author: BOUTALL, Judge. REDMANN, Judge,

text:
    Mrs. Patricia Packard, wife of Robert Evan ADAMS v. Robert Evan ADAMS.
    No. 10932.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied June 26, 1980.

      Harry R. Cabral, Jr., Metairie, for Mrs. Patricia P. Adams, plaintiff-appellee.
    James Overton Brooks, New Orleans, for plaintiff in rule and appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   BOUTALL, Judge.

From a judgment dismissing both an ex-husband’s post divorce rule to eliminate or reduce alimony and an ex-wife’s subsequent rule to increase alimony, only the ex-husband appeals. We affirm.

Appellant Robert E. Adams assigns as error the trial judge’s ruling in requiring that he show a change in circumstances as required under the principles announced in Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), and also the misapplication of Article 160 of the Louisiana Civil Code by not requiring the wife to show that she is in necessitous circumstances and has not sufficient means for her maintenance. In order to discuss these issues it is first necessary to relate the procedural posture of the case leading up to the judgment appealed.

Patricia Packard Adams obtained a judgment of separation from her husband in which he was found at fault. She subsequently filed a suit for divorce based on no reconciliation, to which her husband filed a reconventional demand, seeking a divorce on his behalf. During this period of time there was a judgment of alimony pendente lite originally granted October 7, 1974 awarding Mrs. Adams alimony in the sum of $700.00 per month, use of her husband’s gasoline credit card, and requiring Mr. Adams to carry medical and hospital insurances as well as automobile insurance for Mrs. Adams. Several rules had been tried and disposed of in connection with this alimony, the last of which was heard on November 17,1978, a rule to decrease filed along with the answer and reconventional demand for divorce, and was dismissed on the basis that there was no major change in circumstances. Two months later, on January 17,1979, the case came up on trial of the merits of the divorce with the court stating the following:

“THE COURT:
“Let’s proceed. This is á matter involving Adams versus Adams, which I’m going to hear today on the merits alone. Mr. Brooks objects to the hearing going forward at this particular time without touching upon the subject of alimony one way or the other. I overrule him after he strenuously objects and I told him the only way to do that is by rule and that the parties have agreed to be heard on the 26th, is that correct?
“MR. BROOKS: Yes sir.
“THE COURT: That protects you for the record.”

Despite that statement, the court, over later objection of counsel, decided to continue all orders in effect including the order of alimony stated above, signing a judgment of divorce and alimony on that day. The next day Adams filed his rule to eliminate or decrease alimony, the dismissal of which is the subject of this appeal. No appeal was taken from the judgment of January 17, and that judgment became final. Apparently because of filing of exceptions by Mrs. Adams, overruled by the trial court and the subject of writ denial in the appellate courts, the rule, together with a rule to increase filed by Mrs. Adams in the meantime, came to trial on April 6, 1979.

During this hearing, the judge first decided to prohibit any evidence concerning the parties’ financial condition prior to January 17, the date of the divorce. However, he apparently later changed his ruling and permitted evidence to be elicited concerning Mrs. Adams’ financial condition back to 1974, subject to Mrs. Adams’ objection. As a result there is in the record both evidence of the assets held by Mrs. Adams at time of trial, as well as a statement of her expenses and needs for her maintenance and support.

Although the record does not disclose to us precisely the basis upon which the court concluded on the January 17th trial on the merits of the divorce that alimony was not at issue, we do not agree with his rulings which caused him to put into the divorce judgment a decree of alimony over Adams’ objection and without the opportunity to introduce evidence. As pointed out in Ward v. Ward, 339 So.2d 839, La.1976, there is a difference in the nature of alimony pendente lite set under the provisions of Article 148 of the Louisiana Civil Code as compared to alimony after divorce which is regulated under Article 160. However, we must point out that the validity of that judgment is not before us on this appeal, and it has become final. It is thus the law of this case. The basic issue is what effect it has on the judgment appealed from.

The trial judge apparently recognized during the course of the April 6 hearing the difficulties which were arising as a result of Mrs. Adams’ objections as to the admissibility of evidence from that judgment forward due to the application of the change in circumstance rule applied in the case of Bernhardt v. Bernhardt, supra. Accordingly, he permitted the ex-husband the opportunity to produce whatever evidence he thought pertinent relating to the means and financial condition of Mrs. Adams. Correspondingly, he permitted Mrs. Adams to introduce into evidence a showing of her necessitous circumstances and her needs for support. Thus, both parties were given an opportunity to introduce into evidence those facts which they considered relevant to their respective positions in the hearing on these rules so that we may make a proper adjudication of the rights of the parties on the entitlement to alimony under Civil Code Article 160.

The evidence shows that she had approximately $11,000 which she has received as part of her share of the community, and that she has approximately $9,000 worth of stocks and bonds which she inherited, receiving an income from the two of approximately $700 per year. She further has some household furnishings, apparently community and subject to partition, and a 2V2 carat diamond ring, arguably community property or her husband’s separate property. She is employed at a salary of $690 a month gross. As opposed to this, she testified to needing the sum of $1,890.21 per month for her expenses. There is no showing that any of her expenses are inflated or unrealistic, except that obviously some of the items enumerated are not considered necessities under Article 160. She testified that her assets have been diminishing because of her necessity to use some of them for living expenses and medical expenses. The means of Mr. Adams is not at issue because it was stipulated that he could pay whatever alimony the judge might reasonably set.

The trial judge is granted wide discretion in the fixing of alimony, and it is apparent from the record before us that this trial judge has been hearing alimony rules between these parties since 1974, when he originally set this amount of alimony pendente lite. Under the facts shown on this rule, we conclude that Mrs. Adams has shown that she is in necessitous circumstances under Civil Code Article 160, and that she has not sufficient means for her maintenance. Although the amount set may be on the generous side, we cannot say that it is excessive. Although we do not agree completely with the trial judge, we agree with his result, and accordingly we affirm the judgment appealed.

AFFIRMED.

REDMANN, Judge,

dissenting.

The divorce and alimony judgment of January 17, 1979 did not become final insofar as alimony is concerned. C.C.P. 865 commands: “Every pleading shall be so construed as to do substantial justice.” The husband’s “rule” concerning alimony filed January 18 should be construed as a motion for a new trial as to alimony. His “rule” expressly complained “that this Honorable [District] Court allowed plaintiff to have incorporated in the divorce judgment . ‘All prior orders of this Court included in the judgment of final divorce’ over the objection of counsel for defendant.”

Treating that “rule” as a timely motion for new trial, we should treat this appeal as one from the alimony judgment portion of the divorce judgment, and we should reverse that judgment because not supported by any evidence whatsoever.

Married to her husband since 1943, this wife certainly deserves a generous measure of whatever post-divorce alimony she needs: but its amount should be fixed properly on the basis of evidence of the wife’s need, and we should remand for that purpose.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    W. A. WHITE, Plaintiff-Appellant, v. CITY OF WINNFIELD FIRE DEPT. et al., Defendant-Appellee.
    No. 14,117.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.
    Gravel, Roy & Burnes by Robert L. Roy-er, Alexandria, for plaintiff-appellant.
    Simmons & Derr by Kermit M. Simmons, Winnfield, for defendant-appellee City of Winnfield.

      Sanders & Castete, Ltd., A Professional Law Corp., by Martin S. Sanders, Jr., Winn-field, for appellee Winnfield Fire & Police Civil Service Bd.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, W. A. White, appeals a judgment sustaining his dismissal as a fireman with the City of Winnfield Fire Department (“Department”). Plaintiffs dismissal had earlier been affirmed by the Winnfield Fire & Police Civil Service Board (“Board”). We reverse.

The stipulation of facts presented to the Board shows that White served as a volunteer fireman for the Department for 23 years until he was appointed a permanent fireman in 1970. He served in the position of permanent fireman until he was dismissed December 12, 1978 by Byron Tullos, Department Fire Chief, who notified White by letter that he was dismissing him for failure to comply with Chapter 7, Section 7-21 of the Winnfield Code of Ordinances. This provision requires that all firemen reside in the City of Winnfield. White resided outside the Winnfield boundaries. In December, 1977 the City Council had passed a resolution reiterating its long established policy:

“that all employees of the City of Winn-field whether in the classified or the unclassified service, be and they are hereby required to reside within the geographic limits of the City of Winnfield to insure the proper discharge of their duties of the various departments of the city.”

On October 8, 1978 the City Council instructed the mayor to request all firemen living outside Winnfield to move inside the boundaries. On October 10,1978 the mayor wrote White a letter advising him to move into the city limits within 60 days as required by the Code of Ordinances. White failed to establish his residence in the city limits within the 60 day period and was discharged from the fire department by the fire chief.

White appealed his dismissal to the Winn-field Fire & Police Civil Service Board which affirmed his dismissal. He then appealed to the District Court for Winn Parish, which also affirmed his dismissal.

