text:
    Laura L. Moga, wife of Norris Paul DUBROC v. Norris Paul DUBROC.
    No. 66902.
    Supreme Court of Louisiana.
    Sept. 4, 1980.
    Rehearing Denied Oct. 6, 1980.
    Roger I. Dallam, Greenberg & Dallam, Gretna, for plaintiff-applicant.
    J. Wensles Parra, Jr., New Orleans, for defendant-respondent.
   DENNIS, Justice.

The issue presented by this child support case is whether a court may enforce an agreement between divorced parents to suspend the mother’s right to receive child support payments under a judgment while the father supports and maintains the child in his own home. The trial court refused to enforce the agreement and awarded the mother a judgment for past due support payments. The court of appeal reversed, concluding that the agreement to suspend support payments was enforceable. 380 So.2d 672 (La.App. 4th Cir. 1980). We affirm. An agreement between divorced parents to suspend the mother’s right to receive child support payments while the father supports and maintains the child in his own home is enforceable if it promotes the best interest of the child.

Laura Moga and Norris Dubroc were divorced on January 10, 1975. The trial court gave custody of their two children, Aubry and Deborah, to Ms. Moga and ordered Mr. Dubroc to pay $250 per month in child support. In the early part of February, 1975, however, Ms. Moga no longer wanted custody of her son, Aubry, and she proposed to Mr. Dubroc that he care for the child. In exchange for the custody, he told Ms. Moga that he would pay only $125 per month, a pro rata reduction of the child support award. Although Ms. Moga’s testimony is equivocal about her assent to the reduction, the evidence indicates clearly that she agreed to the reduction of the alimony in exchange for relief from her obligation to take care of Aubry. For the next four years the parties fulfilled the conditions of their custody/support agreement. Mr. Du-broc continued to take care of the son while paying Ms. Moga $125 per month in support of their daughter. Neither party complained of the arrangement until Ms. Moga instituted this rule to make past due support executory.

In the present matter, Ms. Moga seeks to recover past due child support to which the 1975 judgment allegedly entitles her. Mr. Dubroc filed a cross rule seeking a change of custody of Aubry. The trial judge found in favor of the plaintiff on the arrearages, and ordered the defendant to pay $4,500 in past due support. He concluded that the only manner in which a court-ordered child support obligation could be altered is through a suit properly instituted. He rendered judgment in Ms. Moga’s favor for past due child support. Regarding future custody and support, however, the trial court awarded custody of Aubry to his father and reduced support payments to $150 per month. Mr. Dubroc appealed only from the judgment for past due child support.

In reversing the trial judge on the issue of arrearages, the court of appeal found that the parties orally agreed to reduce Mr. Dubroc’s support payments and to put Au-bry in his custody. The court concluded that this agreement was more than a wife’s acquiescence, and the husband was due credit for the child’s support in accordance with the agreement. Supporting its holding, the court of appeal distinguished Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), which the trial judge relied upon, stating that Halcomb involved unilateral action by the husband in reducing his support payments.

We agree with the court of appeal that the evidence shows that Ms. Moga and Mr. Dubroc orally agreed to alter the 1975 custody decree. The wife voluntarily assented to a 50% reduction in support payments during the time the child was to live with his father. Nothing in this arrangement affected the welfare of the children, and, in fact, it appears that the change of custody served their best interests, for Ms. Moga found that she could not capably care for her son. Our problem is to determine if the court of appeal properly distinguished Hal-comb, which contains language indicating that divorced spouses cannot alter a custody decree by conventional agreements.

In Halcomb we held that a husband could not unilaterally reduce his child support payments by a proportionate amount because one of several children has reached the age of majority. The wife’s failure to complain during the six years between the custody decree and her rule to make past due child support executory was of no moment, for under settled law, the wife’s mere acquiescence in the husband’s failure to pay the full amount of support does not amount to a waiver. Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954); Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950); Snow v. Snow, 188 La. 660, 177 So. 793 (1937). We stated in Halcomb,

“Reduction of or discharge from a judgment condemning one to pay alimony must . . .be sued for by the party against whom the judgment was rendered. ... In the absence of such suit, however, the judgment cannot be altered or modified . . . except in certain instances where the award is terminated by operation of law. An example of an automatic revocation of alimony is when an award in favor of a wife is revoked when she remarries.” La.C.C. art. 160.

Our Halcomb opinion, though it dealt specifically with unilateral action by the husband to reduce his child support payments, may be read to apply to all cases in which the parties attempt to change the support award out of court.

Halcomb and the cases upon which Hal-comb relies (e. g., Pisciotto, supra) rest on a strong policy in the area of child custody judgments to safeguard the sanctity of judgments and the orderly processes of law, and to prevent husbands from invoking “self-help.” It is an effort by the courts to prevent overreaching by husbands compelled to pay estranged wives support for their children. The cases have interpreted Civil Code Article 232 to require this result, namely, to require parties to resort to the courts for any alteration in a custody decree.

We find nothing in the Civil Code or the Code of Civil Procedure to compel the interpretation set forth in Halcomb et al. Article 227 of the Civil Code provides:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

Article 230 provides:

“By alimony we understand what is necessary for the nourishment, lodging and support of the person who claims it. “It includes education, when the person to whom the alimony is due is a minor.”

Article 232, which is directly at issue herein, provides:

“When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted, (emphasis added)

Under the Code of Civil Procedure, the proper method for obtaining alimony ar-rearages is through a contradictory motion to have the amount of past due alimony determined and made executory. La.C.C.P. art. 3945.

The Civil Code nowhere mandates a lawsuit for a change in alimony, and the Code of Civil Procedure merely provides for the proper procedure in seeking arrearages. This Court in Halcomb and earlier in Pis-ciotto engrafted a jurisprudential rule onto the alimony statutes to the effect that absent a lawsuit to alter an alimony decree the plaintiff in a rule for arrearages would be entitled to the full amount under the prior judgment up to three years prior to the rule.

This Court has recognized that the duty of a parent to support his children is an obligation imposed by law. La.C.C. arts. 227, 229; Fazio v. Krieger, 226 La. 511, 76 So.2d 713 (1954). However, care must be taken, as Planiol observes, not to confuse the special duty imposed on a father and a mother toward their children with the more general obligation called the alimentary obligation. 1 M. Planiol, Civil Law Treatise, pt. 2, § 1682 at p. 40 (12th ed. La.St.L.Inst. Transl.1959). The child is the veritable creditor of each parent’s unilateral obligation for his upbringing, with the special expenses it entails. Planiol, § 1682. Despite the wording of Article 227, quoted supra, what obliges parents to nourish and rear their children is the fact of maternity or paternity and not that of marriage. Planiol, § 1681. To facilitate the enforcement of this obligation, however, each spouse is given, in his or her own name, a right of action against the spouse without custody to compel him or her to turn over in advance the money necessary to contribute toward the child’s maintenance. Walder v. Walder, 159 La. 231, 105 So. 300 (1925); Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974), writs refused 293 So.2d 187 (La.); cf. La.R.S. 9:291; La. C.C.P. art. 3945; Planiol, § 1686.

Since the parent’s duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended. There is no prohibition, however, expressed by the law against a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance. Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i. e., the enforcement of the child’s right to support and upbringing.

For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.

Applying these precepts to the present case, we conclude that the agreement between Ms. Moga and Mr. Dubroc to suspend one-half of the child support payments attributable to the maintenance of their son Aubry while he was being cared for in his father’s home is enforceable. Accordingly, Ms. Moga was not entitled to judgment for child support payments with respect to the amount she agreed to suspend during this period.

For the foregoing reasons, we affirm the judgment of the court of appeal.

AFFIRMED.

MARCUS, J., dissents, being of the opinion that the ruling of the trial judge was correct.

      The Honorable Gerald P. Fedoroff participated in this decision as an Associate Justice pro tempore.

      . Actions for arrearages in alimony prescribe in three years. La.C.C. art. 3538.

      . “Care must be taken not to confuse the special duty imposed upon a father and a mother toward their children with the much more general obligation called the alimentary obligation. The alimentary obligation is reciprocal in nature. The duty of parents toward their minor children, by its very nature, is unilateral. The alimentary obligation lasts throughout life. The duty of parents ceases at their child’s majority. After its majority, a child may still have a right to receive sustenance, but under the ordinary conditions applicable to it, that is when it is in need. Its upbringing, with the special expenses it entails, is finished.”

