author: GAUDIN, Judge.

text:
    GULF SOUTH BANK AND TRUST COMPANY v. PUROLATOR ARMORED, INC. and William McNabb.
    No. 5-92.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Thomas R. Blum, Suzette T. Becker, Simon, Peragine, Smith & Redfearn, New Orleans, for plaintiff-appellee.
    Jesse R. Adams, Jr., William H. Howard, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants-appellants.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Purolator Armored, Inc., whose armored car was transporting funds belonging to the Gulf South Bank and Trust Company when the bank’s money bags were stolen by a Purolator guard who had been riding in the rear of the vehicle.

The bank filed suit in the Twenty-Fourth Judicial District Court and on May 12,1981, obtained a judgment for $150,000.00, the amount of its loss.

Purolator, on appeal, contends primarily that its liability was limited to $80,000.00 by a contract entered into between it and the bank. Also, appellant argues that the trial judge erred in his denial of Purolator’s Motion to Re-open the Evidence, filed after judgment was rendered.

We do not agree with either contention.

THE CONTRACT

The pertinent segments of the contract between Purolator and the bank are as follows:

“Purolator agrees to call for and receive from the customer ... sealed or locked shipments containing currency ... and to transport and deliver same in like condition, to the consignee designated by customs, between points in, and in accordance with, the following service and compensation schedule, the charges in which are based the liability assumed by Purolator pursuant to paragraph 5 hereof... “The sole liability of Purolator, in the event of loss from whatever cause, except as hereinafter further limited, shall be payment to the customer of the declared value as appears in the shipping document, which sum shall not exceed the maximum amount set forth in the schedule on page 1 of the contract for the designated shipment.”

The contract states that the carrier’s maximum liability regarding deliveries to the Navy Support Office and the Port of Embarkation is $40,000.00 for each shipment. Specific charges were set for these amounts.

The contract, automatically renewable every 30 days, does not contain a schedule of rates — i.e., a tariff — nor is there any specific language limiting the carrier’s liability to the contracted-for amount in event of a loss occasioned by the carrier's negligence.

FACTS OF THE LOSS

On July 26, 1979, the bank delivered $150,000.00 to a Purolator armored car for delivery to the Navy Support Office and the Port of Embarkation. The armored car was manned by a driver and by an armed guard, William McNabb, who rode in the rear of the vehicle along with the funds being transported.

While en route, the armored car stopped for a traffic signal, whereupon McNabb opened the rear door and fled with the money. McNabb and an accomplice were later arrested and convicted of the theft, but the stolen funds were not recovered.

PUROLATOR’S NEGLIGENCE

Purolator does not strenuously contend that it was not negligent in the hiring of McNabb.

Actually, McNabb applied for the position of armored car guard under a false name, William Evans. He was hired by a branch manager following an interview, a physical examination and a polygraph test. Purolator did not attempt to verify the information contained in the job application, which included a fake social security number, fictitious personal references and false data regarding McNabb’s alleged 12-year military record and former job as manager of Martin’s Mobil service station in Hammond, Louisiana.

Purolator stipulated that had it known of .the falsehoods in the job application, McNabb would not have been hired. McNabb began his employment only three days before the theft occurred.

The trial judge said:

“It is clear to the Court that if Purolator had exercised due care and reasonableness in the handling of McNabb’s job application by even the most cursory investigation of the personal and employment data listed, the falsehoods would have been discovered, McNabb would not have been hired and the theft would not have occurred. Thus, but for Purolator’s negligence, the Bank would have suffered no loss whatsoever.”

LSA-R.S. 10:7-309

In spite of its slipshod and negligent hiring procedure, Purolator contends that LSA-R.S. 10:7-309 allows it to limit its liability via the contract between it and the bank.

The statute reads:

7-309. Duty of Care; Contractual Limitation of Carrier’s Liability
(1)A carrier who issues a bill of lading whether negotiable or non-negotiable must exercise the degree of care in relation to the goods which a reasonably careful man would exercise under like circumstances. This subsection does not repeal or change any law or rule of law which imposes liability upon a common carrier for damages not caused by its negligence.
(2) Damages may be limited by a provision that the carrier’s liability shall not exceed a value stated in the document if the carrier’s rates are dependent upon value and the consignor by the carrier’s tariff is afforded an opportunity to declare a higher value or a value as lawfully provided in the tariff, or where no tariff is filed he is otherwise advised of such opportunity; but no such limitation is effective with respect to the carrier’s liability for conversion to its own use.
(3) Reasonable provisions as to the time and manner of presenting claims and instituting actions based on the shipment may be included in a bill of lading or tariff.

The bank, in its brief, finds fault with the statute as it appears to “... sweep away years of case law concerning the liability of carriers for their own negligence ...” and “... upset the long-established statutory and jurisprudential rules imposing strict liability on carriers for hire...”

Does the statute permit a negligent carrier to limit its liability by the terms and conditions of a contract? Section (2) does not specifically say one way or the other, although in cases of the carrier’s “... conversion for its own use ... ”, the legislative intent is clear: “... no such limitation is effective ...”

If the legislature meant by this statute to allow a carrier to limit its liability in cases of the carrier’s negligence, it follows that Section (2) must be narrowly construed. It also follows, as LSA-R.S. 10:1-106 dictates, that remedies should be liberally administered by the courts.

Regardless, the trial judge found that Purolator had not complied with Section (2), and the record supports this conclusion. As a tariff was not attached to or part of the contract or otherwise published, Purolator had to show that the bank “. .. was advised ... ” of its “... opportunity to declare a higher value...”

Purolator cannot meet his affirmative duty by contending that the bank, by using common sense, must have realized that its insurance could be increased merely by making a phone call to Purolator and then paying an increased rate. Nor can Purolator rely on the likelihood that when the original contract was entered into, the bank could have declared a higher value on its shipments to the Navy Support Office and the Port of Embarkation.

From the trial court’s “Reasons for Judgment”:

“While the Court feels Purolator’s limitation of liability would be effective had Purolator complied with the provisions of the above-quoted statute, such is not the case. Subsection (2) clearly states that damages may be limited only when the consignor is afforded an opportunity to declare a higher value or a value as lawfully provided in the tariff, or when no tariff is filed, he is otherwise advised of such opportunity. The statute thus places the burden on the carrier to inform the consignor of an opportunity to increase the limitation of liability provision. “Nothing in the contract itself (stipulation A) informs the consignor of such an opportunity. Further, Mr. John W. Gray, Jr., Branch Manager of Purolator in New Orleans, stated on page 49 of his deposition that neither he nor anyone working in his office ever, at anytime, contacted the bank and advised them of an opportunity to increase their limits.
“The Court thus holds that Purolator’s attempts to limit its liability were ineffective because of failure to comply with the provisions of R.S. 10:7-309, and feels this holding is in conjunction with the spirit of the Title, set forth generally in R.S. 10:1-106: ‘The remedies provided by the title shall be liberally administered to the end that the aggrieved party may be put in as good position as if the other party had fully performed.’ ”

The trial judge obviously felt that Puro-lator, despite its negligence, could have limited its liability by complying with Section (2) of 7-309, but that the carrier had not complied. To the extent that the trial judge found non-compliance, we agree with his “Reasons.”

Accordingly, Purolator is responsible for the entire amount of the loss. If 7-309 does not allow limitation of responsibility when the carrier is negligent, strict liability must be imposed. See LSA-C.C. arts. 2751, 2754 and 2937-2957; and Avant v. A-1 Moving & Storage Company, 260 So.2d 355 (La.App. 4th Cir.1972).

If, on the other hand, Section (2) of 7-309 authorizes limitation of responsibility by a negligent carrier, Purolator cannot avail itself of this relief as statutory needs were not met.

We note that the trial judge was not required to determine precisely what Puro-lator (or any carrier) must do in order to meet its affirmative statutory duty. After first concluding that Section (2) could be applicable, he had only to decide whether, under the instant facts and circumstances, Purolator did or did not legally comply.

MOTION TO RE-OPEN

Following judgment, Purolator moved to re-open the evidence to allow it to prove that the bank in fact had the opportunity to declare a higher amount. Because the motion did not specify which new evidence, if any, could or would be produced, the trial judge did not abuse his discretion in denying the request.

Unless manifestly erroneous, a trial judge’s ruling on such a motion will not be disturbed on appeal. See Rawls v. Demare, 377 So.2d 1376 (La.App. 4th Cir.1979).