White complains that the trial court erred because (1) the fire chief did not have the power to dismiss him as he was not the appointing authority, (2) the Winnfield Code of Ordinances relating to firemen is invalid because it is in conflict with LSA-R.S. 33:2531-2568, the Fire & Police Civil Service Law for small municipalities, and (3) his dismissal was not made for cause. Because we find White’s dismissal was not for cause as required by LSA-R.S. 33:2561 we do not reach the other two issues raised by White.

In the decision of Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3d Cir. 1975), the court interpreted the provisions of LSA-R.S. 33:2561, which provides that the action of the appointing authority and the reviewing board must be made in good faith for cause, to require that the evidence establish the action of dismissal to have been taken in good faith and for cause. The court there stated:

“LSA-R.S. 33:2561 provides, in substance, that the issue to be determined by the Police Civil Service Board or by the district court, in the event an appeal is taken to that court, is whether the decision of the appointing authority or of the board was ‘made in good faith for cause’, as set forth in the Fire and Police Civil Service Law for small municipalities (LSA-R.S. 33:2531-2568). We interpret that to mean that the action of the appointing authority, in order to be valid, must be both ‘in good faith’ and ‘for cause’. The action of that authority must be set aside if it was not taken ‘for cause’, even though it may have been taken in good faith. Our particular concern here is whether the suspension or dismissal of plaintiff Martin was made ‘for cause’.” Id. at 535.

The court stated that for the cause to be a basis for dismissal it must require the dismissal for the continued efficiency of the service being rendered to the appointing authority. The rationale of the court was as follows:

“We believe that in order for the dismissal or the disciplining of a tenured police officer to be valid, as being in good faith for cause under LSA-R.S. 33:2561, the dismissal or disciplinary action must be reasonably necessary for the continued efficiency of the service being rendered by the appointing authority. The evidence must show that the failure to dismiss or discipline the officer would be detrimental to the city or to the service which it is required to perform. * * * His dismissal cannot be said to have been ‘for cause’, if the evidence fails to show that it was necessary for the discipline and efficiency of the police department, or that it was needed to avoid some detriment to that department or to the city.” Id. at 535.

See also Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962), wherein the supreme court was reviewing the action of the State Civil Service Commission and there defines cause as follows:

“Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.” Id. 140 So.2d at 9, 10.

The facts as reflected in a written stipulation between the City of Winnfield and appellant established:

A. White has performed his duties as a fireman in a competent manner during his 32 years of service as a volunteer and permanent fireman and that he has never received a reprimand.
B. White’s work or duty hours were “Twenty-four hours on and forty-eight hours off” and during his forty-eight off hours he had no duty or obligation to answer fire calls.

There is no contention that White failed to properly perform his duties as fireman during his twenty-four hour shifts or that he is guilty of any misconduct that impairs the efficient operation of the Winnfield Fire Department.

The sole cause given for White’s dismissal was his failure to reside in the Winnfield city limits and there can be no remote relation between where he spends his 48-hours off-duty and the efficiency of the fire department because during his 48-hours off-duty he is not on call nor does he have any duty or obligation to answer fire calls. We observe that even should the facts have been that White was required to answer fire calls during his 48 off-duty hours, the facts do not reveal how far his residence is beyond the city limits or that it is farther from the fire station than it could have been had it been located at some places within the city limits. There is a total absence of any evidence to establish that the off-duty residence requirement has any relationship to the efficiency of the Winn-field Fire Department. The appointing authority has shown appellant’s violation of a city ordinance requiring him to live in the city limits, but has failed to show that appellant’s residence outside the city has caused the fire department to be less efficient or has impaired the department’s fire protection capabilities. This conclusion is supported by two letters introduced into evidence from Joe Alíelo, Supervisor of Municipal Protection of the Property Insurance Association of Louisiana. The supervisor states that the Public Protection Classification is unaffected by White’s residence outside the city limits. No additional deficiency points are given by the Property Insurance Association if a paid man, such as White, lives outside the Winnfield corporate limits. The Property Insurance Association is in a most strategic position to determine whether a compensated fireman’s residence outside the city would impair the efficiency of the fire protection service (and thereby raise the insurance premiums).

Since there was no lawful dismissal for cause, the judgment is REVERSED and W. A. White is restored to his civil service classification with full salary from the date of his dismissal (December 12, 1978) and with retention of all ancillary benefits and status. See Martin v. City of St. Martinville, supra.

Appellant is assessed with all costs.


text:
    Mary Knight AHLERS, Plaintiff-Appellee, v. Joseph Richard AHLERS, Jr., Defendant-Appellant.
    No. 14119.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.

      Roland V. McKneely, Jr., Bossier City, for defendant-appellant.
    Peters, Ward, Bright & Hennessy, by J. Patrick Hennessy, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, Mary K. Ahlers, who is domiciled in Bossier Parish, sues her ex-husband, Joseph R. Ahlers, Jr., to accrue past due alimony in a divorce judgment. She also requests attorney fees. Defendant excepts to jurisdiction of the Bossier Parish Court to enforce the Orleans Parish judgment, which exception was overruled. He also excepts to the accrual of any alimony payment due for more than three years. This exception was sustained. The ex-husband then filed against his former wife in Bossier Parish a rule to show cause why the alimony should not be terminated, why the custody of the son (the remaining minor) should not given to the father, and why the mother should not be ordered to pay child support to the father. The mother filed a declinatory exception to this rule, and the exception was sustained by the trial court. The trial court rendered judgment against defendant, ordering him to pay plaintiff $5825 in non-prescribed alimony payments. He appeals, and plaintiff answers the appeal requesting attorney fees. We amend to allow the defendant credit on his alimony for sums paid by him for the education of his daughter and further amend to award plaintiff attorney fees, and as amended affirm.

Plaintiff and defendant were divorced in 1968 in Orleans Parish. The judgment of divorce ordered defendant to pay plaintiff $200 per month as alimony and granted plaintiff custody of the two minor children, a son and a daughter. The husband paid monthly $175 of his $200 per month alimony obligations until June 1977 when his son came to live with him in Waco, Texas. The daughter, now a major, began college in September 1977 and defendant paid at least 75% of her college expenses. Defendant stopped paying his daughter’s college expenses in May 1979 because of her poor grades and because of her refusal to move into the dormitory. In June 1979 plaintiff instituted this suit to recover the past due alimony. Defendant, a Texas resident, was personally served in Bossier Parish. Defendant also received service under the Long-Arm Statute by registered mail, receipt of which he refused.

Defendant’s first contention is that the Bossier Parish court was without jurisdiction to accrue the alimony payments and make them executory because LSA-CCP art. 3941 makes venue exclusive in Orleans Parish. As can be seen by a casual perusal, Article 3941 does not refer to suits to enforce the payment of alimony.

The record reveals that defendant received by registered mail citation and a certified copy of the petition, as per LRS 13:3204 of the Long-Arm Statute. Jurisdiction was obtained over defendant under the Long-Arm Statute by application of the recent amendment to LRS 13:3201 which added Section F to the statute and which reads as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s .
(f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.”

The fact that defendant refused to receive the registered mail service does not affect its validity, for defendant will not be allowed to defeat proper service by simply refusing acceptance of the letter. See Thomas Organ Co. v. Universal Music Co., 261 So.2d 323 (La.App.1st Cir. 1972); Howard Ave. Realty Corp. v. McIntosh, 352 So.2d 348 (La.App.4th Cir. 1977). As stated in Thomas Organ at p. 327:

“Under the clear wording of the above-quoted statute, all that is necessary to constitute service upon a non-resident under the ‘Long-Arm’ statute is that counsel for plaintiff send a certified copy of the citation and of the petition in the suit to the defendant by registered or certified mail (or actually deliver it in person). There is . . .no requirement for a signed return receipt .
To allow a defendant to defeat service of process by refusing to accept a registered letter . . . would make a mockery of R.S. 13:3204 and render it completely ineffective.”

Venue in a Long-Arm Statute case is proper at plaintiff’s domicile. See LRS 13:3203.

The defendant cites Dupuy v. Dupuy, 357 So.2d 23 (La.App.3d Cir. 1978); Caldwell v. Gilbert, 253 So.2d 639 (La.App.3d Cir. 1971); White v. White, 272 So.2d 469 (La.App.3d Cir. 1972); Dupre v. Pelotto, 336 So.2d 329 (La.App.1st Cir. 1976); and Hopkins v. Hopkins, 300 So.2d 661 (La.App.3d Cir. 1974), as authority for the proposition that only the Orleans Parish Court has authority to enforce the nonresident defendant’s obligation to pay alimony to his former spouse. All of these cases dealt with an attempt to modify a judgment by a court other than the court wherein the judgment was rendered. Only Dupuy v. Dupuy, supra, contained an attempt to enforce past due alimony and the husband there was not domiciled out of state and the Long-Arm Statute was not there applicable. In this case there is no attempt being made by plaintiff to modify the alimony award in the Orleans judgment and the Long-Arm Statute is applicable because defendant is a Texas domiciliary and for these reasons the cited cases are not applicable. Defendant’s objection to the venue or the jurisdiction of Bossier Parish over the present subject matter is inappropriate because the assumption of jurisdiction by Bossier Parish is sanctioned by the Long-Arm Statute.