      . Neither the parents nor a court decree can permanently set aside the duty of support. Walder v. Walder, supra. In fact, according to Aubry & Rau, “A person competent to make a renunciation may only renounce rights or faculties established in his private interest. On the contrary, rights or faculties accorded to a person in the interest of public order rather than in his private interest are not susceptible of becoming the object of a renunciation. The same is true of rights which, according to their nature, are to be considered as placed out of commerce or as excluding any convention. Thus, one may not renounce rights deriving from marital or paternal authority on the persons, respectively, of the wife or children. Nor can one renounce the attributes and the qualities of status or alimonies due by virtue of the law or of an act of liberality.” 4 C. Aubry & C. Rau, Droit Civil Francais, § 323 (6th ed. Bartin 1942), in A. N. Yiannopoulos, 1 Civil Law Translations 219 (1965).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Billy Don McMILLIN.
    No. 66960.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin Ware, Dist. Atty., Paul D. White, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Kevin W. Toups, Sooter & Toups, Alexandria, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information on October 9, 1973, with simple escape, in violation of La.R.S. 14:110. After trial by jury, December 12, 1979, he was found guilty of attempt simple escape. La. R.S. 14:27; 14:110. On December 18, 1979, the trial court sentenced him to two years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court urging three assignments of error. We find merit in assignment of error number one, which challenges the trial court’s denial of a motion to quash on grounds that the state had not brought defendant to trial within two years of the institution of prosecution, as required by La.C.Cr.P. Art. 578. On the record before us, we find that the state has made no effort to justify its failure to pursue defendant’s return from incarceration in Texas within the applicable time limitation, despite full knowledge of his whereabouts. Accordingly, we remand this case to the trial court for reconsideration of the question in light of our recent opinion in State v. Devito, La., No. 67,261, (July 6,1980).

In July, 1972, defendant was sentenced to four and a half years’ imprisonment at hard labor on his plea to a charge of attempt simple burglary. La.R.S. 14:27; 14:62. On July 24, 1973, he was transferred from the state penitentiary at Angola to the work release program at Camp Beauregard in Pineville, Louisiana. On September 26, 1973, defendant travelled to the Huey P. Long Hospital in Baton Rouge for a hernia operation. While at the hospital, he managed to escape from custody and made his way to Texas, where he was arrested on a charge of grand larceny in October, 1973. That charge eventually led to his conviction and sentence to six years’ imprisonment in Texas. In the meantime, a charge of simple escape was filed by the District Attorneys Office in Rapides Parish on October 9, 1973.

On October 26, 1973, the Rapides Parish Sheriff’s Office wrote to the authorities in Dallas, Texas to confirm the fact of defend-

ant’s arrest. That letter advised the officials in Texas of the pending simple escape charge in Louisiana and added that “[i]f you decide to release him to us first, it will be greatly appreciated.” “If he will waive extradition,” the letter closed, “we will come immediately to pick him up.” The record does not disclose whether the Texas authorities ever responded to the letter. Nor does it indicate whether the state then took any other steps to secure defendant’s return from Texas at any time during his incarceration in that state. The Texas authorities eventually released defendant to the custody of Louisiana officials in June, 1979. The trial on the escape charge in Rapides Parish followed shortly thereafter.

La.C.Cr.P. Art. 578 states that “. no trial shall be commenced . . . [i]n . felony cases [other than capital cases] after two years from the date of institution of the prosecution . . .”. La.C.Cr.P. Art. 579 provides, however, that the time limitations established by Art. 578 “. . . shall be interrupted if . [t]he defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state . . .”. Art. 579 further provides that the time limitations of Art. 578 “shall commence to run anew from the date the cause of interruption ho longer exists.”

The state instituted prosecution of the escape charge on October 9, 1973, at a time when defendant was a fugitive and his whereabouts were, presumably, unknown. By October 26, 1973 at the latest, however, the authorities in Rapides Parish had learned about defendant’s arrest in Texas and his custody by officials there. The defense thus argued below that, even given the interruption of the time limitations in Art. 578 caused by defendant’s flight, the two-year period began running anew no later than October 26, 1973. In support of this position, defendant took the stand at the hearing on the motion to quash and testified that he had written two letters from Texas to the authorities in Rapides Parish in April, 1975. He sent the first to the clerk of court, and the second to the sheriff’s office. Both letters, defendant claimed, asked about the existence of any charges arising out of his flight to Texas, the letter to the clerk also expressing the desire for a “fast and fair trial” in that regard. In light of this testimony, the defense argued that defendant had affirmatively sought to bring matters to a head on the escape charge. Trial on that charge, according to the defense, therefore prescribed in October of 1975, two years after the authorities first learned of defendant’s whereabouts.

Defendant’s testimony, however, was rebutted at the hearing by witnesses from the clerk’s office and sheriff’s department. In view of the conflict, the trial court was “. . . just not satisfied from the copies of the letters that were filed in evidence, that these were actually sent at the time, because none of the addresses received them.” Relying on our decision in State v. Dupree, 256 La. 146, 235 So.2d 408 (1970), the trial court thus denied the motion to quash. In Dupree, this Court held that the interruption of limitations under Art. 579 created by defendant’s flight to, and subsequent incarceration in, another state did not end simply with the state’s knowledge of his whereabouts. “The interruption continued,” we noted, 235 So.2d at 411, “because herein the State of Louisiana exercised its discretion not to pursue the prosecution, and defendant himself made no attempt to bring about a termination of the interruption.”

The trial court’s reliance on Dupree was misplaced. In State v. Devito, supra, we have now made clear that whatever the affirmative burdens placed on defendant in this regard, Art. 578 “mandat[es] trial within two years after institution of [the] prosecution unless the state can show a valid and continuing interruption under Art. 579.” In Devito, the state learned of defendant’s arrest by the authorities in New Jersey one day prior to filing an information charging him with robbery in February 1977. Despite initial efforts at extradition, it did not secure defendant’s return from New Jersey until November, 1979, more than two years after the institution of the prosecution. We found that the state had not, in fact, diligently pursued defendant’s return to Louisiana and held that the delay barred defendant’s trial. We also noted that “[t]o the extent that Dupree would permit the state to delay commencement of trial without bearing the burden of showing valid reasons therefor under the exceptions set out in Art. 579, that case is overruled.”

At the time of the trial court’s ruling on the motion to quash, Dupree was still good law. Therefore, we now remand this case to the trial court for consideration of the state’s position under Devito. The state is to be given opportunity at a new hearing to explain what efforts it made to secure defendant’s return from Texas in addition to the letter sent on October 26, 1973. In the event the state presents additional evidence on that question, and the trial court finds on the basis of this evidence that a good faith effort under Devito had been made, we reserve to defendant the right to appeal that adverse ruling. We also reserve to that appeal, if it is taken, consideration of defendant’s other assignments of error.

CASE REMANDED.


text:
    STATE of Louisiana v. Steve MARCANTEL and Delouis Guillory.
    No. 66985.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William Pucheu, Dist. Atty., A. Bruce Rozas and Richard W. Vidrine, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Guy 0. Mitchell, Ville Platte, for Steve Marcantel, defendant-appellant.
    John Saunders, Ville Platte, for Delouis Guillory, defendant-appellant.
   PER CURIAM.

Defendants Steve Marcantel and Delouis Guillory were charged by bill of information with the crimes of simple burglary, La.R.S. 14:62, and theft, La.R.S. 14:67, committed on November 6, 1978. Thereafter, they were tried before a twelve person jury, which found them guilty as charged. The trial court sentenced each defendant to serve ten years at hard labor on the burglary charge and six years at hard labor on the theft charge, the sentences to run consecutively. Defendants now appeal, relying upon eight assignments of error. Because we find merit to assignment of error number four, relative to the improper composition of the jury, we pretermit consideration of the remainder.

Article I, Section 17 of the 1974 Louisiana Constitution provides that “[a] case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons . . . ” See also, La.C.Cr.P. Art. 782.

Both crimes with which these defendants were charged were punishable with or without hard labor, La.R.S. 14:62 and La.R.S. 14:67; consequently by constitutional mandate, they were triable before a six person jury. For the reasons assigned in State v. Smith, 367 So.2d 857 (La.1979), defendants’ convictions and sentences are reversed, and the case is remanded to the district court for a new trial.

REVERSED.

DENNIS and LEMMON, JJ., dissent. See State v. Nedds, 364 So.2d 588 (La.) (Dissenting opinion).


text:
    STATE of Louisiana v. Manfred M. DELGADO.
    No. 67253.
    Supreme Court of Louisiana.
    Sept. 10, 1980.

      Winston W. Purvis, and Ralph S. Whalen, Jr., Oestreicher, Whalen & Rothschild, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

We granted certiorari to review defendant’s claim that the trial court abused its discretion in denying his motion to withdraw a plea of guilty before sentence, La.C. Cr.P. Art. 559, and that, under the circumstances, his plea was not knowingly and intelligently made, or voluntary. On the record before us, we agree with defendant, vacate his sentence, and remand the case for further proceedings.

Defendant was charged by bill of information with possession of marijuana in violation of La.R.S. 40:967(D). On November 9, 1979, he tendered a plea of guilty as charged under the provisions of La.R.S. 40:983. That statute authorizes the trial court, “. . . without entering a judgment of guilt . . . [to] defer further proceedings and place [the defendant] on probation upon such reasonable terms and conditions as may be required.” The trial court accepted the tender of the plea “. . . contingent on the return of the presentence investigation.” “If there’s any previous convictions,” the judge informed defendant, “the Court will not accept it.”

