text:
    Bridget Mary GRAHAM v. Earl Leon METZLER, Jr.
    No. 11373.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1981.
    Rehearing Denied Sept. 17, 1981.

      Edward K. Pinner, Sr., New Orleans, for plaintiff-appellant.
    McPherson, Weber & Zainey, Jay C. Zai-ney, New Orleans, for defendant-appellee.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge.

This is an appeal taken by the plaintiff wife from a judgment deleting an alimony award of $35 per week from a divorce judgment obtained by her. The basis for the appeal is that the trial judge did not have authority to alter the substance of a final judgment by summary procedure, and that the defendant’s only relief was by ordinary action to nullify the judgment.

On June 29,1979, plaintiff filed a suit for divorce based on living separate and apart in excess of one year following a judgment of separation. She also sought child custody and child support, but made no prayer for alimony.

On September 24, 1979, plaintiff entered a preliminary default in her divorce suit and, in addition, filed a rule to show cause why the defendant husband should not pay her alimony. This was the first time she claimed alimony. A hearing was held on the alimony rule on September 28,1979, and three days later judgment on that rule was signed awarding her $35 a week alimony for her support.

On October 11, 1979, plaintiff confirmed the preliminary default, and judgment was rendered granting a divorce and awarding her custody, child support and, in addition, $35 a week alimony for her support.

On October 18, 1979, within seven days (exclusive of legal holidays and therefore timely for an application for a new trial ) of the divorce judgment which contained the alimony award, defendant filed a document styled “Motion To Amend Judgment Of Divorce”, seeking deletion of the alimony award from the judgment. On October 31, 1979 the motion was signed and set for hearing on the rule to show cause on November 9, 1979. In response to this motion, plaintiff filed an exception to the use of summary proceedings to alter the substance of the judgment.

The matter was called for hearing on November 9, 1979, and defendant’s motion was dismissed. Defendant asserts in his brief that neither he nor his counsel were notified by the court of the date on which the rule eventually was set for hearing, and for that reason neither attended court on November 9, thereby resulting in the dismissal of his rule. The record does not contain evidence of any notice being furnished either defendant or his attorney of the date on which his motion eventually was set for trial.

Defendant refiled his motion to amend the judgment on November 20, 1979, and it was again fixed for hearing on November 30,1979. Plaintiff filed the same exception to the use of summary proceedings. On November 30, the trial judge stated he would treat the motion to amend the judgment as a timely filed motion for a new trial, and he set aside the alimony award contained in the divorce judgment.

Plaintiff argues the trial judge committed error by altering the substance of a final judgment “by amendment.” In support of this argument she cites Article 1951(1) of the Code of Civil Procedure which provides a final judgment may be amended by the trial court at any time with or without notice and on its own motion in order to change the phraseology of the judgment “but not the substance . ... ” She also cites Hug v. Hug, in which this court held a trial judge was without authority to alter the substance of a judgment, and his action in so doing was null.

It is clear that alimony obtained in advance of a final divorce judgment is alimony pendente lite and terminates upon the rendition of a judgment of divorce. Moreover, a default judgment may not be different in kind or form or exceed in amount the demand contained in the petition, i. e., it cannot go beyond the scope of the prayer in the petition. Thus, as plaintiff did not pray for alimony in her divorce suit, that portion of the divorce judgment which awards her permanent alimony is in fact without legal foundation and null.

The sole question which must be decided by us is whether the trial judge was incorrect in nullifying the alimony award contained in the divorce judgment by summary proceeding. Had the trial judge so acted in response to the original motion to amend the judgment filed within seven days by defendant (timely for a motion for a new trial), there would be no difficulty in maintaining his ruling. We agree with the trial judge’s treatment of the “motion to amend” as a motion for a new trial. An improper designation of a pleading does not control the relief which may be granted, since the pleadings are governed by their substance and the court may grant appropriate relief under the facts raised in the pleadings. However, defendant was not notified of the date on which the motion filed by him would be set for hearing, because of this absence of notification he did not attend on the originally scheduled trial date and consequently his motion was dismissed. The question resolves itself into whether the trial judge acted properly in granting the relief requested based upon the untimely filed motion to amend the judgment.

The trial court’s Local Rule 15 applies to general notice requirements. It provides that parties are entitled to 48 hours notice “where notice is required” and when no time is otherwise specified elsewhere in the rules or by law. The trial court’s Local Rule 9, Section 3, pertaining to trial of rules, exceptions, and summary matters, provides that at least two days notice shall be afforded to the adverse party or to his attorney. The rules are silent with regard to the necessity and amount of notice to be afforded a mover in rule when its date is not known to him. Since the rules of the trial court provide two days notice in summary matters to the adverse party, it seems clear one filing a motion would be deprived of due process and equal protection of the law if he were not given an equal amount of notice.

To reiterate, defendant’s first motion was timely filed on October 18, 1979, but a hearing date was not set by the trial judge until October 31, 1979. There is no evidence whatever in the record to indicate mover was notified of the trial date fixed by the court. In the absence of such notice, the action taken in defendant’s absence is itself stricken with nullity, and the trial judge was justified in disregarding the untimeliness of defendant’s second motion and in acting on defendant’s first, and timely filed, motion.

Accordingly, we hold the award of permanent alimony in the divorce judgment was a nullity, and the trial court acted correctly in treating defendant’s motion as one for a new trial, pursuant to which he deleted the null alimony award.

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

AFFIRMED.

      . LSA-C.C.P. Art. 1974.

      . La.App., 230 So.2d 333.

      .See LSA-C.C. Arts. 148 and 160; Golson v. Golson, La., 351 So.2d 100; White v. Morris, 236 La. 767, 109 So.2d 87; Eals v. Swan, 221 La. 329, 59 So.2d 409; Smith v. Smith, 217 La. 646, 47 So.2d 32; George v. George, La.App., 347 So.2d 927.

      . LSA-C.C.P. Art. 1703.

      . LSA-C.C.P. Art. 853; Succession of Smith, 247 La. 921, 175 So.2d 269; Cvitanovich v. Sorli, La.App., 347 So.2d 1204.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    WALLACE C. DRENNAN, INC. v. Louis HAEUSER and National Lumber & Demolishing Co., Inc.
    No. 11667.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1981.
    Rehearing Denied Sept. 17, 1981.
    Hammett, Leake & Hammett, Robert E. Leake, Jr., New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs and Patrick J. Brown, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   SAMUEL, Judge.

Wallace C. Drennan, Inc., (plaintiff) filed this suit against Louis Haeuser (defendant) to recover $42,324.60 for sums allegedly due in connection with contracts between them by which the former agreed to construct a private street and perform other paving services for defendant. Defendant answered, denying liability, and reconvened to recover $26,715 to remove and replace the allegedly improper concrete paving installed by plaintiff and for an additional $3,595.81 for items defendant alleges he provided plaintiff during the course of the work.

After an extensive trial on the merits, judgment was rendered, on the main demand, in favor of plaintiff in the amount of $18,200 and, on the reconventional demand, in favor of defendant in the amount of $27,323.66. Plaintiff has appealed.

Plaintiff and defendant contracted for the construction of a street in Jefferson Parish in accordance with detailed plans and specification prepared by defendant’s engineers. The street was to be used to service small warehouses between Jefferson Highway and the Mississippi River, the project was constructed as a private road leading from Jefferson Highway, and it has remained a private road to the time of trial.

The original contract price was $29,821, all of which was paid prior to suit except a retainage of $2,982.10. The parties later orally agreed plaintiff would construct a concrete apron between the street and defendant’s warehouses, for which plaintiff billed defendant $27,337.50, based on a price of $11 per square yard. Defendant contends the oral agreement between them established a price of $7 per square yard. The remainder of the dispute between the litigants, other than the alleged improper construction of the street, involves extras and miscellaneous items.

While the trial judge did not assign written reasons, it is clear the judgment in favor of plaintiff represents payment to it for paving the parking apron at the rate of $7 per square yard for 2,600 square yards. The judgment in favor of defendant on his reconventional demand is for $26,715 for repairs and corrections to the street, subject to a credit of $2,982.10 for retainage admittedly due under the contract, plus payment to defendant for $3,600.76 for extras paid for by him.

For simplicity, we first discuss plaintiff’s claim for additional sums for paving the parking apron, then defendant’s claim for cost of repairing the street, and finally miscellaneous claims by plaintiff for extras and by defendant for sums allegedly expended by him during the course of the work.

First, the parking apron between the street and the warehouses was laid in a manner completely different from the laying of the street, and there is no question with regard to workmanship or defects in the parking apron. The only question regarding the parking apron is one of price.

As has been said, the agreement for laying the parking apron was verbal. Defendant testified he agreed to pay at the rate of $7 per square yard, and plaintiff’s president, Drennan, testified the appropriate price was $11 per square yard on a “cost-plus” basis. Plaintiff was aware defendant was dissatisfied with its work on the street, and it did not send a bill for the parking apron until 8'/2 months after completion. When it sent the bill, it was in the form of a lump sum summary, which read as follows:

“For excavation, hauling and paving with 6" reinforced concrete all the area adjacent to new street as per your instructions and directions $27,337.53.”

Thus, the bill did not indicate the amount of area paved, the price per square yard, the cost of materials, or any other items ordinarily contained in a cost-plus contract.