Defendant further contends that if he must pay the accrued alimony, then he should receive credit on payments since June 1977 because his son has lived with him since that time. The testimony of both plaintiff and defendant as well as the trial court’s finding of fact reveals that plaintiff and defendant agreed that the $200 per month payment (denominated as permanent alimony awarded plaintiff in the divorce decree) was actually intended to be for the children’s support. Plaintiff agreed to call the payment alimony so as to get an uncontested divorce and to allow defendant to get a tax deduction on the alimony payments. Defendant would have us read into the divorce decree this agreement so that he may obtain credit on this alimony (which he would have us call “child support”) for the time his son has spent with him. Such a change in substance of the Orleans judgment is forbidden by LSA-CCP art. 1951 (which prohibits changes in substance) as well as by our jurisprudence. This same problem was presented in McGee v. McGee, 157 So.2d 312 (La.App.4th Cir. 1963), in which the divorce decree provided the permanent alimony was for the wife and two children. The evidence reflected that the husband had agreed to pay alimony only to the children and not to the wife, and the husband sought to change the judgment because of this evidence. The Fourth Circuit held this was a change in substance, not allowed by LSA-C.C.P. art. 1951, and the judgment had become final as it applies to the wife, and therefore she cannot now be deprived of her alimony. See also Arcemont v. Arcemont, 162 So.2d 813 (La.App.4th Cir. 1964); King v. King, 253 So.2d 660 (La.App.1st Cir. 1971); Hug v. Hug, 230 So.2d 333 (La.App.4th Cir. 1970); Allen v. Commercial Nat’l. Bank in Shreveport, 243 La. 840, 147 So.2d 865 (1962). The judgment granting plaintiff permanent alimony has become final and cannot now be amended to change its substance from a judgment of alimony to a judgment of child support.

Defendant claims that if a judgment ordering past due alimony to be paid should be rendered, then he should be given credit on his payments for the time his minor son spent with him. Whereas the jurisprudence allows credit on child support to be given for time spent with the non-custodial parent at the request of the custodial parent (see Henson v. Henson, 350 So.2d 979 (La.App.2d Cir. 1977)) there is no such credit allowed on alimony support for the wife. Since there is no child support judgment here but only a judgment for the support and maintenance of plaintiff, there is no credit due for the time the minor spent with defendant.

The defendant testified that his former wife agreed that in lieu of his alimony payment to her he could pay the cost of their daughter’s attending college. The wife did not deny that she made this agreement. The trial court alluded to it in the reasons for judgment. The daughter began attending college in September 1977 and defendant paid at least 75% of all her expenses through May 1979. Though defendant had paid no alimony since June 1977, the plaintiff took no action to enforce payment of alimony until June 1979. She testified the reason she sought enforcement of the alimony obligation at this time was because of defendant’s cessation of payment of their daughter’s college expenses. We believe the totality of the evidence established an agreement by the wife with the defendant that she would accept in lieu of her monthly alimony the payment by defendant of their daughter’s college expenses.

From September 1977 through May 1979 defendant paid his daughter’s college expenses in lieu of paying alimony to his wife. Plaintiff may waive her rights under an alimony judgment by agreement with her ex-husband. Duplechan v. Duplechan, 270 So.2d 264 (La.App.3d Cir. 1972).

“. . . the party in whose favor the judgment was rendered may make arrangements with the party liable for payment of alimony . . . in a way other than direct payments or may waive rights under the judgment.” Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir. 1979) at p. 159.

See also Cotton v. Wright, 193 La. 520, 190 So. 665 (1939); Succn. of Mioton, 201 La. 879, 10 So.2d 688 (1942); McFerrin v. McFerrin, 225 So.2d 40 (La.App.2d Cir. 1969); Wisdom v. Wisdom, 356 So.2d 1111 (La.App.2d Cir. 1978). We find that plaintiff and defendant have altered the method of payment of the alimony by their agreement and therefore defendant should receive credit on the past due alimony for the installments due for the period he paid his daughter’s college expenses from September 1977 through May 1979.

Defendant alternatively contends if the Bossier court has jurisdiction to enforce his alimony obligation that it has jurisdiction to change the Orleans child custody award and alimony award designed to provide child support, and to award child support to defendant. Once the trial court’s jurisdiction attaches, it continues exclusively for the purpose of modifying its own alimony judgment, child custody and child support award. Caldwell v. Gilbert; White v. White; Hopkins v. Hopkins; Dupre v. Pelotto, supra. Even if both parties agree to confer jurisdiction on a court other than the one which rendered the alimony or child support, they cannot consensually change the exclusivity of the original court’s venue, and venue elsewhere to modify the judgment is still improper. Dupuy v. Dupuy, supra. The trial court was therefore correct in sustaining plaintiff’s exception to the Bossier Court’s jurisdiction over these matters.

Beginning in June 1979 when defendant terminated payment of his daughter’s college expenses, he violated the agreement with his former wife, upon which agreement he has based his contention that he no longer owed alimony under the judgment. The wife testified that defendant’s conduct in this regard motivated her to employ an attorney and sue for her alimony because she needed the funds to pay her daughter’s college expenses. Under these circumstances, the husband had no reasonable explanation for his failure to pay his wife alimony subsequent to May 1979, and the wife is entitled to an attorney fee award under the provisions of LRS 9:305. While the defendant might contend that even after he terminated payment of his daughter’s college expenses he continued to have a reasonable basis for withholding payment of his wife’s alimony because he had custody of his minor son, whose support part of his wife’s alimony was designed to cover, we conclude that such a contention by defendant would be without merit because it would be contrary to LSA-C.C.P. art. 1951 and the cases interpreting it which were earlier cited. We believe an award for attorney’s fees of $1,000 is reasonable. See Thompson v. Courville, 372 So.2d 579 (La.App.3d Cir. 1979); Bruner v. Bruner, 373 So.2d 971 (La.App.2d Cir. 1979). The attorney fee award should bear 7% interest from the date the trial court judgment was made. See Alexander v. Burroughs, 359 So.2d 607 (La.1978).

For reasons assigned the judgment appealed from is AMENDED as follows:

The $5,825 award for past due alimony is reduced by $4,200 to $1,625. The' $4,200 reduction is the total of the installments due as reflected in said judgment from September 15, 1977 until May 30, 1979, and the interest on these installments awarded in the judgment is also eliminated.

The plaintiff is awarded the sum of $1,000 in attorney’s fees with 7% interest from October 11, 1979, the date of the trial court judgment.

As AMENDED the judgment is AFFIRMED with all costs on appeal assessed equally to the litigants.

      . LSA-C.C.P. 3941 — “An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile. The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.”

      . LRS 13:3204 — “A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general jurisdiction.
      Service of process so made has the same legal force and validity as personal service on the defendant in this state.”

      . LRS 13:3203 — “A suit on a cause of action described in R.S. 13:3201 may be instituted in the parish where the plaintiff is domiciled, or in any parish of proper venue under any provision of the Louisiana Code of Civil Procedure other than Article 42.”

      . LSA-CCP art. 1951 — “A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
      (1) To alter the phraseology of the judgment, but not the substance; or
      (2) To correct errors of calculation.”


author: MARVIN, Judge.

text:
    Mose LATIN, Plaintiff-Appellant, v. The HICA CORPORATION, Defendant-Appellee.
    No. 14122.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.
    George T. Anderson, Jr., Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

In this worker’s compensation suit, the employee, who was paid disability benefits for 54 weeks until his doctor released him to return to work, appeals a judgment rejecting his demands for total disability benefits, contending that he is unable to work because of pain. We reverse.

The problems that arise in proving a claimant is disabled because of pain here or in any case are similar to the problems that arise in proving a causal relation between accident and disability. See Malone-Johnson, “Worker’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, § 288, p. 673. In such cases there has been an increased willingness by the courts to accept the testimony of the claimant as sufficient proof.