On January 20, 1980, the day of sentencing, counsel learned that the presentence report recommended against probation, although defendant apparently had no record of prior convictions. Counsel therefore moved the court to set aside defendant’s plea. The trial court turned the motion aside, and imposed the maximum penalty under La.R.S. 40:967 for a first offense, a sentence of six months imprisonment, and a fine of five hundred ($500.00) dollars.

La.C.Cr.P. Art. 559 provides that “[t]he Court may permit a plea of guilty to be withdrawn at any time before sentence.” Discretion to permit the withdrawal of a guilty plea is vested in the trial judge. State v. Compton, 367 So.2d 844 (La.1980). That discretion, however, is not unfettered, and its exercise in an arbitrary manner may be corrected by this Court. State v. Compton, supra; State v. Baudoin, 334 So.2d 186 (La.1976). We have held that a “[defendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated.” State v. Deakle, 372 So.2d 1221, 1222 (La.1979). We have also cautioned, however, that “[d]ue process will not allow a judge to cancel a plea agreement without a contradictory hearing or permit him to impose a heavier sentence than bargained for without permitting withdrawal of the guilty plea.” State v. Chalaise, 375 So.2d 107 (La.1979).

In this case, defendant entered his plea of guilty in contemplation that he would receive the special sentencing benefits of La.R.S. 40:983. The trial court gave him express assurances in that regard, conditioned only upon the return of a presen-tence report indicating a record free of past convictions. The court outlined the alternative in the event that the report came back unfavorably: that the tender of the guilty plea, i. e. the entire plea arrangement under La.R.S. 40:983, would be cancelled.

The presentence report may have given the trial court a basis for changing its mind apart from the question of defendant’s pri- or record. We think it clear, however, that defendant was entitled to rely on the trial court’s initial assurance that his past record would control the outcome in the case when he entered his plea. He was also entitled to rely on the trial court’s representation that it would not accept the plea in the event of an unfavorable presentence report. By not giving defendant the opportunity to withdraw his plea under these circumstances, the trial court nullified the necessary affirmative showing that the plea was knowingly made, and voluntary. State v. Chalaise, supra.

Accordingly, we vacate the sentence in this case and remand to the trial court. The trial court is to determine, after a contradictory hearing, whether to fulfill its initial sentencing commitment, or allow defendant to withdraw his plea of guilty. In the event the trial court adopts the latter course, defendant may, in addition to withdrawing his plea of guilty, elect trial of the case before a different judge. State v. Chalaise, supra.

SENTENCE VACATED AND CASE REMANDED.

       The presentence report was not made a part of this record. It is therefore unclear why defendant was not recommended for probation. The state concedes in brief, however, that defendant has no history of previous convictions.

       Defendant also challenges his sentence as ex-cessiveness. We do not reach that question in view of our disposition here.


author: MARCUS, Justice.

text:
    STATE of Louisiana ex rel. Clarence BRENTLY v. Hayden J. DEES, Warden, Dixon Correctional Institute, et al.
    Nos. 65253, 65315.
    Supreme Court of Louisiana.
    Sept. 12, 1980.

      Jennifer N. Willis, New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, J. Marvin Montgomery, Asst. At-tys. Gen., for defendants-respondents.
   MARCUS, Justice.

Clarence Brently instituted this action in the Nineteenth Judicial District Court, Parish of East Baton Rouge, against the warden of Dixon Correctional Institute, the Secretary of the Department of Corrections and the governor of the State of Louisiana, seeking correction of the manner in which his prison sentences were computed. Defendants filed a peremptory exception of no right of action. The trial judge sustained the exception and dismissed Brently’s suit. Upon Brently’s application, we granted cer-tiorari to review the correctness of this ruling.

On October 5, 1972, relator appeared before Judge Fred S. Bowes, Twenty-Fourth Judicial District Court, Parish of Jefferson, and entered a plea of guilty tp possession of heroin with intent to distribute, a violation of La.R.S. 40:971. He was sentenced to serve fifteen years at hard labor. Execution of the sentence was suspended and he was placed on probation for five years (No. 72-944).

On October 29, 1973, relator appeared before Judge Nestor L. Currault, Jr., Twenty-Fourth Judicial District Court, Parish of Jefferson, and entered a plea of guilty to distribution of heroin, a violation of La.R.S. 40:966(A). Relator was sentenced to serve fifteen years at hard labor. The court directed that the sentence be served concurrently with any sentence defendant was then serving (No. 73-1093).

Subsequently, Judge Bowes ordered relator’s probation in No. 72-944 revoked and the sentence previously suspended made ex-ecutory. He further directed that the sentence run consecutively with any other sentence defendant was then serving.

The Department of Corrections has computed relator’s sentences as being consecutive. Relator contends his sentences are concurrent as ordered by Judge Currault. The issue, then, is which judge, Judge Cur-rault, Judge Bowes, or both, had authority to determine whether relator’s sentences were to be served concurrently or consecutively.

La.Code Crim.P. art. 901 provided as follows at the time of the revocation of relator’s probation:

When a defendant who is on probation for a felony commits and is convicted of a felony under the laws of this state, another state, the United States, or the District of Columbia, his probation may be revoked as of the date of the final conviction of the felony.
When a defendant who is under a suspended sentence or on probation for a misdemeanor commits and is convicted of any offense under the laws of this state, a political subdivision thereof, another state or a political subdivision thereof, the United States, or the District of Columbia, his suspended sentence or probation may be revoked as of the date of final conviction of the offense.
In cases of revocation provided for in this article:
(1) No credit shall be allowed for time spent on probation or for time elapsed during suspension of the sentence; and
(2) When the new conviction is a Louisiana conviction, the sentence shall run consecutively with the sentence for the new conviction, unless the court orders that they be served concurrently.

Under this article, “the court” could order that the sentences be served concurrently. Unfortunately the article was not explicit as to which court it refers, the court granting the suspension or probation or the court sentencing for the second offense, or both. Nevertheless, we consider that the court originally granting the suspension or probation was the only one authorized to determine whether the sentences were to be served concurrently or consecutively.

Generally, a court may amend or change the sentence imposed, within the legal limits of its discretion, only “prior to the beginning of execution of the sentence.” La.Code Crim.P. art 881. Hence, absent express statutory authority, an imposed sentence cannot be amended or changed after its execution has commenced. Article 901 permits a limited exception to this rule. It provided that, upon a final conviction of another felony, or in some cases, another misdemeanor, the court may revoke the suspension or probation. In such an event, the article authorizes the court to modify the originally imposed sentence to the extent of making the term of imprisonment consecutive with the sentence for the new conviction unless the court orders that they be served concurrently.

A court may suspend execution of the sentence imposed or may suspend the imposition of the sentence. In either case, it is discretionary with the court. We consider that it would be an unwarranted invasion of the discretion of the court that originally granted the suspension or probation to interpret art. 901 as allowing the court sentencing on the second conviction to determine how the originally imposed term of imprisonment or the sentence whose imposition had been suspended will be served in the event the court that originally granted the suspension or probation decides to revoke the suspension or probation.

Moreover, while La.Code Crim.P. art. 883 is authority for a court to order that a sentence of imprisonment be served concurrently or consecutively, where a court has granted suspension or probation, the court imposing a term of imprisonment for another conviction has no authority under this article to direct that it be served either consecutively or concurrently with a sentence whose execution or imposition has been suspended. Additionally, where the execution or imposition of a sentence has been suspended, the sentence may never become executory because revocation of suspension or probation is discretionary with the original court.

In sum, we conclude that “the court” in art. 901 refers to the original court granting the suspension or probation and not to the court imposing the sentence for the conviction of another offense. Accordingly, in the instant case, Judge Bowes, upon revoking relator’s probation for his final conviction of another felony, had the authority to order that relator’s sentence be served consecutively with the term of imprisonment imposed by Judge Currault.

Our conclusion is supported by the legislative history of art. 901. Prior to the enactment of art. 901 in 1966, La.R.S. 15:538 provided “the court granting such suspension,” upon final conviction of the second offense “shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment.” With the enactment of the Code of Criminal Procedure, 1966 La. Acts, No. 310, several changes were made in probation revocation procedure and were noted in the Official Revision Comment. Among them were the placing of revocation and concurrent or consecutive running of the sentences within the discretion of the court. However, the Official Revision Comment does not mention any change in which court has authority to determine whether the sentences are to run concurrently or consecutively. Because the Comment mentions other changes but omits mention of this change, it seems clear that none was intended. Moreover, we note that the legislature in 1977 changed art. 901 to provide that “the court originally imposing the suspension or probation” is the only one with authority to determine whether the sentences are to run concurrently or consecutively. Because we had not previously construed art. 901 to the contrary, we are of the opinion that the 1977 change was merely a clarification of the legislative intent.

