing without requiring an appearance or answer, but shall set the matter for hearing within 45 days from the filing of the petition. Except as otherwise provided in LSA-R.S. 14:403, the case shall be governed by the Code of Juvenile Procedure. The adjudication hearing and disposition would then be governed by the Code.

Articles 95 and 96 of the Code provide for the child’s right to counsel and the appointment of counsel for the child if the parents are unable to afford counsel in accordance with LSA-R.S. 15:141, et seq. Neither LSA-R.S. 14:403, the Code of Juvenile Procedure, or any other statute, provides for the appointment of counsel for indigent parents in abuse or neglect or child in need of care proceedings.

The Instant Proceeding

The instant proceeding was initiated on March 27,1979, by the filing of an affidavit by a social worker of the Office of Evaluation and Services setting forth instances of physical abuse of Linda Howard by her parents, failure of the parents to work or have visible means of support, neglect and uncleanliness in the home, medical neglect, and the necessity for removing the child from the custody of her parents for her protection. An instanter order for the temporary removal of the child from the custody of her parents and placement with the Department of Health and Human Resources was issued and executed, with a hearing being set for May 1, 1979.

On April 26 the district attorney filed a petition alleging facts of a similar nature and praying that the parents of the child be declared to be parents in need of supervision according to the Code of Juvenile Procedure and that custody of the child be continued with and granted to the Health and Social Rehabilitation Services Administration. The court ordered the parents, and two brothers of Linda, to show cause why they should not submit to psychological and/or psychiatric evaluations.

The matter came up for hearing on May 1. The parents announced they were not ready to proceed because they did not have an attorney. When asked why they did not have an attorney, they replied it was because they could not afford one. They had been to Legal Aid which refused to handle the case. They talked to two private attorneys who told them they could not handle the case.

The court ruled that this was not a criminal matter and that the court had no way of appointing an attorney in a civil matter. The court advised the parents that they would be allowed to ask questions and present any evidence they wished. At a later stage in the hearing, the parent renewed their request which was again refused.

The record shows that the court conduct-' ed the hearing with the utmost fairness and consideration to the parents, often asking questions they might have asked, and the parents themselves did some limited questioning of the state’s witnesses. They were given the opportunity to say what they wanted to. They did not call any witnesses in their own behalf.

The record also shows that the state was represented by a competent assistant district attorney, that the state’s case was well-prepared and presented by the district attorney and the agency, and that 19 witnesses were called by the state, including a social worker, several school principals, neighbors of the family involved, and a psychologist who had examined Linda. The record also shows the parents had limited education, low I.Q.’s, and were, according to a psychological report, of borderline slow intelligence. Their indigency is amply demonstrated by the record, including the court’s order allowing the appeal to proceed in forma pauperis.

At the conclusion of the hearing, the court found there was not enough evidence to make a firm and convinced finding that the parents consistently physically abused the child. The court found the family situation was far from wholesome, the parents had not exercised any appreciable degree of care and supervision of the children and were neglectful of the children. The court found Linda to be a severely physically and emotionally neglected child in need of care and the parents in need of supervision. The court’s remarks demonstrated deep understanding and compassion, and that the court’s approach in this kind of case is to get any child it takes away from a parent back to the parent as quickly as possible.

Judgment was rendered (1) ordering the custody of the child continued with the Louisiana Health and Human Resources Services Administration, Division of Evaluation and Services, with physical custody given to Youth House of Ouachita, Incorporated; (2) ordering the parents to submit to psychological evaluations, and to be allowed reasonable, supervised visitation; and (3) declaring the parents to be parents in need of supervision and the child to be a child in need of care and supervision.

Although initiated as an LSA-R.S. 14:403 abuse/neglect proceeding, the instant proceeding developed into a hybrid proceeding involving child in need of care, child in need of supervision, and parents in need of supervision adjudications as well, even though the procedural requirements of the Code of Juvenile Procedure for these latter proceedings were not precisely followed.

After judgment was rendered, the Northwest Louisiana Legal Assistance Corporation enrolled as counsel for the parents, perfected an appeal in forma pauperis, and is representing the parents before this court.