One suing on an oral contract is obliged under the law to prove the existence and terms of the contract with legal certainty and by a preponderance of the evidence. Other than the testimony of plaintiff’s president, plaintiff did not produce any witnesses to verify its $11 per square yard charge. It likewise did not produce any documentation to verify or substantiate the $11 charge, even though the contract was ostensibly to be charged on a “cost-plus” basis. The only substantiation offered by plaintiff for the $11 per square yard price was other bids obtained by defendant for the construction of the street. This evidence, however, is not particularly strong. The street was excavated and filled with sand, and the apron was not. The street is 8" thick, while the apron is only 6" thick. The street has curbs on both sides, while the apron has none. Provisions had to be made for water and sewer lines, manholes, and similar facilities under the street, while no such provisions were necessary for the apron paving.

In contrast, defendant testified he paved an area in front of his warehouse within 18 months of plaintiff’s job for $4.83 per square yard. This price was substantiated by bills from two other paving contractors and the testimony of Jeffrey Nolan, an engineer and president of Nolan Contracting, Inc., who had previously performed street paving. Nolan testified he could have performed the apron work for $7.12 per square yard, for a total cost of $18,-141.76. In addition, defendant produced the testimony of Carl Calamia, who had been in the concrete construction business for approximately 26 years. Calamia testified he could have paved the apron for $6.93 per square yard, or a total cost of $17,-627.64.

We conclude the evidence in the record is such that the trial judge did not abuse his discretion in his obvious factual finding that the parties agreed to pave the concrete parking apron for the price of $7 per square yard. The trial judge is afforded wide discretion under Louisiana law in his findings, particularly when credibility is involved, and this court will not substitute its judgment for that of the trial court in the absence of manifest error. We find no such error here and consequently affirm the trial judge’s award of $18,200 to the plaintiff.

The second issue for our determination is the validity of the trial court’s award of $26,715 to defendant on his reconventional demand for removal and replacement of many of the slabs which form the concrete street laid by plaintiff. The figure of $26,-715 was established as of December,' 1977 by Jeffrey Nolan, mentioned above. His estimate and testimony were not contradicted by plaintiff.

Plaintiff admits in brief “. . . that the street paving was less than a good job.” It agrees the finish is uneven in places, crown ordinates (i. e., the parabolic shaping of the street form center line to curb) are irregular, gutter bottoms are uneven in places, some joints were poorly installed, and there are several cracks in the street, with some spalling of concrete at joints and curbs. Nevertheless, plaintiff contends the street is still fully usable for its intended purpose, has no structural failures, and has been used by defendant for the intended purpose in excess of five years.

Defendant presented the testimony of William Cloutet and Joseph Krebs, both experts in the field of engineering. Clout-et, a graduate civil engineer, has been employed continuously in the field of civil engineering since his graduation in 1954 and has designed streets on regular occasions. He was the project engineer for the street designed for defendant, and was quite familiar with both the plans as drawn and the work as actually performed. Cloutet’s testimony sets forth in factual terms the poor workmanship exercised by plaintiff in laying the street.

' Cloutet testified that of 28 “panels” which comprise the street only 6 were acceptable. The remaining slabs had to be removed and replaced for numerous reasons, including at least 6 structural cracks' going through the 8 inches of concrete, improper joints, improper crown ordinates, spalling, uneven joints, and a lack of transverse joints in slab no. 28 which abutted Jefferson Highway. Defects in the curb and gutter resulted in improper drainage and “bird baths”, and the street in general was in a deteriorating condition.

The testimony of Joseph Krebs, also a long practicing civil engineer, established 5 slabs wére acceptable, 3 slabs were marginally acceptable, a quarter panel must be removed in 3 slabs, and the remaining 17 slabs had to be removed and replaced in their entirety.

The testimony of Cloutet and Krebs details at great length improper joints, broken curbings, “bird baths” or indentations which accumulate water, and failing epoxy patches in 17 slabs. They also testified these defects would not exist in a 5 year old street in the absence of improper workmanship.

Louisiana law provides that a contractor who has substantially performed the work is entitled to be paid therefor, subject to deduction for the reasonable cost of repair of any deficiencies proved by the owner or the reasonable diminution in value of the work caused by any partial failure of performance. Stated in other terms, when there is substantial performance but the work fails to meet the specifications of the contract, the owner’s damages are equal to the cost to remedy the defects or to do the work as required.

Defendant presented the testimony of a personal friend, John Calhoun, also a civil engineer. Calhoun was accepted as an expert in engineering and contracting, but not as an expert in the field of concrete paving. His testimony regarding the adequacy of the street is somewhat suspect in view of the cursory examination given by him. He testified that on one occasion prior to trial he walked the street from the warehouses to Jefferson Highway and back. On the other occasion he could not remember whether he even removed himself from his automobile. He took no photographs, made no notes, drew no sketches, and spent between 30 and 45 minutes in making his inspections. No other practicing civil engineer testified on plaintiff’s behalf.

Plaintiff also offered the testimony of Julian Wenn, a former employee of the Jefferson Parish Department of Roads and Bridges, who testified he had been involved in the contracting industry for 2 years. He visited the site on one occasion and estimated the street could be fixed for a sum between $3,000 and $5,000. However, he gave no breakdown as to the materials used, the qualities of material, or the labor needed. ■ He also testified that with the $5,000 in repairs, the street would not be acceptable to the Parish of Jefferson for dedication as a public street which would then oblige the parish to maintain it. Basically, his testimony was that for $5,000 the street could be cosmetically repaired by filling structural cracks and spalling joints with epoxy, but he proposed no solution to the structural cracks.

Plaintiff also presented the testimony of A1 Weathern, who stated the defects in the street could be rectified by epoxy patching. However, Weathern did not know the number of cracks, the number of defective expansion joints, the amount of epoxy needed to overlay the slab nearest Jefferson Highway, the number of spalling and broken curbs to be patched, or the number of “bird baths” to be repaired. Moreover, even if the epoxy was applied as he testified, he would only guarantee it for 1 year.

The evidence presented by defendant on his reconventional demand is quite strong and constitutes proof of the necessary defects by a preponderance of the evidence. The evidence submitted on behalf of plaintiff clearly does not overcome that preponderance, and we affirm the finding by the trial judge that the sum of $26,715 was necessary for repairs to the street, subject to the $2,982.10 retainage admittedly owed plaintiff.

A similar finding must be reached with regard to the claim by defendant for extras furnished by him for the job. These extras total $3,600.76. They are composed of various items for sand, steel wire, concrete for drain boxes, flexcell joints, diesel fuel, cast iron fittings for water lines, truck driver labor, and use of a front-end loader. Invoices were introduced by defendant to substantiate some of these items, and other items were proved by defendant’s testimony alone, since all time sheets used by defendant in his business are destroyed 2 or 3 years after their dates in the normal course of business. The trial judge was faced with the question of whether he chose to believe defendant’s testimony. He obviously did, and nothing in the record indicates he committed error by so doing.

Plaintiff’s claims for extra work are multiple. It seeks compensation for a valve manhole at the intersection of the private road and the highway, but defendant testified this item was part of the job and not an extra since a contractor should know a valve connected to pipes under a highway cannot be cemented over and must have a manhole for access. Second, plaintiff claims $525 for 3 extra 8X8X6 tees for future connection with plugs and blocking. Defendant admitted this was an extra item, but pointed out that tees are buried under the concrete apron poured by plaintiff, without being marked for future use. Consequently, when additional fire plugs are installed, defendant will be obliged to tear up a substantial portion of the concrete apron. We do not overrule the trial judge in his refusal of this item.

Next, plaintiff claims money for the addition of an 8" line to relocate a fire hydrant approximately 44 feet, a 6" line to relocate a fire hydrant 101 feet, a different type of fire hydrant, and a 6" line to tie in a sprinkler system. Defendant admitted that after the job was contracted he chose to move a fire hydrant from one side of the street to the other to allow for parking with less interference. The items in dispute cost $660, $1,500, $100, and $360 respectively. In our view, the trial judge erroneously refused to award the first 3 extras to plaintiff, and we so hold. However, plaintiff’s invoice for a tie-in to a sprinkler system is not subject to an award, since the evidence indicates the hookup was performed by the installer of the sprinklers and not by plaintiff.

With regard to plaintiff’s claim for sewer system work, defendant admits liability for $810 for an 8" cast iron sewer line crossing the new road and $150 for an extra 6" cast iron sewer for a connection to the warehouse nearest Jefferson Highway. Thus, these amounts should have been awarded plaintiff. However, plaintiff’s claim for a sewer siphon and new manhole is disputed by defendant. We feel defendant is correct in contending the original contract placed the responsibility for causing sewerage to flow in accordance with plans and specifications directly on the plaintiff. It was plaintiff’s responsibility to take whatever steps might be necessary to comply with the plans and specifications. Since this was its duty, it is not entitled to recover for the installation of a sewer siphon in order to have the sewerage drain correctly.

Plaintiff’s brief is conflicting regarding its claim for $1,000 for extra hauling of excavated material. At one point, it seems to indicate abandonment of the claim for excavation hauling, but at other points in the brief it insists on an award of $1,000. The record indicates the contract called for an 18" excavation, and plaintiff was informed prior to execution of the contract that there were some concrete footings under the ground in the path of the proposed roadway. However, instead of using an air gun to cut off 18 inches of these concrete footings, Drennan chose to pull them out whole and transport them to his father’s property to use as rip-rap for his yard across the Mississippi River levee. The decision to haul these concrete footings, after they had been removed from the ground, was plaintiff’s unilateral decision, and defendant should not be cast for their cost.