DECREE

The judgment of the district court dismissing relator’s suit is affirmed.

      . 381 So.2d 1214 (La.1980).

      . Another exception to this rule is provided by La.Code Crim.P. art. 894: “The court may suspend a misdemeanor sentence after the defendant has begun to serve the sentence.”


author: EDWARDS, Judge. LEAR, Judge,

text:
    Joanne JAMES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 13072.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1980.
    Opinion After Remand July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Risley C. Triche, Napoleonville, Johnny S. McGary, Ponchatoula, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendants.
    Before EDWARDS, LEAR and GREENE, JJ.
   EDWARDS, Judge.

Joanne James, plaintiff-appellant, sought damages on behalf of her minor son for injuries he suffered when involved in an auto-pedestrian accident. Pursuant to a jury verdict finding no negligence on the part of the defendant, Kenneth L. Dupont, judgment was rendered against the plaintiff, who appeals. We remand.

We find that a fair and complete review of this case cannot be made without an examination of all the jury charges, both as proposed by all parties and as actually delivered by the trial court.

LSA-C.C.P. Art. 2132 provides:

“A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, and by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.”

Under the authority of LSA-C.C.P. Art. 2132, we remand this case. All charges of the trial court, as actually delivered, are to be transcribed. All charges proposed to the trial court by both plaintiff and defendant are to be included in the record.

REMANDED.

OPINION AFTER REMAND

Joanne James, plaintiff — appellant, sought damages on behalf of her minor son for injuries he suffered when involved in an auto-pedestrian accident. Pursuant to a jury verdict finding no negligence on the part of the defendant, Kenneth L. Dupont, judgment was rendered against the plaintiff, who appeals. We affirm.

Robert Lee James, a four-year-old child, was injured on April 9, 1977, when struck by a car driven by Kenneth L. Dupont. The accident occurred on Louisiana Highway 445 in Tangipahoa Parish.

The defendant’s basic contention was that Robert James simply darted in front of his car making it impossible to avoid the accident even though Dupont immediately braked and swerved his car. A key witness for the defense was Liska Laurant, whose testimony buttressed Dupont’s. She testified in part as follows:

“Q. Let me ask you this. When did you first see children? That day?
A. I saw them when they come across the lane . . . see they was on
this side of the ditch. They got a little ditch . . . little drain
like, and then they past that little drain and I don’t know they must have been standing off from here, I couldn’t see them there . you see the window when they got off from the wall. . you see it’s a wall back . but I saw this baby when he broke and run. When this baby broke and run.
Q. By himself?
A. Yes sir.
Q. Could you tell the jury how he broke and run?
A. He just took off . . . just took off, and I asked my daughter. I said who children is that.
Q. When you asked your daughter whose children is that when he broke and run?
A. Yes sir.
Q. That’s when you asked her?
A. Yes sir.
Q. Where did he run to?
A. Run direct direct to the road.
Q. Did he go in the road?
A. Yes sir . . . made a little curve like ... he run . he really run, right straight to the road. Right straight.” (T 389-390)
Evidently the jury believed Mrs. Laurant and Dupont’s version of the accident, since they unanimously found Dupont not to be negligent.

On appeal, plaintiff specifies four errors were made by the trial court.

1) The jury verdict, finding no negligence on behalf of Kenneth L. Dupont, was not based upon essential and correct legal principles and is contrary to law and evidence and clearly wrong, and manifestly erroneous.
2) The trial court erred in its instruction to the jury in charging the jury on general negligence but failing to instruct the jury on the particular duty owed by motorists to pedestrians.
3) The trial court erred in charging the jury on a presumption of regularity in favor of a motorist.
4)The trial court erred in failing to give special charge Number l, requested by plaintiff, relative to the duty of motorists to pedestrians, and duty to constantly observe.

Specification 1 simply urges that the jury’s decision was wrong. Based on a careful review of the entire record, we find ample evidence to support the jury’s finding. There was no manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Specifications 2, 3 and 4 object to the giving or not of particular jury charges. A meaningful jury trial includes proper instructions by the court. Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La. App. 3rd Cir. 1978). In this case, we cannot say that the jury instructions were such as would mislead the jury as to the law or to the application of the law to the facts. Far from it, the instructions given demonstrate the trial court’s proper concern for pedestrians and particularly children.

Appellant urges that the jury verdict was not based on essential and correct grounds and that, therefore, this court should make its own factual determination of the case. Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975).

While there is no manifest error in the trial court instructions which would, as in Gonzales, require us to render a verdict, we note that, based on the facts, we would arrive at the same result as did the jury.

The present case differs from Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La. 1979), and other cases of that sort. In Dufrene, a child in plain view on the road-wáy was being pushed on a tricycle by other children when he suddenly swerved into the path of a motorist. Because he had clearly observed the children and their activity in the roadway from a distance of several hundred yards and because he had failed to reduce his speed, sound his horn, or take any other preventive action, the motorist was held liable for damages caused by the ensuing accident.

In the case at bar, several children, including Robert Lee James, were playing near a large oak tree some twenty-nine feet from the highway. Furthermore, shade from the oak extended to the highway’s midpoint. Upon rounding a curve, defendant Dupont testified that he observed the scene and slowed down, but that suddenly young James simply darted across the highway making the accident inevitable.

The jury heard all the witnesses, examined the evidence, was properly instructed, and concluded unanimously that Kenneth L. Dupont was not negligent. We agree.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Joanne James.

AFFIRMED.

LEAR, J., dissents and assigns reasons.

LEAR, Judge,

dissenting.

Joanne James, plaintiff-appellant, instituted this suit on behalf of her four and one-half year old minor son, Robert Lee James, who was seriously injured in an automobile-pedestrian accident. The matter was tried before a jury which returned a verdict finding the defendant-driver, Kenneth L. Dupont, free of negligence and rendered a judgment against the plaintiff who now perfects this appeal. The majority today affirms the judgment below holding that it is unable to find manifest error in the refusal of the trial court to give plaintiff’s Special Charge Number 1 and that, in any event, the record supports the finding of the jury. I dissent.

The context facts are that Joanne James, appellant, left her three children, Robert Lee James, age 4 years and 7 months, Theresa James, age 6 years, and Melissa, age 1 year, with a neighbor, Jessie Lee Beckham. Jessie Lee Beckham, like Joanne Jones, lived down a lane off of Champ Cooper Road or Louisiana Highway 445 in Tangipahoa Parish. Ms. Beckham, who had minor children of her own, agreed to watch the James children while their mother went shopping. Shortly thereafter, Bridgette Beckham, age 10, her sisters, Carrie and Phyllis, age 7 and 5, respectively, Robert Lee and his sister, Theresa, age 6, all left the home of Jessie Lee Beckham to go to a grocery store across Champ Cooper Road. The Beckham house, according to the trial testimony, is located some one hundred yards east of Champ Cooper Road. The grocery store, owned by York Bailey, fronted Champ Cooper Road on the west side of the highway.

According to the testimony of Bridgette Beckham who was the oldest in the group (10), these children walked through the yard of Ben McGary, whose house fronted Champ Cooper Road, to an area very near the highway where mailboxes were located. While these children were standing on the side of the road and waiting for the Dupont vehicle to pass, Robert Lee ran, suddenly, out into the roadway and was struck by the Dupont vehicle. Robert Lee was the only child to enter the roadway.

Defendant Dupont was age 31 at the time of the accident and had resided in Tangipa-hoa Parish all of his life. He testified that he was familiar with that area of the parish because he had lived near there. He also testified that he had been previously employed as a school bus driver and had transported children to a school within one mile of the accident.

His trial testimony was to the effect that he was proceeding from south to north along Champ Cooper Road. His vehicle was in the west lane or that lane nearest to where the children were standing. Dupont testified that there is a curve in the road south of the point where the children were standing and that as he cleared the curve he saw both a tractor-trailer approaching him from the north and children walking on the shoulder of the road. When questioned about his speed, Dupont stated that he was driving at a speed of 55 miles per hour but slowed his vehicle after he observed the tractor-trailer approaching and the children on the shoulder of the highway. His testimony that he reduced his speed conflicted with the entry made by the investigating state trooper who stated that defendant admitted he was going 55 miles per hour when the accident occurred. Nor is there any dispute with defendant’s assertion that he was closer to the curve than to the children when he first saw them.

Shortly after the accident, pictures were taken of the scene by both plaintiff and defendant. (See D-l, D-5, P-6, 7, 8 and 9.) These photographs show that section of the road where the accident occurred, the skid-marks left by defendant’s vehicle, a 1976 Grand Prix Pontiac, and the rut markings where the car came to rest in a ditch.