“This concept has been expressed in various ways, but they all seem to contain two essential elements for acceptance of the claimant’s testimony as persuasive. First, there must be no other evidence sufficient to discredit or cast serious doubt upon the claimant’s version of the event. And second, his testimony must be corroborated by the circumstances following the alleged event.” Malone-Johnson, supra, § 253, pp. 550-551. (footnotes omitted)
“At times, however, . . . the evidence may fail to show that at the time of trial there was any objective symptom to account for the claimed impairment of function or the pain. But recovery is not arbitrarily denied in such cases. The Act requires only that ‘there are or have been objective conditions of symptoms proven.’ The proof of the occurrence of the accident itself usually satisfies this requirement. Thus the subsequent disappearance of all observable cause for complaint does not defeat the claim if there is satisfactory testimony by medical experts that the complaint is genuine. This is almost always true, of course, of hysteria and traumatic neuroses. As a general rule, the courts are reluctant to brand the plaintiff as a malingerer .
“Lay testimony may often be adduced on the question of pain. Assuming that working in substantial pain will continue to be a foundation for a disability award under the new standard for disability, a claimant may find it necessary to establish the fact of pain. This will usually be done through the testimony of the complainant and his relatives and friends, supported by the evidence of the experts that the objective conditions are of a character expected to produce pain.” Malone-Johnson, supra, § 288, pp. 678-679. (footnotes omitted)

In Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977), the court reiterated this standard of proof.

“Whether pain is substantial enough to be disabling is an issue to be determined by a preponderance of the medical and lay evidence.” 342 So.2d 597

In no case should we place a duty on a compensation claimant to prove his or her entitlement to benefits by more than a preponderance of the evidence. An appellate court is not required by the manifest error principle or by the clearly wrong principle to affirm a trier of fact’s refusal to accept as credible, uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for the rejection and where the factual finding was reached by overlooking applicable legal principles. See West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). This is true whether the issue be pain-eausing-disability or disability-caused-by-accident. Malone-Johnson, § 288.

On October 6, 1975, the employee slipped while at work and his right foot went into a shot blasting machine (called a Wheelabrator). This machine, which is used to abrade and clean steel, seriously injured the employee’s foot. After undergoing surgeries and treatments by several doctors, plaintiff, a maintenance helper, was released to return to work on October 20, 1976, by the orthopedist who first treated him and performed the initial surgery. This orthopedist released plaintiff with an estimated disability of 20 percent of the right leg or 30 percent of the right foot. The amount which would have been owed by the employer for the percentage loss of a member was less than the amount the employer paid plaintiff during the 54 week period.

Plaintiff’s foot was lacerated and torn by the machinery and shot blast. Flesh and skin were torn from the top of the foot, leaving bone and tendons exposed. The extensor tendons to second, third and probably the fourth toe were severed. Nerves were severed. He was hospitalized from October 6 to November 25,1975, and apparently on other occasions.

On October 24, 1975, a skin graft was taken from the body of plaintiff $nd applied to the foot. On January 26, 1976, three neuromas (scarring of an injured or severed nerve) which were causing pain were surgically removed and the nerves were inserted into adjacent blood vessels to allow them an opening in which to grow.

This case was tried in 1979. Plaintiff testified that the pain in his foot becomes sharper upon exertion, standing for 15-20 minutes, walking for a block or two, and that he had attempted to work for approximately two or three days laying rugs and painting, but that he quit because these attempts caused him too much pain. Plaintiff said he had experienced pain in his foot since the time of the injury. Plaintiff’s testimony in this respect is corroborated by the medical evidence. The trial court summarized the corroborating testimony of plaintiff’s lay witnesses to the effect that the 27-year-old plaintiff was an active person and a good worker before his injury, but he has since failed to be active and complained that he is unable to work.

The trial court concluded that in the light of the opinions of four doctors that he could return to work, plaintiff’s claim of pain and disability had not been established.

Plaintiff was seen by four doctors. The medical reports of the orthopedist who first saw plaintiff and performed the initial surgery were introduced in lieu of the orthopedist’s testimony. Three doctors, a second orthopedist, a dolorologist (pain specialist) and a plastic surgeon testified.

These doctors, however, declined to label plaintiff as a malingerer or faker. Each doctor expressed a medical basis for some pain, but not as much as plaintiff complained of. These bases were impaired circulation, damaged nerves, skin graft adhering to a tendon, reflex sympathetic dystrophy, and possible anxiety. Each expressed an opinion that plaintiff should be able to or could return to his work wearing a “Hush-Puppy” type safety shoe.

Under these circumstances, the totality of the evidence, medical and lay testimony, establishes more than a mere claim of pain. The medical facts and opinion are uncontra-dicted that plaintiff had and still has impaired circulation, scarring, adhesions (adherence of skin graft to tendon), increased temperature of the injured foot not voluntarily produced, resulting in an anomaly called reflex sympathetic dystrophy which is hypersensitivity to stimuli, causing some pain. The doctors agreed that plaintiff was not a malingerer and that he was not faking. They agreed that the cause of plaintiff’s complaints was the accidental on-the-job injury. They generally agreed that plaintiff’s pain would probably lessen if he went back to work and that his foot would probably be strengthened and improved if he went back to work. Plaintiff was not motivated to return to work, but this lack of motivation was because of anxiety which is involuntary, whether or not the anxiety is directly related to the accident.

Plaintiff’s initial hospitalization ended on November 25,1975. He saw his first orthopedist 12 times between December 16, 1975 and April 20, 1978. This orthopedist noted that plaintiff’s foot still had some tenderness, there was a fleck of steel in his foot and slight motion in his toes. He also noted that plaintiff complained that his foot swells if he works and that plaintiff had worked for three days the week before but had to quit. His final conclusion was

“My opinion has not changed . this patient should be able to do some type work and . . . if he will, this foot will toughen up and get better and better.”

This orthopedist’s estimate of permanent medical residual (30 percent disability of the foot or 20 percent of the leg) corresponded with the estimate by the second orthopedist who saw plaintiff on November 15, 1976, and on March 3 and October 20, 1977. The second orthopedist also noted plaintiff’s complaints of pain and attributed these complaints to the adherence (growth) of the skin graft onto an underlying tendon. This orthopedist also said plaintiff should be able to return to work wearing a well-padded Hush Puppy type safety shoe.

The trial court said that the testimony of the plastic surgeon and of the dolorologist not only shows a lack of corroboration, but goes against plaintiff’s complaints of continued pain. We do not so construe this evidence and observe in any event, that it is the preponderance of the lay and medical evidence which is the standard in these type cases. Lucas, supra; Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

On two occasions (May 1, 1976 and January 4, 1977) the plastic surgeon observed plaintiff walking without a limp. This would “seem inconsistent" with plaintiffs actions before this doctor. On November 7, 1977, the doctor observed that plaintiff was able to tie a shoe on his injured foot without any apparent discomfort. Plaintiff, however, did not contend that he always limped, but did contend that he has had pain, which was increased by standing, or walking, or working, continuously since the 1975 accident.

On the 12 occasions (December 2, 1975 to November 17,1977) plaintiff saw the plastic surgeon, plaintiff complained of pain. Other doctors thought there was some nerve involvement and the plastic surgeon on November 7, 1977, admitted this was a “possibility”, while also admitting that it was a “possibility” that an organic basis for pain was absent. This doctor said that the restructuring or implanting of the damaged or severed nerves into the blood vessels would not guarantee there would be no pain at all.

The trial court also mentioned that the plaintiff’s reflex sympathetic dystrophy had remained static in the two years following the accident and that since improvement or worsening had not occurred, plaintiff did not have objective signs of pain.

The statute, however, is couched in past as well as in present tense (LRS 23:1317) and, in any event, here is what the dolorologist concluded on this point:

“Q . [Hjypothetically [if a patient with the plaintiff’s history] remained in a passive condition these two years, would . . . these complaints of pain ... be consistent with the problems that he incurred that you knew him to have?
“A No, I don’t believe so.
“Q You don’t believe it would be consistent?
“A No. I think it would be more consistent with disuse and problems from scaring. I think the orthopedist would be more capable than I to determine that at this point. Within two years, with a reflex dystrophy, it should either heal itself or should get worse. It very rarely stays static.”

We interpret this language to mean that in the great majority of cases, reflex sympathetic dystrophy improves or worsens in two years but in some few cases it does neither, but remains static.

The dolorologist also objectively corroborates some pain:

He did have some sympathetic-reflex-type problem ... he did have some pain there . . . There was enough information to warrant some pain in the foot but ... it was more of a response than should be present. The anxiety aspect of it was real and not feigned. When a person has a great deal of anxiety and is not motivated to undergo intensive physical [work or] therapy, and responds to what pain he has by simply withdrawing, the success rate is poor. I think it all ties together. I don’t believe this claimant could voluntarily make the temperature in the injured foot drop six degrees as compared to the other foot as a malingerer would present. I think he had some problems but just gave up on it. We expect our mild reflex-dys-trophies to work with pain. This claimant would have been likely to have had pain had he gone back to his employment. His pain is more consistent with disuse and the problems from scarring. His case was rather complicated. He had a reflex sympathetic dystrophy but over-responded and with proper treatment (aggressive physical work and therapy) he should have gotten better but he was simply not motivated to work aggressively-

LRS 23:1317 requires that injuries be proved by evidence “. . . of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee . . The factual-legal issues on appeal raise two questions relating to the burden of proof of pain by a preponderance of the lay and medical evidence.