Finally, plaintiff alleges the sum of $2,325 is due it as a result of “extra sand base”. In the trial court Mr. Drennan admitted he did not purchase any sand for the job, and produced no invoices to prove that he did. Equally important, nowhere in the pleadings is there a claim by plaintiff for “extra sand" in the amount of $2,325, and we hold the trial judge correctly refused to award this item.

In conclusion, we find the judgment should be amended by additionally awarding plaintiff $660 for 44 feet of 8" pipe, $1,500 for 101 feet of 6" pipe to relocate a fire hydrant, $100 for the extra cost of a different fire hydrant, $810 for an 8" cast iron sewer line crossing the new roadway, and $150 for a 6" cast iron sewer to connect to defendant’s warehouse near Jefferson Highway. These items total $3,220.

For the reasons assigned, the judgment appealed from is amended by increasing the award to plaintiff, Wallace D. Drennan, Inc., from $18,200 to $21,420. As thus amended, and in all other respects, the judgment appealed from is affirmed. Each party is to pay its own costs in this court.

AMENDED AND AFFIRMED.

      . National Lumber and Demolishing Company, Inc. also was a named defendant. However, prior to trial plaintiff stipulated the transactions in suit were between it and Haeuser personally, and that National Lumber was not a proper party defendant. Thereafter, the suit proceeded against Haeuser as the sole defendant.

      . Chavers v. Kury Const. Co., La.App., 363 So.2d 950; Hoffpauir v. La-Cal Mud Specialties, Inc., La.App., 165 So.2d 65; Civil Code Art. 2277.

      . On this item plaintiff offered evidence to indicate cost of reinforced 8" thick cement is the same as 6" thick cement with steel reinforcing.

      . See Canter v. Koehring Company, La., 283 So.2d 716.

      . Dickson v. Moran, La.App., 344 So.2d 102; Clark v. Whitener, La.App., 296 So.2d 393; Keating v. Miller, La.App., 292 So.2d 759; Cortiza v. Rosenblat, La.App., 291 So.2d 425.

      . Du Bos v. Sanders, 174 La. 27, 139 So. 651; see also Kozlowski v. Fowler, La.App., 71 So.2d 246; Montague v. Milan, La.App., 67 So.2d 351.

      . Plaintiff in brief likewise indicates he omits and abandons a demand for $5,000 for damages for defendant’s interference with plaintiffs work at the job site. Since plaintiff did not brief the point, we consider this point in fact abandoned.


author: STOKER, Judge.

text:
    Phyllis WATTIGNY, Plaintiff-Appellee, v. Robert WATTIGNY, Defendant-Appellant.
    No. 8296.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.

      James Wattigny, Jeanerette, for defendant-appellant.
    Mouton, Roy, Carmouch, Bivens & Kraft, Wayne Shullaw, Lafayette, for plaintiff-ap-pellee.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This case presents for review the question: May a wife, judicially separated from her husband in 1979, exercise the right to renounce the community of acquets and gains (and thereby escape the liabilities of the community) subsequent to the repeal of Article 2410 of the Louisiana Civil Code? This provision of law, repealed effective January 1, 1980, provided:

“Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.”

Plaintiff, Phyllis Wattigny, filed her renunciation October 17, 1980, i. e., subsequent to the repeal of the statute granting the right to renounce. The trial court rendered judgment in favor of Phyllis Wattig-ny holding that the renunciation was valid. The trial court reasoned that inasmuch as plaintiff and defendant were married and were legally separated while LSA-C.C. art. 2410 was still in effect, the wife’s right to renounce was vested. The defendant-husband appealed.

Community property provisions of the Louisiana Civil Code were extensively revised through Act 627 of the 1978 session of the Louisiana Legislature and by Act 709 of 1979. The revision did away with the head and master concept under which the husband alone could manage most aspects of community property. In its place new articles substituted the concept of equal management by the spouses. As a corollary to the husband’s right of exclusive management under the former scheme, the wife and her heirs could exonerate themselves from community debts contracted by the husband through the means of renouncing the community (formerly LSA-C.C. art. 2410). Under the equal management scheme, this is no longer true.

Pertinent dates in this controversy are as follows:

February 22, 1974 Marriage of the parties.
April 2, 1979 Suit for separation from bed and board filed by Phyllis Wattigny.
November 30, 1979 Judgment of separation rendered.
December 14, 1979 Judgment of separation signed and recorded. (Community dissolved retroactively to April 2, 1979.)
June 30, 1980 Suit for divorce filed by Phyllis Wattigny.
October 17, 1980 Renunciation of community filed by Phyllis Wattigny.
October 27, 1980 Divorce action tried. Judgment of divorce rendered in favor of Phyllis Wattigny. Question of validity of renunciation of community taken under advisement.
November 17, 1980 Judgment of divorce signed.
November 20, 1980 Reasons for Judgment (dated November 17, 1980) handed down holding valid renunciation by Phyllis Wattigny.
December 29, 1980 Judgment relative to renunciation signed (recorded December 30, 1980).

The right of renunciation under former LSA-C.C. art. 2410 became available upon dissolution of the community and not before. Louisiana Bank & Trust Co. v. Pernici, 372 So.2d 788 (La.App. 2nd Cir. 1979). In this case the earliest that Mrs. Wattigny could have renounced the community was on December 14,1979, (date of the judgment of separation) despite the fact that the judgment was retroactive to April 2, 1979 (the date of filing suit). Hence, if the repeal of LSA-C.C. art. 2410, effective January 1, 1980, should be deemed to cut off Mrs. Wattigny’s right to renounce, she was faced with the practical difficulty of determining within seventeen days whether it was to her advantage to accept the community or renounce.

The subject of retroactive application of the legislation in question has received deep and scholarly consideration.

The Legislature’s intention as to whether the new legislation should be given retroactive effect is not clear. Section 9 of Act 627 provided for retroactivity. Before Act 627 of 1978 could take effect as provided on January 1, 1980, the entire Act was repealed by Act 709 of 1979. The latter Act, which became the law, contained no provision for retroactivity. Professors Spaht and Samuel suggest that the failure to include a retroactivity provision in Act 709 of 1979 does not represent a change in legislative intent.

On the other hand, it may be argued that the omission was deliberate.

On the basis of the specific facts before us we do not believe that we need to make a definitive determination on the retroactivity issue. Nor do we feel that we must consider questions of constitutionality, such as impairment of contract rights or denial of due process. Constitutional issues may well arise given a difficult set of facts. Here we start with the fact that the wife’s right to renounce came into being prior to the effective date (January 1, 1980) of the repeal of the codal article authorizing renunciation. Nothing in Act 709 of 1979 leads us to believe that it was the intent of the Legislature to destroy such a right which had come into being prior to the effective date of the Act. Thus we avoid the general overall question of retroactivity of the Act on the simple ground that, in this situation at least, there is no clear indication of an intent to foreclose a wife’s renunciation rights acquired prior to January 1, 1980.

The appellant urges that the trial court’s judgment denies him due process and equal protection of law if he is denied the right to seek reimbursement and contribution from his former wife as provided under the equal management provision of law. We find no merit to these contentions. In fact the appellee has raised constitutional objections to applying the new law to her on the ground that Act 709 of 1979 could not deprive her of her acquired right to renounce without providing reasonable time after January 1, 1980, within which to exercise the right. Appellee relies on Lott v. Haley, 370 So.2d 521 (La.1979); Green v. Liberty Mutual Ins. Co., 352 So.2d 366 (La.App. 4th Cir. 1977), writ refused, 354 So.2d 210 (La.1978); and Churchill Farms, Inc. v. Louisiana Tax Commission, 338 So.2d 963 (La.App. 4th Cir. 1976). In any event, we do not consider that due process or equal protection arguments may seriously be urged here. The community of acquets and gains involved here came into being upon the marriage of the parties in 1974. This marriage was terminated by judgment on De-eember 14, 1979, (retroactive to April 2, 1979). The marriage and subsequent dissolution occurred entirely under the head and master scheme of law. We believe, as we outlined above, that the obligations of the former spouses in this case are regulated by the law in effect when the community was terminated in 1979.

Alternatively, appellant contends that if Mrs. Wattigny’s right to renounce became fixed by the separation judgment of December 14,1979, she waived such right by an unreasonable delay in exercising the right. The law previously fixed no limitation on the time within which the right should be exercised. It existed until a judgment was pronounced against a wife as a partner in the community which previously existed between her and her husband. Cockburn v. Wilson, 20 La.Ann. 39 (1868). Moreover, the evidence in this case is unconvincing that the wife’s renunciation was unreasonably delayed.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

      . The substance of the judgment reads:
      “IT IS ORDERED, ADJUDGED AND DECREED, that there be Judgment herein in favor of plaintiff, Phyllis Wattigny, and against defendant, Robert Wattigny, declaring her renunciation of the community of acquets and gains, filed in the record of Iberia Parish on October 17, 1980 to be valid and effective within the meaning of Article 2410 of the Civil Code of 1870.”

      . Under the former law the wife could preserve her option to a certain extent by accepting the community with the benefit of inventory. LSA-C.C. art. 2414 and LSA-R.S. 9:2821, repealed by Act 627 of 1978 and Act 709 of 1979 of the Louisiana Legislature (which itself repealed Act 627 of 1978) effective January 1, 1980.