Motion to Dismiss Appeal

The state has filed a motion to dismiss the appeal because of mootness. It is shown that subsequent to the taking of the appeal in this case, the parents filed a petition in the juvenile court to regain custody of the child. Thereafter, an informal adjustment agreement (C.J.P. Arts. 42-44) was entered into between the district attorney and the parents, who were then represented by counsel who also signed the agreement, whereby it was agreed that the child shall remain at the Youth House, with weekend and holiday visitation with her parents during satisfactory behavior. The agreement was not to exceed six months without approval of the court. The parents’ petition to regain custody was dismissed.

Appellants, in response to the motion to dismiss, assert that the informal adjustment agreement was entered .into to avoid a charge of theft lodged against the child, (presumably a delinquency petition based on commission of a theft), and that the parents have not in any manner acquiesced in the custody adjudication appealed from.

The informal adjustment agreement that the child remain at the Youth House not to exceed six months and the dismissal of the parents’ petition to regain custody do not render the appeal from the custody adjudication moot. The subsequent proceedings did not modify or terminate the adjudication. It remains viable and in effect. Its indefinite duration extends beyond the term of the informal adjustment agreement. The correctness of the judgment appealed from remains at issue and a judgment of this court reversing and setting it aside would have actual effect on the rights of the parties to custody of the child. The appeal is not moot and the motion to dismiss is overruled.

The Constitutional Issue — Due Process— Appointment of Counsel for Indigent Parents

The determination of what procedural safeguards are required by due process depends on the nature of the proceeding and the nature of the right or interest affected by the proceeding. Cafeteria & Rest. Wkrs. U., Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The extent to which procedural due process must be afforded is influenced by the extent to which the person affected may be “condemned to suffer a grievous loss.” Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

The right or interest at issue in an abuse/neglect proceeding is the right of a parent to custody and control of his or her child. The integrity of the family and the right of a parent to raise his child has been recognized as a fundamental right or liberty protected by the Fourteenth Amendment. See Mayer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters of Holy Names, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In Stanley, the Supreme Court held:

“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ ‘basic civil rights of man,’ . . and ‘[rjights far more precious than property rights,’ . . . . ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can [njeither supply nor hinder.’ . . The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, . . . the Equal Protection Clause of the Fourteenth Amendment, . . . and the Ninth Amendment. (Citations omitted.) 405 U.S. at 651, 92 S.Ct. at 1212.”

The interest of parents in the custody and control of their children is an interest or right subject to constitutional protection.

The next inquiry is into the nature of the proceedings. In an abuse/neglect proceeding, at least at the point where a petition is filed by the district attorney, the state seeks to remove custody of the child from the parents for an indefinite or prolonged period of time. The potential loss to the parent is grievous, perhaps more so than incarceration. It is, of course, settled law that due process requires the furnishing of counsel to indigent defendants threatened with incarceration. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Likewise for persons facing commitment. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). And, most importantly, likewise for children in delinquency proceedings. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In Gault, the court looked past the “civil” label given to juvenile proceedings to the true nature of the proceedings, reasoning that a litigant in such cases “. needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.”

The Louisiana Supreme Court in State in Interest of Dino, 359 So.2d 586 (La.1978) recognized that a juvenile proceeding “. . . which may result in the removal of a child from the custody of his parents and in his confinement until the age of twenty-one years is not essentially different from a criminal trial.” Although confinement is not a part of the loss or sanction which a parent facts in an abuse/neglect proceeding, the consequence of removal of a child from the parent’s custody can hardly be said to be less severe. It should be noted also that although abuse/neglect proceedings do not necessarily involve criminal penalties, the conduct with which the parents are charged can be made the subject of criminal prosecution, resulting in a fine or imprisonment, or both.

The “civil” label given to juvenile proceedings overlooks the nature of the rights at issue and the relative power and ability of the antagonists. The contrast between the unrepresented parent, untutored in the law, unskilled in presenting his version of disputed facts, cross-examining witnesses, or working with documentary evidence, and the state, with its fiscal resources, expertise in child custody matters, represented by a competent district attorney, is striking and dramatic. The complex body of substantive law and evidentiary rules, and the relevant sociological, psychological, and medical data usually involved in abuse/neglect custody proceedings, are ordinarily beyond the understanding of most parents, particularly parents with the kind of background most often involved in this type proceeding.