Plaintiff called and qualified Dr. Olin K. Dart, Jr., a professor of civil engineering at Louisiana State University. Dr. Dart testified that he had conducted tests at the site of the accident and had examined certain pictures filed in evidence which were taken shortly after the accident by both the plaintiff and defendant. He stated that his examination and measurements along Champ Cooper Road revealed that the curve referred to by defendant is some 760 feet away from the “mailboxes” near which the children were standing; that in addition to the straightaway distance of 760 feet, that portion of the curve just prior to the straightaway-some 390 feet of it-also provides an unobstructed view. Dart testified that a motorist-as here-traveling south to north could and should see the mailbox, roadway and shoulder of the road in front of Ben McGary’s house. This total distance was measured to be 1150 feet.

The testimony most damaging to defendant’s position that the accident was unavoidable and that he was driving at a safe and prudent speed is that relating to the skidmarks. Dr. Dart’s analysis of the skid-marks shown in the picture exhibits was as follows:

“Q. Doctor Dart can you then determine from the measurements you made, and the diagram, the amount of skidmarks laid down on the roadway by the Dupont vehicle?
A. Yes sir. The left front wheel . the length of this skidmark is approximately 115 feet, and this rear track appears to be closer to 140 feet. If you like I will scale them off of here and get more precise.
Q. Please do that.”
***** *
“Q. The longest skidmark you see would be the left front?
A. The left rear is the longest one I see on the pavement. Its about 180 feet.
Q. Doctor can you tell us the distance the vehicle came to rest from the spot where the vehicle came to rest and where you saw the first sign of skidmarks in the photographs?
A. Very close to 200 feet.”
******
“Q. Doctor based on your observation of the skidmarks in these photographs, and assume that the skidmarks are accurately shown on the photographs and assume the vehicle came to rest at the point in the ditch as shown by the photographs which indicates . . . • shows ruts in the ditch, can you, from that, and the observations and measurements that you made, compute the minimum speed of this vehicle at the time the brakes were applied? ******
“Q. Doctor what is your estimate of the speed of the vehicle based on those skidmarks?
A. 61 miles an hour.
Q. What were the skidmarks that you measured again now for the other wheels . . . you were talking about the left front then . what about the skidmarks for the others?
A. Well the left rear went about 180 feet out on the pavement, and the remaining 20 feet, approximately, on the shoulders, so the estimate of speed from that wheel would have been higher.
Q. How much higher?
A. I did not figure that, but I can. That would be 64 miles an hour.
(See record, Pp. 204-280.) ******

Against the backdrop of the testimony outlined above, plaintiff requested that the jury be given Special Charge Number l. The trial court refused and plaintiff assigned error.

In all jury cases, the trial court must charge the jury on the principles of law which apply to the facts of each particular case. Consistent with the evidence herein, the plaintiff and defendant are equally entitled to request that special charges be given as that cited in footnote 4. I am of the opinion that the plaintiff was legally entitled to have the jury instructed on this critically important legal principle. Arcen- eaux v. Domingue, 365 So.2d 1330, 1334 (La. 1978).

In Gomales v. Xerox Corporation, 320 So.2d 163, La.App. 1st Cir. (1975), the father and mother brought an action for the death of a 4V2 year old girl who was struck by a vehicle while crossing the highway. Our court in discussing the facts of that case observed that the failure of the trial court to instruct the jury on essentially the same elements forming the basis of Special Charge Number 1, herein, was reversible error. Plaintiff’s theory of the case at bar is that defendant Dupont was travelling on a clear day, along an unobstructed highway, at a high rate of speed and that he observed conditions of peril: (1) the tractor — trailer and (2) the presence of children on the shoulder of the highway. Given these facts-in which direction the evidence preponderates-plaintiff was clearly entitled to the requested instructions. See Pea v. Smith, 224 So.2d 37, La.App. 1st Cir. (1969).

The theory of the defense was that the defendant-driver never, in fact, saw the 4V2 year old Robert Lee; that his (Robert Lee’s) presence was concealed by other children (“people”) or by a large oak tree located some 29 feet from the highway; that suddenly, without warning, the child darted across the path of his vehicle which he had slowed to a speed of “35 miles per hour”, to avert the hazards of the road. In my opinion, the defendant does not exonerate himself from fault by any showing. He is caught up in a web of our holdings recently spun: Gonzales, supra, (1975); Ford v. Knight, 337 So.2d 1225, La.App. 1st Cir. (1976); Sanders v. English, 325 So.2d 692, La.App. 1st Cir. (1976); LaCroix v. Middle South Services, Inc. 345 So.2d 136, La.App. 1st Cir. (1977); and Baumgartner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400, La.App. 1st Cir. (1978).

The majority hinges its decision primarily on the testimony of Liska Laurent, an elderly lady who was visiting in the home of Ben McGary and who apparently observed a segment of the event described hereinabove and whose testimony — quoted in the majority opinion-nevertheless merely corroborates that of other witnesses that the child ran or “darted” across the highway. This cannot and does not excuse the negligent acts of defendant. The “obstacle” of other children, aged 4, 6, 7 and 10 years, is not the obstacle or “concealed position” contemplated in our decision in Duraso v. Barbo, 215 So.2d 908, La.App. 1st Cir. (1968). Moreover, defendant’s background as a school bus driver imputes to him a greater awareness of the rash and sudden acts of children and should clearly have caused him to reduce his speed to at least a minimum speed consistent with that of school zones.

Finally, as noted in footnote 1 of the majority opinion, the trial court gave an instruction on the presumption of regularity. Plaintiff objected thereto and assigned error. While I am disposed to reverse and to decide the other issues in this matter, see Arceneaux v. Domingue, cited supra, I want only to suggest that such an instruction was dubious at best.

For the reasons assigned, I dissent.

      . The charge objected to is as follows:
      “The mere fact that an accident happened, considered alone, does not support an inference that some party to this action was negligent. At the outset of this trial there existed in favor of each party the full benefit of the presumption of law to the effect that every person takes ordinary care of his own affairs and obeys the law. These presumptions are a form of prima facie evidence and will support findings of the jury in accordance therewith, provided that there be no evidence presented to the contrary. However, when contrary evidence conflicts with one or more of such presumptions it then becomes the duty of the jury to weigh the evidence against the presumption to determine which preponderates, if, as a matter of fact, either does preponderate. The jury’s deliberation on that score will be in consonance with the instruction given concerning burden of proof and proximate cause.”

      . SPECIAL CHARGE NUMBER 1.
      “It is the duty of one operating a motor vehicle to keep a sharp lookout ahead to discover the presence of pedestrians who might be in danger. What the motorist can see, he must see and in legal contemplation he does see. His failure to see what he could have seen by the exercise of due diligence does not relieve him from liability.
      A motorist, as operator of a dangerous instrumentality, such as a motor vehicle, creates a great risk of injury to life and limb of pedestrians and therefore, owes a duty to the public to protect it from danger. Motorists are aware that they could meet many emergencies in which pedestrians will not always act wisely or prudently and will sometimes be found in perilous situations; therefore, motorists have the additional burden of keeping roads safe even for those who are negligent.
      The law imposes on a motorist the additional burden of keeping the roadways safe when he was or should have seen impending or threatening danger and had, at the moment, the opportunity to avoid it.
      Negligence of a pedestrian, in placing himself in the path of oncoming traffic, is no defense to the charge of negligence of the motorist.
      The law imposes these burdens upon motorists in favor of pedestrians because the operation of motor vehicles creates a great risk of injury to life and limb of pedestrians, and small risk of harm to motorists from pedestrians.”

        .Gonzales v. Zerox Corporation, 320 So.2d 163 (1975), holds that if a jury verdict is based on erroneous instructions, the appellate court is not to remand but is to decide the case based on the facts. Were we to find the jury instructions to have been proper, our review of this case would be limited to an examination of whether the jury’s findings were manifestly erroneous. Arceneaux v. Domingue, supra. Should we determine that the jury instructions were erroneous, the decision would be based on our interpretation of the facts, which might result in a verdict contrary to that of the jury. Because of these differing modes of review and because all the jury charges, both proposed and actually delivered, were not included when the record of this case was initially sent up by the trial court, we remanded the case for completion of the record.

      . Included in the instructions given was the following:
      “Now in arriving at a decision you must bear in mind that the rule that an automobile driver is not an insurer of the safety of small children, when he is driving at a lawful and reasonable rate of speed, and is obeying the rules of the road as to a proper lookout, he will not be held liable where a child suddenly darts, or runs, into his path from a concealed position, in such a manner that the motorist is unable to avoid striking the child. Each case much (sic) be judged' on the particular circumstances involved. The rule is different, however, when a motorist sees, or should have seen the child near the street, for there a motorist is charged with knowledge that children playing, or walking along the street, may unexpectedly, or unpredictably, leave a position of safety for one of danger and peril. Under these circumstances a motorist is held to a high degree of care, or better said, the highest degree of care. The duty to exercise greater than ordinary care to avoid injury to a child does not become operative, or exist in favor of such child, until his presence is known, or should have been known, under the existing facts of the particular case, to the operator or driver of a motor vehicle. The motorist, upon discovering the presence of children in his path of travel, or in a position where they could become in peril, is under a duty to exercise the highest degree of care to avoid injury to them. Each case must be adjudged on the facts particular to that case.”