      . Samuel, “The Retroactivity Provisions of Louisiana’s Equal Management Law: Interpretation and Constitutionality,” 39 La.L.Rev. 347 (1979) and Spaht and Samuel, “Equal Management Revisited: 1979 Legislative Modifications of the 1978 Matrimonial Regimes Law,” 40 La.L.Rev. 83 (1979).

      . Section 5 of Act 709 of 1979 of the Louisiana Legislature repealed Act 627 of 1978 in its entirety.

      . In their article in 40 La.L.Rev. 83 cited in footnote 3 above, the authors state:
      “The transitional provisions of Act 709, in contrast to those of Act 627, make no attempt to specify whether the new law is applicable to particular transactions, assets, or liabilities. When a retroactivity question arises, the court will first have to wrestle with the legislative intent, an unnecessary step under Act 627 where the legislative intent on retroactivity was specified. The authors believe that the omission in Act 709 of these specifications does not represent any change in the legislative intent.”


text:
    Gary EWING, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 8309.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.

      Edward A. Kaplan, Alexandria and Wm. Henry Sanders, Jena, for plaintiff-appellant.
    McLure & McLure, John G. McLure, Alexandria, for defendant-appellee.
    Before CULPEPPER, STOKER and LA-BORDE, JJ,
   STOKER, Judge.

This appeal involves an uninsured motorist claim by the plaintiff, Gary Ewing, against the defendant, State Farm Mutual Automobile Insurance Company, arising out of an accident which occurred on June 25, 1974. Plaintiff filed suit on August 12, 1980, more than six years after the date of the accident. The trial court sustained defendant’s exception of prescription and dismissed plaintiff’s suit. The plaintiff appeals. We affirm.

The sole issue on appeal is whether LSA-R.S. 9:5629 applies retroactively under the circumstances of this case.

The plaintiff argues that on the date of the accident (June 25, 1974) the prescriptive period for actions under uninsured motorists policies was ten years. LSA-C.C. art. 3544. Under Article 3544, plaintiff's claim against the defendant would prescribe June 25, 1984.

In enacting Act No. 444, of 1977, which was later designated as LSA-R.S. 9:5629, the Legislature provided that uninsured motorists claims are prescribed two years from the date of the accident in which the damage was sustained. This act was published in the official journal of the State on August 8, 1977. The Legislature provided an effective date of July 1, 1978. The law did not become effective until more than ten months after publication. During this period of time plaintiff could have asserted his claim against the defendant without the claim being subject to an exception of prescription.

The plaintiff argues that to apply LSA-R.S. 9:5629 to the facts of this case would unconstitutionally divest him of a vested substantive right. In support of this contention, the plaintiff relies on Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980). The Johnson court in dealing with the issue of the retroactivity of LSA-R.S. 9:5629 relied on the interpretation given LSA-R.S. 9:5628, the medical malpractice prescription statute, in Lott v. Haley, 370 So.2d 521 (La.1979). In Tilley v. Government Employees Insurance Company, 396 So.2d 525 (La.App. 3rd Cir. 1981) we disagreed with the First Circuit’s decision in Johnson.

Laws generally can prescribe only for the future and can have no retroactive application. LSA-C.C. art. 8. This general rule of prospective application applies only to substantive laws. Procedural or remedial laws will be given retroactive effect unless a contrary intention is shown by the Legislature or such retroactivity would operate to divest vested rights. Lott v. Haley, supra; Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978); Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972).

Statutes of limitation are remedial in nature and are generally accorded retroactive application. Lott v. Haley, supra; State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940). Statutes of limitation cannot be applied retroactively to disturb vested rights. A statute of limitation which shortens an existing period of limitation does not violate constitutional prohibitions against the divesting of vested rights provided it allows a reasonable period for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937).

In Lott v. Haley, supra, the Supreme Court, although it recognized that statutes of limitation are generally accorded retroactive effect, held that the medical malpractice prescription act did not have retroactive effect because under the circumstances of that case the law would operate “to eliminate plaintiff’s vested right to sue on his pre-existing cause of action without providing a reasonable period following its enactment to assert his claim.”

Our decision in Tilley, supra, contrary to the decision in Johnson, supra, held that the Legislature by providing over ten months from the date of publication of Act 444 of 1977 until its effective date, allowed a reasonable period following enactment to permit those persons affected by LSA-R.S. 9:5629 to assert their claims.

We, therefore, hold that under the circumstances of this case, LSA-R.S. 9:5629 is to be given retroactive effect and that the plaintiff’s uninsured motorist claim is prescribed. The plaintiff did not file this suit until more than two years after the effective date of the statute and more than three years after its publication. Under the circumstances we cannot say that there is a denial of justice nor a violation of the due process guarantees of the state and federal constitutions.

For the foregoing reasons, the judgment of the trial court sustaining the defendant’s exceptions of prescription and dismissing the plaintiff’s suit is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.

      . LSA-R.S. 9:5629 was added by Acts 1977, No. 444, § 1, and provides:
      “Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the daté of the accident in which the damage was sustained.”


author: LABORDE, Judge.

text:
    Roxanne Marie CALLAHAN, et al., Plaintiffs-Appellees, v. Kevin LANDRY, Defendant-Appellant.
    No. 8316.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.
    Cline, Miller, Richard & Heinen, Rarry J. Heinen, Rayne, for defendant-appellant.
    Thompson, Sellers & Bundick, Charles. Thompson, Abbeville, for plaintiffs-appel-lees.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

In this paternity suit, plaintiff, Roxanne Marie Callahan, individually and as tutrix of her minor son, Shawn Anthony Landry, filed suit to have the defendant, Kevin Landry, declared the natural father of her minor child and to seek alimony for support of the child. The trial court found the defendant to be the natural father of her minor child and awarded plaintiff $250.00 per month in child support plus $1,923.70 for medical expenses incurred for the pregnancy and birth of the child. Defendant appeals. We affirm.

The plaintiff and defendant first met at a lounge operated by plaintiff’s mother in Kaplan, Louisiana, in August, 1977. The parties began seeing each other and eventually developed a sexual relationship. During their relationship, the parties engaged in sexual intercourse approximately twenty to thirty times. The last act of intercourse occurred on or about June 10, 1978. In July, 1978, the defendant broke off the relationship after the plaintiff informed him of her pregnancy.

On March 4,1979, the plaintiff gave birth to a baby boy. The child was a full term baby, there having been no complications during the pregnancy. Dr. Carl Richard who treated plaintiff during her pregnancy estimated the date of conception as on or about June 10, 1978.

Two sets of blood tests were performed on the plaintiff, the defendant and the minor child. The first set of tests performed by Dr. Corbett LeBouef of Abbeville, Louisiana, did not exclude the possibility that the defendant is the natural father of the child. However, the tests were unable to give any percentage of probability that the defendant is the natural father of the child.

The second set of tests were performed by Dr. Leslie Ray Bryant, an expert in immunohematology, at Southern Baptist Hospital in New Orleans, Louisiana. The tests performed by Dr. Bryant were much more sophisticated. They were able to give the percentage of probability that the defendant is the natural father of the child. Dr. Bryant concluded that the probability of the defendant being the natural father of the child is 99.06 percent.

The preponderance of the evidence is clear that the defendant is the natural father of the child. However, the defendant seeks to defeat paternity by showing that the plaintiff is a “woman of dissolute manners” under LSA-C.C. Art. 210.

LSA-C.C. Art. 210 states:

“The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.”

In Succession of Washington, 308 So.2d 892 (La.App.2nd Cir. 1974), the court commented on the construction of LSA-C.C. Art. 210 stating:

“Defendants argue that the article imposes a more stringent standard of proof in paternity cases if the mother has had an illicit relation with a man other than the alleged father. But an unstrained reading indicates that it is only a statutory restriction of the weight to be given by the courts to a certain class of evidence. In essence, it prohibits a judicial determination of paternity based solely on proof of cohabitation and the testimony of the mother, if she has been promiscuous. It is not a punitive measure designed to make proof of paternal descent generally more difficult for indiscriminate mothers and their children by increasing the burden of proof beyond a preponderance of the evidence. Instead it merely displays a legislative distrust of the oath-plus-cohabitation evidence by declaring that conclusive weight cannot be given to it standing alone. Cf. McConkey v. Pinto, 305 So.2d 469 (La.Sup.Ct.1975); Ogborn v. Bush, 255 So.2d 199 (La.App., 4th Cir. 1972).”

In support of his contention, the defendant brought forth several witnesses who claimed to have had sexual intercourse with the plaintiff. The record reflects that these witnesses were impeached by either the admission of prior inconsistent written statements in which they had previously denied ever having had intercourse with the plaintiff or by admissions on the stand that they were simply testifying to acts of intercourse with the plaintiff to aid the defendant. The trial judge correctly gave little weight to such testimony.

The only other sexual activity of the plaintiff proven at trial occurred prior to her relationship with the defendant. At the age of sixteen, plaintiff began dating a boy her own age. This relationship lasted about a year from July, 1976 to July, 1977 and during that time they had intercourse about twenty to twenty-five times.

This one prior relationship is not sufficient to establish that plaintiff is a woman of dissolute manners. To do so, the defendant must show the plaintiff is “loose from restraint; especially loose in morals and conduct; debauched.” Bertrand v. Warren, 326 So.2d 505 (La.App. 3rd Cir. 1976). The defendant has not shown that plaintiff possesses these character traits.

For the above and foregoing reasons the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . The effect of blood tests in a paternity suit is governed by LSA-R.S. 9:397.2. Where the blood tests show the possibility of the alleged father’s paternity, the admission of the evidence is within the discretion of the court, depending upon the infrequency of the blood type.