Are there or have [there] been objective conditions for symptoms of pain proven? Is there, quantitatively and qualitatively preponderating, sufficient evidence to discredit or cast doubt upon the claimant’s testimony that he is in pain?

We answer both questions in favor of the plaintiff. Some pain is the opinion of at least three, if not all, of the four doctors. All four found objective conditions which would cause pain, impaired circulation, involuntary temperature change, scarring, adhesion of skin graft to tendon, earlier neuromas surgically removed. This plaintiff feels the pain and its intensity. These objective conditions might produce either more or less pain to other persons. Other persons may be more or less motivated to undergo the aggressive physical work or therapy that would strengthen the foot and increase the individual’s tolerance of the conditions. But in each case the result will be determined by the circumstances of the individual. A claimant who is pre-dis-posed to the effect of pain or who is lacking in motivation to aggressively work to overcome pain, is not to be deprived of worker’s compensation benefits because of these conditions, just as a worker with a pre-disposition to physical injury or physical disability is not deprived of benefits under the principle that an employer takes his employee as he finds him or her. Campbell v. Baker, Culpepper, Brunson, et al., 382 So.2d 1046 (La.App. 2d Cir. 1980); Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2d Cir. 1980).

The answer to the second question is ad-junctive to the answer of the burden of proof: considering the totality of the evidence, fact and opinion, lay and medical, including that which is consistent with or discrediting of plaintiff's claim of pain, is it more probable than not that the plaintiff is suffering pain which disables him? If there be inconsistencies in the plaintiff’s testimony (and we fail to find them) or if there be discrediting or doubtful evidence, the totality of the evidence nonetheless objectively preponderates in favor of plaintiff. Lucas, supra.

Plaintiff, as a maintenance helper, is a common laborer. A common laborer is considered as totally and permanently disabled if the injury has substantially decreased his ability to compete with able bodied workers in the flexible general labor market. Malone-Johnson, § 277. See Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976). When such an employee is totally disabled at the time of trial and the duration of the disability is not indicated, a judgment for total and permanent disability should be awarded. Juneau v. Tulane Indus. Laundry, 358 So.2d 347 (La.App. 4th Cir. 1978). Walker, supra.

Plaintiff’s compensation rate was $85.00 per week (66% percent of $3.27 hourly wage X 40 hours per week). He was paid through October 20, 1976.

Judgment below is reversed and,

IT IS ORDERED that there be judgment herein in favor of plaintiff, Mose Latin, and against defendant, The Hica Corporation, for permanent and total disability worker’s compensation benefits, not to exceed the statutory maximum for each week of disability from October 20, 1976, with legal interest on all weekly benefits which are past due from the date each respective weekly benefit became due, together with all costs of these proceedings.

REVERSED and RENDERED.


text:
    Gary D. COLEMAN et ux., Plaintiffs-Appellants, v. STATE of Louisiana, THROUGH the DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 14123.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    Charles W. Seaman, Natchitoches, for plaintiffs-appellants.
    Robert J. Jones, John W. King, Baton Rouge, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Plaintiffs, husband and wife, appeal from a judgment denying their demands against the State for bodily injury to the wife and for damage to the community automobile arising out of an accident which occurred on an allegedly defective blacktop, rural, State highway. Mrs. Coleman lost control of the car, which crashed off the highway, after she drove across two or more holes in the road. We affirm the judgment.

Highway 126 is a 20-foot-wide, two-lane highway with shoulders of approximately two feet, in Winn Parish. It is not heavily traveled. The posted speed limit is 55 mph. The accident occurred on a straight, level stretch of the highway during daylight hours on a clear, dry day. No other traffic was involved. Proceeding easterly toward Jonesboro, Mrs. Coleman was traveling within the speed limit when she drove across one hole in the road. This caused her car to “fishtail”. She then apparently applied her brakes and skidded in both lanes of the highway. She drove through a second hole and the car left the embanked highway and crashed into a ditch. The first hole struck by Mrs. Coleman was 65 feet east of a bridge over the Dugdemona River, which Mrs. Coleman had traversed. The accident occurred within 13 mile of plaintiff’s home. She traveled the highway occasionally but not regularly and routinely.

The hole or holes complained of did not have perpendicular sides, but were gradually sloped. The blacktop surface in the hole was eroded and broken. The largest hole was almost centered in the highway and was about nine feet long, six feet wide, and its greatest depth was six inches.

The trial court found the State not to have been negligent in maintaining and inspecting the highway, apparently accepting the testimony of State employees over other witnesses about the length of time the holes had existed. This testimony, corroborated by work records and diaries, reflects that maintenance and inspection employees purposely traversed the road on several occasions within six weeks before the June 2, 1975, accident. On April 28, May 7 and May 15, “hot mix” was placed into the holes in the highway in the area of the Dugdemo-na River bridge. The engineer and maintenance superintendent testified that he and his men made inspection trips at least every 10 days and usually every seven days. The superintendent made a personal inspection on May 27, just six days before the accident and found no extraordinary hazards. He also testified that holes in the highway often occur because of the failure of the base of the roadway (the asphalt surface sinks, erodes, and cracks). He distinguishes holes of this type from a true pothole with perpendicular sides, which is much more hazardous. A State Trooper who regularly traverses the area generally corroborated the testimony of the other State employees.

We find that the holes were ordinary hazards which are to be expected on rural, blacktop, non-primary State highways and that the maintenance and inspection program of the State was reasonable under the circumstances. The trial court’s conclusion that the State did not have actual or constructive notice of the holes is supported by the evidence and is not clearly wrong.

We discussed the applicable legal principles in Cain v. Houston General Insurance Co., 327 So.2d 526 (La.App. 2d Cir. 1976), writs refused.

The State is not an insurer of the safety of travelers upon its highways, and is not required to maintain its highways in perfect condition. The State’s liability, if any, is based on legal fault (CC Art. 2315) and the issue is whether or not the highway was maintained in a reasonably safe condition for motorists using ordinary care and prudence.

Highway defects which are in the nature of traps or from which danger can be reasonably anticipated, and which are known or should be known to the agency charged with maintenance of the highway, do constitute actionable negligence.

There is no fixed rule for making a determination of what constitutes actionable negligence for an unreasonably dangerous defect in a highway. The circumstances of each case control the determination. See Cain, supra, pp. 529-530, and cases cited and discussed therein.

Judgment is AFFIRMED at appellants’ cost.


author: MARVIN, Judge. HALL, Judge,

text:
    Odeal Martin BANKS, Plaintiff-Appellant, v. ADMINISTRATOR OF the DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana and Winnsboro Manor Nursing Home, Defendant-Appellee.
    No. 14124.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.

      North Louisiana Legal Assistance Corp. by Randy Hillhouse, Winnsboro, for plaintiff-appellant.
    James A. McGraw and Willie D. Maynor by James A. McGraw, Baton Rouge, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

A discharged employee of a nursing home who prepared meals for patients on special diets was held disqualified for unemployment compensation benefits because of misconduct (absenteeism) connected with the employment. LRS 23:1601(2).

She appeals the decision, contending that she was not given a “fair hearing” and that the decision of the appeals referee was not supported by sufficient evidence and is legally in error (LRS 23:1629, 23:1931, 23:1634). We affirm.

Misconduct under the law is a deliberate violation of the employer’s policies and rules or a substantial disregard of the employer’s interest or of the employee’s duties. Heard v. Doyal, 259 So.2d 412 (La.App. 2d Cir. 1972). Absenteeism does disqualify a claimant. White v. Gerace, 372 So.2d 756 (La.App. 4th Cir. 1979). The referee before whom the hearing is held is not bound by rules of evidence and procedure, but he may not base his decision on hearsay evidence alone. LRS 23:1631; Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964).

Claims for benefits are made in accordance with regulations prescribed by the administrator (§ 1622) to an agent designated by the administrator who shall give notice of the claim to the employer. A determination of the claim shall be made promptly and shall state reasons for denial (§ 1624). Any party may appeal from this determination at which time a “fair hearing” shall be held in accordance with regulations prescribed by the administrator, whether or not such regulations conform to the usual rules of evidence and other technical rules of procedure (§§ 1629, 1631). The parties to the hearing may appeal from the decision of the tribunal (§ 1630) eventually to the courts (§ 1634) where jurisdiction is limited to questions of law and to the question of whether or not the decision is supported by “sufficient evidence” (§ 1634). Where more than one reasonable interpretation or construction can be drawn from the evidence, the courts should accept the construction or interpretation made by the agency. Heard v. Doyal, supra.