The state’s asserted interests of economy, efficiency, and informality in the conduct of juvenile proceedings must yield to the greater interest of society in preserving viable family units and of the parents in not being unfairly deprived of custody and control of a child.

The great majority of the state and federal courts which have considered the issue have held that due process requires appointment of counsel for indigent parents in proceedings where the state seeks to remove custody of a child from the parents. State v. Jamison, 251 Or. 114, 444 P.2d 15 (1968); Shappy v. Knight, 251 Ark. 943, 475 S.W.2d 704 (1972); In Re B, 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288 (1972); Danforth v. State Department of Health and Welfare, 303 A.2d 794 (Me.1973); In Interest of Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973); In re Rodriguez, 34 Cal.App.3d 510,110 Cal.Rptr. 56 (1973); In re Adoption of R. I., 455 Pa. 29, 312 A.2d 601 (1973); State ex rel. Lemaster v. Oakley, 203 S.E.2d 140 (W.Va.1974); Christ v. Division of Youth and Family Services, 128 N.J.Super. 402, 320 A.2d 203 (1974); In re Welfare of Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974); In re Welfare of Myricks, 85 Wash.2d 252, 533 P.2d 841 (1975); Cleaver v. Wilcox, 499 F.2d 940 (U.S.Ct. of App. 9th Cir. 1974); Smith v. Edmiston, 431 F.Supp. 941 (W.D.Tenn.1977); Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977); Brown et al. v. Guy et al., D.C., 476 F.Supp. 771.

Several states have required the appointment of counsel by statute. Ariz.Rev.Stat. Ann. § 8-225(A); Colo.Rev.Stat.Ann. § 22-1-6; Conn.Gen.Stat.Rev. § 17-66(b); Ga. Code Ann. § 24-2481.1; Idaho Code § 16-209; Kan.Stat.Ann. § 38-820; Minn.Stat. § 260-155; N.D.Cent.Code § 27-20-26; Ohio Rev.Code § 2151.351; Okla.Stat., tit. 10, § 1109(B).

Considering the fundamental and constitutional right of parents to the custody and control of their children, the adversary nature of abuse/neglect custody proceedings which involve charges of conduct which may give rise to criminal prosecution, the grievous nature of the loss which parents face through indefinite or prolonged separation from their child, and the imbalance of the power and ability of the state to present its side of the case as opposed to that of the parents, we hold that a minimum standard of due process under both the federal and state constitutions requires that counsel be furnished at state expense to indigent parents faced with charges of neglect and the possibility of removal of their child from their custody for an indefinite or prolonged period of time, unless the parents knowingly and intelligently waive their right to counsel. Necessarily implicit in this holding is that the parents be advised of their right to counsel. This holding applies to proceedings initiated under LSA-R.S. 14:403 and to child in need of care proceedings initiated under the Code of Juvenile Procedure.

Courts reaching this same result have differed in their application of the rule to the specific proceedings involved. For example, Cleaver, supra, held that the right to appointed counsel should be determined on a case-by-case basis, and set forth certain criteria to be considered by the trial court. Davis, supra, imposed an absolute right to appointed counsel at every critical stage of the proceeding. Lemaster, supra, recognized that appointment of counsel was not necessary for a temporary change of custody under a statute providing for the state to take custody for a reasonable time in an emergency threatening the welfare, health, or safety of the child.

As pointed out in the discussion of the Louisiana statutory law above, LSA-R.S. 14:403, as amended, provides for the state, pursuant to court order, to remove a child from the custody of parents, for a hearing within 72 hours on continued custody, and then for a petition to be filed by the district attorney within 30 days. At the point where the petition is filed by the district attorney, the abuse/neglect proceeding is, in effect, converted into a child in need of care proceeding governed by the Code of Juvenile Procedure, and it is at this stage that the state ordinarily seeks removal of the child from the custody of the parents for an indefinite or prolonged period of time.

Articles 95 and 96 of the Code of Juvenile Procedure provide for a child’s right to counsel and the appointment of counsel in accordance with LSA-R.S. 15:141, et seq. Article 51 provides for the issuance of a summons after a petition is filed and for service on the parents of a copy of the petition and a written statement of the right to be represented by an attorney and the right to have counsel appointed as provided in Article 95.