      . Act 549 of the 1980 Regular Session of the Louisiana Legislature repealed LSA-C.C. Art. 210 effective as of July 23, 1980. The trial court rendered judgment on July 9, 1980.


author: CULPEPPER, Judge.

text:
    Louis F. TRICHEL, Plaintiff and Appellant, v. LOUISIANA STATE HIGHWAY DEPARTMENT and Natchitoches Parish Police Jury, Defendants and Appellees.
    No. 8318.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.
    Gravel, Robertson & Brady, Dee D. Drell, Alexandria, for plaintiff-appellant.
    Harrington & Harrington, Eric Harrington, Natchitoches, Doran & Kivett, William J. Doran, Baton Rouge, for defendants-ap-pellees.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   CULPEPPER, Judge.

The plaintiff, Louis F. Trichel, has instituted this suit against the defendants, Louisiana State Highway Department and the Natchitoches Parish Police Jury, to recover flood damages to his house allegedly caused by the defendants’ improper maintenance of a state highway and a parish road. The plaintiff appeals from a judgment of the trial court rejecting his demands. We affirm.

The issue on appeal is whether the trial judge was clearly wrong in finding as a fact that the defendants did not cause the flooding of the plaintiff’s house.

Plaintiff lives on the southeast corner of a “T” intersection where Louisiana Highway 480, which runs generally east and west, is joined by a Natchitoches Parish road, known as Parish Road 227, which runs generally north and south. The plaintiff has lived in this house since 1961, when he purchased the property. He testified he experienced no flooding in his house from 1961 to 1975. In the spring of 1975, the Natchitoches Parish Police Jury resurfaced Parish Road 227, raising the elevation of the road by approximately four inches. Thereafter, in May of 1975, the plaintiff’s house was flooded by rain water during a nighttime rain storm. The defendants then took steps to clear and open up ditches in the area and the plaintiff has not been flooded since that time.

The plaintiff instituted this suit on November 12, 1975, alleging that the flooding of his home was caused by the blacktopping of Parish Road 227 and improper maintenance of the drainage system under Louisiana Highway 480. The plaintiff contends that prior to the resurfacing of Parish Road 227, water would flow over the top of the road and that the resurfacing raised the elevation of the road by about four inches, which was sufficient to cause the plaintiff’s house to flood.

At trial, the court planned to view the property in question but was unable to do so due to inclement weather. The trial court then rendered judgment in favor of the plaintiff. The defendants timely moved for a new trial. After viewing the property in question, the trial court granted the defendants a new trial after which it reversed its prior holding and rendered judgment in favor of the defendants.

The duty of the State to properly maintain drainage systems under state highways was described in J. B. LaHaye Farms, Inc. v. La. Dept. of Highways, 377 So.2d 1286 (La.App. 3rd Cir. 1979), writ denied, 381 So.2d 1222 (La.1980) quoting Hortman v. Department of Highways, 265 So.2d 812 (La.App. 3rd Cir. 1972), writ refused, 267 So.2d 213 (La.1972), as follows:

“In the construction and maintenance of its highways, the Department of Highways has the duty to provide bridges, culverts or other works sufficient for natural or other existing drainage systems, and the department is liable for any damages caused by the blocking of such drainage. Grounds v. Louisiana Highway Commission, 180 La. 670, 157 So. 385; Schwartzenburg v. Louisiana Highway Commission, 184 La. 989, 168 So. 125; Connolly v. Louisiana Highway Commission, 177 La. 78, 147 So. 505. However, it is incumbent on the plaintiff to establish clearly that the damages were caused by the department’s failure to install adequate drainage structures along the highway, Holley v. State, 128 So.2d 908 (La. App.2d Cir. 1961) and Baird v. T. L. James & Company, 240 So.2d 428 (La. App.2d Cir. 1970).”

The trial court concluded that the plaintiff had not proved his damages were caused by the defendants’ actions.

The plaintiff contends the trial court erred in relying on the testimony of the State’s expert witness, William Jack, Jr., and disregarding the testimony of lay witnesses who saw the flooding occur. We disagree. Although the trier of fact is not bound by expert testimony, evidence of an expert witness is received in the same manner as evidence of non-experts, and is to be weighed by the trier of fact the same as any other evidence. Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979), writ denied 380 So.2d 102 (La.1980); Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976); Matthews v. All American Assurance Company, 226 So.2d 181 (La.App.1969), writ denied, 254 La. 923, 228 So.2d 483 (La.1970). Moreover, the trial judge here personally viewed the scene.

In written reasons on rehearing, the trial judge states:

“It is now the finding of the Court that plaintiff’s house is located in a low spot, virtually surrounded by hills; that the natural drain of rain water is directly from the south, east and northeast into plaintiff’s backyard through and by a natural ditch commonly found at the bottom of hills in this country; that the plaintiff’s backyard is a basin which collects and holds water; that the natural elevated ridge located on the west portion of plaintiff’s property and which parallels the Parish road acts as a levee to hold water in the plaintiff’s backyard; that the blacktopping of the Natchitoches Parish Police Jury road and the condition of Louisiana Highway 480 had absolutely nothing to do with the flooding of plaintiff’s house.
“Particularly significant is the testimony of Mr. Jack, a hydraulogist, employed by the Louisiana Department of Transportation and Development. His testimony is accepted as being truthful in his engineering studies, which showed that there would have had to be 15 inches or 16 inches of water on the Parish road to reach the level of plaintiff’s concrete slab foundation. Mrs. Trichel testified that the water in the house was ‘knee deep.’ This would have meant another 12 inches to 18 inches of water in the house; meaning, a total of at least 27 inches or at the most 34 inches of water on the Parish road.
“The plaintiff has simply failed to prove by a preponderance of the evidence the necessary ingredients of his claim. This Court made a mistake in its original opinion and judgment.”

There is testimony the water was only a few inches over the parish road at the time plaintiff’s house flooded. This supports the finding the parish road could not have caused the water to enter plaintiff’s home.

It is the function of the trial court to weigh the evidence and make factual determinations from the evidence. An appellate court will not disturb a trial court’s findings of fact unless the record indicates that such findings are clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the entire record reveals that the decision of the trial court is not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s cost.

AFFIRMED.

LABORDE, J., dissented.


text:
    Ollie DUPUIS and Gladys Gaspard Dupuis, Defendant-In-Rule and Appellee, v. Gertie Dupuis CLEMENTS, Plaintiff-In-Rule and Appellant.
    No. 8340.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.

      Edwards, Stefanski & Barousse, Russell Zaunbrecher, Crowley, for defendant-appellant.
    Wade A. Mouton, Kaplan, for plaintiff-appellee.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a companion case to Gertie Dupuis Clements v. Ollie Dupuis, 402 So.2d 788, in which a separate judgment is being rendered by us this date.

The present appeal marks the current stage of over ten years of litigation between the parties concerning Gertie’s right to drain her farmland through a ditch on Ollie’s land used by him as an irrigation lateral. An earlier judgment, rendered April 24, 1971, recognized Gertie’s right, by virtue of stipulation between the parties, to drain her 24 acres across Ollie’s adjoining property and ordered Ollie to reconstruct the ditch for this purpose. Thereafter, Ger-tie filed in 1976 a rule to show cause why the April 24, 1971 judgment should not be complied with by Ollie. The trial judge, after personal inspection of the area, made the rule absolute. On appeal, this court affirmed the trial court’s finding that the previous judgment had not been complied with. Dupuis v. Clements, 337 So.2d 925 (La.App.3rd Cir. 1976).

The present appeal concerns another rule to show cause filed by Gertie in 1977 seeking an injunction allowing Gertie or her agents or employees to enter upon the land of Ollie for the purpose of cleaning out the ditch in question. By supplemental petition, Gertie also sought $10,000 in damages for loss of rice crops in 1977 and 1978 caused by. Ollie’s failure to provide drainage for her land, as ordered in the previous judgments.

In a bifurcated trial, a jury decided the issue of damages, and the trial judge decided whether or not an injunction should issue. After deliberation, the jury reached the following verdict:

“We, the jury, find plaintiff, Gertie Du-puis Clements, suffered no damage, and therefore we find for the defendant.”

The trial judge, however, granted an injunction in favor of Gertie allowing her to enter Ollie’s land to clear the ditch for drainage. The only appeal is by Gertie. Ollie did not appeal or answer the appeal as to the injunction.

This appeal concerns only whether the jury’s verdict denying Gertie’s claim for damages was clearly wrong.

This lengthy dispute between the parties arose after the partition of inherited property formerly owned by their father. Ger-tie Dupuis Clements and Ollie Dupuis were parties to the act of partition which was executed in 1965. As reflected by a survey- or’s plat accompanying the act of partition, the tract owned by Gertie is adjacent to and directly north of the tract which belongs to Ollie. Each tract comprises roughly 24 acres. The plat further depicts an “Irrigation Lateral”, which begins at a water well on Gertie’s land and runs south to the south boundary of Ollie’s property and then in an easterly direction along the south line of Ollie’s tract. Throughout these proceedings, the disputed area has been referred to on the plat as being from points B to B, which appears to be an extension of the irrigation lateral in the southeast corner of Ollie’s property. The evidence at the earlier trial established that the ditch in question had been reconstructed between these two points, but that a levee remained at the east end, preventing water from draining any further eastward.