CONCLUSION

While we do not, for reasons stated heretofore, decide whether Section (2) of LSA-R.S. 10:7-309 permits a negligent carrier to limit its financial responsibility by contract between it and the shipper if statutory requirements are met, we do affirm the trial judge’s judgment in favor of the Gulf South Bank and Trust Company and against Purolator Armored, Inc., in the amount of $150,000.00, plus legal interest from date of judicial demand, until paid, and all costs.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Michael S. FANCHER v. OVERHEAD DOORS, INC. et al.
    No. 82-CA-55.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Writ Denied March 4,1983.
    Walton J. Barnes, Baton Rouge, for plaintiff-appellee.
    James L. Donovan, Metairie, for defendants-appellees.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

This workmen’s compensation case was instituted in the Twenty-Fourth Judicial District Court by Michael S. Fancher following a serious ankle injury. The trial judge found permanent disability, classifying Fancher as an “odd lot” employee, and it is from this judgment that Fancher’s employer has appealed.

Fancher, in turn, asks for attorney fees and statutory penalties, which were not awarded in the district court.

Comparing the facts and circumstances of this proceeding with Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980); Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981), and other “odd lot” and “working in pain” decisions, we cannot say that the appealed-from judgment was clearly erroneous in any respect, and we affirm it.

PANCHER’S INJURY

Fancher, whose profession was installing overhead commercial doors, sustained a comminuted fracture of the left ankle. “I was working on a door, repairing it,” he said, “and the door malfunctioned and I was knocked off of a ladder.. .”

Following surgery and the placement of four permanent screws in his ankle, Fancher developed tarsal tunnel syndrome, which is numbness caused by scar tissue adjacent to nerves, and Sudeck’s atrophy, the loss of calcium in the ankle bones, causing brittleness. These conditions are permanent.

Nonetheless, Fancher was employed at the time of trial, averaging approximately 36 hours of less strenuous work than he did prior to the injury. About half of his work is supervisory in nature, he said, and he has a sympathetic employer who is aware of his physical limitations.

Fancher was asked if he worked in pain, and this colloquy followed:

THE COURT:
How much pain do you suffer?
THE WITNESS:
Quite a bit, especially toward the end of the day.
THE COURT:
Does the pain interfere with your doing your work?
THE WITNESS:
Yes, sir. It does.
THE COURT:
In what way?
THE WITNESS:
I can’t climb a ladder like I should and I can’t pick up weights that I should be picking up. Materialwise, if I have to climb up steps with any material, that is almost impossible.
THE COURT:
Is the pain intermittent or constant?
THE WITNESS:
It does not always bother me in such a way that it is unbearable, but most of the time, toward the end of the day, is when I really feel that it bothers me the most. Depends on what my work day has been like. If it’s a light day, then it’s better, but if it has been a' heavy day, then it gets worse.

In his “Reasons for Judgment,” the district judge said:

“The Court accepts as true the controverted testimony of petitioner to the effect that he cannot perform the more rigorous duties associated with his present trade (i.e., door hanging) and that he is presently able to hold his job in large part due to a sympathetic boss and a helper who goes beyond his normal duties to assist petitioner because of his condition...
“The Court is satisfied that petitioner herein has established that he is presently working in substantial pain. The Court is also satisfied that petitioner has established a prima facie case that, because of this pain and the significant restrictions upon the scope of his activities which the injury and resultant pain has placed upon him, and further because of petitioner’s limited education and training, a reasonable stable job market does not exist for his services...”

The record fully supports these conclusions.

THE “ODD LOT” EMPLOYEE

The so-called odd lot theory was stated in Oster, supra:

“Simply stated, this doctrine is that a claimant may be considered totally disabled if, after his injury, he is considered an ‘odd lot’ in the competitive labor market, i.e., that he may be capable of holding various jobs from time to time, but that the kind of work he may perform is so limited in quality, dependability or quantity that a reasonably stable market for that work does not exist...
“... the essence of the ‘odd lot’ doctrine ... is the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above his crippling handicaps...”

Fancher has a 50 per cent permanent leg disability, and can no longer compete in the labor market as an installer of overhead commercial doors. He is relatively young — 33 years of age at time of trial— and determined to support his wife and three children, but could not pass any pre-employment physical examinations and could not keep a job requiring the leg stamina and strength of a healthy commercial overhead door installer.

The treating physician, Dr. Ira S. Kaufman, was asked whether Fancher’s medical condition would improve.

His response:

“I would expect it to get worse.”

ATTORNEY FEES, PENALTIES

Taking into consideration the fact that Fancher returned to work in October of 1979 and that compensation was not terminated until March 3,1980, we cannot say that the insurance company acted arbitrary, capricious or without probable cause. Thus, attorney fees and statutory penalties are not due.

CONCLUSION

Absent manifest error in factual determinations and evaluations of credibility of witnesses by the trial judge in a workmen’s compensation case, the judgment will not be disturbed upon review. Zimmerman v. United Machinery Corp., 208 So.2d 336 (La.App. 4th Cir.1968).

Clearly, Fancher fits the description of an odd lot worker and is entitled to permanent disability, although not to attorney fees and statutory penalties.

We therefore affirm the district court decree in its entirety.

AFFIRMED.


author: BOWES, Judge.

text:
    George LIVERMORE, Lester V. Coe, Lawrence J. Sisung, Jr. and Harold E. Pique v. Eugene E. SCHAEFER, Jr., Donald E. Oliver, Robert Andre, Dan A. Milan and G. Michael Grosz, III.
    No. 5-366.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Gordon K. Konrad, Metairie, Henry O’Connor, Jr., New Orleans, for defendants and appellees.
    Rader Jackson, New Orleans, for plaintiffs and appellants.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Plaintiffs appeal from a judgment of the trial court dismissing plaintiffs’ suit at plaintiffs’ costs.

At the present, only two of the original defendants remain in the suit, namely, G. Michael Grosz, III, and Dan A. Milan. Therefore, the court will discuss only those issues which directly affect the remaining two defendants.

This case arises out of the abortive attempt by plaintiffs, defendants and others to form a new bank in the city of New Orleans, namely Crescent City Bank and Trust Company. During the life of the venture (from December 1975 through September 1978), eight notes were executed by Crescent City Bank and Trust Company in Organization (hereinafter C.C.B. & T.) to cover the expenses incurred in connection with the undertaking.

The first note was executed on January 22,1976, with George Livermore and Robert Andre signing the face of the note as representatives of C.C.B. & T., and with Liver-more, Andre, Grosz, Milan, Donald E. Oliver and Harold Pique, signing the back of the note as individual endorsers. This note, number 0060806, was for $50,000.00 and due July 20, 1976. When the note became due, it was renewed by the execution of a subsequent note dated July 20, 1976, bearing the same note number, 0060806, the face thereof being “signed” “Crescent City Bank and Trust Company in Organization” and, under that, “George Livermore”, and the reverse side being signed substantially the same. This renewal note was not secured by anyone’s individual endorsement, but rather by $50,000.00 continuing guaranties executed by Livermore, Pique and Oliver. This note, also for $50,000.00, was due November 1, 1976.

Appellees Grosz and Milan never executed continuing guaranties, nor did they endorse any other note executed by C.C.B. & T., other than the original $50,000.00 note. At the October 26, 1976, meeting of the organizing directors of C.C.B. & T., Mr. G. Michael Grosz and Mr. Daniel A. Milan were removed from the Board of C.C.B. & T. by unanimous vote of the Directors and thereafter Grosz and Milan ceased any affiliation with C.C.B. & T.

On November 1, 1976, a new note, number 0082886, for $75,000.00 was executed by C.C.B. & T. with $75,000.00 continuing guaranties being executed by Livermore, Pique, Oliver and Lester V. Coe. This note replaced the previous $50,000.00 notes of C.C.B. & T.

The note of November 1, 1976, was renewed five times, with additional continuing guaranties for $75,000.00 each being executed by Lawrence J. Sisung, Jr. and Eugene E. Schaefer, Jr.

Finally, in September of 1978, the Directors of C.C.B. & T. gave up their venture as a failure and the then outstanding note was paid off by Livermore, Pique, Coe and Sisung.

Appellants mistakenly represent that this case is a virtual replay of Aiavolasiti v. Versailles Gardens Land Development Co., et aIs., 371 So.2d 755 (La.1979) (hereinafter “Aiavolasiti”). In Aiavolasiti, there were three separate financial transactions involving two different financial institutions. None of these notes were renewals, nor were any executed to take the place of an older existing note.

In the case at bar, a note originally executed for $50,000.00 and secured by individual endorsements was deftly transformed into a note for $75,000.00, secured by continuing guaranties.

This adroit transformation was done without the knowledge or consent of Grosz or Milan. Two years after the substitution of note number 0082886 (the $75,000.00 note) for note number 0060806 (the $50,-000.00 note), appellants seek contribution from Milan and Grosz on the $50,000.00 note.

Without a doubt, the trial court was correct when it ruled in favor of Grosz and Milan.

This court finds that a novation took place when note number 0082886 for $75,-000.00 was executed replacing note 0060806 for $50,000.00. This was not a note given merely in renewal of another, but the changing of the original debt from $50,-000.00 to $75,000.00. The Supreme Court stated in Union Bldg. Corporation v. Burmeister, 186 La. 1027, 173 So. 752 (1937):

... Although novation does not take place as a necessary consequence of a creditor’s taking a new note in substitution of one which he returns to the debt- or, novation does take place in such a case if the circumstances surrounding the transaction show, or if the character of the transaction itself shows, that the parties intended to extinguish the existing debt and to substitute a new one in its place.