Application of the procedure established by the Code of Juvenile Procedure for advising children and their parents of the child’s right to counsel and for the appointment of counsel for the child, to cases where parents are afforded the same right will satisfy the due process requirements in these latter cases. Specifically, in abuse/neglect proceedings brought under LSA-R.S. 14:403 and in child in need of care proceedings brought under the Code of Juvenile Procedure, from the time when a petition is filed, the provisions of Articles 51, 95, and 96 of the Code of Juvenile Procedure will apply and should be followed in connection with the parents’ right to counsel.

For the reasons assigned, the judgment of the district court, sitting as a juvenile court, is reversed and set aside, and the case is remanded to the juvenile court for further proceedings consistent with this opinion and in accordance with law. Custody of the child, Linda Howard, is continued with the Louisiana Health and Human Resources Administration, Division of Evaluation and Services, with physical custody granted to the Youth House of Ouachita, Incorporated, pending appointment of counsel for the appellants within 15 days, and the holding of a new hearing within 45 days after the judgment of this court becomes final, otherwise, custody of the child to be returned to her parents.

Costs of the appeal are assessed to the appellee, State of Louisiana through the Health and Social Rehabilitation Services Administration.

Reversed and remanded.


author: JONES, Judge.

text:
    Isaac PARKER, Plaintiff-Appellant, v. Wanda Middleton PARKER, Defendant-Appellee.
    No. 14064.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En Banc. Rehearing Denied April 3, 1980.
    Sockrider & Bolin, Shreveport, for plaintiff-appellant.
    F. E. Stinson, Jr., Benton, for defendant-appellee.
    Before HALL, JONES and McCLEN-DON, JJ.
   JONES, Judge.

Plaintiff, Isaac Parker, father of a 14-year old boy, appeals a judgment dismissing his suit for child support against Wanda Parker, plaintiff’s former wife and mother of his son. The trial court sustained an “exception based upon lack of jurisdiction over the person of the defendant”.

Plaintiff sued defendant for a separation in Bossier Parish, Louisiana in 1967 and obtained personal service upon her. She answered the suit denying the grounds for separation, but alternatively demanding custody of her son and child support in the amount of $50 per month. Plaintiff was awarded the separation and defendant was awarded the custody of the child and child support.

Plaintiff filed a suit for final divorce in 1968 at which time defendant was a nonresident. Service was made upon her through a curator. A judgment of divorce was thereafter rendered on April 19, 1968 retaining custody of the child in defendant and awarding her a child support judgment against plaintiff in the amount of $50 per month.

In 1975 plaintiff secured de facto custody of his son and in November, 1977 plaintiff sued in Bossier Parish for custody of his son and this suit was personally served upon defendant who was then domiciled in Bossier Parish. Through her attorney she filed an answer in these proceedings wherein she alleged that she had paid all medical bills and expenses for the child and sought, in the event appellant obtained custody of the child, a judicial declaration that he would be required to pay the child’s medical and living expenses. Defendant in her answer further sought specific visitation privileges in the event appellant should be awarded custody.

On February 6, 1979 defendant filed a notarized statement in this custody proceeding wherein she declared herself to be a major resident of Bossier Parish and consented that plaintiff be granted custody of her son. On February 13, 1979 defendant’s attorney who had filed the answer on her behalf withdrew. On February 22, 1979 a judgment was rendered awarding plaintiff custody of his son and eliminating his obligation to pay defendant $50 per month child support which was contained in the earlier divorce decree.

On April 2, 1979 plaintiff instituted this action for child support alleging defendant to be a resident of the State of Mississippi and had the petition served upon her through an attorney at law appointed by the court to represent her.

The only issue on appeal is the correctness of the trial judge’s action in sustaining the exception of jurisdiction.

LSA-C.C. art. 227 provides:
“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

In order to secure a child support judgment (which is a personal judgment) against a non-resident there must be jurisdiction over the person against whom the judgment is sought.

A court has legal power to render a child support judgment against a party if it has obtained jurisdiction in personam by one of the three methods set out in LSA-C.C.P. art. 6 . These methods are: (1) service of process on defendant or his agent for the service of process, (2) service of process on an attorney appointed to defend an action brought against an absent or incompetent defendant who is domiciled in this state, or (3) the submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.