Gertie’s right to use the aforementioned ditch for drainage has already been decided by the trial court and by this court. In this suit, Gertie alleges that due to Ollie’s continued failure to fully comply with the previous judgments, she has been unable to drain her property, causing loss of rice crops in 1977 and 1978 from her 9-acre rice allotment.

Ollie avers that he has never willfully violated any of the previous judgments ordering him to clear the ditch. However, he contends the previous orders by the lower court have been vague, incomplete and non-definitive, making exact compliance difficult.

The testimony established that the ditch in question is currently being used as an irrigation lateral for the benefit of Ollie’s land. Gertie testified that her tract is presently without drainage, and that her property must drain through the ditch that is being used by Ollie for irrigation purposes. Several of Gertie’s witnesses who were familiar with the area testified that the land comprising her property drains in a southward direction and that the only available drain for this area is through points B to B.

Wade Dupuis, Ollie Dupuis’ son, testified that subsequent to the court order he and his brother opened up the irrigation lateral by removing the levee located at the east end of the lateral. However, he stated the removal of the levee did not provide drainage to Gertie’s property due to the shallowness of the irrigation lateral.

There is testimony that Gertie and members of her family came upon Ollie’s property several times and attempted to connect the irrigation lateral to an adjacent drainage canal (designated as points J to J on the plats) which- runs in a north-south direction, but they were prevented from doing so by members of Ollie’s family. Although the two ditches are adjacent to each other, witnesses for Ollie testified they have never been connected. Ollie contends that if the irrigation lateral is connected to the drainage canal, he will be unable to irrigate his property.

Ollie offered further testimony that the tract presently owned by Gertie has in the past drained east through another drainage ditch, which is now partially destroyed. Darrell Dupuis testified that he farmed this area prior to the partition in 1965 and drained the land in this manner. This was apparently the last time Gertie’s property has been farmed. Ollie also testified that Gertie’s tract has never drained through the irrigation lateral into the drainage canal.

Based upon the testimony offered and the evidence adduced, the jury could reasonably have concluded that by removal of the levee Ollie complied or at least attempted to comply with the earlier judgments rendered. The jury may also have decided that the fact that Gertie’s property had not been farmed for the last 15 years militated against her claim for damages for lost crop revenues, or that alternate means were available to drain the property. Whichever factors may have been considered, we are unable to say the jury’s verdict denying Gertie’s claim for damages was clearly wrong.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


text:
    Gertie Dupuis CLEMENTS, Plaintiff and Appellant, v. Ollie DUPUIS, Defendant and Appellee.
    No. 8341.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.

      Edwards, Stefanski & Barousse, Russell Zaunbrecher, Crowley, for defendant-appel-lee.
    Wade A. Mouton, Kaplan, for plaintiff-appellant.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a companion case to Ollie Dupuis and Gladys Gaspavd Dupuis v. Gertie Dupuis Clements, 402 So.2d 786, in which a separate judgment is being rendered by us this date.

The present case is a petitory action filed by Gertie Dupuis Clements against Ollie Dupuis seeking recognition of her ownership of approximately six acres of land. The defendant filed an exception of res judicata, which the trial judge sustained, dismissing plaintiff’s suit. Although plaintiff appealed, she makes no argument in her appellate brief in support of the appeal in the present case. During oral arguments, counsel stated there are no issues on appeal in the present matter. Accordingly, the judgment appealed in the present case is affirmed at the cost of the appellant.

AFFIRMED.


text:
    GULF NATIONAL BANK AT LAKE CHARLES, Plaintiff-Appellee, v. Glenn V. DUPUIS and Dorothy Mae Dupuis, Defendant-Appellant.
    No. 8347.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.

      H. Gayle Marshall, Lake Charles, for defendant-appellant.
    Jones, Tete, Nolen & Hanchey, David F. Dwight, Lake Charles, for plaintiff-appel-lee.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This is an appeal by Dorothy Mae Dupuis from a judgment denying a preliminary injunction and dissolving a temporary restraining order which enjoined a sale of seized immovable property.

FACTS AND PROCEEDINGS IN THE DISTRICT COURT

On March 14, 1975, Glenn V. Dupuis and Dorothy Mae Dupuis executed a demand promissory note for $8,000 payable to the order of bearer. This note is paraphed for identification with an act of collateral mortgage dated March 14, 1975, affecting certain immovable property in Calcasieu Parish.

On July 1, 1975, Glenn V. and Dorothy Mae Dupuis executed a demand promissory note for $3,000 payable to the order of bearer and paraphed for identification with an act of collateral mortgage passed that same date. The act of mortgage affected the same immovable property as did the March 14, 1975, mortgage act.

On September 26, 1975, Glenn V. and Dorothy Mae Dupuis executed a promissory note for $11,400 payable to the order of Gulf National Bank at Lake Charles (hereinafter GNB). This note, a “hand note”, is secured by a pledge of the collateral mortgage notes dated March 14, 1975, and July 1, 1975.

On January 24, 1978, Glenn V. Dupuis executed a demand promissory note for $1,000 payable to the order of GNB. This note is paraphed for identification with an act of collateral chattel mortgage affecting a 1973 Chevrolet Fleetside pickup truck.

On August 1,1979, Glenn V. and Dorothy Mae Dupuis executed another hand note, a promissory note for $1,964.16 payable to the order of bearer. This note is secured by a pledge of the collateral mortgage notes dated March 14, 1975, July 1, 1975, and January 24, 1978.

Glenn V. and Dorothy Mae Dupuis fell behind in their payments on the hand notes dated September 26, 1975, and August 1, 1979. On September 22, 1980, GNB filed a petition for executory process seeking to foreclose on the immovable property described in the acts of collateral mortgage dated March 14, 1975, and July 1, 1975, and on the 1973 Chevrolet truck described in the act of collateral chattel mortgage dated January 24, 1978. An order for executory process issued September 22, 1980.

On December 31, 1980, Dorothy Mae Du-puis filed a petition for injunction seeking to enjoin the sale of the immovable property which had been seized under the order of executory process. Dorothy Mae Dupuis alleged that GNB was not entitled to proceed through executory process because of the lack of authentic evidence to support its right to use this process. Specifically in Paragraph 3 of her petition Dorothy Mae Dupuis alleged:

“Plaintiff is not entitled to proceed via executiva because of lack of authentic evidence to support its right to use execu-tory process, in that plaintiff asserts in paragraph 4 of its petition that it is the holder and owner of two mortgage notes originally pledged as security for the notes representing the true indebtedness, namely those notes described in paragraph 3 of the petition, but no authentic evidence of the transfer of the pledged mortgage notes from the pledgors, defendants herein, to the pledgee, plaintiff herein, was submitted by the plaintiff with its petition as required by LSA-CCP Article 2635.”

A temporary restraining order issued December 31, 1980, restraining the Sheriff of Calcasieu Parish from proceeding with the sale of the immovable property.

A hearing on the preliminary injunction was held on January 9, 1981. In oral reasons for judgment given January 14, 1981, the judge denied the preliminary injunction and dissolved the temporary restraining order. Judgment was signed January 20, 1981, denying the preliminary injunction. Dorothy Mae Dupuis appeals that judgment.

ISSUE

The issue presented by the above related facts and proceedings is whether GNB presented the necessary authentic evidence to support its petition for executory process.

ARGUMENTS AND LAW

The appellant, Dorothy Mae Dupuis, contends that certain language contained in the collateral mortgage notes and acts of collateral mortgage makes the mortgages in this case a “hybrid variety separate and distinct from the normal collateral mortgage situation” and that these transactions should be governed by the law of pledge. Appellant argues that because of this language the pledgee (GNB) must show in authentic form how it acquired the collateral mortgage notes. The appellant contends that mere delivery of the notes was inadequate to transfer the notes to the appellee-bank.

Appellant relies on language which was added in typewriting to the printed note forms and mortgage forms. Both of the collateral mortgage notes (March 14, 1975, and July 1, 1975) contain the following sentence typewritten on the face of the note as an addition to the printed form:

“This note is to be pledged as security and shall be enforceable as such.”

The language which was added to each of the collateral mortgage forms appears at the end of the paragraph which states that the note is paraphed ne varietur to identify it with the act of mortgage and delivered to the mortgagee who acknowledges receipt. Appellant in her brief partially quotes the language added to each collateral mortgage form. The portion of the language quoted by appellant reads:

“The said note is intended to be pledged as security and shall be enforceable as such in the manner provided by law; ...”

This language appears in the acts of collateral mortgage dated March 14,1975, and July 1, 1975.

The appellant urges us to hold that through this language the parties agreed that the law of pledge would govern enforcement of the collateral mortgage notes and collateral mortgages. Appellant contends that the applicable law is LSA-C.C. article 3165. Appellant maintains that under this article GNB has two options upon default of the pledgors-debtors (Glenn V. and Dorothy Mae Dupuis). According to appellant, one option available to GNB is to bring an ordinary proceeding against the pledgors-debtors to enforce the pledge. After obtaining a judgment GNB could seize and sell the pledged property (the collateral mortgage notes and mortgages). Under appellant’s argument the second option available to GNB is that of a private or public sale of the pledged collateral mortgage notes and mortgages.