We find that the circumstances surrounding the transaction (the 50% increase in the size of the note and the bank’s requirement that the sureties execute continuing guaranties for $75,000.00 each) clearly show the parties intended to extinguish the existing debt and to substitute a new one in its place.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    Nancy Ann Murphy, Divorced Wife of James P. MARRA, M.D. v. James P. MARRA, M.D.
    No. 5-332.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    McNulty, O’Connor, Stakelum & Anderson, James J. O’Connor, John A. Hollister, New Orleans, for defendant-appellant.
    Greenberg & Dallam, Robert I. Dallam, Gretna, for plaintiff-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Defendant-appellant, James Marra, brings this appeal from a judgment increasing his child support payments from $500 to $1,000 for each of two children who at the time of judgment were in the custody of his former wife and mother of the children, Nancy Ann Murphy, plaintiff-appellee.

The decision of a trial court as to the amount of child support will not be disturbed on appeal absent a manifest abuse of discretion. Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981). Also, on their parent’s divorce, children reared in an affluent home should be maintained in the same circumstances, if their father’s income so permits. Lamothe v. Lamothe, 262 So.2d 87 (La.App. 4th Cir.1972).

Although both parents have an obligation to support the children of a marriage, child support should be granted in proportion to the needs of the children and the circumstances of the parent who is to pay. Ducote v. Ducote, 339 So.2d 835 (La.1976).

The record in this case shows no abuse of discretion in the award of $2,000 per month for two children where the appellant’s gross income is in excess of $100,-000 per year and where he further indicates that he spends $9,000 per month to maintain his present domestic establishment.

The judgment of the trial court is therefore affirmed, all costs of the appeal are to be paid by the appellant.

AFFIRMED.

      . Since this judgment was rendered, the defendant, Dr. Marra has obtained the custody of both children; the oldest daughter on January 18, 1982 and the youngest daughter on March 18, 1982. All child support payments were terminated on the above dates as per judgment of the trial court.


text:
    William H. FARRIS v. Dennis Arthur LAMONT.
    No. 5-381.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Frederick A. Earhart, Covington, for plaintiff-appellant.
    Paul Weidenfeld, New Orleans, for defendant-appellee.
    Before KLIEBERT, GRISBAUM and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal from a judgment disallowing the collection of attorney’s fees.

In 1979, William H. Farris (plaintiff), was employed as the attorney for Dennis Arthur Lamont (defendant), to represent the defendant in domestic proceedings involving divorce, community property settlement, alimony and child support. There was a judgment in the District Court for the Parish of St. Tammany ordering defendant to pay alimony and child support. Subsequently that year, due to changed circumstances plaintiff, on behalf of defendant filed a Rule Nisi to reduce the amount of alimony and child support. At the time this rule was set for a hearing, the former wife of the defendant filed a corresponding Rule Nisi for past due alimony and child support owing from the original decree. By judgment, defendant’s alimony obligation was terminated (as a result of former wife’s remarriage) and child support payments were reduced (as a result of one child attaining majority). However, he was adjudged to be in arrears for past due alimony and child support from the time of the original judgment. The plaintiff was not present in court for this ruling due to a death in his family. Plaintiff’s law partner, Frederich Earhart appeared in his place and had accepted service on the counter rule for back alimony. As attorney for the defendant, plaintiff considered the judgment of arrearage excessive and erroneous, therefore plaintiff filed a Motion for New Trial. The matter was reheard and the trial judge vacated the previous judgment and ordered the defendant to pay a reduced arrearage in past due alimony and child support.

There ensued a number of court appearances in order to rectify this matter and obtain a new trial. For legal services rendered and expenses incurred in connection with these matters, plaintiff billed the defendant $1,325.20. After attempts to collect the professional fees, plaintiff instituted suit for collection. Trial of this litigation was held in the First Parish Court in Jefferson Parish. Judgment of this court concluded that the plaintiff could not receive attorney’s fees in connection with the Motion for a New Trial because of a previous adverse judgment which subsequently had to be corrected due to the fault of Fredrich A. Earhart, agent of the plaintiff. Accordingly, the plaintiff’s suit was dismissed at his cost. From that judgment, plaintiff has appealed.

The underlying issue on appeal is: Whether the defendant should pay for legal services necessitated by an adverse judgment that was rendered because of a misunderstanding between someone standing in for his attorney and opposing counsel? In other words, should the defendant be liable for attorney’s fees to correct an adverse judgment which was the result of an error of defendant’s attorney?

We agree with the trial court, that the misunderstanding or “foul-up” cannot be attributed to the defendant, rather it was the duty of the plaintiff to rectify an adverse judgment against his client due to his absence at the hearing.

Because Louisiana is a civil law jurisdiction, the absence of express law does not imply a lack of authority for courts to provide relief. The Louisiana Courts have recognized this duty to proceed and decide issues under these circumstances on many occasions.

“In all civil matters, where positive law is silent, the judge is bound by the Civil Code to proceed and decide according to equity, i.e., according to natural law and reason, or to received usages.” LSA-C.C. art. 21, and Loyacano v. Loyacano, 358 So.2d 304 (La.1978). Basically, it comes to this: The plaintiff as an attorney was hired by the defendant to perform specific professional services, which he performed in such a manner as to subsequently require substantial remedial services to correct his errors. Should a lawyer be allowed to profit by his own mistakes at the expense of his innocent client? The obvious answer is no.

The doctrine of equity is founded in the Christian principle not to do unto others that which we would not wish others to do unto us.

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

AFFIRMED.


author: BOUTALL, Judge.

text:
    Daniel E. BECNEL, Jr. v. Ervin J. ARNOUVILLE, et al.
    No. 5-264.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Daniel E. Becnel, Jr., in pro. per.
    John M. Crum, Jr., La Place, for Ervin J. Arnouville, Sr., defendant-appellee.
    Ronald J. Landry, La Place, for Ervin J. Arnouville, Jr., defendant-appellee.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   BOUTALL, Judge.

This is a suit by an attorney against former clients for legal fees and expenses occasioned by his discharge from representation prior to the conclusion of the litigation for which he was retained. The trial judge made an award in favor of the attorney against one client only, and both parties have appealed. We reduce the award.

E.J. Arnouville, Jr., was involved in an automobile accident on March 12, 1978, sustaining serious head injuries which caused his hospitalization in a comatose condition. The accident occurred in the early morning hours and later that day, a Sunday, Arnou-ville’s father, E.J. Arnouville, Sr., called attorney Daniel Becnel at home and requested his help in finding out about an alleged charge of driving while intoxicated against his son and in finding out more about the collision. Becnel went out to the scene on the day of the accident and took photos and measurements and also investigated the status of a DWI citation, finding that there was none.

Arnouville, Jr., was in a semi-comatose state for a week or ten days, and was kept in the hospital for 13 days before his release to his parents’ home. During the initial stages of this period, it is obvious that Bec-nel’s services were being utilized at the request of the Sr. Arnouville. However, on or about March 17, Becnel requested the Arnouvilles to have their son sign an employment contract, and this was accomplished in the next day or so, the signed contract being received by Becnel on the 20th. In his suit for fees, Becnel sues both the Sr. and Jr. Arnouville contending that he worked for Sr. up until March 20 and for Jr. thereafter.

Becnel proceeded to investigate and develop the facts of the accident and filed a law suit in behalf of Arnouville Jr. against the other driver and his employer. Approximately a year later a settlement offer was tendered in the case in the approximate sum of $27,500.00 which Becnel insisted that his client should accept, but the client refused and discharged Becnel. Becnel had found out during the course of his investigations that there was an available witness who would testify that Arnouville Jr. was speeding and it was quite likely that.the case would be lost on trial because of Ar-nouville Jr.’s negligence or contributory negligence. The precise facts surrounding the discharge are in dispute, but it is not disputed that Becnel was discharged and the probability of loss of the ease on trial was the compelling basis for the dispute. After discharging Becnel, Arnouville Jr. hired another attorney, and later replaced that attorney with a third attorney. The law suit was then tried and a jury verdict was rendered finding Arnouville Jr. guilty óf negligence and his suit was dismissed, resulting in no recovery whatsoever.

The issues on this appeal all revolve about the employment contract entered into between Becnel and Arnouville, Jr. The contract provided for a contingent fee of 33%% of any amount received in settlement without suit, a fee of 35% of the claim after suit and 40% of the claim after appeal. It further provided that no counsel fee shall be paid if there be no recovery, and all costs of litigation and all expenses connected with the matter were to be borne by Arnou-ville Jr. In the contract also appears the following provisions upon which this suit is based:

“4. I understand I have the right to change attorneys at any time, but should I change attorneys, it is specifically understood and agreed that a fee of $100.00 per hour be charged for any and all professional legal services and/or investigative work performed by Daniel E. Becnel, Jr., his law office investigators or office personnel.
5. It is specifically understood that all work hours are to be kept and maintained by Daniel E. Becnel, Jr., whose total number of hours will exclusively govern this part of the contract, should I decide to change attorneys.”