      . Testimony of Bridgette Beckham at Pp. 186-188:
      Q. How were you standing, do you remember where were the other children with relation to you? Now, by that I mean Bridgette, who was on which side of you, if any?
      A. Head was at the end.
      Q. Head was at the end, and where were the others?
      A. And then Theresa was by Head, and then Phyllis was third by Theresa, and then I was fourth by Phyllis.
      Q. And were was Carrie?
      A. Carrie Mae was by me.
      Q. By you?
      A. Yeah wait a minute. Phyllis was by Carrie Mae, and then Carrie Mae was by me.
      Q. So then it was Robert Lee and Theresa
      Yeah.
      . Phyllis and Carrie, and you?
      Yeah.
      Now, do you remember the car that hit Robert Lee?
      I just know it was white . . . that’s the only color I <

      That car, Bridgette, what direction did it come from? c?
      This direction.
      That direction. The direction that the car came from, and you said you all were lined up with Robert Lee, Theresa, Phyllis, Carrie Mae and You .
      Yes.
      . in the direction that the car was coming from who was closer to that direction? Closer to the car, you or Robert Lee?
      Robert. <

      Were you holding hands there on the side of the road? Were you holding hands, you and Phyllis, and Carrie, and Theresa, and Robert? O'
      I don’t know. >
      Do you know if you were holding Robert Lee’s hand? <o
      I couldn’t. >
      You couldn’t. All right. Now, did you see the car that hit Robert Lee before it hit him? o
      Yeah. >

      What did Robert Lee do? ... at the time he got hurt? a

      He ran across the street. >

      He ran across the street. Did he run by himself? o

      Uh huh.
      None of the others ran with him?
      No.
      Did you yell at him or anything when he ran?
      I don’t know.
      You don’t know. Did you see the car hit Robert Lee?
      Yeah. >
      When you first saw that car, before it saw o
      Robert Lee, do you know where it was?
      Where it was? >
      Yeah, before it hit Robert Lee . <o
      did you see it coming Bridgette?
      Yeah, from around a curve. >
      You saw it coming from around the curve? It came around the curve and came on by you? o
      Yeah.

      . BY MR. TRICHE:
      Q. Mr. Dupont you are Kenneth Dupont, and you are the defendant driver in this case?
      A. Yes.
      Q. You live several miles down from the Champ Cooper Road, the place where this accident happened?
      A. Yes.
      Q. You, at one time, were a school bus driver?

      A. Yes.

      Q. And drove a school bus to the little school that is located along the Champ Cooper Road some ways up the road from where the accident happened?
      A. Yes, I did.
      Q. How far is that school from where the accident happened?
      A. About a mile.
      Q. When you were driving the school bus along this same route, past the scene where the accident occurred, to that school, just about every day that school was in session?

      . Although defendant Dupont admitted in his pretrial deposition that he saw the children along the shoulder of the roadway well in advance of the accident, he sought at trial to make them “adult people”. (See deposition of Kenneth Dupont at Pp. 4-8 and record at Pp. 155-161.)

      . SPECIAL CHARGE NUMBER 1.
      It is the duty of one operating a motor vehicle to keep a sharp lookout ahead to discover the presence of pedestrians who might be in danger. What the motorist can see, he must see and in legal contemplation he does see. His failure to see what he could have seen by the exercise of due diligence does not relieve him from liability.
      A motorist, as operator of a dangerous instrumentality, such as a motor vehicle, creates a great risk of injury to life and limb of pedestrians and therefore, owes a duty to the public to protect it from danger. Motorists are aware that they could meet many emergencies in which pedestrians will not always act wisely or prudently and will sometimes be found in perilous situations; therefore, motorists have the additional burden of keeping roads safe even for those who are negligent.
      The law imposes on a motorist the additional burden of keeping the roadways safe when he saw or should have seen impending or threatening danger and had, at the moment, the opportunity to avoid it.
      Negligence of a pedestrian, in placing himself in the path of oncoming traffic, is no defense to the charge of negligence of the motorist.
      The law imposes these burdens upon motorists in favor of pedestrians because the operation of motor vehicles creates a great risk of injury to life and limb of pedestrians, and small risk of harm to motorists from pedestrians.


author: ELLIS, Judge.

text:
    Heirs of Cleophas and Marie A. CANCIENNE v. Heirs of Jules BLANCHARD and Texas Crude Oil Co., Inc.
    No. 13360.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Talbot, Sotile & Carmouche, Jon F. Wag-uespack, Napoleonville, for plaintiff-appellant.
    Chaffe, McCall, etc., E. Harold Saer, Jr., James H. Barton, III, New Orleans, for defendant — appellee Texas Crude.
    Simmons & Savoie, A. N. Simmons, Jr., Napoleonville, for defendant-appellee Bertha Schillaci, et al.
    Clifton B. Dolese, Napoleonville, for defendant-appellee Alma B. Rodrigue.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a petitory action brought by the heirs of Cleophas and Marie A. Cancienne against the heirs of Jules Blanchard. Plaintiffs are claiming the ownership of approximately ten acres of land of the east side of a larger tract containing about 39 acres. The defendants claim ownership of the entire tract of land, both by title and by prescription.

At the trial it was shown, by evidence which is uncontradicted, that Jules Blanchard had gone into possession of the entire tract of ground in 1919, by building a home thereon in which he resided; by building a number of outbuildings; by raising hogs, cattle and chickens thereon; by cultivating a garden; by fencing the entire tract; and by hunting, fishing, and trapping thereon. The evidence shows that this possession by Mr. Blanchard and his family continued up to the time of trial in June, 1979.

The record further shows that Xavier De-laune was the common ancestor of title of both sides to the case. He sold the disputed tract to Joseph Arceneaux in 1909, and Ar-ceneaux sold it to Cleophas Cancienne in 1914. Xavier Delaune subsequently died, and Jules Blanchard acquired the entire tract from his widow and heirs by two conveyances, in 1919. The property which had been sold to Arceneaux in 1909 was not excepted from either of the sales.

The parties placed in evidence their complete chains of title from Xavier Delaune. Neither party attempted to prove the chain of title from Xavier Delaune back to the sovereign.

After hearing the evidence, the trial judge found that the Blanchard heirs were in possession of the property, and that plaintiffs therefore had to prove title good against the world. He ruled that they had failed to do so because they did not prove a complete chain of title back to the sovereign. From the judgment dismissing their suit, plaintiffs have appealed.

In this court, it is alleged that the trial judge erred in holding that plaintiffs were required to deraign their title beyond the common ancestor in title.

We need not consider plaintiffs’ assignment of error. This record shows affirmatively that Jules Blanchard and his heirs have been in actual, physical, corporeal, undisputed and uninterrupted possession of the entire tract in question, under deeds translative of title for a period of 60 years. Articles 3478 et seq.; 3499 et seq., Civil Code. Defendants’ possession fulfills all of the requirements of the foregoing codal provisions for the acquisition of ownership of property by prescription in both good and bad faith. Plaintiffs’ title is therefore of no moment.

The judgment appealed from is affirmed, at plaintiffs’ cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Nettie L. KEAN v. Wilbur Amiss KEAN.
    No. 13352.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      William H. Cooper, Baton Rouge, for plaintiff-appellee, Nettie L. Kean.
    Harvey H. Posner, Baton Rouge, for defendant-appellant, Wilbur Amiss Kean.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Nettie L. Kean, plaintiff-appellee, brought suit against her husband, Wilbur Amiss Kean, seeking a divorce on the grounds of cruel treatment and adultery. Subsequent to a judgment granting plaintiff an absolute divorce from the defendant and awarding her permanent custody of their only remaining minor child, David Martin Kean, Mrs. Kean filed a rule to fix alimony. From a judgment fixing alimony at $1,500.00 per month, Wilbur A. Kean appeals. We affirm.

The statutory basis for alimony after divorce is LSA-C.C. Art. 160. As amended by Act 72 of 1979, effective June 29, 1979, Art. 160 provides:

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

Art. 160 as amended in 1979 is applicable to the present case since the rule to fix alimony was filed on July 27, 1979.

Appellant specifies two errors:

1. Because Mrs. Kean failed to prove that she was without sufficient means for support, any award of alimony was erroneous.
2. Presuming plaintiff was entitled to some alimony, the amount awarded, $1,500.00 per month, was grossly excessive and, as an abuse of the trial court’s discretion, should be reduced.