We find appellant’s argument to be without merit. There is no doubt that a collateral mortgage device has aspects of both pledge and mortgage. The collateral mortgage note and act of mortgage are pledged to secure a debt which is usually represented by a hand note. It is essential in constructing a collateral mortgage package that the collateral mortgage note be identified with the act of mortgage. Par-aphing of the collateral mortgage note identifies the note with the act of mortgage. It is our opinion that the language in question was inserted in the collateral mortgage notes and the acts of collateral mortgage to clearly indicate that each note and accompanying mortgage formed a collateral mortgage package and to identify the collateral mortgage note with the corresponding act of collateral mortgage. Appellant only partially quotes the language inserted in the acts of collateral mortgage. The complete language reads:

“The said note is intended to be pledged as security and shall be enforceable as such in the manner provided by law; . . . and on payment of the indebtedness secured thereby may be reissued by Mortgagor without extinguishment, remaining a valid indebtedness in favor of Bearer as collateral security.”

We also feel that the parties to these transactions were attempting by the inserted language to indicate that they were creating collateral mortgages as opposed to ordinary conventional mortgages. While appellant urges us to hold these transactions to be hybrid collateral mortgages governed entirely by the law of pledge, we conclude that the language included in the collateral mortgage notes and acts of mortgage was inserted to clarify that, taken together, each note and act of mortgage with which the note is paraphed for identification comprises a total collateral mortgage package. We cannot subscribe to appellant’s theory that the language in question mandates this court to apply the law of pledge to these collateral mortgage packages.

Having addressed appellant’s argument that the law of pledge governs in this case, we now proceed to the issue of whether GNB is entitled to proceed through execu-tory process. At the heart of this issue is appellant’s contention that GNB failed to produce authentic evidence of the transfer of the collateral mortgage notes from Glenn V. and Dorothy Mae Dupuis to GNB.

LSA-C.C.P. art. 2635 provides:

“The plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege;
(2) The authentic act of mortgage or privilege importing a confession of judgment; and
(3) Any judgment, judicial letters, order of court, or authentic act necessary to complete the proof of plaintiff’s right to use executory process.
“This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law.”

LSA-C.C.P. art. 2636 provides:

“The following documentary evidence shall be deemed to be authentic for purposes of executory process:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege, paraphed for identification with the act of mortgage or privilege by the notary or other officer before whom it is executed;
(2) A certified copy of an authentic act;
(3) A certified copy of any judgment, judicial letters, or order of court;
(4) A copy of a resolution of the board of directors, or other governing board of a corporation, authorizing the execution of a mortgage on its property, certified in accordance with the provisions of R.S. 13:4103; and
(5) All other documentary evidence recognized by law as authentic.”

GNB attached to its petition for executo-ry process certified copies of the authentic acts of mortgage containing confessions of judgment and the notes paraphed ne varie-tur by the notary for identification with each act of mortgage. Additional attachments included an affidavit of indebtedness and the two hand notes executed by Glenn V. and Dorothy Mae Dupuis.

The appellant contends that GNB is required to present authentic evidence of its “acquisition of title” of the collateral mortgage notes. The collateral mortgage notes dated March 14, 1975, and July 1, 1975, are both payable to the order of bearer. A promissory note payable to the order of bearer and secured by a mortgage may be transferred by mere delivery. Authentic evidence of the transfer of the note is not necessary to enable the holder to foreclose by executory process. See First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3rd Cir. 1971) and the cases cited therein. GNB submitted with its petition the necessary authentic evidence establishing its right to use executory process to enforce the collateral mortgages.

For the above and foregoing reasons the judgment appealed from is affirmed. Costs of this appeal to be borne by appellant, Dorothy Mae Dupuis.

AFFIRMED.

      . The immovable property is described in both acts of mortgage as:

        "Tract I:

      Lot Eleven (11) of Block Four (4) of the PHILLIP ABATE SUBDIVISION of the South Half of the South Half of the South Half of the Northwest Quarter of Section 29, Township 10 South, Range 8 West, as per plat recorded in Plat Book 9 at Page 89 of the records of Calca-sieu Parish, together with all buildings and other improvements situated thereon.

        “Tract IT.

      Commencing at the Southeast Comer of Lot Eleven (11) of Block Four (4) of the PHILLIP ABATE SUBDIVISION as per plat recorded in Plat Book 9 at Page 89 of the records of Calca-sieu Parish, thence East, to the West line of the Walker property; thence North 135 feet; thence West, to the Northeast Comer of Lot 11 of Block 4; thence South 135 feet to the point of commencement, together with all buildings and other improvements situated thereon.”

      . Dorothy Mae Dupuis does not seek to enjoin the sale of the seized Chevrolet truck which is subject to the collateral chattel mortgage executed by Glenn V. Dupuis on January 24, 1978.

      . LSA-C.C. article 3165 provides:
      “The creditor cannot, in case of failure of payment, dispose of the pledge; but when there have been pledges of stock, bonds or other property, for the payment of any debt or obligation, it shall be necessary before such stocks, bonds or other property so pledged shall be sold for the payment of the debt, for which such pledge was made, that the holder of such pledge be compelled to obtain a judgment in the ordinary course of law, and the same formalities in all respects shall be observed in the sale of property so pledged as in ordinary cases; but in all pledges of movable property, or rights, or credits, stocks, bonds or other movable property, it shall be lawful for the pledger to authorize the sale or other disposition of the property pledged, in such manner as may be agreed upon by the parties without the intervention of courts of justice; provided, that all existing pledges shall remain in force and be subject to the provisions of this act.”

      . We do not intend by our recitation of appellant’s arguments to indicate that we agree with her contention that these are the only options available to GNB under the law of pledge.


text:
    Pamela Samples VIDRINE, Plaintiff-Appellee, v. John Coleman VIDRINE, Defendant-Appellant.
    No. 8350.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.

      Alex D. Chapman, Jr., Ville Platte, for defendant-appellant.
    Boatner & Luke, John A. Boatner, Jr., Bunkie, for plaintiff-appellee.
    Before CULPEPPER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

John Coleman Vidrine appeals a judgment awarding his wife, Pamela Samples Vidrine, alimony pendente lite in the amount of $300 per month. We affirm. We find no clear abuse of discretion by the trial judge in making the alimony award.

On the date of the alimony hearing, John was 22 years old and employed as a painter through Local # 5 of the Teamsters Union in Baton Rouge. His earnings were approximately $1,200 per month. Additional testimony indicated that John was engaged in a soybean farming operation with his father and brother from which he may have earned approximately $8,000 in 1980. John’s itemized expenses totaled $936.26 per month.

Pamela was employed at the Bunkie Bank and Trust Company and earned $565 per month. Her monthly expenses, excluding child care for the litigants’ 16 month old child, totaled $1,245.00.

It is well settled that the trial court has much discretion in fixing alimony and the award will not be disturbed unless there is a clear abuse of discretion. See Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2nd Cir. 1979) and the cases cited therein.

The husband has an obligation under LSA-C.C. Art. 148 to provide support for his wife. This obligation to pay alimony pendente lite was not changed by the 1979 amendment to this article in response to Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). Under this article, the wife is entitled to be maintained in the lifestyle which she enjoyed prior to separation.

A review of the respective incomes and expenses of the litigants in light of the statutory authority and their judicial interpretation does not establish that there has been any abuse of discretion by the trial judge in awarding Pamela $300 per month alimony pendente lite.

For the above and foregoing reasons the decision of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.

      . The award of $125 per month for child support is not at issue in this appeal.

      . LSA-C.C. art. 148 provides:
      “Alimony pendente lite. If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse. (Amended by Acts 1928, No. 130; Acts 1979, No. 72, § 1.)


author: ..GULOTTA, Judge.

text:
    Barbara Mayrson, wife of Sidney A. CHAPLIN v. Sidney A. CHAPLIN.
    No. 11674.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.

      Craig J. Cimo, Gretna, for plaintiff-appel-lee.
    Philip P. Spencer, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   ..GULOTTA, Judge.

Sidney A. Chaplin, appealing from a judgment ordering him to pay past-due support and denying his petition to annul earlier support judgments, claims the Louisiana court lacks jurisdiction because neither he nor his divorced wife nor the children reside in Louisiana. Sidney claims he moved from the state in 1972 and his divorced wife, Barbara, left Louisiana in 1973. Sidney further claims he was denied “due process” or “equal protection” because of the failure by his attorney and by the curator appointed to represent him to inform him timely of the Louisiana proceedings. Finally, Sidney contends that the judgments were obtained by fraud and ill practice through the perjured testimony of his ex-wife and her intentional failure to notify the curator of his New York address. Finding no merit to these contentions, we affirm.

BACKGROUND

The 1971 petition for separation filed by the wife alleged that the husband resided in New York; however, he was personally served in Louisiana. A judgment of separation and child support was awarded to plaintiff in this state.

The March 26, 1973 petition for divorce filed by the wife was served on the husband’s curator ad hoc. This petition alleged that defendant, Sidney Chaplin, was a non-resident at the time. After a general denial was filed by the curator and an appearance was made by him at the hearing, a judgment of divorce was rendered on April 13, 1973 ordering defendant to pay support for two children in the sum of $100.00 per week.

On May 29, 1973, Barbara filed a rule to make past-due child support executory and to increase the amount of the weekly support from $100.00 to $175.00. Service of this rule was made on Sidney through his “Attorney of Record”, Joseph N. Marcal, III. On June 30, 1973, the trial judge denied Mareal’s motion for continuance but notified the attorneys in open court of a new trial date of July 30, 1973. Neither Sidney nor Marcal was present at that trial, however, and on July 31, 1973, the trial judge increased the weekly child support to $175.00.