The claimant complains that the initial determination of ineligibility (failure to report for work without notifying the employer) should be reversed when it is found to be untrue by the hearing referee. The hearing referee found that claimant was discharged because she continued to be absent from work without permission or without being properly excused after being warned and counseled, even though she may have had others report her absence.

The hearing referee found that the claimant was aware of the employer’s rules about adherence to a posted work schedule, the employer’s policy that unexcused absence was grounds for discharge, that claimant was absent from work quite a bit during the last six months of her employment without being excused, and that she was terminated when she continued to be absent without permission or without being properly excused after being warned. Claimant’s absences were reported by a niece who telephoned the food service supervisor. The record compiled before the agency and at the hearing contains sufficient evidence from which these conclusions may be drawn.

Claimant overlooks the distinction between the initial determination from which one may appeal (apply for a hearing) and the appeal of the decision which is made after the hearing. This determination is an investigatory step which is not an adversary hearing. The hearing before the “appeals” referee is an adversary hearing where witnesses may be subpoenaed and cross-examined, where some rules of evidence and procedure must prevail, and where fairness and due process must be observed.

After claimant filed her claim, the nursing home administrator initially replied to the investigatory agent on December 29, 1978, that the food service supervisor had spoken to claimant about claimant’s failure to work when scheduled but that claimant continued to miss work when scheduled. On January 10, 1979, the claimant stated to the investigatory agent that she had called the food service supervisor on December 17, 1978, and had gotten her “o.k.” to miss work. In response to a further request by the investigatory agent, the administrator stated on January 18, 1979, that claimant did not report to work for three days and failed to call the supervisor. The initial determination simply said “failure to work without calling in”. We are not favored with reasons why this initial determination was made, but in any event, the referee before whom the hearing was to be held recognized the true issue, perhaps because of his better experience and training, and so notified the claimant and the employer.

In the notice to claimant and to the employer to appear for the hearing, it is clearly stated:

“The issue(s) before the Referee are the correctness of the following:
“The claimant was discharged for absenteeism with notification, and this is misconduct connected with the employment.”

After the hearing, the referee concluded that

“. . . claimant reported her absence^) but many times these absences were not for an excusable [ . “proper” . . . ] reason.”

The administrator testified about rules and policies regarding the work schedule and plaintiff’s awareness of the rules. The administrator said while claimant’s last absence was reported it was “improperly reported . . . unexcused [caused] some unrest with other employees . It was a pattern . . . had it happened just this one time we could have . forgotten about it. But it continually happened.”

Claimant disregarded her duties and the work schedule and policies of her employer. Even if she properly notified the employer by having her niece telephone, some of her absences (and her last one) were unexcused. This is misconduct (unexcused absenteeism) connected with the employment and sufficient evidence supports the conclusion. Claimant was given notice of the true issue. A fair hearing was held. Due process was met. We find no error of law.

AFFIRMED at appellant’s cost.

HALL, J., dissents with written reasons.

HALL, Judge,

dissenting.

Claimant, Odeal Martin Banks, appealed from a judgment of the district court affirming the decision of the Board of Review of the Office of Employment Security denying claimant unemployment compensation benefits. I would reverse, and accordingly dissent from the majority opinion affirming the judgment.

After discharge from her employment as a cook at Winnsboro Manor Nursing Home, claimant applied for unemployment compensation benefits. The agency determined that claimant was guilty of disqualifying misconduct by “failure to report for work without notice.” Upon claimant’s appeal from this determination, and after a hearing, the appeals referee affirmed the agency’s determination upon a finding that claimant “continued to be absent without permission or being properly excused after being warned and counseled.”

LSA-R.S. 23:1624 provides that the agency shall promptly make a determination of the claim. “In the event of a denial of benefits the determination shall state the reason therefor.” LSA-R.S. 23:1625 provides that “notice of determination, together with the reason therefor shall be promptly delivered to the claimant.” LSA-R.S. 23:1629 provides that “the claimant or any other party entitled to notice of a determination may file an appeal from such determination.”

The statute refers throughout to an agency determination and an appeal therefrom. The determination appealed from in this case, and of which notice was given to the claimant, reads as follows: “You were discharged from your job for failure to work on days scheduled without calling in. Failure to report to work without notice is considered to be misconduct connected with the employment.”

Contrary to the view of the majority opinion, the appeals referee did not perceive the issue to be broadened on appeal. Although the notice of the hearing contained an obvious typographical error in referring to “absenteeism with notification” rather than without notification, the appeals referee at the outset of the hearing and in his written opinion stated the determination appealed was absenteeism without notification.

The finding of the appeals referee went beyond the grounds for the agency determination of which claimant had fair notice and from which she appealed. At the appeal hearing it was established that the employer was given advance notice of claimant’s intended absences from scheduled workdays. Further, the evidence at the hearing was not sufficient to establish that the absences, not great in number, were without permission or proper excuse, or that the claimant was warned or counseled about the absences.

Disqualifying misconduct as determined by the agency was not established at the appeal hearing. Claimant is entitled to unemployment compensation benefits.

Before PRICE, HALL, MARVIN, J. JONES and F. JONES, JJ.

PER CURIAM DENYING REHEARING

The claimant correctly asserts in her application that LRS 23:1692 relieves her from payment of court costs unless it is found that she instituted the proceedings for judicial review frivolously. We do not find claimant to have been frivolous in seeking judicial review and accordingly, relieve her from payment of costs.

Claimant’s application for rehearing is denied.

HALL, J., dissents from the denial of rehearing.


text:
    Loretta McKee BURT, Plaintiff-Appellant, v. Vernon McKEE, Jr., Defendant-Appellee.
    No. 14126.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.

      D. G. Tyler, Shreveport, for plaintiff-appellant.
    Gamble & Sledge by Claude R. Sledge, Mansfield, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

The plaintiff-mother in a habeas corpus proceeding appeals a judgment awarding custody of her three-year-old daughter to the defendant-maternal grandfather. •

In a custody contest between a parent and non-parent, the parent must prevail unless the record affirmatively shows the parent’s unfitness or forfeiture of parental rights. Wood v. Beard, 290 So.2d 675 (La.1974); State ex rel. Sharp v. Sharp, 375 So.2d 167 (La.App.2d Cir.1979), writ refused. The record in this case does not show unfitness or forfeiture. We reverse.

This child was born in September 1976 and remained with her mother until October 1977, when the maternal grandfather assumed physical custody of the child. The child was the product of the mother’s common law union at age 15 in Texas with a man who was later sentenced to the Texas State Penitentiary. On May 15, 1978, in habeas corpus proceedings between these same litigants, the custody of the child was confirmed in the mother on a finding that she had obtained a job, a good place to keep the child, and had maintained a stable life style in Texas.

The instant proceeding arose in 1979 after the maternal grandfather declared that he would not return the child to the mother, who had allowed the child to visit in the Louisiana home of the grandfather around July 4, 1978. Since that time the child has lived in the home of the grandfather but has been visited by the mother on two or three occasions. On other occasions there has been contact between the mother and grandparent about the child by mail and by telephone. This proceeding was filed and tried earlier but judgment was not rendered until October 1979.

The trial court awarded custody to the grandfather because the mother moved the child into the Texas home of David Burt and began living with him in a common law union in June 1978 when Burt was not legally divorced. Burt obtained his divorce in September and he and the mother married in October 1978. She was then pregnant with his child (her second) which was born in March 1979. Burt is gainfully employed and he, the mother and their child live together in a home in Texas which they purchased before trial.

The trial court requested and obtained a “home study” of each litigant which was made by a proper agency in each state. These studies were not contained in the record, but the trial court declared that both were favorable. We interpret this declaration to mean that the respective environments and relationships in which the child would be living would not present any detriment to the well-being of the child.

Notwithstanding this declaration and testimony by the mother and David Burt about the stability of their home and their family relationship, the lower court found that the mother “is without acceptable moral values . . . does not have an acceptable home environment . . . and that it is to the . . . best moral and physical interests of [the child that she] be placed in the custody of her grandfather

The lower court also mentioned the mother’s neglect of the health of the child. This conclusion is drawn from the fact that the child had a fever about June 9, 1978, when the grandfather visited the child in Texas. Even though the mother had made an appointment for the child to see a doctor, the mother agreed on that day to immediately take the child to a doctor. The child was treated and released on that day for an ear inflammation or infection (ear drops) and for mosquito bites (lotion). No serious illness such as tonsilitis was discussed or treated. No prescriptions were written. No further treatment was ordered.

After the grandfather refused to return the child about July 7, 1978, and while the child was living with him, she developed fever with apparent infections for which she was medically treated. In late August 1978, the child’s tonsils were surgically removed without event and her health is and has since been otherwise normal. The grandfather acknowledged that the child’s health would not prevent her being returned to her mother. The record does not contain any expert medical evidence to support the conclusion that the mother has neglected the child’s health.