In the supreme court case of Imperial v. Hardy, 302 So.2d 5 (La.1974), a non-resident father had earlier submitted to the jurisdiction of the Louisiana court by instituting a suit to change custody. His former wife who had been awarded custody of the children and child support by a Michigan judgment reconvened in those proceedings and obtained a Louisiana custody and child support judgment. In 1973 the mother filed a suit against the non-resident father seeking to make past due child support executory and seeking an increase in the child support. Service was had upon defendant through his attorney of record in his former custody litigation with the plaintiff. The defendant excepted to jurisdiction of the court over his person and to the validity of service upon counsel of record in the earlier litigation. Because the non-resident defendant had submitted to the jurisdiction of the court in the earlier custody litigation wherein a judgment of child support was rendered against him, the jurisdiction was said to have continued for a change in this award in the future.

“When a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of the State to bind him by every subsequent order in the cause. * * * It would be intolerable if an action once properly begun could not proceed without the continued existence of the original basis for jurisdiction. Under such a rule a litigant who had availed himself of the court’s jurisdiction at the inception of the case could avoid the entry of judgment against him by the simple expedient of withdrawing from the State.” Imperial, supra, at 8.

The court recognized that our Code of Civil Procedure provides that a court may obtain personal jurisdiction by:

“The submission of the party to the exercise of jurisdiction over him personally by the court, or his express, or implied waiver of objections thereto. La.Code Civ. Procedure art. 6.” Imperial, supra, at 7.

The court held that if there was continuing personal jurisdiction the service upon defendant’s attorney of record in the earlier litigation was valid under Articles 1312, 1313, and 1314 of the Code of Civil Procedure. It then pointed out that valid service could have been made upon a court appointed attorney:

“. . . And if the Orleans Parish Court had personal jurisdiction over the defendant, it would also have authority to appoint an attorney to represent the absent defendant under the authority of Article 5091 of the Code of Procedure.” Imperial, supra, at 7.

This court applied the Imperial rule of continuing jurisdiction in DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2d Cir. 1977). The issue involved was whether a court which had formerly had jurisdiction over the father (because of his submission to jurisdiction by suing for a separation there) retained continuing jurisdiction over him so as to render an initial child support judgment against him in the final divorce proceedings. There at p. 289 we said:

“. . . when a party initiates an action for separation from bed and board, thereby submitting himself to the exercise of jurisdiction over him personally by the court, the court’s jurisdiction over the person is not divested by the party’s moving from this state, but continues throughout the pendency of the proceeding to the judgment of divorce as to all facets of the proceeding, including all matters incidental to the separation and divorce such as custody, child support and alimony, pendente lite and permanent.”

Miller v. Miller, 363 So.2d 724 (La.App. 2d Cir. 1978), is another case in which this court applied the notion of continuing jurisdiction to modify a child support award against a non-resident parent. In this case a mother who resided out of state lost the custody of her three children and a child support award she had earlier received against their father based upon the concept of continuing jurisdiction. The jurisdiction in personam which was formerly had over the parent who had now left the jurisdiction continued because:

. . once jurisdiction has attached it is not lost by the subsequent removal of the person from the jurisdiction of the court.” Miller, supra, at 725.

The continuing power of a Louisiana court to modify child support awards was also re-emphasized:

“There is no question that if the court had jurisdiction to modify the custody award that the judgment of support for the children could also be deleted. The continuing jurisdiction of a Louisiana court to modify a support award has been decided by this court recently in DeFatta v. DeFatta, supra.” Miller at 726.

See also Collins v. Collins, 356 So.2d 455 (La.App. 1st Cir. 1977), which approved the appointment of a C.C.P. art. 5091 attorney to represent the non-resident husband in an action to collect child support arrearages and increase the alimony awarded in the separation suit (in which there was personal jurisdiction over the husband). The First Circuit held there was continuing jurisdiction over the defendant-husband and that since he was an unrepresented absentee an attorney could be appointed under C.C.P. art. 5091.