On March 28, 1977, Barbara filed a rule to make past-due child support executory, alleging an arrearage of $20,560.00 from March 11, 1974 through January 20, 1977. Barbara alleged that the whereabouts of Sidney were unknown and listed his last address in Orange County California. A curator ad hoc, Harry T. Hardin, III, was appointed to represent the absent defendant. A minute clerk’s entry on June 7, 1977, indicates that the rule was partially heard with the curator present but continued as an open ease. On June 30,1977 with the curator present, the.court made past due child support executory in the sum of $22,491.00.

On October 16, 1979, after hearing a rule for arrearage where plaintiff and the curator representing the absent defendant-husband were present, the trial judge awarded plaintiff $15,595.00 in arrearages plus $350.00 in attorney’s fees.

Following the October 16 judgment, defendant, through his privately retained Louisiana counsel, filed a petition to annul the 1973 and 1977 judgments as well as a rule for contempt against plaintiff based on her alleged perjury and failure to inform the curator of defendant’s correct address. A new trial of the October, 1979 judgment was granted. The divorced wife also filed a rule for contempt based on the defendant’s arrearages.

The various rules were consolidated for trial on January 29, 1980 at which the defendant, Sidney Chaplin, was present. The court dismissed the defendant’s petition to annul the 1973 and 1977 judgments and awarded plaintiff $16,000.00 in arrearages plus $750.00 in attorney’s fees. It is from this judgment that the husband appeals.

JURISDICTION

We reject Sidney’s contention that the Louisiana court lacked jurisdiction to increase child support or make the arrearages executory after 1973.

A judgment concerning child support is a money judgment that must be supported by jurisdiction over the party cast. Imperial v. Hardy, 302 So.2d 5 (La.1974). Under LSA-C.C.P. Art. 6, one way a court acquires jurisdiction over the person is when that person submits to the jurisdiction or expressly or impliedly waives objection to the jurisdiction.

The Louisiana court acquired jurisdiction over Sidney when he was personally served in Louisiana with Barbara’s initial petition for separation and alimony penden-te lite in 1971. Under the concept of “continuing jurisdiction”, the Louisiana court thus acquiring jurisdiction retained it over Sidney even after he left Louisiana. The court was therefore empowered to modify the child support award or enter an award for arrearages against defendant despite his residency in New York. Imperial v. Hardy, supra; Webb v. Webb, 357 So.2d 1288 (La.App. 3rd Cir. 1978); Holden v. Holden, 374 So.2d 749 (La.App. 3rd Cir. 1979); Miller v. Miller, 363 So.2d 724 (La.App. 2d Cir. 1978); Parker v. Parker, 382 So.2d 201 (La.App. 2d Cir. 1980).

DUE PROCESS AND EQUAL PROTECTION

Having concluded that the Louisiana court had jurisdiction over the defendant, the next question is whether he was properly served and received proper notice of plaintiff’s rules for increase and arrearages.

In Imperial v. Hardy, supra, the Supreme Court held that where a court has jurisdiction over the defendant, service can be made on defendant’s counsel of record at a later time in the same proceeding in a matter incidental to that originally adjudicated, provided the matter was not final. See also, LSA-C.C.P. Art. 1313. In Imperial, service of motions to assess arrearages and increase support payments was permitted on the non-resident husband’s counsel of record five years after the rendition of the original judgment fixing the support payments, where the husband’s attorney had not withdrawn as counsel of record in the interim.

In our case, counsel of defendant’s choosing, Joseph N. Marcal, represented him during the pendency of his separation suit and was his attorney of record on an appeal during that time. Barbara’s rule for increase in 1973 was served on Marcal who responded by filing a motion for continuance on behalf of Sidney. Although the attorney later testified that he had served only as appellate counsel for Sidney, he acknowledged that he had acted as Sidney’s attorney on rules in the trial court during the separation and had not withdrawn as counsel of record prior to the service of Barbara’s rule for increase. Under these circumstances, we hold that defendant was properly served with Barbara’s rule in 1973. Moreover, Sidney’s motion for continuance filed by his attorney constituted a general appearance subjecting Sidney to the court’s jurisdiction. See Commitment of Askew, 359 So.2d 227 (La.App. 4th Cir. 1978).

It was also recognized in Imperial v. Hardy, supra, that a Louisiana court having personal jurisdiction over an absent defendant has authority to appoint an attorney to represent him pursuant to LSA-C.C.P. Art. 5091. In Parker v. Parker, supra, it was held that service of a rule on a curator ad, hoc appointed to represent a non-resident defendant, when combined with the defendant’s earlier knowledge of the litigation when personal jurisdiction was initially obtained over him, meets the requirements of due process. Service of Barbara’s rules for arrearage to make past-due payments executory in 1977 and 1979 were made on the duly appointed curator for Sidney. We therefore conclude due process was met in our case.

LSA-C.C.P. Art. 5094 requires the attorney appointed to represent the absent defendant to use reasonable diligence to notify him of the suit and the nature of the action. See Parker v. Parker, supra. At the trial of Barbara’s rule on June 7, 1977, the curator ad hoc filed a “Note of Evidence” indicating that he had mailed a letter to Sidney at a California address furnished by Barbara on March 81, 1977 in an attempt to inform him of the pending rule. This letter had been returned unopened with the notation “Moved.” At the June 7 hearing, Barbara’s testimony was taken but the case was held open while the curator continued in his efforts to locate Sidney. On June 8, the curator made telephone contact with Sidney in New York and notified him of the rule to make the past-due amounts executory. According to the curator, Chaplin stated he would be back in touch with him and would either retain himself or some other attorney to represent him in the proceedings. The curator further stated that he knew of no defense that Sidney might raise on his behalf. Under these circumstances, we conclude that the curator exercised reasonable diligence as required under LSA-C.C.P. Art. 5094.

We point out further that the curator made telephone contact with defendant subsequent to October 16,1979 when a $15,-595.00 judgment was rendered in favor of plaintiff. Thereafter a new trial was granted in connection with that judgment and in January, 1980 the trial judge, after hearing the testimony of plaintiff and defendant, rendered a judgment for past-due support in the sum of $16,000.00. Under the circumstances, any lack of notice to defendant in connection with the October, 1979 judgment was rectified by the new trial.

FRAUD

We find no merit to defendant’s claim for nullity based on the contention that plaintiff deliberately withheld defendant’s address and telephone number from the curator and that she perjured her testimony in the 1973 hearing on the rule to increase.

Defendant testified at the hearing in 1980 that Barbara had known of his address in Brooklyn, New York or could have easily obtained it when the rules were tried in 1973, 1977 and 1979. Plaintiff testified, however, that she had not known defendant’s address during that time and had not learned of it until she employed a private detective who found the address after the rule was tried in October, 1979. Accepting or rejecting conflicting testimony is a matter for determination by the trial judge. We find no error in that determination. Plaintiff did not deliberately withhold defendant’s address from the curator. We cannot say the trial judge erred.

Defendant claims that plaintiff perjured her testimony when she stated that she had incurred school tuition expenses for her children and was required to pay rent, when in truth and in fact, the children had the benefit of a scholarship and she was living in her new husband’s house rent-free. It is clear the trial judge placed little or no significance in these claimed discrepancies in plaintiff’s testimony. Again, we cannot say he erred. Accordingly, we find no support for defendant’s claim that the accumulated past increases and executory judgment be annulled and set aside.

The judgments are affirmed.

AFFIRMED.

      . Barbara’s attorney at the time of divorce was Gilbert P. Cohen. Wayne Mancuso was appointed curator for Sidney.

      . Barbara’s attorney for this rule and the subsequent ones now before us was Craig J. Cimo.

      . Marcal had appeared as Sidney’s attorney of record and had filed various motions on his behalf prior to the divorce. He also was Sidney’s attorney of record on an appeal by Barbara from a judgment accruing alimony pen-dente lite. See Chaplin v. Chaplin, 279 So.2d 230 (La.App. 4th Cir. 1973).
      A question might be raised why a curator was appointed for Sidney for service of the divorce petition, but service of the rule for arrearages and an increase was made on Marcal as attorney of record. A reasonable explanation for the wide difference of methods of notice is that a different attorney (Cohen) represented Barbara in the divorce action and separate counsel (Cimo) represented her in the May 29 rule.

      . Barbara had filed an earlier rule to make past-due child support executory on February 15, 1974 claiming an arrearage of $3,225.00. This rule was served on Sidney through his attorney Marcal, and judgment was rendered in favor of Barbara for $3,375.00 on March 19, 1974. Sidney was absent and unrepresented at the trial on March 11, 1974. The validity of this judgment in 1974 is not before us on this appeal.

      . This judgment was for arrearages owed from June, 1977 to the time of trial in 1980.

      . A ground asserted for the continuance was Sidney’s inability because of his job to come to New Orleans from New York for the scheduled hearing on the rule. This motion for continuance, and Marcal’s subsequent affidavit in support of an exception to jurisdiction, clearly indicate Marcal informed Sidney of the pending rule in 1973.

      . Although Sidney indicated the curator never informed him that weekly child support had been increased from $100.00 to $175.00, the curator testified that Chaplin had stated on the telephone that he was aware that the child support was supposed to be $100.00 per week. Thus, although the curator did not specifically testify he had told Sidney of the increase, it can be inferred that the increase was discussed in the conversation.

      . Chaplin stated that he had resided at the same address in New York from 1973 through 1979, except for four months when he was in California.