The first issue we consider is the liability of E.J. Arnouville, Sr., for attorney’s fees due Becnel. As noted above, the initial request for Becnel’s services came from him on the date of the accident while his son, who is past the age of majority, was in the hospital in a comatose condition. There is a conflict between the testimony of Arnouville Sr. and Becnel as to the conditions under which Becnel was employed. The trial court found that Arnouville Sr. employed Becnel to protect his son’s interest at a time when the son wasn’t able to act on his own behalf, and that when Ar-nouville Jr. recovered he entered into a written contract which ratified all of the work product of Becnel, and that the conditions of employment were governed by the contract and solely the responsibility of the major son. We agree. Although there may be serious grounds in existence for responsibility of Arnouville Sr. if his son had not recovered, nevertheless the contract was signed later between Becnel and Arnouville Jr. and that contract governs the obligations of the parties. Accordingly, we affirm that portion of the judgment discharging Amouville Sr. from any obligation sued upon herein.

As to Arnouville Jr., the trial court found that Becnel was entitled to out-of-pocket expenses of $1,706.57, and additionally had earned the 35% specified as his fee for professional services of the proposed $27,-500.00 settlement, awarding $9,625.00 as attorneys fees. On considering the motion for new trial, the trial judge noted that his award was based upon hourly representation rather than percentage of the proposed settlement, but there was no change in the amount awarded.

The landmark decision regulating the award of attorneys fees in contingenty fee contracts between attorney and client is Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979). In its consideration of the problems presented, the court held as follows, page 118:

“The exercise of our authority to regulate the practice of law, which encompasses the power to exert control by means of adjudication of individual cases as they arise, requires that we enforce the Disciplinary Rules of Code of Professional Responsibility, including those earlier quoted, relative to the discharge of counsel and regulation of fees. Considering the peculiar nature of the contingency fee contract, its social importance, and its potential for abuse as well, in light of our duty to enforce the Disciplinary Rules, we conclude that only one contingency fee should be paid by the client, the amount of the fee to be determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts which he executed. Further, that fee should in turn be allocated between or among the various attorneys involved in handling the claim in question, such fee apportionment to be on the basis of factors which are set forth in the Code of Professional Responsibility.”

If we consider that the formula proposed therein governs all contingency fee contracts, then it is apparent that since there was no recovery in this case, the percentage of fee earned by Becnel amounts to zero. We note however that the court states that there should be adjudication on individual basis under the Disciplinary Rules of the Code of Professional Responsibility, and we believe the facts in this case to be such as to warrant a different solution.

The contract in this case contained a specific provision to cover attorney’s fees in the event of discharge. Such a contingency was not present in Saucier and indeed we note some speculation in that case as to whether an attorney would be unwilling to undertake representation if told at the outset that the client would discharge him and- pay him on some other basis. In the present contract the client is granted precisely that right. We conclude that the provisions of the contract should be enforced, except insofar as they violate the Disciplinary Rules of the Code of Professional Responsibility. These rules are promulgated in LSA-R.S. 37: Chapter 4 appendix, which contains the Articles of Incorporation and By-laws of the Louisiana State Bar Association. DR2-106 provides the regulations for fees for legal services and provides that a lawyer shall not enter into an agreement for a clearly excessive fee, defined as clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. As noted in Saucier the Disciplinary Rule implicitly recognizes the client’s absolute right to discharge his attorney and it is stripped of effect if the client’s exercise of that right is conditioned upon his payment for the full amount specified in the contract. To impose upon the client the contractural requirement that he pay $100.00 an hour for “any and all professional and legal services and/or investigative work performed by Daniel E. Becnel, Jr., his law office, investigators or office personnel” with the total number of hours kept by Becnel to exclusively govern this part of the contract, violates these principles. See for example Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). The burden of proving the reasonableness of the fees charged is the obligation of the attorney.

In considering the evidence produced in this case, it is not possible to set a precise amount for a fee. Becnel testified that he worked 126 hours and that the fee he charged regular clients was $100.00 per hour. However, his testimony is based mainly on recollection refreshed from his viewing his petition, and not upon daily logs or records of actual time spent. His explanation of failure to produce such records is that they were probably given to one of the attorneys who succeeded him and never returned, but there is evident no attempt to produce the attorney or the records in substantiation. On the other hand it is evident from the record that Becnel made a thorough research and investigation into the circumstances of the accident and spent considerable time in and effort to prepare his client’s case. Indeed it is obvious that his client would be in better financial condition if he heeded Becnel’s advice. We are thus faced with the situation where we either have to remand this matter for more evidence to make a precise determination, or, in the interest of judicial economy and fairness to both parties, we should attempt to set the fee at what we consider a reasonable basis relating the testimony herein to the rules set forth as the guidelines for fixing attorneys fees under the Disciplinary Rules of the Code. We conclude that since the attorney has the obligation of proving his fees, and being informed that the client is a person of limited means and that this litigation should reach an end as soon as possible, we conclude that a fee of $5,000.00 is reasonable under the facts of this case.

Considering now the expenses incurred by Becnel in furnishing the services, Becnel testified that he expended some $2,142.07 in expenses. The trial judge awarded him $1,706.57. We agree with the award of the trial judge. It is apparent that the difference between these two figures is the expenses of a trip to New York by Becnel for which there seems to be little or no justification in the record.

For the reasons above assigned, we affirm the judgment in favor of Ervin J. Arnouville, Sr., dismissing the suit against him. We amend the judgment in favor of Daniel E. Becnel, Jr., against Ervin J. Ar-nouville, Jr., by reducing the award to the sum of $6,706.57 and as thus amended we affirm. The costs of this appeal are to be shared equally between Daniel E. Becnel and Ervin J. Arnouville, Jr.

AMENDED AND AFFIRMED.


text:
    Susan Des Ormeaux BREAUX v. Patrick C. BREAUX.
    No. 5-246.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Neville M. Landry, New Orleans, for Patrick Breaux, defendant-appellant.
    Bruce Reed, Reed & Reed, New Orleans, for Susan Des Ormeaux Breaux, plaintiff-appellee.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   BOUTALL, Judge.

By a consent judgment rendered after divorce on September 25, 1980, Patrick C. Breaux was ordered to pay to his former wife, Susan Breaux, the sum of $1,760.00 per month as alimony and the sum of $1,000.00 per month as child support for the three minor children age 13,12 and 8. Subsequently, on June 8, 1981 Susan Breaux filed a motion to.increase child support on the basis that the expenses of raising and educating the children have increased and that the defendant has enjoyed substantial increases in his income. In response, Dr. Breaux has moved for a decrease in alimony and child support. The matters came for hearing resulting in an award in favor of Susan Breaux, increasing the alimony to $1,960.00 per month and the child support to $1,200.00 per month, an increase of $200.00 in each instance. Dr. Breaux appeals.

On this appeal, appellant points out that Susan Breaux requested no increase in alimony, and she concedes this to be true. It is therefore apparent that the court erred in making this award to her. It is equally apparent that one of the basic issues in the dispute between the parties is the amount of child support to be awarded. Additionally, Dr. Breaux puts at issue the question of whether Susan Breaux is entitled to any award of alimony at all.

The arguments and the evidence presented for each party revolves about the amount of expenses and the income of each. We point out that the alimony and child support has been set by consent from the initial pendente lite proceedings to the decree mentioned above after divorce. It is incumbent upon a party seeking to change such a consent decree that the circumstances have changed from that time to a degree substantial enough to warrant a change in the award. See Vial v. Vial, 422 So.2d 523 (La.App. 5th Cir.1982), and the cases cited therein. Considering the proof in this case, we find that the father of the children has had an increase in his income and that the expenses of the children have also increased. Conversely, we find no facts which support a conclusion of substantial change in situation which would warrant reduction or elimination of the alimony awarded to Mrs. Breaux. We see no need to discuss in detail the income and expenses of the parties. Indeed they are both substantial. Except for the award of an increase in alimony to Mrs. Breaux, the judgment complained of is well within the discretion afforded the trial judge both as to amount and as to the time of starting the increase.

For the reasons assigned, the judgment appealed is amended by annuling the increase of alimony awarded to Mrs. Breaux of $200.00 per month and reinstating alimony at the rate of $1,760.00 per month; the award of child support is affirmed.