In Webb v. Webb, 357 So.2d 1288 (La. App. 3d Cir. 1978), a wife sued her husband for a separation, custody and child support. The husband hired an attorney who filed an answer on his behalf and there was a judgment of separation in favor of the wife giving her custody of the children and $100 per month child support. One and one-half years later the wife sued for a final divorce, custody and child support, and served her husband’s attorney of record. This attorney filed an exception of lack of personal jurisdiction over the husband contending he had moved to Texas. The trial court sustained the exception of jurisdiction. The judgment was reversed on appeal based upon:

“. . . the concept of continuing jurisdiction in child support and alimony matters.” Id. at 1291.

The court cited with approval Imperial v. Hardy and DeFatta v. DeFatta, supra. The court in discussing the issue of child support made the following pertinent observations approving the rationale of DeFatta :

“With regard to child support specifically, the obligation of a parent to support the child under C.C. Arts. 227 and 229 is the same obligation, regardless of whether it is enforced in the separation suit or in the divorce action. The issues and causes of action are the same. We feel, as does the Second Circuit, that the state’s interest in continuing jurisdiction in child support matters is strong. Therefore, if the obligation of parental support is enforced by a court having personal jurisdiction over the parent, that court has jurisdiction to continue to enforce that obligation. We thus hold that when a judgment of separation and child support is awarded by a court with personal jurisdiction over the defendant, jurisdiction continues in a subsequent divorce proceeding to reinstate or modify the award for child support.” Webb at 1292.

In DeFatta, supra, the court said:

“Since custody, alimony and child support judgments contained in a judgment of divorce are subject to modification, the jurisdiction of the court over the person of the party concerned as to those matters may continue indefinitely.” DeFatta at 291. [our emphasis].

Because issues relating to child custody continue long after divorce litigation is concluded we can conceive of no sound reason why jurisdiction established in separation and divorce litigation where custody awards are made should not continue indefinitely with regard to child custody matters including support, even though support was not provided for in those judgments. This would also be true of custody judgments rendered subsequent to divorce actions in proceedings where personal jurisdiction was acquired and custody awarded without support provisions.

Defendant contends that the concept of continuing jurisdiction illustrated in the decisions cited supra is not applicable to her for the reason that it is limited to situations where money judgments had been earlier rendered for child support under circumstances wherein jurisdiction was obtained by personal service upon the defendant. The defendant further argues that in many situations wherein the concept is recognized, the non-resident had initiated the proceeding. An analysis of Imperial v. Hardy, Collins v. Collins, and Webb v. Webb, supra, will establish that in these cases where the doctrine of continuing jurisdiction was approved there had been earlier rendered a child support award. However, there is nothing in the basic notion expressed by the supreme court in Imperial v. Hardy, supra, that limited the concept of continuing jurisdiction in child support matters to a situation where there had been an earlier child support award.

A review of Article 6 of the Code of Civil Procedure, which was cited as the statutory basis for the application of continuing jurisdiction in the Imperial v. Hardy, supra, decision, reflects there is no language which limits the power of the court to the exercise of jurisdiction to only one particular facet of the case once the court has found personal jurisdiction by:

“. . . the submission of the party to the exercise of jurisdiction over him personally by the court.” Imperial at 7.

The determination of who is to have custody does not necessarily end the determinations which the court may be required to make with regard to the child. The court may be required simultaneously with the custody determination or at a later time to determine support awards and visitation privileges and perhaps make other decisions required for the best interest of the child.

The court in Imperial v. Hardy, supra, recognized:

“It would be intolerable if an action once properly begun could not proceed without the continued existence of the original basis for jurisdiction.” Id. at 8.

In the DeFatta case continuing jurisdiction was used against a non-resident father to justify a child support award for two children who had not earlier received child support in the previous litigation wherein personal jurisdiction was initially obtained.

The defendant here submitted to the personal jurisdiction of the trial court in 1967 when she was personally served as a defendant and actively sought and obtained custody of her son and child support. Defendant was divorced in 1968 while a nonresident and in the divorce judgment she again received custody of the child and a support award.