The grandfather also acknowledged that he had not been in Texas and knew nothing of the home environment of the daughter since July 1, 1978. The only evidence of this environment since that time and particularly of that environment since the mother’s marriage and the birth of her second child is contained in the home study by the Texas state agency (which is “favorable” according to the trial court) and in the testimony of the mother and her husband, David Burt, which is also "favorable”.

David Burt is steadily and gainfully employed. He first married at age 15 and that marriage endured for 10 years. He was separated from his first wife when he met this plaintiff. His earnings average more than $500 a week. He described plaintiff as a good housekeeper, a good mother and a good wife. The plaintiff-mother said:

“. . . [W]e have been married for ten months now ... we just bought a home ... we live just about like any other couple ... he works every day, comes home ... we live a normal life just like everybody else. We might not go to church, but ... we have got our own religion . . . other than that we are a normal family

A parent enjoys a paramount right to custody of her child as against a non-parent. Hall v. Hall, 367 So.2d 162 (La.App.2d Cir.1979); Dillon v. State, 336 So.2d 1066 (La.App.2d Cir.1976); Wood v. Beard, supra. It is usually in the best interest of a child that custody be awarded a parent. Snell v. Snell, 361 So.2d 936 (La.App.2d Cir.1978). Non-parents have been awarded custody as against parents, but the circumstances always establish a forfeiture by a parent that are usually extreme and well-supported. Snell, supra; Hall, supra; Neal v. White, 362 So.2d 1148 (La.App.2d Cir.1978). It is not proper merely to compare the parent’s situation with that of the non-parent and award custody on the basis of best interest of the child. The best interest comparison is the proper basis for custody contests between parents, where neither enjoys a paramount right. CC 157. Forfeiture of custody must be expressly determined and well-supported. Hall, supra.

The declaration here that it is to the best moral and physical interests of the child that custody be placed in the grandfather is not an express determination of forfeiture of the parental right. Even an implied determination is not supported by this record. In custody contests, the law does not require perfection of a parent or of a child’s environment. See cases supra. See Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and Monsour v. Monsour, 347 So.2d 203 (La.1977).

Judgment below is reversed and it is ordered that the respondent-appellee forthwith surrender custody of the child, Ruth Singletary, to the relator-appellant, Loretta Lavern McKee Burt, in whom permanent legal custody of the child shall be maintained. All costs here and below shall be paid by respondent-appellee.

REVERSED AND RENDERED.


author: HALL, Judge.

text:
    Richard JONES et al., Plaintiffs-Appellants, v. John C. SKANNAL et al., Defendants-Appellees.
    No. 14130.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    See also, La.App., 384 So.2d 494.
    George T. Anderson, Jr., Shreveport, for plaintiffs-appellants, Richard Jones, et al.
    Glenn F. Armstrong, Bossier City, for defendant-appellee, John C. Skannal.
    James E. Franklin, Jr., Shreveport, for defendant-appellee, Enviro South, Ltd.
    Before HALL, JONES and McCLEN-DON, JJ.
   HALL, Judge.

Plaintiffs, Richard Jones, et al., filed this possessory action against defendants, John C. Skannal, et al., after a judgment rejecting plaintiffs’ demands in prior consolidated possessory actions between the same parties involving the same property became final and definitive. See Jones v. Skannal, 368 So.2d 774 (La.App. 2d Cir. 1979), writ denied 371 So.2d 620 (La.1979). The district court sustained defendants’ exception of res judicata and dismissed plaintiffs’ suit, holding that the issues raised by this possessory action are the same as those raised and decided in the previous actions. Plaintiffs appealed.

In the previous possessory actions this court affirmed the trial court’s rejection of plaintiffs’ demands, holding that plaintiffs’ possession commenced as lessees or caretakers and since there was never any specific action taken by plaintiffs to make known their intention to possess the property as owners, their possession continued to be precarious and not as owners.

Plaintiffs contend res judicata does not apply because the present possessory action is based on an entirely new cause of action, that is, possession as owner quietly and without interruption for a period of more than one year prior to the time the present suit was filed. Plaintiffs argue that the previous suits involved a separate and distinct cause of action, being based on alleged possession for more than one year prior to the time those suits were filed in 1976.

Under the narrow and strict Louisiana res judicata doctrine, as embodied in LSA-C.C. Art. 2286 and as interpreted in Mitchell v. Bertolla, 340 So.2d 287 (La.1976), plaintiffs’ argument appears to have merit. The previous suit determined that plaintiffs were not entitled to be maintained in possession based on the nature and character of their possession prior to the time the first suits were filed in 1976. The present suit is based on the nature and character of plaintiffs’ possession during the year preceding the date on which this suit was filed, July 13, 1979, which period of time was not at issue in the previous suits. It seems apparent that the character of plaintiffs’ possession changed after the filing of the first suits since the allegations contained in those suits amounted to specific action making it generally known that plaintiffs intended to possess as owners. Res judicata is not technically applicable. There is no identity of “cause” between the first two actions and the present action.

On our own motion (LSA-C.C.P. Art. 927), however, we note that plaintiffs’ petition fails to state a cause of action under LSA-C.C.P. Art. 3658 because, taking cognizance of the previous proceedings pending in the district court and in this court during the year preceding the filing of the present suit, plaintiffs’ possession during that time was not quiet and without interruption.

Just as the type of possession required in order to maintain a possessory action has been analogized to the possession necessary to acquire ownership of immovables by 30-years acquisitive prescription, the type of interruption of possession that will bar a possessory action has been analogized to the modes of interrupting acquisitive prescription. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). LSA-C.C. Art. 3516 provides that there are two modes of interrupting prescription, natural and legal. LSA-C.C. Art. 3518 provides that a legal interruption takes place when the possessor has been cited to appear before a court of justice on account of either the ownership or the possession and the prescription is interrupted by such demand whether the suit has been brought before a court of competent jurisdiction or not.

The previous suits in which the right to possession of the disputed property was at issue served as a continuing legal interruption of plaintiffs’ possession during the pendency of those suits. Plaintiffs’ possession during the year prior to the filing of the present suit was not quiet and uninterrupted as required by LSA-C.C.P. Art. 3658.

As a matter of law, plaintiffs’ petition, when considered in the light of the previous proceedings in these same courts of which these courts can and should take cognizance, does not disclose a cause of action for a possessory action.

The judgment of the district court is affirmed, insofar as it dismisses plaintiffs’ suit. Costs of the appeal are assessed to plaintiffs-appellants.

Affirmed.


text:
    John C. SKANNAL, Plaintiff-Appellee, v. Johnny C. JONES, Defendant-Appellant.
    No. 14120.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    See also, La.App., 384 So.2d 492.
    George T. Anderson, Jr., Shreveport, for defendant-appellant, Johnny C. Jones.
    Glenn F. Armstrong, Bossier City, for plaintiff-appellee, John C. Skannal.
    Before HALL, JONES and McCLEN-DON, JJ.
   HALL, Judge.

Appellant, Johnny C. Jones, appealed sus-pensively from a judgment of the district court ordering his eviction from property owned by appellee, John C. Skannal. We affirm.

After a judgment rejecting appellant’s demands as a plaintiff in a possessory action on a finding that appellant was a precarious possessor became definitive and after judgment was rendered dismissing appellant’s second possessory action on an exception of res judicata from which judgment appellant took a devolutive appeal, appellee brought this summary eviction proceeding pursuant to LSA-C.C.P. Art. 4701, et seq. Appellant answered the suit asserting the pendency on appeal of the second possessory action and his continuing claim to the right of possession as defenses. At trial, appellee’s record ownership of the property was stipulated and the records in the possessory actions were offered into evidence by the parties jointly. The district court ordered the eviction and this appeal was taken.

Appellant argues on appeal that summary eviction proceedings are not appropriate to try disputed title to property but rather are designed for situations where the possessor has no semblance of claim or title of possession, citing Foreman v. Luquette, 344 So.2d 1111 (La.App. 3d Cir. 1977). Appellant further argues that summary eviction is not available in this case because appellee failed to establish that the defendant had been occupying the property by permission or accommodation of the owner, citing Stroughter v. Shepherd, 207 So.2d 865 (La.App. 4th Cir. 1968).

The cited cases and the rules for which they stand as authority are not applicable to the instant eviction proceeding. LSA-C.C.P. Art. 4701, et seq. were designed to give landowners the right to oust illegal tenants or occupants without the burdensome expense and delay required by a petitory action. See Todt v. Santani, 167 So.2d 475 (La.App. 4th Cir. 1964). LSA-C. C.P. Art. 4702 makes the summary eviction procedure available for the eviction of an “occupant” after the purpose of the occupancy has ceased. LSA-C.C.P. Art. 4704 defines an “occupant” as including any person occupying immovable property by permission or accommodation of the owner or former owner.