AMENDED AND AFFIRMED.


text:
    Allan F. HOLMGREN v. Theresa Marie Kaigle, wife of Allan F. HOLMGREN.
    No. 5-354.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Charlotte A. Hayes, Satterlee, Mestayer & Freeman, New Orleans, for Theresa Marie Kaigle Holmgren, defendant-appellant.
    Ernest N. Souhlas, Sciambra & Souhlas, Metairie, for Allan F. Holmgren, plaintiff-appellee.
    Before BOUTALL, GAUDIN and DU-FRESNE, JJ.
   BOUTALL, Judge.

This case arises from separation and divorce proceedings brought by a husband against his wife. The wife appeals that portion of the judgment of divorce which declares her to be at fault because of her habitual intemperance.

The plaintiff, Allan F. Holmgren, and defendant, Theresa Marie Kaigle, married in May, 1974. No children were born of the union. Mr. Holmgren moved from the family home on June 24, 1979, and then filed suit for separation on' June 28, 1979, on grounds of Mrs. Holmgren’s habitual intemperance. The wife answered and, in a re-conventional demand, alleged the husband’s cruelty by refusing to give her sufficient money for groceries, refusing to take her out in public, and physically harming her at least twice. On September 10, 1980, the husband amended his original demand to pray for a divorce on grounds of living separate and apart for more than one year.

Trial resulted in a judgment of divorce and a finding that both parties were at fault, the husband for cruel treatment and the wife for habitual intemperance, dismissing the wife’s demand for permanent alimony. Mrs. Holmgren appeals, alleging that her intemperate behavior is excused because of her mental illness; therefore, she is not at fault. The issue before this court is whether or not Mrs. Holmgren’s excessive use of alcohol and drugs constitute habitual intemperance within the meaning of Civil Code article 138 and was a cause of the separation.

The appellant wife argues that her abuse of alcohol and drug stems from a serious mental disorder, manic-depression. The husband, on the other hand, makes the reverse argument, i.e., that the wife’s alcohol problems bring about her depressive episodes.

The testimony of husband and wife, police reports and hospital records all reveal a marriage beset with discord which erupted at times into angry arguments at least one of which became physical. The police were called more than twelve times between May, 1977 and June, 1979. In many of the reports the reporting officer mentioned Mrs. Holmgren’s appearing intoxicated; on one occasion, the police arrested Mr. Holm-gren for hitting his wife. East Jefferson Hospital’s records indicate that she was hospitalized there for brief periods three times between November, 1977 and July, 1978. The first hospitalization was an alleged suicide attempt by an overdose of a prescription drug and vodka. During her third hospitalization a psychiatric consultation had been ordered, which she refused.

DePaul Hospital’s records indicate that she was an inpatient for the periods of September 18 to October 19, 1978,- January 29 to February 14, 1979, and June 20 to August 7, 1979. The first discharge summary listed the diagnosis as “major affective disorder, cyclic-hypomanic; alcoholism.”

Dr. Edward T. Frank, Jr. was deposed by the plaintiff and testified for the defendant. He is a psychiatrist in private practice and a consultant to DePaul Hospital’s drug and alcohol unit, the New Life Center. He was Mrs. Holmgren’s treating physician during the three hospitalizations at DePaul before the separation and for occasional out-patient care after them. Mrs. Holm-gren was hospitalized briefly in March, 1981, when Dr. Frank again treated her. In the September, 1978 period Mrs. Holm-gren’s internist had had her admitted to the New Life Center but called in Dr. Frank to see her. He recommended that she be moved from the open ward of the Center to a closed, “acute admission” ward because of her disruptive behavior and the severity of her psychiatric illness. After a period of anti-depressant medication he felt she was ready for treatment in the alcohol unit. There she received psychotherapy and continued the anti-depressant. Dr. Frank concluded during this period that she had had for years mood swings from feeling very high to feeling very low and that during the highs and lows she tended to drink. He recommended that she begin taking lithium to control the mood swings but she refused because a friend had suffered a bad reaction from the drug. When Mrs. Holmgren returned to DePaul in January, 1979, she appeared to be more agitated than before, was very irritable and irrational. She was treated with an anti-depressant, an anti-psychotic drug to decrease the highs she was evidencing, and lithium. Dr. Frank felt she had manic-depressive illness, for which lithium is helpful in stabilizing mood swings. In the third hospitalization she had discontinued taking lithium regularly and was again treated with anti-psychotic medication, lithium, and an anti-depressant. She also began taking antabuse to try to control her urge to drink. Heavy drinking was the precipitating cause for her hospitalization all three times and detoxification was part of the treatment.

Mr. Holmgren reported that the first serious drinking bout of which he was aware occurred about two months after he and his wife were married, in June, 1974. She drank for several days at a time periodically over the next few years but gradually the periods became more frequent, eventually resulting in the hospitalizations reported above. Holmgren stated his wife had been depressed on occasion and always drank when depressed. As to whether she had episodes of being very “high” or “happy” and then sad or “low,” he said “... There was numerous occasions she was real high, and of course when she started to sober up, have some low periods and what not, after two or three days of drinking.” The plaintiff apparently saw the mood swings as a result of alcoholism not as its cause.

In his deposition and in his testimony Dr. Frank stated that emotional problems cause the alcohol problem in about 30% of the alcohol population. Further, that people with manic-depressive illnesses frequently use alcohol “as a tranquilizer, to calm their moods.” In the case of Mrs. Holmgren, she drank whenever she became nervous, tense, depressed, or agitated. “... whenever she would have a manic phase or a depressive phase, she would tend to drink more in an effort to make herself feel better.” Dr. Frank agreed with the plaintiff that alcohol is a depressant and can cause depression. When asked whether Mrs. Holmgren’s alcoholic problems brought about her depressive state or vice versa, Dr. Frank said, “That’s true, I don’t know the question, I can’t say-”

Under Civil Code article 141, a finding of mutual fault of both spouses in causing the separation precludes an award of post-divorce alimony to either spouse.

The Supreme Court most recently considered the issue of fault sufficient to bar alimony in Adams v. Adams, 389 So.2d 381 (La.1980) and in Pearce v. Pearce, 348 So.2d 75 (La.1977). A succinct summary of the law relating to “fault” in article 141, appears in Adams at 382:

“... The appellate courts of this state have correctly interpreted the word ‘fault’ to mean conduct constituting an independent fault ground for separation under C.C. art. 138. Dixon v. Dixon [357 So.2d 856 (La.App., 4th Cir.1978) ], supra; Saucier v. Saucier, 357 So.2d 1378 (La.App., 4th Cir.1978); Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir.1979), writ denied, 371 So.2d 1341 (La.1979); Watson v. Watson [372 So.2d 639 (La.App., 4th Cir.1978) ], supra.
“Civil Code art. 160, dealing with alimony after a final divorce, requires freedom from fault on the part of the claimant spouse as one prerequisite to an award of alimony. In interpreting this requirement, this Court stated in Pearce v. Pearce, 348 So.2d 75, 77 La. (1977):
‘We have held that, under this statute respecting an award of alimony to a wife without “fault”, the word “fault” contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032,112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir.1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).’
“Although not • specifically mentioned C.C. art. 138 (l)-(8), or C.C. art. 139 by name, this language clearly indicates that only such conduct as will entitle one spouse to a separation or divorce under these articles is sufficient to deprive the other spouse of alimony after a final divorce. ...”

We conclude that the testimony and exhibits introduced into evidence support the trial judge’s finding of habitual intemperance on the part of Mrs. Holmgren. In Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978, on Rehearings February 8,1979 and July 27,1979) the court said at 682:

“... It is not the quantity of alcohol but rather the extent and habitualness of intoxication that constitute ‘habitual intemperance’ within La.C.C. 138 and therefore ‘fault’ within C.C. 160 which would defeat a wife’s entitlement to alimony. ...”

Although Mrs. Holmgren’s drinking was not a daily occurrence in the last two years of the marriage, it rather frequently was severe enough to require periodic detoxification treatment, and fulfills the definition of “habitual intemperance.” As the visits by the police and the hospitalizations were disruptive of the marital relationship, the intemperance was an independent cause of the separation. Great weight in domestic matters is placed on the findings of the trial judge, who is in a position to weigh the credibility of live witnesses, and his judgment on the issue of fault will not be disturbed unless manifestly erroneous. Pearce v. Pearce, above citing Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948); Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir.1976). We see no reason to disturb the judgment in this case.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . LSA-C.C. art. 138 in pertinent part provides:
      “Separation from bed and board may be claimed reciprocally for the following causes:

      3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual imtemperance, or such ill-treatment is of such a nature as to render their living together insupportable;


author: CHEHARDY, Judge.

text:
    STATE of Louisiana v. Richard P. BARRIOS.
    No. 82-KA-80.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      John M. Mamoulides, Dist. Atty., Henry Sullivan, William C. Credo, III, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Joseph L. Montgomery, Staff Appeals Counsel, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CHEHARDY, Judge.

The defendant, Richard P. Barrios, was tried on June 22,1982, in the Second Parish Court of Jefferson Parish, Louisiana. The defendant was found guilty of two counts of resisting arrest, LSA-R.S. 14:108, and one count of aggravated assault, LSA-R.S. 14:37. He was sentenced to six months in the Parish Prison for each of these counts and these sentences were to be served consecutively.