Mrs. Kean is a forty-five year old registered nurse who has returned to her profession after twenty-four years of marriage. She earns approximately $780.00 per month and after taxes takes home roughly $635.00. Appellee’s ability to work more than thirty hours per week is curtailed by arthritis from which she has suffered since the early 1960’s and which twice has necessitated surgery. In addition, appellee is hampered by a degenerative disease of the tendons associated with arthritis.

While Mrs. Kean received $62,000.00 as her share of the proceeds from the sale of the prior family home, as well as some $63,000.00 in advances on the as yet unpar-titioned community, living expenses used up all but $28,000.00 which was the down payment on a $97,000.00 home purchased by appellee for the use of herself and her minor son. Furthermore, all advances on partition of the community ceased as of July, 1979.

It is apparent that appellee’s present means consist of $635.00 per month in salary plus the $28,000.00 equity in her home. She has little or no liquid assets.

Several cases have held that $20,000 in liquid assets will defeat a claim for permanent alimony. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950); Paddison v. Paddison, 255 So.2d 504 (La.App. 4th Cir. 1971). However, a wife need not always sell her real estate holdings simply because $20,000 in liquid assets could be realized from such a sale. Petty v. Petty, 372 So.2d 805 (La. App. 3rd Cir. 1979). This rule is particularly applicable in the case of a home being used to house minor children. La Hood v. La Hood, 340 So.2d 624 (La.App. 2nd Cir. 1976). Only when large sums are tied up in extravagant housing will the continued possession of a home be considered sufficient means to defeat alimony. Sonfield v. Deluca, 377 So.2d 380 (La.App. 4th Cir. 1979).

In the present case, Mrs. Kean’s purchase of a $97,000 home following the sale for $175,000 of the former family domicile was reasonable, especially since she provides housing for her minor son.

Loyacano v. Loyacano, 358 So.2d 304 (1978), and Bernhardt v. Bernhardt, 283 So.2d 226 (1973), list the expenses for which alimony may be allowed: food, shelter, clothing, reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses and the income tax liability caused by alimony.

Mrs. Kean lists her minimal monthly expenses as follows:

1. House note (principal & interest only) $ 651.00
2. Food and Household Supplies (includes milk, etc.) 250.00

Clothing 175.00 CO

Transportation 75.00 ^

Medical and Dental 50.00 lG>

Utilities: <©

Telephone - 40.00

Gulf States - 130.00

Water - 10.00 180.00

Laundry and Cleaning 25.00

Personal and Grooming Necessities 20.00

Educational Expenses (school, lunch, books, etc.) 35.00

Property taxes 12.50

Insurance (Homeowners, Blue Cross, Auto) 60.00

Dog 30.00

Newspaper/Magazines 10.00

Gifts 30.00

Allowance to minor son 135.00

Miscellaneous 150.00

TOTAL $1,888.50

In addition, appellee lists outstanding debts as follows:

1. Eleanor Dent Realtor 2,000.00

2. Federal Taxes 11,000.00

3. Episcopal School 1,100.00

4. Robert L. Kleinpeter, attorney 2,600.00

5. Sears 1,000.00

TOTAL $17,700.00

Under Loyaeano and Bernhardt, alimony cannot be allowed for the educational expenses, dog, newspaper/magazine, gifts, allowance to minor son and miscellaneous. Subtracting these items from appellee’s monthly expense total leaves $1,498.50. When Mrs. Kean’s monthly take-home salary of $635.00 is considered, there remains a monthly deficit of only $863.50. Under the jurisprudence, appellee would be limited to this amount.

LSA-C.C. Art. 160 goes beyond the case law, however, and requires that the financial obligations of the spouses be considered as well as “any other circumstances that the court deems relevant.” Clearly, the fact that Mrs. Kean has debts of $17,700 which need servicing, including a federal tax lien of $11,000, must be included in any computation of alimony. Furthermore, an alimony award of $1,500 per month will result in a monthly tax liability of several hundred dollars.

Appellee has the burden of proving necessitous circumstances. Frederic v. Fre deric, 302 So.2d 903 (1974). Until need has been demonstrated, the other spouse’s financial means are irrelevant. Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir. 1980).

Mrs. Kean has proved both need and that she has not sufficient means for her support. Her testimony and evidence were uncontradicted. As stated by the Louisiana Supreme Court in Pearce v. Pearce, 348 So.2d 75 (1977):

“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. The factual findings of the trial court are therefore to be accorded very substantial weight on review.” (citation omitted).

After a searching review of the record, we cannot say that the trial judge abused his discretion in weighing the evidence, applying the law, and awarding $1,500.00 per month to Mrs. Kean.

Appellant urges that the award of alimony made was “grossly excessive.” We find such not to be the case.

Mr. Kean’s salary at Kean’s Dry Cleaning and Laundry in 1978 was $62,442, his partnership earnings were $98,583, and his adjusted gross income was $158,007. He paid federal and state taxes of $65,273, leaving a net income of $92,734. Appellant points out that even though he paid taxes on all his partnership earnings, the partnership retained $45,351 of his net earnings, for business purposes which left him with a disposable income of only $47,383.

Whether appellant may, by diverting nearly half his net income for legitimate business purposes, lower his take-home pay to a point which would make an otherwise valid alimony award exceed the permitted one-third of his net income is a question analogous to that raised in Sonfield v. Deluca, supra, where a wife was not permitted to sink great sums into unnecessary housing and thereby create insufficient means for her support. We need not decide this issue since it is evident that appellant has sufficient non-cash income to raise his take-home pay to a point which will allow the award of $1,500 per month to stand.

Mr. Kean has the use of the company car. He may purchase work clothes at cost and pays nothing for laundry or dry cleaning. Both dues at the Baton Rouge Country Club and life insurance premiums are provided at no cost. Finally, as president of Ventura Uniform Service, Mr. Kean enjoys the free use of a houseboat, on which he spends approximately $400 per month in upkeep.

These non-salary benefits are certainly worth at least $6,617 per year, a sum which, when added to appellant’s claimed take-home pay of $47,383, results in net earning of $54,000 per year.

Considering all aspects of appellant’s financial situation, no “grossly excessive” alimony award was made. In fact, the circumstances in this case are remarkably similar to those in Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4th Cir. 1978), writ denied 358 So.2d 644 (1978), where an identical alimony award of $1,500 per month was made.

At oral argument, counsel for both parties conceded that the as yet undivided community was substantial. Should an eventual partition of the community radically alter appellee’s means, Bordelon v. Martinez, 371 So.2d 1280 (La.App. 3rd Cir. 1979), or should other pertinent circumstances change, appellant may file for either a reduction or a complete elimination of alimony. Under the present facts, the award of alimony made was proper.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Wilbur Amiss Kean.

AFFIRMED.

      . C.C. Art. 160 states simply “one-third of his or her income.” The jurisprudence has construed this to be net income, thus requiring a court to take a party defendant’s tax situation into consideration. Meyer v. Meyer, 371 So.2d 1304 (La.App. 4th Cir. 1979), writ denied 373 So.2d 546 (1979); Phillpott v. Phillpott, 321 So.2d 797 (La.App. 4th Cir. 1975).

      . Noncash income may be taken into consideration when alimony is fixed. Ballard v. Ballard, 367 So.2d 1220 (La.App. 2nd Cir. 1979); Nielsen v. Nielsen, 343 So.2d 1213 (La.App. 4th Cir. 1977).


text:
    Neil H. SATHER v. William B. WHITE, Jr., and State Farm Mutual Automobile Insurance Company.
    No. 13400.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Dan R. Dorsey, River Ridge, for plaintiff, appellant.
    Iddo Pittman, Jr., Hammond, for defendant, appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff-appellant, Neil H. Sather, filed suit against William B. White, Jr. and State Farm Mutual Automobile Insurance Company seeking $126,000 in damages for personal injuries.

On April 5, 1979, the Deputy Clerk of Court, Charlotte M. Duhe, sent the following notice to all counsel:

“Re: Neil H. Sather vs. # 53,668
William B. White, Jr., et al.
Gentlemen:
Please be advised that the Trial in the above captioned matter, has been assigned for THURSDAY. MAY 31. 1979. Court convenes at 9:30 A.M., with Judge A. Clayton James, Division “E” presiding.
If you cannot be present on the date given, you must notify other counsel and file a Motion for Continuance within one week of receipt of this notice.”

On May 31, counsel for plaintiff sought a continuance on two grounds: 1) that an “indispensable witness to the litigation” was not in Louisiana and was unable to be subpoenaed, and 2) that counsel for plaintiff was scheduled to appear at that same time in court in New Orleans.

The trial court refused to grant a continuance based on either ground. He did offer to hold the record open for thirty days so the missing witness’ testimony might be taken by deposition. At that point, plaintiff’s counsel stated:

“With all due respect to the court, I’m going to have to return to New Orleans.’ The court them dismissed plaintiff’s suit with prejudice at his cost.