The decision in the first possessory action, cited above, established that appellant’s possession was precarious as lessee or caretaker by permission or accommodation of a former owner of the property and that he had no right to continued possession. Avoca, Incorporated v. Singleton, 271 So.2d 630 (La.App. 1st Cir. 1972) supports the judgment of eviction in this case because it recognizes that after possessory litigation has been completed, eviction by summary proceedings may be accomplished. The circumstances here fall specifically within the requirements for summary eviction proceedings under LSA-C.C.P. Art. 4701, et seq.

We know of no reason and are cited to no authority for holding that a pending devolutive appeal from a judgment dismissing the occupant’s second possessory action on a peremptory exception should bar the landowner from proceeding with summary eviction proceedings.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . Jones v. Skannal, 368 So.2d 774 (La.App. 2d Cir. 1979), writ denied 371 So.2d 620 (La.1979).

      . Jones v. Skannal, 384 So.2d 492 (La.App. 2d Cir. 1980), decided this day affirming the dismissal of the second suit as stating no cause of action.


author: McClendon, Judge.

text:
    Eugene B. HOLT et al., Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, Defendant-Appellee.
    No. 14131.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.

      Thomas & Burchett by Dewey E. Bur-chett, Jr., Bossier City, for plain tiff s-appellants.
    DeLaune & Blondeau by James D. Hall, Bossier City, for defendant-appellee City of Bossier City.
    Dewey J. Smith, Shreveport, for defendant-appellee JOPA Engineers, Inc.
    Before HALL, JONES and McCLEN-DON, 33.

   McClendon, Judge.

Plaintiffs sued the City of Bossier City seeking to have declared null two drainage servitudes previously granted by plaintiff Eugene B. Holt and for removal of the physical edifices (24" concrete pipe buried five or six feet deep) placed on the property by defendant. Alternatively, plaintiffs sought $5,000 in damages.

From a trial court judgment rejecting their demands plaintiffs appealed. We affirm.

Plaintiffs, as the only children of Annie White Holt, inherited from her Lot No. 104 and the West Half of Lot No. 103 of Riverside Subdivision in Bossier City, Louisiana. The mother’s succession was never formerly opened, so that plaintiffs have not been judicially recognized or placed in possession of this property, but their status as heirs and owners of an undivided one-half interest each in this property was not questioned.

The two instruments complained of herein are actually plats (Exhibits P-1 and P-2) showing that portion of the Riverside Subdivision containing the two lots involved, as well as their location in relation to the adjacent street, the location of the 10' easement, and the signature of Eugene B. Holt as “Owner” under the following wording: “I hereby dedicate to Public use the 10' drainage easement as shown hereon.”

Both plats are dated under the legend describing them as a “Drainage Easement Dedication Plat.” P-1 bears date of December 12, 1973, and P-2 the date of April 18, 1974. The filing dates are not clear on the exhibit copies, but P-1 was recorded February 27, 1974 and P-2 on May 3, 1974 in the Conveyance Records of Bossier Parish. A change in the location of the easement is the reason for the second plat.

From the record we find that the drainage problem arose from the fact that this particular area of Bossier City is generally flat with that part of Riverside Subdivision lying south or southwest of Riverside Drive sloping slightly towards Red River. Riverside Drive itself is described as hard surfaced but not curbed and guttered. Instead, there are ditches on either side of the raised center portion, but these were not adequate to prevent water from standing on the lots to the north of Riverside Drive, including the Cane property across from Holt. In addition to the 24" drain placed down the easement through plaintiffs’ property, other smaller drains and catch basins were installed on the Cane property, in the north ditch of Riverside Drive, and under that street to tie into the concrete catch basin at the north end of the drainage pipe in question. All of these apparently worked together and did much to alleviate the problem.

Appellant Eugene B. Holt admitted signing the first plat, but could not remember signing the second. He contended that he never intended to dedicate this easement to the public, but merely thought he was helping his neighbor, Mr. Cane, now deceased, who was having a serious problem with water standing on his property across Riverside Drive. He testified that Cane asked him to sign the first plat one morning as he was leaving for work and that he did not read it because he did not have his glasses on at the time. Appellant Holt further denied any contact with any representative of the City or even observing any Bossier City equipment being used to excavate the ditch or to lay the 300+ feet of 24" reinforced concrete drainage pipe from the concrete catch basin in the south ditch of Riverside Drive back across Lot 103 toward Red River. He claimed he was assured by Cane that this was just between the two of them.

We agree with the trial court’s finding that appellant Eugene B. Holt in fact granted the servitude to the public. Admittedly it was an unusual manner in which the dedication was presented to Holt for signature, i. e., handed to him by his neighbor rather than by a representative of the City; however, a person is presumed to have read and understood what he signs in the absence of fraud.

Bud Finance Co., Inc. v. Gilardi, 330 So.2d 622 (La.App. 4th Cir. 1976); South Central Bell Tel. Co. v. McKay, 285 So.2d 563 (La.App. 1st Cir. 1973); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817, cert. denied H. B. Buster Hughes, Inc. v. Ocean Drilling & Exploration Co., 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 639 (1976).

In addition, we find that Mr. Holt testified (Tr. 47) that he called upon the City to pay for damages to his truck caused by falling into a hole in the right of way on his property about 100 feet back from the street and was paid by Bossier City. He did this despite his contention that he was not aware that this was a public project, but thought it was privately done by his friend Cane across the street.

Upon concluding that appellant Holt did grant the servitude, he is precluded from attempting to set it aside for failure of his sister co-owner, Mrs. Hilburn, to join in the dedication.

Louisiana Civil Code Article 715 (former Art. 739) provides in part:

A coowner who has consented to the establishment of a predial servitude on the entire estate owned in indivisión may not prevent its exercise on the ground that the consent of his coowner has not been obtained.

Appellant Holt, therefore, actually has no cause or right of action in this proceeding.

The trial court found that Mrs. Hil-burn, the other co-owner, did not sign either of the plats, but knew of the construction and made no protest and had, therefore, acquiesced under the holding in the case of Superior Oil Producing Co. v. Leckelt, 189 La. 972, 181 So. 462 (1938).

We have considerable reservations as to the applicability of this case dealing with mineral servitudes to the present situation, but do find that there was “acquiescence” on Mrs. Hilburn’s part under the St. Julien doctrine as first established by the Louisiana Supreme Court in 1883 in St. Julien v. Morgan La. & Texas Railroad Co., 35 La.Ann. 924.

The St. Julien doctrine has been recently held inapplicable to a “discontinuous apparent” servitude such as an electric power transmission line (held to be “discontinuous” because the act of man was required for its exercise) in Lake, Inc. v. Louisiana Power & Light Co., 330 So.2d 914 (La.1976). However, the Louisiana Supreme Court made the following statement in overruling St. Julien v. Morgan La. & Tex. RR Co., supra and other cases depending upon the doctrine:

However, the St. Julien doctrine has become a rule of property, probably relied on by utilities since its establishment. Because the doctrine has been so entrenched and repeatedly affirmed by this court, the ruling in this case, as to property not involved in this suit, will be prospective only, affecting conduct occurring after the finality of this judgment.

We find that Mrs. Hilburn’s knowledge of the existence of the 3008 + feet of 24" drainage pipe in the ground without protest from 1974 to the filing of the present suit in January of 1978 falls within the quoted exception in Lake, Inc., supra. Mrs. Hil-burn testified she thought the Canes had put the drain in and had no objection to it until erosion took place along and at the southern end of the pipe. She admitted she did not call upon the Canes to correct the problem.

Although the St. Julien doctrine seems to have been applied to more cases involving railroad rights of way, it was not limited to such. It was based upon “occupancy and use of the property by a public utility, with the knowledge, consent or acquiescence of the landowner” and not upon the lapse of any specific prescriptive period. The cases were founded upon the “combined presumed consent of the owner of the land and the public interest.” (Gumbel v. New Orleans Term. Co., 186 La. 882, 173 So. 518).

The owner of the land is presumed to have yielded, without an expropriation suit having been brought against him, what an expropriation suit would have compelled him to yield.” Gumbel, supra.

In the present case the City of Bossier City had the right of expropriation for this drainage servitude. Louisiana Revised Statutes 33:401A(20) and 33:4621.

Even though the landowner is not permitted to reclaim his land under St. Ju-lien, he is permitted to claim compensation for the taking.

Therefore, we affirm the judgment of the trial court at appellants’ cost, reserving to Mrs. Hilburn her right to seek compensation for the taking and to both appellants any other rights to damages they may have arising out of the city’s use of the servitude, including erosion along or at the end of the drainage pipe laid in the servitude. The damages alleged alternatively in the original petition were shown by the record to have been in the nature of costs to remove the pipe and restore the plaintiffs’ land to its former condition rather than to compensate plaintiffs for any damages they might be due on account of erosion.