It is from this conviction that the defendant appeals. Three assignments of error have been presented for review.

FACTS

On February 14, 1982, the defendant, Richard Barrios, was involved in a disturbance at his residence, 443 Second Street, Harvey, Louisiana, and also at the home of his neighbor, Donna Gilly. Barrios had ripped the door off the front of his mother’s house and was involved in a loud disturbance on the sidewalk with his mother. He then went to Ms. Gilly’s residence and, shouting vulgarities at his neighbors, picked up a 4-foot wooden board and began beating on a truck which belonged to Ms. Gilly’s fiancé. Barrios thereupon threatened Ms. Gilly with the board, proceeded to break the glass out of her front door, and started beating on the side of the house. Ms. Gilly alleged that sometime during this disturbance, Barrios had fired a gun; however, no weapon was ever recovered.

The defendant’s mother called the police, as did the neighbor. Upon arrival the uniformed officers sighted Barrios in an alleyway between the two houses and called for him to come out. The defendant fled the area. The defendant’s mother advised the officers that her son did not have a gun, but his uncle advised the officers that a .22 caliber gun was missing from the house and that Barrios probably had it. The officers attempted to find him, to no avail. The complainants were advised to call the police back to the scene if Barrios returned.

A short while later the defendant’s mother called the police back to her house and the officers observed Barrios down at the corner. A chase ensued and the defendant was cornered in the rear yard of the residence next to his own. One of the policemen saw Barrios attempting to climb into an old boat in the yard, and the officer ordered him out. The officer also called to his partner to let him know where he and the defendant were. Barrios was ordered to show his hands, so they could see whether he was armed, but he refused. The officers approached Barrios and attempted to handcuff him. He resisted and began struggling and kicking at the officers. When the officers managed to get the defendant to the police vehicle, he started another struggle. The defendant was finally secured in the rear of the police vehicle and was read his Miranda rights.

ASSIGNMENT OF ERROR NUMBER 1

The defendant alleges, first, the trial judge committed reversible error and abused his discretion in denying defense counsel’s motion for a continuance on the morning of the trial. The counsel for the defense argues that he had insufficient time to prepare for trial because he had only been notified on June 21,1982 at about 4 p.m. that he was to represent the defendant at trial to be held the following morning at 9 a.m. He made contact with the defendant at about 11 o’clock that night, and the attorney and his client agreed to discuss the case the next morning prior to appearing in court. They determined at that time that defense witnesses would have to be called, but by that time, it would be too late for trial on June 22, 1982. The attempts to plea bargain proved unsuccessful and the defense’s oral motion for a continuance on the morning of the trial was denied.

Article 707 of the Louisiana Code of Criminal Procedure states that a motion for continuance must be in writing and must contain specific grounds as its basis. Any continuance is, however, discretionary with the presiding judge; absent a showing of prejudice, his ruling will not be disturbed.

The court in State v. Durio, 371 So.2d 1158, 1161 (La.1979), held that

“ * * * The general rule is that the denial of a continuance is not ground for reversal absent an abuse of discretion. * * * ft

The defense in the Durio case argued that they had only 12 days to better prepare a defense involving difficult medical questions as to actual cause of death of the victim. The court said that specific prejudice must be shown to overrule a denial of a motion for a continuance; however,

“Only where preparation time was so minimal as to call into question the basic fairness of the proceeding has the Court excused the failure to allege specific prejudice. * * * ” 371 So.2d 1158, 1161.

The court found that due to overwhelming evidence presented by the State, Durio’s counsel was unable to show prejudice of even a general nature. See also, State v. Dupre, 408 So.2d 1229 (La.1982).

The defense in the instant case has failed to show who would be called as a witness and how this testimony could be probative as to the ultimate finding of the court. There is no showing of an abuse of discretion.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant avers the trial court committed reversible error in allowing the State’s chief witness, Deputy Barry Guidry, to refer to other crimes allegedly committed by the defendant. This assignment of error was not included in the defense counsel’s brief and is therefore considered to be abandoned. See State v. Gardette, 352 So.2d 212 (La.1977).

ASSIGNMENT OF ERROR NUMBER 3

Finally, the defendant claims that the trial judge committed reversible error in not properly delineating his reasons in imposing sentence, and that the sentences nonetheless were excessive.

Counsel for the defense argues that the trial court failed to comply even minimally with the dictates of LSA-C.Cr.P. art. 894.1. That article sets forth sentencing guidelines to be used for all felony and/or misdemean- or cases and the judge’s considerations must be included in the record. Paragraphs A and C of that article are particularly relevant here:

“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
* * * * * *
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

Paragraph B of Article 894.1 sets forth 11 grounds to be accorded weight in determining suspension of sentence or probation.

The defense cites State v. Daranda, 398 So.2d 1053 (La.1981), which states that the trial judge’s reasons for the sentence imposed are the proper bases for review of a sentence alleged to be excessive.

In the record before us, the only reasons articulated by the trial judge regarding the sentences imposed on Barrios were the following comments: “I’m making sure you have some kind of respect for the rights of others. * * * For the next eighteen months he’s not going to be bothering anybody.”

While we understand the intent of the trial judge in making these statements, we are forced to conclude these remarks are not sufficient to comply with the mandate of C.Cr.P. art. 894.1(C). The requirement for articulation of factors considered in imposing sentence facilitates review by the appellate court to assure that sentences imposed are not arbitrary or based on impermissible factors. State v. Douglas, 389 So.2d 1263 (La.1980).

When the trial judge fails to state for the record the considerations taken into account and the factual bases therefor in imposing sentence, the Supreme Court normally will set aside the sentence and remand the case for resentencing in accordance with the mandatory requirements of law. State v. Jacobs, 371 So.2d 727, on rehearing, 371 So.2d 732 (La.1979).

However, lack of compliance with the sentencing guidelines of C.Cr.P. art. 894.1 does not necessarily require that the sentences be set aside, if the record otherwise clearly illumines the trial court’s sentencing choice and demonstrates that the sentence is not arbitrary or excessive. State v. Jett, 419 So.2d 844 (La.1982). See also, State v. Landos, 419 So.2d 475 (La.1982); State v. Boatright, 406 So.2d 163 (La.1981); State v. Martin, 400 So.2d 1063, on rehearing, 400 So.2d 1074 (La.1981).

The record shows that Barrios went on a violent rampage without apparent legal provocation. He told the arresting officer he had broken out a window at the corner bar earlier that night. He testified he had been drinking for “a couple of days” and, when he went home, his mother refused to let him in the house because she was afraid he would hurt somebody. He said he grabbed the screen door and it “come off the wall.” His neighbor’s fiancé came out of the house next door, cursing, and Barrios jumped the fence, intending to strike him. Barrios testified the fiancé went inside and came back out with a gun in a case, at which point Barrios picked up the board and began taunting him. Barrios, admittedly trying to antagonize the fiancé, began hitting the fence, the house and the fiancé’s truck with his board. Barrios acknowledged he was too drunk to remember everything that happened.

Ms. Gilly testified that when she opened the front door to peek out, Barrios picked up the board, swinging it at the truck, and he began jumping up and down off the back near the tailgate, kicking the tailgate. As she watched, Barrios started throwing pieces of wood at her house and beating on the gate. Then he started running toward her house with the board in the air and, just as she slammed the door shut, he hit the front door, breaking the glass and splitting the door frame. Gilly testified Barrios then went up and down the side of the house hitting it with his board. She said she thought he would have hit her with the board if she had not shut the door. She also denied that her fiancé had a gun. Finally, she stated that Barrios at one point pulled down his pants and exposed himself to her.

The record also establishes Barrios was well aware he was being pursued by law officers, but deliberately and persistently attempted to evade them. Further, when caught, he resisted arrest violently.

Finally, we note that at the conclusion of the trial, but prior to pronouncement of his verdict or sentencing, the trial judge questioned Barrios about prior convictions. Barrios responded, “They gave me three months for the same charges and they gave me probation for the simple burglary.”

Based on these considerations, we believe the record establishes adequate factual bases for the imposition of the maximum six-month sentence on each of the three misdemeanor charges.

These sentences, however, are consecutive rather than concurrent, making a total of 18 months jail time for the defendant. Accordingly, we also must examine this aspect to determine if the sentences are excessive.

LSA-C.Cr.P. art. 883 provides in pertinent part:

“If the defendant is convicted of two or more offenses based on the same act or transaction, * * * the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. * * * ”

In State v. Underwood, 353 So.2d 1013, 1019 (La.1977), our Supreme Court stated that “concurrent rather than consecutive sentences are the usual rule, at least for a defendant without previous criminal record and in the absence of a showing that the public safety requires a longer sentence.” On the other hand,- even if the convictions arise out of a single course of illegal conduct, consecutive sentences will not necessarily be found to be excessive; rather, other factors must be considered. State v. Ortego, 382 So.2d 921 (La.1980).