Supervisory writs of mandamus, certiora-ri and prohibition were denied by the Court of Appeal, First Circuit. This appeal followed.

On appeal, counsel for plaintiff urges that since the witness’ absence was uncon-trived, a continuance was required under the peremptory grounds of LSA-C.C.P. Art. 1602, which provides:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

Art. 1602 makes the granting of a continuance mandatory. McCaleb v. Department of Public Safety, 309 So.2d 748 (La.App. 4th Cir. 1975). Several conditions must be met, however, before Art. 1602 will be applied. The material witness must have absented himself contrary to the wishes of the party seeking a continuance. That a subpoena has been issued is not alone a sufficient basis to invoke Art. 1602. Loicano v. Maryland Casualty Insurance Company, 301 So.2d 897 (La.App. 4th Cir. 1974). Materiality of the missing evidence must be demonstrated. Gallin v. Travelers Insurance Company, 323 So.2d 908 (La.App. 4th Cir. 1975), writ denied 329 So.2d 452 (1976). The party requesting a continuance must have exercised due diligence, yet been unsuccessful in obtaining the material evidence. Estopinal v. Thomas, 273 So.2d 54 (La.App. 4th Cir. 1973).

Clearly, appellant has not shown, as he must, that his reason for a continuance falls within the purview of Art. 1602. Williams v. Fontane, 175 So.2d 686 (La.App. 1st Cir. 1965). Plaintiff made no showing that the witness was absent contrary to his wishes or that the testimony he would have given was material. In fact, while counsel for plaintiff was notified on April 5, 1979, that trial was scheduled for May 31, he submitted no subpoena list until May 14 and the allegedly material witness was not even included then. Not until May 22 did counsel seek to have the witness subpoenaed. The sheriff’s return stating “unable to locate on time” was made on May 30, 1979. Such a short notice subpoena request and so tardy a motion for continuance are grounds for denial. Perigoni v. McNiece, 262 So.2d 407 (La.App. 4th Cir. 1972); Thompson v. Warmack, 231 So.2d 636 (La.App. 3rd Cir. 1970).

It is noteworthy that the trial court, as in Estopinal v. Thomas, supra, offered to keep the record open for thirty days. Such an offer amounted to a continuance but counsel chose to spurn the offer.

The trial court was correct in denying a continuance under Art. 1602.

LSA-C.C.P. Art. 1601 provides that “A continuance may be granted in any case if there is good ground therefor.” The trial court has great discretion in this area and his decision will not be disturbed except in a case of clear abuse. Town of Richwood v. Gaston, 340 So.2d 632 (La.App. 2nd Cir. 1976), writ denied 342 So.2d 871 (1977); Powell v. Giddens, 271 So.2d 596 (La.App. 1st Cir. 1972). As in Powell, the trial court in the present case was well within his discretion to refuse a continuance on the day of trial, so that the requesting attorney might appear in another court, especially when no notice was given to the court, as had been required eight weeks previously. A trial judge has the inherent power to take reasonable actions to control his docket. Brower v. Quick Service Body Shop, 377 So.2d 878 (La.App. 4th Cir. 1979).

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Neil H. Sather.

AFFIRMED.


text:
    Jack AYDELL and Eddie A. Williams d/b/a Challenge Cabinets v. CHARLES CARTER & COMPANY, INC. and Insurance Company of North America.
    No. 13429.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Refused Sept. 26,1980.

      George R. Covert, Baton Rouge, for plaintiff-appellee, Jack Aydell & Eddie A. Williams d/b/a Challenge Cabinets.
    Arthur J. Boudreaux, Baton Rouge, for defendants-appellants, Charles Carter and Co., Inc., and Ins. Co. of North America.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Defendant-appellant, Charles Carter & Company, Inc. (Carter), seeks reversal of a trial court judgment awarding Jack Aydell and Eddie A. Williams (Aydell), doing business as Challenge Cabinets, a partial summary judgment in the amount of $28,815.55. We affirm as amended.

In 1974, Carter was the general contractor with the City of Baton Rouge and the Parish of East Baton Rouge (City-Parish) for construction of the Civic Center Governmental Building.

On March 28, 1974, Carter and Aydell entered a subcontract requiring Aydell to do the millwork in the Civic Center. Including all change orders approved by Carter, the amount was $323,715.65.

On November 28, 1977, construction was accepted by the City-Parish and a notice of acceptance was filed in the Mortgage Records.

Aydell, having been paid only $289,650.44 by July 19, 1978, filed suit against Carter for the balance of $34,065.21. Following defendant’s answer, Aydell filed a motion for summary judgment. Carter then filed an amended and supplemental answer and a reconventional demand against plaintiffs. Carter alternatively claimed that 1) nothing was owed to plaintiffs, 2) there were offsets to anything defendant owed, and 3) plaintiffs, as defendants in reconvention, owed Carter $60,134.66.

Partial summary judgment was granted in plaintiffs’ favor on October 19,1979, and Carter has appealed. Appellants urge that the trial court committed reversible error by relieving plaintiffs of the burden of showing that there were no genuine issues of material fact and by requiring Carter to demonstrate that a genuine dispute existed.

LSA-C.C.P. Arts. 966 and 967 contain the statutory provisions for summary judgment.

Art. 966 provides:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, [answers to interrogatories], and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Art. 967 provides in part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

Plaintiffs’ motion for summary judgment was accompanied by an affidavit and other attachments. These documents, together with the recorded fact that the City-Parish had accepted construction of the Civic Center, provide convincing proof that plaintiffs’ claim was valid.

Once a motion for summary judgment has been made and supported, a party opposing the motion must set forth specific facts showing a genuine issue for trial or else summary judgment will be rendered against him. C.C.P. 967. Acosta v. Dardar, 379 So.2d 820 (La.App. 4th Cir. 1980); Welch v. Daigrepont, 378 So.2d 607 (La. App. 3rd Cir. 1979).

Carter’s affidavit in opposition to the motion for summary judgment alleged that plaintiffs’ work was “defective, delayed, untimely and unacceptable” and that delivery had been “non-sequential and haphazard(.)” Carter further claimed plaintiffs “did not perform as required but was in breach of its agreement, which breach caused Charles Carter and Company, Inc. damages and lossesQ” No specific facts supporting these allegations were given.

Attached to Carter’s affidavit of opposition were two “backcharges” dated September 19, 1979, only two days before the motion for summary judgment was originally scheduled to be heard. The “backcharges” were for $294.66 and $9,840.00 respectively. The $294.66 charge was for work allegedly done by Carter’s own employees. The $9,840.00 charge was broken into three sub-parts:

1) lost time due to piecemeal delivery - $5,000
2) restaining gates - 340
3) delay in painting caused by need for doors to be sanded - 4,500

The only other evidence to be presented by the defendant and considered by the trial court was a deposition of Charles Robert Carter.

In granting a partial summary judgment, the trial court allowed as offsets only the $5,000 claim for piecemeal delivery and the $294.66 for work done by Carter’s employees. The $294.66 charge was erroneously allowed as an offset of only $249.66.

The party seeking summary judgment has the burden of showing the complete absence of a genuine issue of material fact. All doubts will be decided in favor of a trial on the merits and no summary judgment will be granted even if the trial court has grave doubts regarding a party’s ability to establish disputed facts. City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir. 1979).

To determine whether there is a genuine issue of fact, a trial court must of necessity examine the merits. Despite the presence of disputed facts, summary judgment as a matter of law will be granted if the disputed issues of fact are so patently insubstantial as to present no genuine issues. Merely formal allegations without substance will not preclude summary judgment. City of Baton Rouge v. Cannon, supra; Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179 (La.App. 4th Cir. 1972), writ refused 261 La. 462, 259 So.2d 914 (1972).

Clearly, the disputed facts set forth by Carter present little better than transparent issues. Defendant’s unsupported allegations of breach achieve nothing when contrasted with the hard realities of written contract and completed and accepted construction. The deposition is vague and insubstantial.

Insofar as the “backcharges” of defendant are concerned, the trial court properly refused to render summary judgment for any item which exhibited even a shred of material controversy.

Factually, this case is almost identical to City of Baton Rouge v. Cannon, supra. In that case, the same defendant, Carter, sought to preclude partial summary judgment in favor of a subcontractor through the use of “backcharges” and a counterclaim. Since neither was of any substance, summary judgment was granted.

While it may be “beyond comprehension of counsel” why Carter is not entitled to assert these claims at trial, it is certain that in the present case there are no real issues. Reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court.

For the foregoing reasons, the trial court judgment granting partial summary judgment is affirmed except that the disallowed portion of plaintiff’s claim is increased from $5,249.66 to $5,294.66. Therefore, judgment for plaintiffs is in the amount of $28,770.55. All costs of these proceedings, both trial and appellate, are to be paid by Charles Carter & Company, Inc.

AFFIRMED AS AMENDED.