Plaintiff filed this suit for custody of his son in 1977 and the defendant actively participated in that proceeding. It was served upon her. She answered it and sought in her answer (which is clearly a submission to the jurisdiction of the court) a judicial determination that the plaintiff was responsible for medical and other expenses. She thereafter filed an affidavit consenting to the plaintiff here being awarded custody of their child. Plaintiff was awarded custody on February 22nd and the judgment specifically eliminated the earlier child support award in favor of defendant. It contained no child support award in favor of plaintiff. On April 2nd, less than six weeks later, plaintiff filed this suit for child support. Within the short period of time between the custody judgment and the institution of this suit, defendant moved to Mississippi and became a non-resident. Defendant’s change of domicile cannot serve to deprive the trial court of jurisdiction over all matters related to the custody of her son. The court has effectively exercised this jurisdiction since the separation of 1967. Defendant has affirmatively submitted to that jurisdiction on more than one occasion, the last time being only a very short time before she employed the attorney appointed to represent her in these proceedings to file on her behalf the exception of jurisdiction sustained by the trial judge.

The defendant submitted to the jurisdiction of the court issues set forth in her answer related to child support and the judgment specifically declared the father no longer owed it to defendant.

We hold that where a litigant has been subject to the personal jurisdiction of the court in a case where a custody award has been made that thereafter jurisdiction will continue as to those matters directly related to the custody and best interest of the child, including the all-important element of child support, even though there may have been no child support award in the initial proceeding.

In the recent Fourth Circuit decision of Hirsch v. Sander, 378 So.2d 539 (La.App. 4th Cir. 1979), the court declined to apply the concept of continuing jurisdiction to a wife’s suit for permanent alimony following the rendition of the divorce judgment which contained no alimony award. The court there found that to do so would violate due process. We decline to follow the Hirsch decision in this suit for child support.

The court in DeFatta and Webb, supra, recognized the great interest the State of Louisiana has in support for the child and in being in a position to enforce the obligation of the mother and father provided for in Article 227 of the Civil Code. This obligation does not terminate with the rendition of a separation or divorce judgment containing custody awards, even though these judgments contain no order of support. We believe support an essential adjunct to custody litigation and that sound public policy requires that jurisdiction be maintained in cases similar to the one here presented against non-resident mothers and fathers.

We find that the due process requirements of fair play and substantial justice and notice required by decisions of the U.S. Supreme Court are adequately complied with in our concept of continuing jurisdiction and our requirement that the service of the proceedings be upon an attorney at law appointed under the provisions of LSA-C.C.P. art. 5091. The attorney appointed is required to use reasonable diligence to notify the defendant of the suit and the nature of the action. LSA-C.C.P. art. 5094. This method of service is reasonably calculated to give defendant actual notice of the action and opportunity to be heard. This form of service, when combined with a defendant’s earlier knowledge of the custody litigation when personal jurisdiction was initially obtained over him, clearly meets the due process requirements contained in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).

We conclude the trial court had personal jurisdiction over the non-resident defendant in this action wherein child support was sought from her. The judgment sustaining the exception of jurisdiction is REVERSED and the case is REMANDED to the lower court for further proceedings consistent with the views herein expressed. All costs of the trial of the exception and all costs of the appeal are assessed against defendant.

      . The Long-Arm Statute (LRS 13:3201 et seq.) provides a method of obtaining jurisdiction in personam over a non-resident to secure child support in some circumstances. LRS 13:3201(f) permits personal jurisdiction to be exercised over a non-resident as to a cause of action arising from the non-resident’s “[n]on-support of a child . . . domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state.” However, this case was not filed under the Long-Arm Statute and the procedure for notification of a defendant peculiar to this statute were therefore not complied with. Therefore, the propriety of the trial court’s possible exercise of jurisdiction under the Long-Arm Statute is not before us.

      . C.C.P. art. 5091 — “The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
      (1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is: (a) a nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has made no general appearance; or (b) an unemanci-pated minor or mental incompetent who has no legal representative, and who may be sued through an attorney at law appointed to represent him; or
      (2) The action or proceeding is in rem and: (a) the defendant is dead, no succession representative has been appointed, and his heirs and legatees have not been sent into possession judicially; (b) the defendant is a corporation or partnership on which process cannot be served for any reason; or (c) the defendant’s property is under the administration of a legal representative, but the latter has died, resigned, or been removed from office and no successor thereof has qualified, or has left the state permanently without appointing someone to represent him.
      All proceedings against such a defendant shall be conducted contradictorily against the attorney at law appointed by the court to represent him.
      The improper designation of the attorney appointed by the court to represent such a defendant as curator ad hoc, tutor ad hoc, special tutor, or any other title, does not affect the validity of the proceeding.”