The trial judge is given a wide discretion in imposition of sentences within statutory limits, and the sentences imposed by the trial judge should not be set aside as excessive in the absence of manifest abuse of discretion. State v. McDonald, 404 So.2d 889 (La.1981); State v. Molinario, 400 So.2d 596 (La.1981). Consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public. State v. Carter, 412 So.2d 540 (La.1982). See also State v. Jett, supra.

In this case, the defendant is not a first offender. Further, his violent behavior, directed against others, must be considered a risk to public safety. In this light, the imposition of three 6-month consecutive sentences is not necessarily excessive. However, because the judge did not adequately record the bases for his decision not only to impose the maximum jail term for each of the three counts but also to have these terms run consecutively, it is difficult to determine if the sentence is excessive. See State v. Ortego, supra.

While we do not find the sentences excessive on the face of the record, we believe a remand is dictated for the trial court’s re-sentencing and articulation of reasons therefor under Article 894.1.

DECREE

Accordingly, defendant’s convictions are affirmed, but the sentences imposed are vacated and set aside and the case is remanded to the Second Parish Court with instructions to the trial judge to resentence defendant in accordance with C.Cr.P. art. 894.1.

CONVICTIONS AFFIRMED; SENTENCES VACATED; CASE REMANDED FOR RESENTENCING.


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    Hazel Fagot BERTHELOT v. Sanford Louis BERTHELOT.
    No. 5-384.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Reed & Reed, Floyd J. Reed, New Orleans, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

This is an appeal by plaintiff from a judgment dismissing her rule to make past-due child support executory, and for attorney’s fees and costs.

The record establishes the following facts: The parents were married in New Orleans in 1973 and thereafter established the matrimonial domicile in the Parish of East Baton Rouge. One child was born of the marriage in 1974. The parties separated on May 30, 1976, and the mother and child moved to New Orleans while the father remained in the family home in Baton Rouge.

On December 8, 1976 the father was granted a legal separation in East Baton Rouge Parish, by default, and his wife was granted custody and support for the minor in the sum of $150 per month.

In 1978 the mother filed suit for divorce in Jefferson Parish under LSA-R.S. 9:302. Her suit asked for custody but was silent as to child support, and judgment was granted in her favor on September 8, 1978.

In 1981 plaintiff filed a rule in the Jefferson Parish suit to make past-due child support payments executory, for attorney’s fees and for an increase in child support. She filed a later rule with an additional claim for contempt.

In answer to plaintiff’s rule the husband excepted to the jurisdiction, and filed a rule to suspend child support, for contempt, and to fix visitation.

Following trial of the various matters in the portions of the judgment with which we are here concerned, the trial judge was of the opinion he was without jurisdiction to enforce proceeding for noncompliance of a judgment of the court of another parish and thus refused to make executory any amounts due under the Baton Rouge decree which go beyond the date of the Jefferson Parish divorce. He awarded child support of $100 per month retroactive to July 24, 1981, the date of the filing in Jefferson Parish of the wife’s rule for child support. Plaintiff has appealed from that judgment.

It is appellant’s position that the Jefferson Parish court had jurisdiction to make the child support payments rendered by the Baton Rouge court executory and that she is entitled to attorney’s fees and interest.

It is clear that the case of Lewis v. Lewis, 404 So.2d 1230, handed down by our Supreme Court in 1981, overruled the prior jurisprudence which had held that support to a minor ceased upon judgment of divorce unless that award was specifically continued in the divorce judgment. In Lewis the court held that an award for child support had a legally independent basis and was not a mere incident of the separation decree which terminated with the dissolution of the marriage. Under Lewis, therefore, the divorce decree did not terminate the father’s duty to support the child, and thus the award continued thereafter and plaintiff is entitled to have the back-due child support made executory.

However, we are here further concerned with the question of whether or not the Jefferson Parish court was the proper forum to make executory the judgment of the Baton Rouge court.

We are guided by the case of Howard v. Howard, 409 So.2d 279 (La.App. 4th Cir.1982). In Howard the husband obtained a legal separation and custody of the minor children in Richland Parish in 1978. The wife obtained a divorce in St. John the Baptist Parish in 1979. That judgment was silent as to custody. Thereafter the mother filed a rule to change custody in St. John the Baptist Parish and the husband excepted to jurisdiction and venue. The trial court maintained the exception and ordered the matter transferred to Richland Parish and the appellate court affirmed.

We conclude that the 19th Judicial District Court for the Parish of East Baton Rouge is the proper forum to make its own judgment executory.

For the reasons assigned the judgment appealed from is annulled and set aside and the matter is dismissed.

ANNULLED AND SET ASIDE; CASE DISMISSED.


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    Chilane M. O’PRY v. Jerry O’PRY.
    No. 5-367.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Gross, Diasselliss & Tillman, Tony C. Tillman, LaPlace, for defendant-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

This is an appeal by the husband from a judgment which awarded his wife a separation a mensa et thoro, custody of the minor child and $150 per month for its support, and alimony pendente lite in the sum of $200 per month.

Appellant contends the trial court erred in failing to award him the separation based upon his reconventional demand, and further, that the monetary awards are excessive. The wife’s suit was based on the husband’s abandonment, and his reconven-tional demand was based on her abandonment and cruel treatment.

At the trial on the merits it was established that the parties had married in 1974 and lived and worked in Louisiana until June 1981 when they moved to Florida where the husband expected to have another job. After their arrival the prospective job failed to materialize and the husband absented himself without explanation and came home drunk.

After they had been in Florida two or three weeks the husband told his wife he did not love her. He bought plane tickets for the wife and child, took them to the airport and sent them home to her mother in Louisiana.

Prior to the move to Florida the wife had a job with Shell Oil Corporation, and the husband was employed at the Goodhope Oil Refinery at a salary of $11 per hour.

The wife wanted to return to Florida to make a go of the marriage, but her husband intended to be out of town the weekend she planned to arrive. She went to Florida with her brother, sister and a friend to bring her furniture, clothes and jewelry back to Louisiana. Her husband had sold the freezer and dryer, and her good clothes and jewelry were nowhere to be found.

Her husband arrived at the apartment while she was moving and spoke to her brother and the friend stating he wanted to be on his own. He wanted his freedom. His wife was very upset, but they did not speak to each other.

Defendant argues the abandonment occurred when the wife left the matrimonial domicile and refused to return and thus the judgment should have been rendered in his favor.

We do not agree.

The wife’s testimony at trial was that “I wanted to stay to work my marriage out. * * * He made me come home to my parents.” She further stated when questioned by counsel:

“A. Finally he just told me he didn’t love me anymore.
Q. What did he tell you to do?
A. To go back home.”

She testified that her husband, after telling her this, bought her a ticket to go home and took her to the airport. When asked why he had done this she replied:

“I thought that we were going to get back together. Just told me he needed time. But he kept me on, well, for a whole month, and finally I called him and he told me he didn’t love me anymore or the baby.”

And in regard to her return to the last residence shared, the wife testified defendant “told me that he didn’t want me no more.” In this regard there was corroborating testimony that defendant told his wife’s brother that he was ready to be on his own, to have his freedom.

Appellant suggests in his brief that the wife has not asked her husband to reconcile or return to live with her. She testified:

“Q. Did you attempt to go back to Florida to meet him?
A. Yes, sir.
******
A. I asked him to come back.
******
A. At first he kept telling me that he would come down to talk to me, and we were to discuss a bunch of stuff. And finally I started pleading for him and begging him to come down here to talk to me, but he finally told me he didn’t love me or the baby and he didn’t want us anymore. * * *”

The law applicable to the present situation is to be found in C.C. arts. 138(5) and 143, which read as follows:

“Separation from bed and board may be claimed reciprocally for the following causes:
5. Of the abandonment of the husband by his wife or the wife by her husband * * *.” C.C. art. 138(5).
“Separation grounded on abandonment by one of the married persons can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made appear in the manner hereafter directed.” C.C. art. 143.

We have interpreted these articles to mean that for a party to prevail on an allegation of abandonment not only must there be a withdrawal from the matrimonial domicile but there must also be exhibited on the part of the spouse who left, a constant refusal to return. Schexnayder v. Schexnayder, 343 So.2d 393 (La.App. 4th Cir.1977).

In the instant ease the wife left the husband after the husband made it clear he no longer wanted her or their child and bought their tickets, even escorting them to the plane to go home to her parents. It is quite clear defendant knew their departure was not for the purpose of a short visit. It is also evident the husband made no effort to return to his family because when he returned to Louisiana about two months after his ill-fated move to Florida, he moved to Shreveport where he resides with his grandmother. In our opinion the acts of defendant indicate his intent that there be no reconciliation and that it was he, not his wife, who abandoned the marriage.

Relative to the awards for child support and alimony pendente lite: The wife and child reside in La Place with her parents. The wife worked briefly at a temporary job and has been actively seeking employment because she does not want to freeload on her family. She received $100 on two occasions from her husband and gave both checks to her parents to help with expenses.

The wife estimated the expenses for herself and the child amount to $650 per month. She itemized these in detail. They appear reasonable.

The husband itemized his own needs at $1,138 per month. However, he stated he is unemployed and claims he has not worked since he moved to Florida. He has not applied for his old job back or looked for work in the river parishes because he would “rather not work down there.” He has an uncle who owns a large industrial steel business in Oil City and employs many people, but he has not attempted to get a job at his uncle’s plant because the uncle does not hire relatives.

The husband’s itemized list indicates he has automobile expenses of $150 per month, but he claims the Corvette he owned has been repossessed. However he borrows his grandmother’s car or his cousin’s car.

At the trial the wife testified her husband told her he was working in Oil City and that he intended to be paid in cash so she could not get any money. The record also establishes that prior to the move to Florida the husband sold their trailer home in Louisiana.

Alimony pendente lite is the judicial enforcement of a husband’s obligation to support his wife during the existence of the marriage. C.C. art. 148 provides that the spouse who “has not a sufficient income for maintenance” may be awarded alimony proportionate to the needs of the claimant and the means of the other spouse. Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir.1979). See also Holliday v. Holliday, 358 So.2d 618 (La.1978); Murphy v. Murphy, 229 La. 849 87 So.2d 4 (1956).

The trial court is vested with wide discretion in setting such an award and will not be disturbed unless there is a clear abuse of discretion. Ryan v. Ryan, 401 So.2d 514 (La.App. 2d Cir.1981); Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir.1980).

Appellant contends that since he is unemployed he is unable to support his family and consequently the trial court abused its discretion.

We note that credibility of the parties is of particular importance. Apparently the trial court concluded appellant had the ability to support his family to the extent of the $350 awarded. Accordingly under the wide discretion allowed the trial court, we find no manifest error in awarding the separation to the wife and support for herself in the sum of $200 per month and $150 per month for the support of the child.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


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    Arthur P. RAMOS v. Cleo Taylor RAMOS.
    No. 5-337.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Grant & Barrow, Ernest E. Barrow, II, Gretna, for plaintiff-appellant.
    Jacobs, Loeffelholz & Trestman, Roger Jacobs, Alan B. Tusa, New Orleans, for defendant-appellee.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CHEHARDY, Judge.

Arthur P. Ramos appeals from a judgment in favor of his former wife, Cleo Taylor Ramos, which made past-due alimony and child support executory and which ordered him to pay future child support in the amount of $120 per month. We affirm in part and reverse in part, for the following reasons.

Arthur and Cleo Ramos are the parents of a major son, David, who was 23 in December 1981, when this matter was heard by the district court. David is mentally retarded and suffers physical disabilities, including hydrocephaly and spina bifida, which make him a total invalid. He has been a resident of the Belle Chásse State School since October 1980.

In a July 2, 1980 consent judgment, signed by both parties and their attorneys, Arthur Ramos agreed to pay Cleo Ramos the sum of $240 a month for alimony and child support. (At that time, as now, David was over the age of majority.) On November 18, 1981, Cleo Ramos filed a rule to make past-due child support executory, alleging Arthur Ramos had failed to make any payments since December 1980 and was in arrears $2,880.

Mr. Ramos countered by filing a rule to dissolve the judgment of alimony and child support. He alleged that Mrs. Ramos was now gainfully employed and no longer in need of alimony. He also averred that David was a major and had been a ward of the State since October 1980 and that the support payments had been suspended pursuant to agreement between him and Mrs. Ramos. Finally, he suggested that any child support due from the date of the child’s entry into Belle Chasse State School “be reserved until the proper recipient comes forward to claim the amounts deemed due.”

The rules were consolidated for hearing. At trial, the only evidence was the testimony of Cleo and Arthur Ramos; Arthur Ramos’ testimony was cut short by the trial judge, who felt it was repetitive and directed more at the parties’ personal disagreements than at the issues before the court. The trial judge thereupon cast Mr. Ramos in judgment for the amount of $2,880 in past-due alimony and child support; in addition, the judge discontinued future alimony payments, but ordered child support continued in the amount of $120 a month. Arthur Ramos has appealed; Cleo Ramos neither appealed nor answered the appeal.

The six assignments of error made by Mr. Ramos on appeal may be condensed to four main issues:

1. Whether Mr. and Mrs. Ramos mutually agreed to terminate the child support payments;
2. Whether the consent judgment may be enforced, when the child was being supported by the State at the time the payments became due;
3. Whether a father may be ordered to pay child support to a mother for a child over the age of majority, when the child is not under tutorship at the time of the rule for support; and
4. Whether the trial judge erred in terminating Mr. Ramos’ presentation of his case, by refusing to allow him to testify further.

ENFORCEABILITY OF THE CONSENT JUDGMENT

An award of child support may not be modified, reduced, or terminated unless proper suit is brought, operation of law occurs, or a conventional obligation suspending the award is entered into between the parties. Dubroc v. Dubroc, 388 So.2d 377 (La.1980); Halcomb v. Halcomb, 352 So.2d 1013 (La.1977).

The fact that a child is no longer living with the mother does not alter the rule that a judgment for child support remains in full force and effect in favor of the party to whom it was awarded, until the party liable applies to the court for modification, or unless the judgment is modified by conventional obligation. Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3d Cir.1981); Dubroc v. Dubroc, supra. Thus, the fact that David’s care was taken over by the State when he entered Belle Chasse State School did not suspend the enforceability of the consent judgment.

Mr. Ramos did attempt to establish that Mrs. Ramos agreed to termination of the child support payments after David became a resident of the Belle Chasse State School. He testified that in October 1980, shortly after David entered the school, Mrs. Ramos told him she would no longer be needing either alimony or child support, asking only that he make two more payments. He said he made payments on November 1 and 15, and thereafter ceased the payments. Mrs. Ramos soon contacted him and told him she wanted him to start making the payments again, for the next 14 months while she was in nursing school. Mr. Ramos refused, citing their earlier agreement.

Mrs. Ramos, on the other hand, denied she ever agreed that he could stop the payments.

In order for an agreement between parents to modify the amount of child support to be enforceable, the parties .must clearly agree to that modification, and the burden of proof is on the party relying on the agreement to relieve him of his obligation. Williams v. Williams, 405 So.2d 1277 (La.App. 4th Cir.1981). Here, not only has Mrs. Ramos denied making such an agreement, but Mr. Ramos admits that even if she did make it, she soon changed her mind. We conclude Mr. Ramos has failed to carry his burden of proving clear agreement between the parties to modify or terminate Mr. Ramos’ obligation under the consent judgment.

ENFORCEABILITY OF AWARD OF FUTURE CHILD SUPPORT

The obligations of support owed by parents to their children are established by Articles 224, 227 and 229 of our Civil Code. The obligations imposed on the parents under LSA-C.C. arts. 224 and 227 to support, maintain and educate their children terminate when the minor reaches the age of majority. Suire v. Miller, 363 So.2d 945 (La.App. 3d Cir.1978). However, the obligation imposed by LSA-C.C. art. 229, governing reciprocal alimentary duties of ascendants and descendants, continues past minority, as long as the party seeking it is in need. Id.

Once the child has reached the age of majority, however, the custodial parent no longer has the capacity to raise for the child the question of whether the child is in need of support from the other parent.

“Parental authority, C.C. art. 216, and tutorship, art. 37 (including the natural tutorship which art. 157 provides for the parent awarded custody, and which results in authority over the ‘minor’, arts. 246 and 250), cease upon the child’s majority. * * * ” King v. Sanchez, 273 So.2d 45, 46 (La.App. 4th Cir.1973).

There is no showing by Mrs. Ramos either that she is David’s tutrix under proceedings for permanent tutorship, LSA-C.C. arts. 354 et seq., or that she is his curatrix under proceedings for interdiction, LSA-C.C. arts. 389-426. Failing such capacity on her part, the trial court erred in awarding her child support on behalf of David.

THE TRIAL JUDGE’S TERMINATION OF MR. RAMOS’ CASE

Considering our conclusions above, we find it unnecessary to address this last issue. Mr. Ramos has made no showing he could have produced any additional evidence that would have changed our conclusion as to the enforceability of the consent judgment and the amount made executory.

DECREE

For the foregoing reasons, the judgment of the district court is reversed insofar as it awarded continuing child support in the amount of $120 per month. Pursuant to LSA-C.C.P. art. 3943, however, that award of continuing child support is not suspended by this appeal. Accordingly, the $120-per-month award will accrue up to the date this judgment becomes final on appeal. Frederic v. Frederic, 302 So.2d 903 (La.1974).

In all other respects, the judgment below is affirmed. Costs are assessed against Mr. Ramos.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.